TONY SAMI and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2012] AATA 459

[2012] AATA 459 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1206
Re	TONY SAMI
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	20 June 2012
Date of written reasons	20 July 2012
Place	Perth

The decision under review is affirmed.

.....................[sgd].................................

S D Hotop, Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation – applicant a citizen of Egypt – applicant resident in Australia from June 2000 when aged 38 years – applicant committed offences in Australia from May 2001 to 2009 – applicant formally warned by Department in April 2008 about possible visa cancellation if further offences – applicant does not pass character test – discretion to cancel visa – primary considerations including protection of Australian community and best interests of child – other relevant considerations – primary considerations and other relevant considerations on balance favour cancellation of visa – applicant presents unacceptable risk of serious harm to Australian community – preferable decision is that visa be cancelled – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 501(2)

Direction [no 41] – Visa refusal and cancellation under s 501

CASES

Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390

REASONS FOR DECISION

Deputy President S D Hotop

20 July 2012

Introduction

1. On 29 March 2012 Tony Sami (“the applicant”) applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 20 March 2012, cancelling his Class BS Subclass 801 Partner visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2. On 20 June 2012 I made a decision under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) affirming the abovementioned decision of a delegate of the respondent. On that occasion I gave reasons orally for my decision in accordance with s 43(2) of the AAT Act.

3. By letter dated 27 June 2012 (received by the Tribunal on 28 June 2012), the respondent’s legal representative requested a written statement of the reasons for my decision of 20 June 2012.  A statement of the reasons for that decision follows.

   The Factual Background

4. The applicant was born in August 1961 in Egypt and he is a citizen of Egypt.  He arrived in Australia on 4 June 2000 and he has not departed Australia since that date.

5. On 17 June 2011 the applicant was, following convictions on his pleas of guilty, sentenced in the District Court of Western Australia to:

   ·18 months’ imprisonment on one count of attempting to obtain a benefit by fraud;

   ·6 months’ imprisonment on each of 16 counts of obtaining goods or benefits by fraud (each sentence to be served concurrently with the sentence of 18 months’ imprisonment); and

   ·6 months’ imprisonment on each of two counts of attempting to obtain a benefit by fraud (each sentence to be served concurrently with the sentence of 18 months’ imprisonment).

6. By letter dated 30 September 2011 an officer of the Department of Immigration and Citizenship (“Department”) formally notified the applicant that the visa was to be “considered for cancellation” under s 501(2) of the Act and gave him the opportunity to comment. The applicant subsequently provided statements dated 20 October 2011 and 30 January 2012 to the Department.

7. On 20 March 2012 a delegate of the respondent decided to cancel the visa under s 501(2) of the Act.

   The Relevant Legislation

8. Section 501(2) of the Act provides:

   “ The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.”

   The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

   The Ministerial Direction

9. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

   “ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

   and Part B:

   “        provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”

   Direction [41] will be relevantly referred to in more detail later in these reasons.

   The Evidence

10. The evidence before the Tribunal comprised:

    ·the “G Documents” (G1–G28, pp 1−179) lodged by the respondent on 11 April 2012 (Exhibit R1);

    ·Supplementary Documents (S1–S27, pp 1–141) filed by the respondent on 17 May 2012 (Exhibit R2);

    ·Exhibits A1–A5 tendered by the applicant;

    ·Exhibit R3 tendered by the respondent; and

    ·the oral evidence of the applicant, and Abdelwahab Osman (who was called by the applicant), and Deirdre Anne Sourour (who was called by the respondent).

    The Applicant’s Criminal History

11. The applicant’s recorded criminal history in Australia comprises convictions of 49 offences, the first offence occurring on 21 May 2001 and the most recent offences (for which he was sentenced on 17 June 2011) occurring in the period from September 2008 to September 2009.  The applicant’s criminal record may be summarised as follows:

    ·on 15 November 2001 he was sentenced in the District Court of Western Australia to an effective term of 18 months’ imprisonment (comprising various cumulative and concurrent sentences of 9 months’ imprisonment) on seven counts of fraud committed in the period from 21 May 2001 to 5 June 2001, which was wholly suspended for 18 months;

    ·on 23 November 2004 he was sentenced in the Perth Court of Petty Sessions to a fine of $150 on each of two traffic offences committed in January 2004;

    ·on 22 January 2008 he was sentenced in the District Court of Western Australia to an effective term of 26 months’ imprisonment (comprising various cumulative and concurrent terms of imprisonment ranging from 10 months to two months) on 11 counts of gaining benefit by fraud, two counts of attempting to gain benefit by fraud, and one count of stealing, committed in the periods from 20 October 2005 to 22 December 2005 and from 26 October 2006 to 14 March 2007;

    ·on 12 March 2009 he was sentenced in the Perth Magistrates Court to a fine of $250 for the offence of unlawfully using a motor vehicle committed on 17 August 2008;

    ·on 4 February 2011 he was sentenced to a single term of 20 months’ imprisonment on six counts of engaging in conduct with the intention of dishonestly obtaining a gain from a Commonwealth entity committed in  or about 2005;

    ·on 17 June 2011 he was sentenced to the terms of imprisonment on the counts referred to in paragraph 5 above.

    The Sentencing Remarks of Sleight DCJ on 22 January 2008

12. When sentencing the applicant in the District Court of Western Australia on 22 January 2008 for the relevant offences referred to in paragraph 11 above, Sleight DCJ said:

    “ Mr Sami, you can remain seated.  The facts in relation to these matters were read to the court by the prosecutor on 20 November 2007 and I do not intend to repeat them in detail.  In relation to indictment 263 of 2007 the offences involved you depositing in an account held by you with the Home Building Society various cheques that you knew would be dishonoured.  Count 1 involved you depositing a cheque for the amount of $25,000.  The cheque was from a Westpac Bank account which was held in your name and at the time you were aware there were insufficient funds in the account.

    Counts 2 to 4 involved you drawing further cheques from the Westpac account after it was closed and depositing these cheques in your Home Building Society account.  Unfortunately there was a computer error at the Home Building Society which enabled you to withdraw money from the Home Building Society account, albeit that the cheques had not been cleared.  You became aware of this computer error and you were able to withdraw $33,000 before the error was discovered.  This amount of $33,000 was withdrawn by a number of separate transactions.  The Home Building Society became aware of the computer error and closed the account on 24 November 2005.

    Count 5 on the indictment involved you drawing on the closed Westpac account a cheque for $110,000 and depositing this cheque in a Commonwealth Bank account in your name.  This occurred on 22 December 2005.  This cheque was dishonoured and the amount was removed as a credit from your Commonwealth Bank account.

    The offence contained in indictment 920 of 2007 involved you booking into the Duxton Hotel and fraudulently using the name in credit card of another person, a M… M…  Ultimately you defrauded the Duxton Hotel of the sum of $11,563.05.  In relation to the third indictment, number 1417 of 07, counts 1, 2 and 3 involved you fraudulently using the identity papers of a non English speaking Sudanese immigrant, a Mr J… M…, to open various loan accounts.  Having opened the accounts using this other person’s identity you withdrew sums of money defrauding various institutions of $10,000, $15,000 and $25,000 respectively; that is, totalling $50,000.

    Count 4 on the indictment involved you using another person’s credit card to rent a motor vehicle.  This led to an outstanding debt of $6591.94.  Count 5 involved you obtaining a credit card in the name of Mr M… and using it to obtain credit of $6897.27.  Count 6 involved you obtaining a false cheque account in the name of Mr M… and using a cheque from this account to pay a property rental bill of $4000.  At the time the cheque was drawn you knew there were insufficient funds in the account to meet the payment.  Count 7 involved you using a false identity to open a Telstra telephone account.  Count 8 involved you using the credit card number of another person to transfer funds to one of your accounts opened in the name of Mr M…  This led to the financial institution being defrauded of $10,750.

    All offences involved obvious premeditation and most of the offences, particularly those involved in obtaining credit accounts in the name of Mr M…, a degree of cunning and boldness.  You took advantage of the flaws in a credit system widely used by our modern society to facilitate granting credit.

    The offences contained in indictment 263 of 07 were committed over a period from 20 October 2005 to 22 December 2005.  The remaining offences were committed over a period from 26 October 2006 to 14 March 2007.  The maximum penalty on the fraud and stealing charges is seven years, the maximum penalty is half for an attempt to commit either a fraud or a stealing offence.

    Your personal background is somewhat unclear as it is noted in the reports I have received that you have provided a contradictory history.  You are aged 46 years of age, you were born in Egypt, you apparently came to Australia in June 2000.  The extent of your education is unclear.  You claim to have various impressive university qualifications but I am uncertain as to the reliability of this information.

    Likewise I cannot be confident about the employment and business history you have provided.  The psychological report I have received outlines conflicts in the background you have provided and concludes, as do I, that there is doubt about the reliability of the information you have provided.

    You are married and have two children aged six and two.  You and your wife are now separated.  You remain hopeful of a reconciliation although the psychological report I have received states that your wife is unequivocal about the finality of the relationship.  In November 2007 (sic) you were convicted of seven fraud offences for which you received a suspended sentence.

    Your prior offending record is not an aggravating feature.  By this I mean I should not impose a more severe sentence because of your prior record but it does mean that the current offences cannot be viewed as uncharacteristic.  The psychological report I have received indicates that you are quite removed from reality and you appear to fantasise about becoming a person that contrasts quite sharply with the actuality of your situation.

    You state that you have experienced auditory hallucinations.  The report states that there are symptoms consistent with bipolar disorder and that during periods of elevated mood you lose perspective of reality.  The psychological report concludes that at a simple level your offending appears to involve some form of over compensation in relation to overcoming a sense of inadequacy in not being what or who you dream of being.

    The report concludes that you are need (sic) of counselling, psychiatric assessment and treatment.  A psychiatric report I have received states that your instructions are that in the past you have suffered depression, suicidal ideation and a psychiatric diagnosis of being bipolar.  The report concludes that you suffer a recurrent major depression disorder but the author is uncertain as to whether you suffer bipolar.  The report comments that your psychological state possibly impaired your judgment and is therefore relevant as to your offending behaviour.

    I conclude that your psychological condition is revealed in the explanation you have provided in relation to the Duxton Hotel matter.  As I have mentioned you used the name and credit card of a Mr M… to charge up items such as room charges, massages, food, drink, telephone calls and valet parking.  The total charge was $11,581.50.  You also requested the hotel to reserve 20 rooms for friends.

    You have provided an explanation that you had provided information to the American Consulate that you could identify business associates of a 911 terrorist.  You claim that you were booked into the Duxton Hotel for the safety of yourself and your children and that Mr M… offered to allow you to use his name and credit card.  He disputes this.  I do not accept your explanation. 

    You pleaded guilty with the advice from counsel.  It is, I believe – that is, your explanation – an example of a delusional state which is referred to in the reports I have received.  Further, you also claim that you have offered information concerning a possible terrorist attack in Perth, but again, this is not confirmed in any way and I believe that this is again an example of your delusional state.

    I take into account in mitigation the following factors: (1) your remorse as confirmed by your pleas of guilty.  The psychological report states that you do accept some responsibility for your offending.  I also take into account the significant saving to the state by your pleas of guilty.  This is significant as fraud charges are often lengthy and difficult to prove.  Further, I am satisfied that the psychological factors that I have mentioned led you to have a need to promote your own importance.  This arose out of your recurrent depression.

    This promotion of your own importance has somewhat of a delusional character to it.  It was this need to promote your own importance that led you to seek greater financial resources by committing these acts of fraud. …

    … In this case, although I accept that your psychological condition affected your judgment when committing these offences, I am satisfied that the offences were still committed with an understanding of the wrongfulness of your conduct and the offences were committed with premeditation.

    Although I accept that your psychological condition lessens your moral culpability, it does so not to a significant extent.  Further, I conclude that personal and general deterrence still remain important factors in sentencing you.  Further, there is no material before me to indicate that the time you have spent in custody has weighed more heavily with you than a normal person.  I suspect that there are many people in prison suffering depression in one form or another.

    Finally, I take into account the lengthy period you have been in custody awaiting resolution of these matters.  In view of the separation from your wife, I conclude that you will have found this period very lonely.  I also accept that the uncertainty of the outcome of these proceedings for such a long time will have added to your anxieties.

    A term of imprisonment is to be imposed as a penalty of last resort.  A court must not impose a term of imprisonment unless (a) the seriousness of the offence is such that only imprisonment can be justified, or (b) protection of the community requires it.  In this matter I have considered all sentencing options and I conclude that in view of the seriousness of the offending an immediate term of imprisonment is the only appropriate sentence.

    On indictment number 263 of 07 I believe that the starting point on each charge is a term of imprisonment of 18 months which I will reduce for a plea of guilty to 15 months and then by a further third under the 2003 amendments to a net sentence of 10 months.  On indictment number 290 of 07, which is to be treated as a fast-track matter, I believe that the starting point is a term of imprisonment of nine months which I will reduce to six months for a plea of guilty and then by a further third under the 2003 amendments, leaving a sentence of three months.

    On indictment number 1419 of 07 – sorry, the net sentence is four months on that.  I miscalculated, so on indictment number 290 of 07 the net sentence is four months.  On indictment number 1419 I believe a discount for your pleas of guilty ought to be equivalent to what should be given for a fast-track plea.  This was an ex officio indictment to which you pleaded guilty at the first  opportunity.

    On counts 1 to 3 I believe the starting point is a term of imprisonment of 18 months reduced for your plea of guilty to 12 months and then reduced by a further third under the 2003 amendments to eight months.  On counts 4, 5 and 6 the starting point I believe is a term of imprisonment of nine months reduced for your plea of guilty to six months and then by a further third under the 2003 amendments to four months.  On counts 7 and 8 I believe the starting point is 4.5 months’ imprisonment reduced for your plea of guilty to three months and then reduced by a further third under the 2003 amendments to two months.

    A principle known as the totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregate of the sentences imposed is a just and appropriate measure of the total criminality involved.  This principle requires an evaluation of the total criminality involved in all of the offences for which the offender is charged and the court must consider the effect of the sentences imposed on the offender so that it is not disproportionate to the criminality of his conduct or a crushing sentence.

    Taking this principle into account, I will make count 1 on indictment 263 of 07 and counts 1 and 2 on indictment 1419 of 07 cumulative and all other sentences concurrent.  This makes a total sentence of 26 months or two years and two months. …”  (Exhibit R1, G15, pp 82–89)

    The Sentencing Remarks of Magistrate Randazzo on 4 February 2011

1. When sentencing the applicant in the Perth Magistrates Court on 4 February 2011 for the relevant offences referred to in paragraph 11 above, Magistrate Randazzo said:

   “ Mr Sami, you can remain seated.  As you well know, on 24 December 2010, I found you guilty of six federal offences. …

   …

   After a trial lasting almost nine days, I was satisfied beyond a reasonable doubt that on the six charges that I have just mentioned that you either prepared and lodged or prepared and caused to be lodged income tax returns with the commission (sic) of taxation for certain named individual taxpayers referred to in the charges for the financial years ending 30 June 2004 or 2005.  The respective income tax returns for those taxpayers contained false information.

   As a result of those respective income tax returns being lodged, you therefore engaged in conduct with an intention of dishonesty (sic) obtaining a gain from a Commonwealth entity, namely the commissioner of taxation.  The gains were refunds of money that were not payable or more than were payable to the taxpayer named and resulted in an overpayment by a commonwealth entity, namely the commissioner of taxation. …

   …

   … Whilst I don’t propose to repeat my reasons for decision in terms of the facts and apart from what I have already indicated, the evidence led by the prosecution did establish to my satisfaction that you were engaged in what was in my view a systematic course or pattern of fraudulent conduct in the course of a business of (sic) which you had set up to provide service to others of completing amongst other things taxation returns.

   The taxpayers had (sic) sought your services and to whom you rendered services were generally of an African or Asian origin and at the time of the commission of these offences they were relatively recent arrivals in Australia.  Those taxpayers at that time had limited ability to speak and read English and were generally dependent upon professional, skilled advice to fulfil their responsibilities as taxpayers.  They all knew of or you were referred to (sic) for the services that they required in order for them to prepare their respective income tax returns.

   The completion of the taxation return was technical in detail.  They each trusted you and they did indeed sign in most cases declarations, but they did so with little or no regard in my judgment to the significance of the declaration because in effect all said and done, they put faith in you in what you were doing for them as being correct.  Each taxpayer provided oral instructions and documentation for the purpose of preparing their returns and meetings which were usually of a short duration either at your office or at your home.

   The computer that you used generated taxation returns.  The taxation returns were either lodged using the E-tax system or via a registered agent.  Claims for expenses or offsets were made.  The claims … were false or inflated.  The refunds gained from the commissioner of taxation would obviously have made a taxpayer content and would have reflected well on you in terms of your services that you had rendered and hence your reputation amongst client taxpayers of either an Asian, African or indeed of Muslim origin with whom you had an affinity would have been enhanced.

   I believe that you risked your business because you hoped that by word of mouth amongst clients you would maintain and have reaffirmed a reputation for securing what might be seen, significant or better taxation returns for taxpayers than what might be achieved by others providing similar services. …  By creating that reputation or at least maintaining that reputation, especially amongst the African, Asian and Muslim community, it was likely that the volume of your business would grow and consequently the fee earning potential increased with a commercial benefit to you even if part of that fee was shared with Mr M…, with whom you had entered into an arrangement as he was a registered tax agent.

   Furthermore in my opinion you took the risk, given that the Australian Taxation Office was dependent upon self-assessment system of lodging taxation returns and I believe that you hoped that you would not be detected.  If you were detected I am satisfied that you hoped to fall back on blaming the taxpayers just as I believe you have done in some of the cases before me, bearing in mind that your client base was one consisting of persons of limited education with limited English skills.

   The existence of a legal arrangement with Mr M… by way of which his services would be utilised to lodge taxation returns on behalf of clients only served to minimise the risk of detection by the Australian Taxation Office unless any anomalies were noticed by Mr M… or his staff …  If such anomalies were noticed, then you would still seek to address such anomalies without the Australian Taxation Office becoming aware.

   The fact remains that in the end you were detected by the Australian Taxation Office.  The commissioner of taxation, being the Commonwealth entity actually paid amounts of money either by way of electronic fund transfer or by cheque directly and that resulted in the overpayments, as I’ve said, properly computed at $16,208.03.  That money has not been repaid but I hear that you have made an earnest offer … to repay that amount.

   To some extent, that offer, albeit late is to some extent taken into account as mitigatory.  As a consequence of your conduct and the Australian Taxation Office investigations, these taxpayers in my view no doubt were put to inconvenience, delay and had been subjected to scrutiny through no fault of their own.  That would not have been an easy thing for these people, having seen them, to have endured such scrutiny.  I have noted that you told the author of the written pre-sentence report that you agreed with the contents of the charges.

   You claim the offences were the result of not verifying information that clients provided and that you made no financial gain.  You in effect, Mr Sami, blamed an error of judgment on the fact that you had too many clients, that you were too busy and distracted.  You said in effect that this was your mistake and that you deserved to be punished, yet you appear not to, in my view to have been entirely remorseful as you continued, in my view, in what I have read in the written pre-sentence report not to have fully accepted your responsibility for the commission of these offences.

   You are now 49 years of age as I understand it.  You were born in Egypt and you were known initially as Tufik (sic) Ali before you changed your name to Tony Sami in 2005.

   I have read in the pre-sentence report that your father was a high achiever, someone in the diplomatic corp (sic).  Your father expected you to excel and you considered that because of his high expectations, that in turn he mistreated you if he perceived you not to be achieving at school.  You considered generally your childhood to have been a misery in that way because of your father’s expectations; in effect, the pressure that he placed upon you and also coupled with the fact that he was away from the home most of the time serving I gather through his diplomatic commitments.

   You testified that you also had a Bachelor degree in accounting conferred upon you by the Alexandria University, a Master’s degree obtained at Columbia University in New York and a PHD in economics from Harvard University in the United States of America, yet the author of the report indicates that you had in the past reported different details when previous written pre-sentence reports have been prepared.

   These discrepancies are unexplained other than you claim an error was made in the past and that the correct details are the ones that you have testified for. …

   …

   …  In any event, I also note that your estranged wife has not confirmed those qualifications.  It may well be that she’s not entirely privy to the detail of your academic study.  I’m of the view, because of the discrepancies and the lack of confirmation coming from your wife who I would normally have thought would be to some extent aware of your qualifications, that (sic) the absence of some documentary proof, I’m not prepared to accept that in fact you received all of those specific academic qualifications.  That of course in my view is of limited significance in the end to my consideration of the materials bearing upon the question of the appropriate sentence to impose upon you.

   In any event whatever the true qualifications you have held, having seen you and having heard your evidence about your experience, I have no doubt, Mr Sami, that you are an intelligent man who has to some significant level at some place in your life obtained a significant level of education.  You speak several other languages including Arabic and Afghani.  You have helped – that of course helped you to deal with these taxpayers, and in my view had them have confidence in you; in other words, that you won their confidence by your skill and capacity to speak their first language.

   You currently describe your current occupation as a self-employed interpreter.  In the past you have lived for a period of time in the United States of America where you had business interests including a travel agency business which you reported as being successful.  You began living or came to Australia sometime around 2005 (sic) where you joined the mother of your two sons who according to the report that I’ve read are aged five and nine.  They may be slightly older at this stage.

   You were married but you were separated from the boys’ mother, although you have reported that that is a relationship which has been described in the past as being on again, off again.  I do note in what I’ve read in the letter from your estranged wife that there are steps or hopes that you may well reconcile with her for the sake of the children.  You have a good relationship with the boys and I will say something more about that in a moment, particularly that the youngest has an autistic-type condition.

   Shortly after on arriving in Australia, you were employed as an accountant with a tax agent, … for a period of about two and a half years.  During that time you provided accounting services including the preparation of taxation returns for clients of Arabic and African heritage.  It was also during that time that you were given the idea of setting up your own business for preparing taxation returns in conjunction with a registered tax agent who would lodge the returns with the Australian Taxation Office.

   I’ve recalled that information from the evidence that you gave before me in early December.  After leaving …, and undertaking employment with another accounting practice … you commenced a business of providing interpreter and translation services initially from your home address and later you carried on that business from a different location.  In addition you carried on the business of driving a taxi …

   …  Health wise you have claimed to suffer depression.  This is thought, according to the author of the pre-sentence report, said (sic) to be exaggerated to some extent having regard to the fact that in the past, albeit they’re dated professional assessments and reports that indicate that exaggeration.  I am of the opinion that whatever your mental condition has been in the past, it was not of a nature that caused you to commit these offences and it was therefore in that sense in no way mitigatory.

   I return to the subject of your children which I mentioned earlier.  I have noted that your estranged wife advises me that you are a loving and caring father to your sons.  I accept that you have a bond with them and that you have been involved and assisted your children, particularly your son, …, who has what as I said earlier was described as an autistic-type condition.

   I have readily accepted that your child does indeed have needs, needs for support and as your estranged wife indicated, a need for constant care.  To that end your wife has also said that you have assisted in providing that care, bearing in mind that you do not have any family connections here in Australia.  I am of the opinion however that the hardship in so far as the children are concerned and to a lesser extent, your estranged wife would be concerned, should I decide to impose a term of imprisonment upon you to be immediately served is only one factor that I need to have regard to, but it is a factor in this case on the material before me, not of such a degree that I would characterise it as being exceptional.  It is not sufficient or extreme that goes beyond the sort of hardship which inevitably results to a family when either a breadwinner or a parent is faced with the prospect of being incarcerated, that a sense of mercy or an affront to commonsense would imperatively demand that a court contemplating a term of imprisonment should pull back from imposing what might otherwise be an appropriate penalty, namely a term of imprisonment.

   …

   The evidence in the trial revealed also that you have a criminal record. …

   … Your record indicates to me that you have a propensity for dishonesty, Mr Sami, despite your denials in the course of the trial.  These offences are in my view a continuing pattern of disobedience of the law in a dishonest or fraudulent way.  In my view you cannot claim any mitigation for otherwise having a previous good character, although there are parts of your character that I have heard about, both directly from you and in the letters that I have read in particular from people that know you better that would tend to indicate that there is some good in you in terms of being a caring person towards people that you care for and people that you have helped in the community, particularly the African, Asian and Muslim community.

   In the past I have noted that you have been gaoled and fined.  I note, according to the author of the pre-sentence report, at least at the date of the writing of the report that there was an amount of $2207.90 in unpaid fines.  It seems to me that you have been undeterred in behaving dishonestly and fraudulently and that both personal and general deterrence is a significant and important sentencing consideration in your case.  The prosecution made no bones about it.  The prosecution have submitted to me that you should be imprisoned and that imprisonment should be served immediately.

   …

   …  In my judgment the sentence or penalty that I consider appropriate to the severity of the offending is indeed a term of imprisonment.  I recognised and considered that there are other sentencing options but I’ve rejected those options as being inappropriate.  I do so for a number of reasons.

   There were six offences which you committed over a short period of time that came to an end due to the authorities scrutinising your business and your affairs.  Secondly the nature of the circumstances of the offending in particular indicate that they were committed at a time that you were working or providing a service akin to or analogist (sic) to the services rendered by a taxation agent and that you were obviously aware of acting honestly and ethically in being the conduit between the taxpayer and the Australian Taxation Office.

   I also consider it a reason for my conclusion that given the dependence of those taxpayers on your services and the trust they put in you, that you were minded to commit these offences with a clear objective of getting good refunds for your clients to enhance your reputation that would lead to increase your business and eventually fee earning potential even if it was shared with Mr M…, you put your interests ahead of the need to act honestly and ethically.

   Further there is a need for you to be punished for committing these offences to deter you from dishonesty and fraudulent conduct in the future and there’s a need for the punishment to carry with it an element of general deterrence to dissuade others contemplating engaging in conduct with such a dishonest intent.  These of course are difficult offences to detect given the self-assessment taxation system and there is a concern that the system should be preserved to ensure that the public is confident in the system.

   Without doubt these were serious offences.  In my view there was a degree of premeditation despite your assertion to the contrary.  They were plainly dishonest and deprived the commission (sic) of taxation of a significant amount of money which is likely not to be repaid at least in the near future despite your offer to pay reparation.  At the heart of the seriousness of this case is that you committed these offences in clear breach of the trust placed in you by taxpayers and by virtue of the nature of the self-assessment system established by the Australia (sic) Taxation Office.

   Your role, although not as a registered taxation agent, but working akin to one was to protect the revenue and not to plunder it.  These were not offences which you committed on the spur of the moment, nor in my view were they mitigated in any particular manner in which you committed the offences.  I place no weight that you were said to be busy and in my view your dishonesty is not detracted by being busy.  Indeed the dishonesty has been designed to enhance your reputation so that in turn you could even be more busier (sic) at work.

   Clearly the taxation system of this country depends upon the honesty not only of the taxpayer but people like you who prepare taxation returns on behalf of the taxpayers, especially at a fee.  Your conduct struck at the heart of that system.  Frauds of this nature in my view looked at in that light of that general description are very serious and threatens the integrity of the system and undermines the reliance of the system of (sic) the honesty of people that deal with the system.

   …

   …  I have concluded that imprisonment is appropriate.  The question is whether you should serve that term of imprisonment immediately.  You were entitled to plead not guilty, Mr Sami.  Indeed you were vindicated in relation to five alleged offences by your pleading not guilty.  Those pleas of not guilty, I make it clear to you also do not aggravate the seriousness of the offences for which I have found you guilty of (sic).

   However, having seen you in the evidence, I’m satisfied that you are, as I said earlier, not entirely remorseful.  This is consistent with in my view a lack of insight and stance that you have demonstrated with the author of the written pre-sentence report but also in terms of the evidence that you gave before me, you tended to effectively claim that the taxpayers in some instances were the ones that gave you the false information.  In effect you were blaming those taxpayers.

   You also took a view that the investigators from the Australian Taxation Office and to some extent you also shedded (sic) a degree of responsibility or at least oppression to the prosecutors who have been engaged in bringing you to account.  There has been some degree of cooperation but not the full cooperation with investigators in my judgment.  Whilst you have made some admissions of fact through your counsel for the purposes of the trial, that was of limited ultimate value to the trial process but I will give you some reduction by virtue of making those admissions of facts which to some extent facilitated the conduct of the trial although as I say, it was limited and the savings were generally of a limited nature in terms of getting up and trial time.  To the extent that you have claimed in effect that you’re sorry and accepting of punishment, in my view I think that you have expressed that more out of the fact that you have been detected and brought to account and that your behaviour has come to a halt and that you are now facing the prospect of a term of imprisonment being immediately served. …

   …

   … As I have already made it quite clear to you that I have formed the view that imprisonment is appropriate, I also have concluded that immediate imprisonment is the only proper sentence in your case for these six offences.

   …

   The offences are offences charged and joined in the same prosecution notice and being offences against the same provision of the Criminal Code of the Commonwealth which means that pursuant to section 4K of the Crimes Act 1914:

   A single penalty in respect of all offences can be imposed.

   I therefore make it clear and now announce that you are convicted of all of those federal offences for which I have found you guilty, … they all being on the one prosecution notice pursuant to section 4K of the Crimes Act, I have decided that the sentence and the only sentence that is appropriate for the criminality involved is a sentence of 20 months’ imprisonment. In reaching that conclusion I also want to make it clear to you that I have extended a degree of leniency to you and made a modest reduction on account of your bond and your relationship with your children.

   I have been advised, Mr Sami, that you have not spent any time in custody for these offences. Any time in custody has been in relation to other offences, therefore for other reasons. I turn my mind to the question of a recognisance release order. Being a sentence that does not exceed three years, I’m required to make a recognisance release order under section 19AC(1) of the Crimes Act. I will do so pursuant to section 21A of the Crimes Act, I order a recognisance release order to cover all of the offences, the subject of these charges that I have convicted you on and I direct that you serve 14 months from today and that upon you giving security by recognisance in the sum of $5000 that you will be of good behaviour for a period of three years. You will be eligible to be released after serving that 14 months.

   …”  (Exhibit R1, G24, pp 126–140)

   The Sentencing Remarks of Macknay DCJ on 17 June 2011

1. When sentencing the applicant in the District Court of Western Australia on 17 June 2011 for the offences referred to in paragraph 5 above, Macknay DCJ said:

   “ On the day in which your trial was to begin, and in relation to an indictment which contained 30 counts, you pleaded guilty to 16 counts of obtaining goods or benefits by fraud, and to three counts of attempting to obtain a benefit by fraud, and the State accepted those pleas in discharge of the indictment.

   The material facts appear from the statement of material facts read to the court, although the amounts in issue have not yet been agreed.

   In brief, between September 2008 and September 2009, you wrote cheques drawn on five bank accounts you controlled, in circumstances where, to your knowledge, there were insufficient funds.  Your intention being to gain something, goods or services, or a credit balance in a bank account.  On one occasion you used a debit card rather than a cheque.

   You also entered into a rental agreement and a lease and buy a house contract, on the strength of false promises as to payment, and you obtained two loans through similar falsehoods.

   The value of goods or services obtained alleged by the State appears from the indictment, as I say, the precise amounts are in dispute and in one case it was asserted that you had repaid those amounts although the State did not accept that.

   You’re aged 49 years and are married but separated with two male children aged approximately 11 and six years.  Your wife has two children from an earlier relationship.

   You were born in Egypt but came to this country in about 2000.  You have a criminal record, having been given a suspended sentence for 18 months for fraud offences in 2001.  In 2008, you received 26 months’ imprisonment for fraud and other dishonesty offences.  On 4 February this year, you were given 20 months’ imprisonment for Commonwealth fraud offences with a minimum of 14 months, prior to being eligible for release on entering into a reconnaissance (sic), that sentence to run from 4 February this year.  Those offences are said to date from about 2004 and 2005.

   You’ve also been remanded in relation to the matters in respect of which you are to be sentenced today for 231 days, and you’re entitled to be given credit for that.

   I’ve obtained a pre-sentence report and a psychiatric report from Dr Febbo, and I have heard from Ms Monck on your behalf.  It’s said in the pre-sentence report that your offending resulted from financial difficulties in regard to a taxi you had set up and an interpreting business.  In both cases, work being unavailable due to your prior convictions.

   You make various claims as to your family history and educational achievements.  The author of the pre-sentence report suggests you lack insight into your offending behaviour.

   Dr Febbo recounts a history of financial difficulty, following your release from prison in February or March 2008.  However, he says you told him the Toys ‘R’ Us offence was the trigger for writing bad cheques.  As appears from the statements of material facts, it was in fact one of the later offences.

   He recounts a history of depression throughout the offending.  Dr Febbo says, on page 5 of his report, relevantly that, on balance, it is his opinion that your impaired mental state, together with what appears to be an intense need for financial security and to succeed as a capable provider, contributed to your actions at the time of the offences.

   He does diagnose you as suffering a major depressive disorder, with a differential diagnosis of a bi-polar disorder.  He also diagnoses significant stress and scales you in relation to level of function and as having moderate systems.

   In relation to management and recommendations, he says that you need continuing psychiatric input and the use of anti-depressant medication, together with a possible addition of a mood stabiliser and you need psychological input to deal with what is likely to be relatively entrenched securities (sic).  He says that it is likely you will continue to experience fluctuating mood symptoms indefinitely, considering the past forensic history, there’s certainly a potential for further reoffending if a similar scenario occurs in the future.

   These are serious offences and are significant in number and were committed over several months.  The attempts involve some $80,000.  You have now accumulated a history of offending involving deceit and although you’re not to be further punished for earlier offending, your antecedents, leaving aside matters relating to your mental state, do not provide great mitigating factors.

   As to your mental state, as I have noticed, Dr Febbo expressed the opinion that was a contributing factor.  Accepting that, that of course diminishes both the relevance of general deterrence as a sentencing aim, and also is relevant to the level of culpability.  However, in the circumstances, personal deterrence is relevant.

   You are entitled to some credit for your pleas of guilty.  Totality is also relevant given your current sentence.  Your offending is such that a cumulative sentence is called for, but given the relevance of totality, it is necessary, in my view, to very significantly modify the sentences that would otherwise be imposed.  As I have already stated, you are also entitled to credit for the time spent in custody on remand.

   I then impose sentences as follows.  In relation to count 25, the attempt to gain the sum of $60,000, I sentence you to 18 months’ imprisonment and I sentence you to six months’ imprisonment on each of the other counts in the indictment.  Those sentences are to be served concurrently with the sentence imposed in relation to count 25 …”  (Exhibit R1, G13, pp 68–70)

   The Applicant’s Evidence

2. The applicant confirmed that he had provided a statement to the Tribunal for the purpose of this proceeding and that its contents are true and correct. That statement, which was filed on 10 May 2012, is as follows:    

   “·   My name is Tony Sami and at this moment in time, I reside at Acacia Prison, Wooroloo, WA.

   ·I was born in Egypt on the …/08/1961 and I am now 51 years of age.

   ·I lived in Egypt until 1991 and then moved to the USA.

   ·I am the youngest among my brothers and sisters, I have a sister living in the USA and a sister in England and a brother who now resides in Dubai UAE.

   ·While in the USA I worked as a manager for a Travel Agency, then in 1999 I returned to Egypt for a brief visit.

   ·I arrived in Australia in the 04/06/2000 on a tourist visa obtained from the Australian Embassy in Washington DC USA to visit my now wife Deirdre Anne Sourour.

   ·I married Deirdre on the 10^th of July 2000.

   ·As a result of this marriage we have two boys … aged 11 years and … aged 7 years.

   ·Before I go into any more details, I would ask … that you take into consideration before anything else the main points I would like to put to you for the utmost care.

   ·The first and foremost on my mind are my two sons and my good wife, all of them are Australian Citizens.

   ·I have had a good relationship with my wife and we were seriously considering reconciliation until very recently, I don’t know if we ever gonna reconcile but what I am sure of is we gonna be good friends for the sake of our two children.     

   ·I believe that for any father to explain and put into words his feelings for his children is very difficult, I love them all equally without reservation. I phone them twice daily.

   ·They mean more to me than life itself and the guilt I feel is a tremendous weight to bear. I am responsible, no one else, for the pain and suffering I have put them through.

   ·My youngest son … has what is called a Globally Delayed Child with strong traces Autism and yes he does require care 24/7 from his mother and please understand what I’m going through as a father, knowing that I have failed the very people I love so dearly.

   ·During the time I spent in Egypt and in America I had no criminal convictions whatsoever and I feel that my problems started when I became severely depressed and in a later date it was found that I am suffering from a severe Bi-Polar episode/condition.

   ·In the beginning I could not understand why I started to commit criminal offences, I am sorry and could not be more remorseful for my actions, but what hurts more than anything is a problem that I created for my two lovely boys.

   ·The remorse I feel is with me 24 hours a day and I find it very difficult to understand my offending behaviour.

   ·Since I came to prison I am trying my utmost to address my depression and Bi-Polar condition by participating in a lot of educational programs and to also address my offending behaviour like Cognitive Skills, Think First Program and the Family First Program.

   ·During my time in custody I have made sure that I have kept in close contact with a Psychologist in each prison as you see from the documentation released from the Department of Corrective Services, I am doing everything that I can to facilitate all the help I can get.

   ·It is my intention if the Tribunal decides in favour of my application, I will do everything to seek help upon my release. In saying that I realise that is going to be a hard and long road. I do understand that in the future should I commit even the smallest mistake I most certainly will be deported.

   ·In respect of the STATEMENT OF REASONS FOR CANCELLATION OF VISA UNDER S501(2) OF THE MIGRATION ACT 1958. I would like to point out that there are areas within the documents prepared by the Immigration Department for this Tribunal that I feel are not completely correct. I would like to draw your attention to page 31 (risk that the conduct may be repeated) and numbered 9.

   ·I would like to say on my own behalf that it would be fair to say that people in general show their feelings in many different ways, body and facial language are shown by most, in my case I keep my feelings hidden and worry about them internally, perhaps this is part of my make up or low self esteem.

   ·I would like to say on my own behalf that apart from my offending behaviour I have in the past had an excellent education and work history.

   ·I do believe that I have a great deal to offer to Australia especially being able to speak and understand eleven languages fluently.

   ·I would also like to say that during my time in custody in various prisons I have been called upon to use my knowledge of languages as an interpreter.

   ·In America I was a General Manager of a travel agency.

   ·During my years in America, I have had no criminal record or convictions whatsoever. This in itself should prove in some way that my offending behaviour in Australia is completely out of character and believe me your Honor I don’t understand why, but it could be caused or affected by my Bi-Polar condition as stated in the psychiatric report prepared by Dr Febbo for the court.

   ·I firmly believe that the help that I have received since coming to prison will help me face any demons I may have had.

   ·If my application to this Honourable Tribunal were granted, I would be prepared to meet any requirements or conditions the Tribunal may make.

   ·I would also give a guarantee to the Tribunal that I would arrange to attend a psychologist on a weekly basis for one on one counselling for a period perhaps set by the Tribunal.

   ·I would like to say to the Tribunal that in my case I do realise that this is the only chance I have of ever seeing my children again, the responsibility lies at my feet and yes, it is my fault that they will be without a father.

   ·I would also like to conclude that I hold the following qualifications:

   -    A Bachelor degree in Commerce (Accountancy) obtained from Alexandria University in Egypt in 1984.

   -    CPA membership America since 1993.

   -    Diploma in Sabre Computer Systems obtained from American Airlines Institute, Dallas Texas USA.  

   -    Diploma in Australian Taxation Law obtained from the University of Western Australia 2003.   

   -    Diploma in Australia Taxation Law obtained from H & R Block Australia 2004.

   -    Passed the NAATI Accreditation test as an Arabic and French interpreter and translator (level 1) 2005.

   -    I participated as an interpreter in a lot of high profile criminal cases and I have done a lot of interpreting and translating jobs for high profile a government and non-government agency including this honourable tribunal.

   ·I know for sure that it is only myself who is responsible for bringing shame to my children, wife, and myself.

   ·I am sorry and remorseful for committing these crimes and I am the only one to blame, however taking me away from my children is punishing them also. They are only two beautiful young children that will not understand why Daddy has been taken away from them.      

   ·Separating me from my family will result of a catastrophic consequences on them psychologically, financially and emotionally. 

   ·I am separated from my wife and from what I understand now that the chance for reconciliation is minimal and that makes it very hard that I will ever see the kids again as she has made it abundantly clear that she will not take the trip to Egypt with my two boys even if I would provide the finance for the trip which is very hard because Egypt is a very poor country. In an case I have a family court consent order that allows me visitation and phone contact rights daily, copy attached.

   ·It is my intention that if I were to be released back into the community I would work very hard to flourish my existing interpreting and translation business and as a result be a positive member of the community.

   ·As a part of my rehabilitation in prison, I have participated in a lot of courses and educational programs to obtain several licenses and tickets to operate machinery and support machinery like Forklifts, Front end loaders, Whitecard so I will never be without a job. Copy of certificates attached.

   ·Also as part of satisfying my hunger of rehabilitation and addressing my offending behaviour I asked the Assessment Officer in Hakea Prison to allow me to participate in the Cognitive Skills Think First Program, and really I wish that I could participated in this program earlier as it has helped me enormously to understand my offending behaviour and taken control of my automatic thoughts.

   ·I know now there are a lot of help and counselling services provided by both federal and state governments and I am determined to take advantage of these services if this application is successful.

   ·I am determined to start functioning as a real father and as a real man and to take responsibility of my actions and to play a real role in my kid’s life.

   ·I reject completely the Immigration Department’s claim and I refer to page 25 of the G documents provided to me and the Tribunal, especially point 53 that one parent only will provide sufficient parenting to my children. Children especially boys need their father as a major part of their development. ie who is going to teach them right from wrong? who is going to dress and prepare them on their first school ball?, who is going to take them to sport venues and events and talk sport with them? who is going to give them love and care when they experience their first steps into adulthood, who is going to comfort them and give them advice while they are going to their first date? who will take them to Mosks and teach them about their spirituality?

   ·I would like to bring to the honorable tribunal’s attention that I am very will known to the Egyptian authorities by my political views of upholding freedom, promoting democracy and adopting a Western like culture, which are completely different ideologies then what the Muslim extremists government in Egypt is adopting at the present time.

   ·I fear for my life as a member of my family (my uncle was holding high rank in the previous Egyptian Government) was tortured and killed by them and I still bear scars all over my body as a result of torture and unjust in this country, just for the reason I was expressing my opinion and this drove me to leave in the first place.

   ·Your Honor after all courses, programs, and psychological treatment I received as part of my rehabilitation. I think that the chance of re-offending is minimal, having said this I think from all my heart that I am not a danger to society. I never killed, raped or dealt drugs or committed crimes against children, while I submit that yes I have done wrong at some stages I was not a good man but also your honor you have to look at my criminality with what I’ve been charged with. I am not trying to play down my offences, as I’ve done some wrong and I acknowledge that the crimes committed by me are serious. This is something that I will have to live with for the rest of my life but I can assure your Honor that this will motivate me enormously to prove to my children, the community and to myself that I can be a good productive active member of the community and also a good father.

   ·My intention is to work, work and more work to be able to compensate my children for the period I was away from them in prison, to prove to them that daddy is always a good daddy who provides and ensures that they are brought up in an honest and respectable home.

   ·Your honor I consider myself as an Australian like any other Australian, I love this Country, I would do anything to protect it, and pay the Ultimate Price to defend it if the needs arise. This is my Country, in this Country, I married to the lady I loved and respect dearly, and in this Country god blessed me with my two beautiful boys who they are my life.

   ·In my opinion Citizenship of any Country it doesn’t measure by a ink on a paper, or by a bureaucrat decision who will be Citizen and who’s not. Citizenship of a Country is by the ability of a person to serve and communicate and being an active member of a community, and I still believe that I have a lot to offer to my Country Australia to my Community and to my Children.

   ·There no crime in the whole world punishable of taking a loving caring father of his kids and vice versus.

   ·At the end Your Honor I am asking for one more chance, I know from all my heart that Australia and Australian are most open minded people and also most forgiven people. Please Your Honor I am pleading with you not to send me away from my children they mean everything to me and I love them dearly and I am sure that what they feel the same toward me because I always was there for them and I always provided to them and I always care about them.”  (sic) (Exhibit A2)

3. The applicant also confirmed that he had prepared a submission which, together with supporting documentation, was filed with the Tribunal on 8 June 2012 (Exhibit A1).  Reference will be made to aspects of that submission later in these reasons.

4. In his oral examination-in-chief, the applicant gave evidence to the following effect:

   ·all of the various courses he has completed during his incarceration have been helpful to him but the Cognitive Skills course was the most important because it taught him how to be a better problem solver and how to deal with “automatic” thoughts by thinking first about the consequences before acting on those thoughts and not letting those thoughts control him;

   ·the Cognitive Skills course went for about 13 weeks and he completed it on 5 January 2012;

   ·his criminal record is “bad” but he does not see himself in that way;

   ·he knows that he has to change and that such change is not going to come by words but by actions;

   ·the Cognitive Skills course opened up his mind and his understanding of the things he was doing wrong;

   ·he has done many courses and has a lot of “tickets” and he will never be without work in the future;

   ·now it is a matter of his two children – he did not see it this way before;

   ·as regards Dr Febbo’s report of 3 May 2011 (see paragraph 29 below), he has continued to take anti-depressant medication and he has had psychological counselling (from Mr Uwe Schaub – see paragraph 22 below), as recommended by Dr Febbo;

   ·although Dr Febbo stated that it was likely that he would “continue to experience fluctuating mood symptoms indefinitely”, that has not been the case – he has been trying to take control of his thoughts – “the human mind is a very powerful tool” if you have the motivation to control your thoughts and take control of your life – his children are enough motivation for him to take things into his own hands and not surrender to depression.

   ·if he is required to leave Australia, he would have to return to Egypt;

   ·in 1981 his father, who was then the Egyptian Ambassador to the United Nations, took him to the United States of America and he saw that Americans were “very free and enjoying democracy and freedom” and he asked himself why people in Egypt should not also enjoy those things;

   ·when he returned to Egypt in 1982 he, three male friends and one female friend formed the “New Egypt Democratic Movement” and they printed brochures and flyers about the Movement;

   ·in 1982 the secret police came and took him but, because of his father’s position in the government at that time, they could not do anything;

   ·following a change of government in Egypt, his father was shot by the authorities in 1986 because of his “completely different” political beliefs;

   ·in 1986 the secret police took him and his four friends but did not charge them with anything;

   ·the secret police put him in a dark room for days at a time, would not let him sleep, and flogged him;

   ·the secret police interrogated him and, when he refused to say anything, they took his female friend and raped her several times in front of him;

   ·the secret police let him go “after 10 days of torture”;

   ·in 1988 the secret police came again and “did the same things” and held him for one week;

   ·in 1989 the secret police held him for 14 days and tortured him and flogged him as he hung by the feet from a high ceiling;

   ·the secret police did all those things to him because he was calling for democracy, freedom of speech, freedom of travel, the adoption of Western style culture and “moderate Islam”, and they told him that, if he did not change what he was doing, they would rape his female friend and his sister, “touch” his mother, and kill him;

   ·he went to Egypt in 1999 to see his mother and she told him that “they were still looking for [him]”, so he only stayed one week because he was scared, and he has not returned to Egypt since then;

   ·he had a sister living in Egypt but she died about two months ago, and her husband still lives there;

   ·“Egypt is on the verge of a civil war” – the new government is “an extension of the old government” and they would still be looking for him – he is known as a moderate Muslim and if the Islamic party takes control they would be looking for him – either way he would be at risk of torture in Egypt;

   ·he loves his children dearly and he is sure that they love him very much;

   ·he knows that he did “bad things” but he is “on the verge of fixing it”;

   ·he has done courses and obtained “tickets” and he will not be out of work again;

   ·although the children would continue to live with their mother, they would have the security of their father being there for them, supporting them and doing “fun things” with them.

   The Evidence of Deirdre Sourour

1. Ms Sourour confirmed that she had sent a letter (and enclosures) to the respondent’s representatives in connection with this proceeding, and that its contents are true and correct.  That letter, dated 29 May 2012, states as follows:

   “ I have been asked to write this letter in regards to my ex husband Tony Sami also known as Tewfik Sourour.  I was married to Tony in July 2000 we separated in June 2002, we have 2 children together … 11 years old and … 7 years.  These children live with me.  I have a 3 bedroom home I have lived in for around 17 years.  I support myself and my 2 children.  Tony visits the children once or twice a week he calls me and other times he just turns up at my door.  I have tried to keep the peace for the children.

   I am in the process of filing for a divorce.  I have a child alert on both children not to leave Australia.

   Tony has been going in and out of prison since [the 11 year-old child] was 4 months old sometimes for long periods of time which has had a huge impact on [the child] he has seen a child psychologist in the past as having Tony coming in and out of his life has affected him.  [That child] has suffered a lot because of Tony.  My other son … has Global Developmental Delay with traits of Autism.  He is under the Disability Commission since he was 3 years old.  He sees speech, OT, physio and a child psychologist at times.  I have dealt with many appointments on my own.  [That child] is unable to have Tony coming in and out of his life.  He would not cope and I have spoken many times to Tony on the effects he has on these boys each time he goes to prison.  My children must be put first at all times.  He does not seem to get this.”  (Exhibit R3)

2. Ms Sourour also gave oral evidence to the following effect:

   ·her younger son (who was born in May 2005) was conceived when she and the applicant spent one night together at a time when they were trying to reconcile;

   ·their attempt to reconcile did not work out due to the applicant’s “going in and

   out of prison”;

   ·the applicant is unable to cope with their 7-year-old child because of that child’s “severe autistic traits”;

   ·the applicant has taken their 11-year-old child out on occasions, but not their 7-year-old child;

   ·she supports herself and the two children from Centrelink payments, and she will be working part time in the future;

   ·her two adult children help her “enormously” with the two young children – the two young children “get on very well” with her other family members, and her 31-year-old daughter is like a “second mum” to them’;

   ·if the applicant is returned to Egypt, she will allow the children to speak with him on the telephone but she will not take them to Egypt because the applicant “would take them from [her]”;

   ·if the applicant’s visa is not cancelled and he remains in Australia, she will allow him to spend time with the children, but not at her residence;

   ·she does not want the applicant to take the younger child out on his own because of the child’s condition;

   ·before his present period of incarceration the applicant would see the children once a week, or sometimes once a fortnight, on average;

   ·when the applicant took out the older child they would be out for three or more hours and the child generally enjoyed those outings;

   ·on average the applicant has telephoned the children three times per week but recently he has been telephoning them daily;

   ·the applicant has not spoken to her about any things that happened to him in Egypt – he is “delusional”, he is “constantly lying”, he is a “compulsive liar”.

   The Evidence of Abdelwahab Osman

3. Mr Osman confirmed that he had made a statement for the purpose of this proceeding and that its contents are true and correct.  That statement, which was filed on 8 June 2012, is as follows:

   “ …

   2.      I live at … Balga and I work as a taxi driver.

   3.      I am making this statement in support of Tony Sami regarding his character.

   4.My age is 43.  I have lived in Australia for about 20 years.  I am an Australian citizen.

   5.      I am married and I have 4 children.

   6.Tony is not what I would call a very close friend, but I have known him for several years and I consider that I know him quite well, and certainly well enough to have an opinion about what sort of person he is.

   7.I know Tony as we have both worked in the taxi industry.

   8.When Tony was driving taxis, I used to see him from time to time in the course of work.

   9.As well, about 2 or 3 years ago Tony was living in a house owned by K… J…  Several others were living there too.  I used to visit that house regularly to see my friends who were living there.  I would see Tony there as well.  I got to know him quite well during these visits.

   10.I remember that once I saw Tony with his two boys at the Mosque we both attended.  That would have been in about 2010 or 2011.

   11.There was also one time that I remember running into Tony, with one of his sons, at the school at Dianella – the Australian Islamic College Dianella.

   12.I know that Tony has committed offences of dishonesty and has been imprisoned.  Despite this, I believe that he is a good father who loves his sons and wants to help them to grow up to be good people.  As a father, I would like to see him given another chance to remain in this country.”  (Exhibit A3)

4. It is unnecessary to make further reference to Mr Osman’s oral evidence in these reasons.

   Additional Material Tendered by the Applicant

   Letter from Uwe Schaub

5. A letter from Uwe Schaub, dated 8 March 2012, was tendered in evidence by the applicant (Exhibit A4).  That letter states as follows:

   “ I am employed fulltime as a counselling psychologist at Wooroloo prison since July 2011.  Mr Sami has asked me to provide him with a supporting letter summarising my observations of his progress since the commencement of his treatment.  Mr Sami has been a client of the Prison Counselling Service since the 27/09/2011 and has attended a total of 9 sessions.  He has attended 8 of those sessions with me to assist him with his low mood.

   At the commencement of his treatment Mr Sami appeared to be depressed and identified that negative events in his life as well as his upbringing were major contributing factors for his mental and emotional state.  Mr Sami’s disclosures revealed that he was raised by authoritarian parents who used to find fault and withheld praise.  He disclosed being under their controlling behaviour until his late twenties.  Another significant event that contributed to Mr Sami’s feelings of depression was when his fiancée died in a freak accident.  In addition to his depression Mr Sami appeared to have developed an external locus of control or helplessness.

   During the sessions Mr Sami was invited to challenge his thinking and general negative world-view.  As his awareness of the impact of his demeanour on his children and his own life grew, Mr Sami determined to take control of his thoughts, which resulted in an impressive improvement in his mood.  Mr Sami has for the past 4 weeks maintained a positive attitude toward life and described the positive effects in a congruent and authentic manner.  Due to his progress Mr Sami agreed to be seen less frequently and to monitor his mood.  There are currently no outstanding concerns for Mr Sami.”

6. Mr Schaub was not required by the respondent for cross-examination and he did not give oral evidence.

   Documents filed by the applicant on 8 June 2012

7. A bundle of documents filed by the applicant in support of his written submission on 8 June 2012 was tendered in evidence (Exhibit A1).  Those documents include the following:

   ·copy of consent orders made by the Family Court of Western Australia on 19 October 2002 in respect of the applicant, Ms Sourour and their first child as follows:

   “1.      The child of the marriage … born … March 2001, reside with the wife Deirdre Anne Sourour and she have sole responsibility for the day to day and long term care, welfare and development of the said child.

   2.Both parties have joint responsibility for long term care, welfare and development of the said child.

   The husband have reasonable contact to the said child as agreed between the parties.

   3.      The husband have reasonable contact to the said child defined as:

   (a)       Each Tuesday between 6.00 pm and 7.30 pm

   (b)       Each Saturday between 10.00 am and 5.00 pm

   (c)       Each Sunday between 10.00 am and 5.00 pm

   (d)       Telephone contact each day between 6.00 pm and 6.30 pm”;

   ·copy of a form of Initiating Application to the Family Court of Western Australia, completed by the applicant and dated 23 May 2012, in which the final orders and interim orders sought by him are stated as follows:

   “ 2 Final orders sought …

   1.Full custody of the children.

   2.If I am deported to Egypt, the children are to accompany me.

   3.If I am not deported, shared custody to be put in place.

   3 Interim or procedural orders sought …

   1.One phone call a day for 15 minutes to my child initiated by myself.

   2.Photos of my children to be sent to me regularly paid for by myself.

   3.One visit a fortnight to Acacia Prison.

   4.An indunction (sic) that stops the respondent from leaving the state of WA with our children until this matter is resolved.”

8. A further bundle of documents, filed by the applicant on 8 June 2012, was tendered in evidence (Exhibit A5).  Those documents include copies of two one-page documents headed “Protestors at risk of torture in Cairo” issued by Amnesty International on 11 May 2012, and a copy of Amnesty International’s Annual Report 2011 regarding the state of human rights in Egypt.

   Further Relevant Material

9. The Supplementary Documents (Exhibit R2) include the following relevant material.

   Pre-sentence report dated 27 June 2007

10. A Department of Corrective Services pre-sentence report of Sarah Parker, dated 27 June 2007, states as follows:

    “ At interview, Mr Sami presented as an individual who has difficulty in accepting his current situation.  He presents with narcissistic and grandeur ideation, in that his justification for the present offence can only be described as bizarre.  It is noted that a (sic) prior Psychiatric and Psychological reports issued in 2001 also note this ideation.

    Mr Sami is currently separated from his wife of 7 years and has 2 children.  He claims to have been well educated; stating he holds three degrees and a PhD.  He advised that no traumatic or significant events occurred during his childhood.  Mr Sami placed significant emphasise (sic) on his father’s employment as an Ambassador to Egypt and how much money he had.  However, Mr Sami’s current circumstances do not substantiate these claims.

    Mr Sami has prior convictions for Fraud and he provides no insight into his offending behaviour.  It is of concern that very little information contained within this report could be verified.  His wife is of the opinion that he does not live within his means and is difficult to understand; given, that he is a well educated man.

    Mr Sami has not been previously supervised by this service and would benefit from psychological counselling.  However, given the seriousness of Mr Sami’s present charges the Court may deem a custodial sentence to more (sic) appropriate.  In the event that this occurs Mr Sami would benefit from a period of Parole, given an assessment at a future junction.”  (Exhibit R2, S18, p 77)

    Psychological assessment and report dated 3 October 2007

11. A psychological assessment and report of David Summerton, Psychologist, dated 3 October 2007, addressed to Sarah Parker, Community Corrections Officer, states as follows:

    “ Thank you for your referral of Tony Sami for psychological assessment and report.  This report is based on impressions gained and information obtained during clinical interview (20/09/2007 – 2 hours, Hakea Prison); interpretation of results of psychometric testing procedures conducted during interview; and review of relevant information including the Statement of Material Facts pertaining to the offences, Mr Sami’s Criminal Record and a recent Pre-Sentence Report (Ms S Parker, June 2007).  His ex wife (not divorced) was also interviewed briefly for the purpose of compiling this report.

    Presentation

    Mr Sami presented as sullen and a softly spoken 46 year old man of Egyptian background.  He appeared quite confused at certain times and he contradicted himself within the interview on a number of occasions.  Certain information he offered was also highly inconsistent with information he had given during a recent pre-sentence report interview.  The writer of that report had in turn highlighted discrepancies with previously available information and questioned the overall reliability of his self report.  His ex wife described a broader tendency for him to construct misleading accounts regarding various issues in his life and she concluded that he ultimately came to believe what he had seemingly falsely created.  Mr Sami reported that he was currently depressed and on anti-depressant medication.  He also alluded to experiencing auditory hallucinations at a given point.  He claimed that he had attempted to arrange an appointment to see a psychiatrist throughout his period of months in prison though added that he had been unsuccessful in this regard.  He reported that he had previously had contact with a psychiatrist and a psychologist, but claimed that he did not remember their names.

    Offending Behaviour

    Mr Sami has been convicted of four counts of Gains Benefit by Fraud and two counts of Attempts to Gain Benefit by Fraud.  Five of the offences occurred in the latter part of 2005.  He initially attempted to deposit an amount of $25,000 into a Home Building Society account having written up a Westpac cheque for such an amount knowing that he did not have the given amount in the latter account.  The cheque was dishonoured and he was thus unable to access the funds.  He carried out a similar process in relation to an amount of $28,000 some weeks later and was allowed access to the funds, despite the cheque being dishonoured, due to a computer error at the Home Building Society.  He was further successful in carrying out a similar process in relation to amounts of $25,000 and $28,000 respectively.  He subsequently attempted to deposit a Westpac cheque for $110,000 into a Commonwealth Bank account knowing that his Westpac account had been closed, but this attempt was unsuccessful.  A final fraud offence involved him using a stolen credit card to pay for accommodation and services at a given city hotel to an amount of over $11,000.

    Mr Sami largely accepted the version of his offending as portrayed in the statement of material facts.  He offered a highly detailed and somewhat convoluted account of events in his life over the most recent 10-14 year period by way of explaining his motivation for his offending.  Certain of the events/circumstances that immediately preceded the offences appeared to be implausible or at least significantly exaggerated by him.  The latter appears to reflect aspects of his broader functioning that is seemingly underpinned by his need to be viewed as a person of renown and to be more broadly well liked by others.  Such issues appear to have clear foundation in his formative years and are addressed further below.

    A significant psychological issue in offering some background to Mr Sami’s offending seemingly involved his response to the death of his fiancé (sic) in a car accident in the mid 1990s a matter of days before they were due to be married – he had been living in New York at the time.  If events indeed occurred as he has described, it appears that he had difficulty regaining stability in his life after that event.  He apparently attended a psychiatrist who made reference to him being either schizophrenic or to be suffering from bipolar disorder.  However, his life appears to have stabilised to the extent that he was ultimately promoted to the general manger’s (sic) position in the travel company that he worked for and which supposedly had 15 outlets nationwide and was a very successful enterprise.  He initially offered such information by way of emphasising his qualities though he later identified that he had left the position in the US and travelled to Australia to meet his future wife on the basis of difficulties that he experienced in the work place – it is relevant to note that he claimed to have been on a remuneration package amounting to approximately $180,000 in US dollars.  However, he noted that he had been highly stressed and indecisive in his position.  In addition to escaping his circumstances it appears that he had arrived in Australia wanting to portray himself as a ‘knight in shining armour’ to his prospective partner having progressed some form of relationship with this woman via correspondence and telephone.  It is relevant to note that he had been highly insecure in his dealings with women and he described himself as having been a 30 year old virgin prior to the relationship with his deceased fiancé (sic).  After her death he did not view himself as having the potential to generate a further relationship and all of the above is in some way relevant in relation to the manner in which he subsequently conducted himself after arriving in this country including his offending behaviour.

    Mr Sami reported that he had arrived in Australia in June 2000 and he immediately took up a relationship with the woman who subsequently became his wife.  He stated that she had been on Centrelink payments at the time and caring for her two adolescent children.  He stated further that he had taken the family ‘under his wing’ and they had initially lived off the savings that he had supposedly accrued from his time working in the United States – his wife reported that he had used various American credit cards, but had not been aware of any substantial savings.  His wife became pregnant very early in their relationship and he described this as having placed some burden of expectation on him.  He had experienced difficulty obtaining employment and suggested that he had frequently been told that he was over qualified for given positions.  He identified a significant contrast between his life in the US and his circumstances in Australia having allegedly frequented the ‘best restaurants’ and the theatre on a regular basis whilst living in New York.  He reported that the financial difficulties had placed some strain on his newly formed relationship and he reported that he had engaged in an initial instance of fraud in 2001 through the use of a cheque from an account that had no funds – he stated that he had acted in the given manner because his wife had needed a milk pump to express milk for their baby and he had feared that his son would die if he did not acquire the given item. The latter represents an initial quite implausible substantiation for his involvement in fraudulent. (sic)  He subsequently passed off a number of cheques in a similar manner and received a suspended prison term after being convicted in relation to the given matters.  He added further that his depression had turned around the period of his involvement in the above offences and related this to him having been unable to provide for his family in the manner he would have preferred.

    Moving forward to his current offences Mr Sami reported that his circumstances changed and his outlook generally improved after he obtained work as an interpreter and taxi driver and then subsequently became employed by a small accounting firm to complete tax returns.  He claimed that he had completed 250 returns in a three week period which had supposedly been a record by a considerable margin at the given company.  He claimed that he had worked at the given rate in order to prove himself.  He reported that he subsequently became well known in the Arabic community and individuals from this quarter had approached him to complete their tax returns.  He alleged that he had taken on over 3000 clients though clearly such a number appears highly unrealistic.  He stated that he had not been granted a licence by the government to become a tax agent because of his limited experience – when challenged he acknowledged that his criminal record was also a factor in this regard.  He denied having changed his name due to receiving (sic) previous offences but rather asserted that his previous name had been a factor in him not obtaining employment, supposedly because of it being Arabic.

    As a consequence of not being granted permission to operate as a tax agent Mr Sami reported that he had taken his clientele to another agent who agreed to lodge the claims on his behalf after he had prepared them.  He claimed that the given tax agent had not lodged the given returns in a timely fashion because of his own workload.  He claimed further that he had been threatened by his own clients due to the given delays in receiving their tax returns and added that he had been physically beaten on 5-6 occasions in this regard.  He sought to given (sic) the impression that he had gained significant financial liquidity as a consequence of his volume of business and he suggested that he had initially elected to pay the demanding clients out of his own funds with the assumption that he would be recompensed when the returns were paid by the tax department.

    However, he claimed that his own funds had readily diminished and at that stage he engaged in the offences that relate to him having fraudulently presented the given cheques to the various financial institutions.  He asserted that he had not drawn on all of the money that he had obtained and stated ‘all I got was $33,000’.  When questioned about the amount for $110,000 he stated that he did not know why he had attempted to obtain the given amount.  At that stage he suddenly changed his approach and claimed that voices in his head had been telling him to take the given amount and he concluded ‘I’m probably schizophrenic or double personality’.  He also referred to paranoid symptoms and having been pursued by demons for much of his life though his description of the given psychotic symptoms was somewhat loose and seemingly overplayed for the purpose of justifying his offences.  There is nevertheless some indication that he has become quite removed from the reality of his circumstances in carrying out his offences and he appears to fantasise about becoming a person that contrasts quite starkly with the actuality of his situation.

    The issues related to the offence involving the credit card has been addressed extensively in a previous pre sentence report and is not reiterated at length here.  Suffice to say that his account of why he acted in the given manner appears to be highly implausible and relates to him supposedly having identified an individual who was connected to the 9/11 New York terrorist attacks and him subsequently being at risk of reprisal – he alleged that he stayed at the given hotel as a form of hiding having been advised to do so by police.  When asked why he had chosen an expensive hotel when he had no funds (clearly a range of other viable responses were also overlooked if his story is accepted at face value), he claimed that all hotels in Perth were fully booked at the time due to a given conference.  He verbalised responsibility for the offence though was vague as to what part of his behaviour was illegal given his claim that the credit card holder (a friend) had given him permission to use the card.  According to his version of events this man subsequently denied that he had given him permission.  Mr Sami also denied having attempted to book a range of rooms for his friends.  However, the likelihood of him acting in such a manner is not inconsistent with his other aspects of his functioning that entail him seeking to be an individual of consequence.

    In reflecting on his overall offending behaviour Mr Sami expressed a view that his actions had been stupid though he added that he was not a bad person.  He stated that he would never have imagined encountering legal difficulties given the amount of energy he had invested in study over the years that would have been anticipated to have ensured his financial future.  Toward the latter part of the interview he made several references being a ‘sick man (psychologically)’ by way of explaining his actions and he emphasised that he needed and wanted help in this regard.  His ex wife expressed similar sentiments in attempting to make sense of his behaviour.

    Offending History

    Mr Sami was convicted of seven counts of fraud in 2001 and received a suspended prison term.

    Social History

    Mr Sami was born in Egypt the youngest child in a family of five children.  As indicated Mr Sami offered quite contradictory information regarding his history and, for instance, there is some doubt over the chronology of various events and issues surrounding his qualifications and work history.  Further, in a previous assessment he apparently placed significant emphasis on the fact that his father had supposedly been the Egyptian ambassador to the United States and France at different times.  In the current context he made no reference to his father holding such positions, but rather suggested that he had played a role in marketing Egyptian cotton internationally.  In previous assessments he also claimed to have received a bachelor’s degree in the US before going on to receive a PHD in that country.  In the current assessment he reported that he had received his initial degree from a university in Alexandria before travelling to the US where he allegedly completed a Master’s degree in accounting and then commenced a PHD at Harvard – he stated that he had not completed the latter qualification due to being unable to fund his studies.  It appears unlikely that he would have entered Harvard and equally unlikely was his claim to have attended the Sorbonne in Paris to complete qualifications in French Literature and French/Egyptian interpretation.  When asked which texts he had studied he immediately backtracked and suggested that the essential focus of the given courses had been on learning to become a translator.  It also became apparent that the amount of years that he alleged to have studied did not coincide with his accounts of his movements at different stages of his life.  The discrepancies entailed him miscalculating his various stays in places around the world by a matter of years.  When the obvious discrepancies were pointed out to him he attempted to work through these by talking through his various movements to himself in French.  It would appear that the latter was aimed at demonstrating his proficiency in French and it is also assumed that this language would not be a natural choice for him to work through complex issues given that he has lived in either Arabic or English speaking countries for much of his life.  The overall sense was that he presented himself in a way so as to appear to be an impressive and talented person.

    Mr Sami described his mother as having been the ‘most beautiful woman’ in suggesting that she had given him and his siblings ‘all the love in the world’.  By contrast he portrayed his father as a tyrant who was regularly violent toward various family members including his mother.  His parents frequently travelled in relation to his father’s work and he was cared for by his older sisters at such times.  He made several references to his father ‘beating the shit out of him’ though he was unable to identify any obvious precursors to such treatment.  He claimed that he was beaten for quite inconsequential behaviours such as speaking French to his mother.  He reported that his father had consistently exhorted him to be ‘number one’ in anything he undertook and this was accompanied by constant threat of violence.  He identified this man as having been constantly busy, angry and stressed and he had generally been highly fearful of him.  He suggested that his father’s treatment of him had been a factor in him continuing to be indecisive and filled with self doubt over the course of his adult years – there is an assumption that he has compensated for his sense of inadequacy by narcissistic embellishment of his qualities both in fantasy and his dealings with others.

    Mr Sami stated that his father had consistently berated him for being stupid and his efforts not good enough though he apparently inevitably finished at the top of his class at school.  He portrayed himself as having been a quiet and timid student who was fearful of doing anything wrong.  He observed that his fellow students and teachers would have viewed him as being ‘over polite’ and added that he had invariably received positive comments about his behaviour in school reports.  He entered Alexandria University after leaving school and noted that although his grades had been sufficient to enter medicine as his chosen field of study his father had forbidden him from doing so and directed him toward accounting.  All of his siblings have apparently excelled in their chosen fields and two of his sisters also became accountants whilst his brother and his other sister have worked in engineering and biochemistry respectively.  In emphasising his father’s control over his life he reported that this man had grounded him when he was approximately 19-20 years old because he had expressed reservations about his involvement in accounting.  However, he indicated that he subsequently became accepting of his involvement in the chosen field.

    After finishing his degree he completed a year of compulsory military service before becoming employed in Egyptian and French banks for an approximate five year period.  He claimed to have completed the identified course at the Sorbonne in 1988/9 before returning to work in a bank in Egypt and them (sic) ultimately travelling to live in the US.  Mr Sami’s account of his time in the US was somewhat scanty and he gave the impression that he had worked for the given travel company for much of his period in that country though he also supposedly managed to complete a masters degree and part of a PHD.  He reported that he had been in a relationship with his fiancée for a three year period before her death in 1995 and he gave the impression that he had been grateful and surprised given that a woman had opted to be with him.  As indicated he experienced significant difficulty coping after her death and he observed that he became quite withdrawn such that he was particular (sic) irritable if people approached him.

    Notwithstanding his response to his fiancée’s death he evidently recovered to some degree and noted that he had worked his way through the ranks of the given travel company to ultimately be appointed as the general manager.  He described the given position as highly stressful and noted that ‘things were never smooth for [him]’.  His brother had been a good friend of his ex wife’s previous husband and he had met this woman during a trip to Egypt.  After separating from her husband his brother introduced her to Mr Sami via correspondence and phone.  They had an unlikely common issue in the form of irritable bowel syndrome and Mr Sami reported that he had been able to support her from afar via phone and their relationship developed in such a manner, culminating in him moving to Australia.  He reported that prior to contact with his ex wife he had avoided further relationships because he had feared that a prospective partner might die as had been the case with his fiancée.

    It would appear that Mr Sami had exaggerated his competence and financial wherewithal to his new partner and it is speculated that he felt unable to match in reality the way he had initially portrayed himself.  He floundered and became depressed in the context of his developing relationship, his partner’s pregnancy and his parallel inability to find work.  His depression during that period coincided with his earlier fraud offences.  Two children were born to the relationship and although his youngest is only two years old the relationship had reportedly finished prior to the child been (sic) born and there had indeed been relatively limited contact for a period before the conception.  His ex wife was unequivocal about the finality of their relationship though he appears mot (sic) to have accepted this.  She described her time with Mr Sami as being ‘like a roller coaster’ and expanded by identifying quite marked moodswings that involved him being significantly depressed and suicidal and on other occasions manifesting highly elevated mood.  She claimed that he had not fully financially supported the children and this contrasted with his account to the effect that he was highly generous in this regard (supposedly in part a factor in his strained financial circumstances) – she did not raise this as being a problematic issue.  However, she reported that he had a very positive sense of connection with the children and with their older son in particular who has apparently experienced significant difficulty coping with his father’s absence.

    Mr Sami expressed a view that he had been distressed and sad constantly over recent years and he stated ‘I am not happy with my life’.  Consistent with his earlier references to bipolar disorder there is indeed evidence of symptoms consistent with this disorder and it appears that during periods of elevated mood he loses perspective of reality.  There is also an underlying theme relating to him not amounting to what he believes he should have and/or him having underachieved.  He evoked the spectre of his father’s critical voice as being a source of persistent self doubt – this man died some 20 years ago.  He identified that he had a strong desire to be more productive and suggested that he had the capacity to be very creative.  He appears to have difficulty coping with the immediacy of his given circumstances and his goals and dreams are often markedly out of kilter with his actual life circumstances.  As indicated he made some reference to demons and alluded to these being auditory hallucinations though he subsequently referred to them as being is (sic) own creation.  As has been highlighted there is also a strong theme relating to him needing to be liked or approved of by others.

    Psychometric Testing

    During interview Mr Sami was administered the Millon Clinical Multiaxial Inventory-III (MCMI-III), a measure of the presence and degree of clinically significant psychopathology and general personality functioning.  The response profile suggested some tendency toward presenting himself in a positive light though this was not marked.  There was significant evidence of anxiety and some indication of dysthymia.  The latter appears to relate to his currently pessimistic outlook and his sustained sense of unhappiness regarding his life circumstances.  However, there is also evidence of more enduring depressive tendencies along with compulsive features.  Individuals with compulsive features are inclined to be very conforming and they tend toward orderliness, conventionality and perfectionism.  Their attention to detail offers a sense of control and a way of assuaging anxiety.  They tend to be rigid in their dealings with others and seldom display spontaneity.  They are generally very respectful of authority and established societal rules and fear acting in manner (sic) that would case (sic) them to be viewed negatively.

    In Mr Sami’s case it appears that the depressive features, that include a highly critical inner voice and accompanying sense of inadequacy, play a role in his compulsive tendencies in that he is seemingly compelled to achieve or act in a manner designed to overcome the inadequacy.  It appears that the given outcomes seldom assuage his anxiety or inadequacy and he strives to accomplish more and more in an attempt to be highly regarded by others.  The latter is obviously a simplification of the dynamic that drives him.  It is assumed that in periods of more intense anxiety and/or diminished sense of self he bursts out of his relative level of conformity and in doing so often loses control of his life and acts in a manner that causes him further distress and anxiety.  The above in some way mimics bipolar disorder though also appears to represent enduring personality features.  It is evident that in times of elevated mood he is inclined to quite significantly embellish his achievements and competencies.  He is more generally inclined to embellish his positive points and sometimes this would appear to involve creating untruths about his life though it is also evident that parallel to this he is aware of and troubled by his perceived shortcomings.

    Summary/Conclusions

    Mr Sami has been convicted of a range of fraud related offences that involved substantial quantities of money.  The current convictions are his second for offences of such a nature and he is also facing further charges for similar offences.  He has accepted some responsibility for his offending though offered somewhat implausible reasons for his motivation for behaving in the given manner.  As indicated, at a simple level his offending appears to involve some form of overcompensation in relation to overcoming a sense of inadequacy or not being what or who he dreams of being.  It appears that he loses some sense of reality at certain stages such that he comes to believe his own fabrications.  As indicated his self report was littered with contradictions and was also inconsistent with information previously offered by him.  He is an individual who has seemingly been unable to achieve what he believes he ought to have achieved and this has been a source of considerable anguish for him.  His offending behaviour has ultimately had the effect of compounding his difficulties and sense of having failed.

    Mr Sami has significant needs for intervention and has expressed a high level of motivation in this regard.  His reported level of motivation appears to be partly related to a belief that this would effect a positive outcome in terms of sentencing though his level of distress is also a motivating factor.  Individual counselling is considered to be the most appropriate form of intervention.  His treatment needs are embedded in the report though broadly relate to the interaction between his sense of inadequacy and accompanying anxiety related issues and his way of overcoming the latter that involves embellishment and exaggeration of his qualities and competencies – the latter is closely related to is (sic) offending behaviour.  He is considered to represent a considerable risk of re-offending in a similar manner, if he does not undergo significant intervention, given his recent history and the unresolved nature of the issues related to his offending.  It is also pertinent that he be further psychiatrically assessed.”  (Exhibit R2, S26, pp 127-135)

    Psychiatric report dated 3 May 2011

1. Paragraph 10.4.1 of the Direction [41] states:

   “10.4.1          The best interests of the child

   (1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.

   (2)The best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction.

   (3)If there are two or more relevant children, it is not to be assumed that the best interests of each child will coincide.  It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal.  The best interests of each child should therefore be given individual consideration.

   (4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents.  Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:

   (a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

   (b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

   …”

2. Paragraph 10.4.1(5) of Direction [41] lists the factors which “are to be considered” in considering the best interests of the child.  As regards those factors which are applicable in the circumstances of this case, I comment as follows.

3. It is common ground that the applicant has two sons – one aged 11 years, the other aged 7 years – who have lived in Australia since birth and who are Australian citizens.  I note, at the outset, that I accept that the applicant loves and cares deeply about his two sons and wishes desperately to be involved in their upbringing at least until they attain the age of 18 years.

4. I accept the evidence of Deirdre Sourour, the children’s mother, to the following effect (see paragraphs 18–19 above):

   ·the applicant has been “in and out of prison” since the older boy was four months old and the applicant’s “coming in and out of his life” has had an adverse impact on the boy, by reason of which the boy has seen a child psychologist in the past;

   ·the younger boy has a condition described as “Global Developmental Delay with traits of autism” and he is “unable to have [the applicant] coming in and out of his life, he would not cope…”;

   ·she and the applicant were married in July 2000 but have been separated since June 2002 (although as a result of their subsequently spending one night together, the younger boy was born in May 2005), and she will but filing for divorce in the near future;

   ·the two boys live with her in her 3-bedroom house where she has lived for about 17 years, and she supports them and herself from Centrelink payments;

   ·when the applicant has been at liberty, he has visited the boys at her house once or twice per week and he has occasionally taken the older boy on outings, but not the younger boy because he cannot cope with that boy’s condition;

   ·the older boy generally enjoyed his outings with the applicant;

   ·when incarcerated, the applicant has telephoned the boys, on average, three times per week, and recently he has been telephoning them every day;

   ·if the applicant remains in Australia, she will allow him to spend time with the boys, but not at her house, and she will allow him to take the older boy out any time, but not the younger boy;

   ·if the applicant is removed from Australia, she will allow him to have telephone contact with the boys up until they attain the age of 18 years.

5. I note the Consent Orders which were made by the Family Court of Western Australia on 19 December 2002 in relation to the older boy (set out in paragraph 24 above).  I also note that the applicant has completed a form of application to the Family Court of Western Australia, dated 23 May 2012, seeking various interim and final orders in relation to the children (part of Exhibit A1 – see paragraph 24 above), but no documentation from the Court in relation to that application form is in evidence.

6. I am not aware of any relevant wishes of either of the children.

7. As presently advised, I accept that the children are unlikely to accompany the applicant in the event that he is removed from Australia.

   Conclusion regarding the best interests of the child

8. Having regard to the relevant factors referred to in para 10.4.1(5) of Direction [41], I accept that it is in the best interests of each of the two children for the applicant to remain in Australia.  Accordingly, this primary consideration weighs against cancellation of the visa.

9. Having regard to Ms Sourour’s evidence, insofar as it relates to the abovementioned relevant factors, however, I accept that Ms Sourour already plays a full parental role in relation to the children and is likely to continue to do so up until their eighteenth birthdays, and that it is unlikely that the applicant, even if he remains in Australia, will be in a position to do so.  Furthermore, I am unaware as to whether the applicant’s removal from Australia would be likely to have a significant adverse effect on either of the children but, having regard to Ms Sourour’s evidence, I have reservations as to whether it would be likely to do so, given the applicant’s substantial periods of separation from them during his previous periods of incarceration and, of course, during his present period of incarceration which commenced on 4 February 2011.

10. Although this primary consideration weighs against cancellation of the visa, having regard to all relevant considerations regarding the best interests of the applicant’s two children, I do not attach substantial or significant weight to it.

    Non-refoulement

11. Direction [41] relevantly states:

    “ 10.4.2    Convention and the Protocol Relating to the Status of Refugees

    (1)In cases where issues of protection pursuant to the Refugees Convention are raised by the person or are clear from the facts of the case, they must be given consideration.

    (2)If Article 33(1) of the Refugees Convention applies, consideration is to be given to whether the benefit of that provision may not be claimed by the person because of Article 33(2) of the Refugees Convention.

    Note:An explanation of Article 33(1) and (2) can be found in the Character section 501 Procedures Advice Manual maintained by the Department of Immigration and Citizenship.

    10.4.3Other relevant international obligations

    (1)The following are to be  considered:

    (a)The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);

    (b)The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and

    (c)The prohibition against refoulement under the ICCPR and CAT is absolute.  There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.”

12. In his statements of contentions in this matter, the applicant stated as follows:

    ·in his statement filed on 10 May 2012 (part of Exhibit A2), he stated:

    “ … I am very will known to the Egyptian authorities by my political views of upholding freedom, promoting democracy and adopting a Western like culture, which are completely different ideologies then what the Muslim extremists government in Egypt is adopting at the present time.

    I fear for my life as a member of family (my uncle was holding high rank in the previous Egyptian Government) was tortured and killed by them and I still bear scars all over my body as a result of torture and unjust in this country, just for the reason I was expressing my opinion and this drove me to leave in the first place.” (sic);

    ·in his statement filed on 8 June 2012 (part of Exhibit A1), he stated:

    “ Refugees Convention and Non-Refoulement Obligation.

    Point 10.4.2 and 10.4.3

    It is very clear to the international community, that Egypt is on the verge of severe civil unrest if it could be escalated to a civil war.

    I am facing real dangers of torture and cruel inhumane and degrading treatment and punishment or even killed.

    Kindly I would like to bring the Tribunal’s attention to the International Human Right’s magazine, issues March 2012, Saying that Egypt is the most place for people to disappear without a trace.

    While I have already been tortured and goaled in 1986, 88 and 89 because of my political opinion of promoting democracy, moderating Islam, and adapting a free lifestyle and denouncing dictatorial-ship.

    While the respondent states that I did not provide any evidence, it is the most incredible question to ask, ‘do they want me to get in contact with the Egyptian Government’ and ask them if they have evidence that they tortured me in the years mentioned above.

    As clear evidence of me fearing for my life if I was to go back to this country, it can be seen that I have never returned to Egypt since arriving in Australia in 2000.

    While the previous regime has been stripped of its powers, the new regime is an extension of the old one and more dangerous is the Islamist Party comes to power.  In either circumstances I am facing certain torture and probably death.

    It is in the applicant’s contend that the tribunal should give a lot weight in favour of my application considering this point as deporting me puts Australia in breach of its international obligations.

    While I have no physical evidence to demonstrate to the Tribunal but what we see on TV and what we hear on the radio are my best evidence.” (sic)

13. In his oral evidence the applicant reiterated those contentions and also gave evidence to the following effect (see paragraph 17 above):

    ·his father was the Egyptian Ambassador to the United Nations in 1981 and, following a change of government, he was subsequently shot by the Egyptian authorities in 1986 because of his political beliefs;

    ·in 1982 he and four friends (three males and one female) formed the New Egypt Democratic Movement;

    ·in 1986 the secret police took him and his four friends into custody; he was kept in a dark room and subjected to sleep deprivation and flogging; his female friend was raped in front of him several times; he was released after 10 days of torture;

    ·in 1988 the secret police held him for one week and “did the same things” to him;

    ·in 1989 the secret police held him for 14 days and hung him by his feet from a high ceiling and flogged him; they threatened to rape his female friend and his sister, to “touch” his mother, and to kill him if he did not change his political views and activities;

    ·he visited Egypt in 1999 to see his mother and she told him that the secret police were still looking for him; he only stayed in Egypt for one week because he was “scared that they were going to come and get [him]”, and he has not returned to Egypt since then.

14. The applicant sought to rely on documents published in May 2012 by Amnesty International headed “Protestors at risk of torture in Cairo” and Amnesty International’s Annual Report 2011 on the state of human rights in Egypt (Exhibit A5).

15. The question arises, however, as to the credibility and reliability of the applicant’s evidence regarding his treatment by the secret police in Egypt in 1986, 1988 and 1989 and his claim that he would face “certain torture and probably death” by reason of his political beliefs if he were returned to Egypt.

16. I note Ms Sourour’s evidence that the applicant never spoke to her about such matters and her description of him as “delusional” and a “compulsive liar”.  I also note the following relevant material which is in evidence:

    ·a Swan Valley Centre Hospital Discharge Summary, dated 22 June 2001, signed by Dr P Binns, Consultant Psychiatrist, regarding the admission of the applicant (who was then known as Tewfik Sourour) on 21 June 2001, which states (inter alia)  as follows:

    “ …

    Presenting Illness:

    Mr Sourour said detectives had come to his house to discuss issues regarding his up coming court case for fraud.  He apparently had picked up a knife and possibly threatened self harm and was subsequently apprehended by Police under Section 195 of the Mental Health Act taken to his General Practitioner and then referred to hospital.  Mr Sourour had a history of depression which he’d been prescribed Effexor but had stopped it of his own accord.  He described feeling more depressed since he had stopped taking Effexor.  His sleep was decreased as was his appetite and his concentration.  His mood was described as bad all day, but he did say that it fluctuated greatly in response to events surrounding him.  He described many phenomena which could have been superficially considered to be psychotic but did not appear so on closer investigation.

    Past Psychiatric History:

    He claimed to have seen a Psychiatrist or Psychologist in New York for up to 10 years and had spent about $100,000 in fees.  He claims to have previously been diagnosed with Schizophrenia and multiple personality disorder.

    Personal/Social History:

    Mr Sourour claimed to have been managing a chain of travel agencies in New York with a turnover of $700 million dollars per annum.  He said that he had met his girlfriend in New York and had agreed to visit Australia with her as she was Australian.  They decided to get married and stay in Australia.  He said that he had applied and been offered a job as General Manager of Ansett, but this was withdrawn because of his race.  He also said that he had a large amount of money in accounts both in New York and Switzerland.  He had organised to have money transferred from New york and had written a cheque for some aeroplane tickets at a local agency.  It was because this cheque bounced that he had been charged with fraud.  He claimed that this was a misunderstanding.  Since being in Perth he had not been employed but as he stated he was not prepared to take ‘just any job’.

    …

    Management & Progress:

    Mr Sourour was reviewed the following day and it was felt that there was not a significant risk of self-harm.  Although he had a chronically increased risk of suicide because of his thoughts, there had been no recent exacerbation.  His presentation was characterised by strong narcissistic traits and some anti-social traits as well.  He was found to be lying frequently about many details.  When his wife was interviewed it was apparent that he withheld information from her and gave her information which was different to what he had been told such as his diagnosis on this occasion.  He was discharged from hospital.

    …” (part of Exhibit R3);

    ·a pre-sentence report of Sarah Parker, dated 27 June 2007 (Exhibit R2, S18, p77 – see paragraph 27 above), in which it is relevantly stated:

    “He presents with narcissistic and grandeur ideation, …”;

    ·a pre-sentence psychological report of David Summerton, Psychologist, dated 3 October 2007 (Exhibit R2, S26, pp 127-135) in which it is relevantly stated:

    “ … He appeared quite confused at certain times and he contradicted himself within the interview on a number of occasions.  Certain information he offered was also highly inconsistent with information he had given during a recent pre-sentence report interview.  The writer of that report had in turn highlighted discrepancies with previously available information and questioned the overall reliability of his self report.  His ex wife described a broader tendency for him to construct misleading accounts regarding various issues in his life and she concluded that he ultimately came to believe what he had seemingly falsely created….

    …

    …  It appears that he loses some sense of reality at certain stages such that he comes to believe his own fabrications.  As indicated his self report was littered with contradictions and was also inconsistent with information previously offered by him….

    …” (Exhibit R2, pp 127, 134);

    ·the sentencing remarks of Judge Sleight on 22 January 2008 (Exhibit R1, G15, pp 81-90) in the course of which his Honour relevantly stated:

    “…

    Your personal background is somewhat unclear as it is noted in the reports I have received that you have provided a contradictory history.  You are aged 46 years of age, you were born in Egypt, you apparently came to Australia in June 2000.  The extent of your education is unclear.  You claim to have various impressive university qualifications but I am uncertain as to the reliability of this information.

    Likewise I cannot be confident about the employment and business history you have provided.  The psychological report I have received outlines conflicts in the background you have provided and concludes, as do I, that there is doubt about the reliability of the information you have provided.

    …

    The psychological report I have received indicates that you are quite removed from reality and you appear to fantasise about becoming a person that contrasts quite sharply with the actuality of your situation.

    …” (Exhibit R1, p 84);

    ·the sentencing remarks of Judge Macknay on 17 June 2011 (Exhibit R1, G13, pp 67-70) in the course of which his Honour referred to the applicant’s having “accumulated a history of offending involving deceit…” (Exhibit R1, p 69).

17. I also note that there is no reference in either Mr Summerton’s very comprehensive psychological report of 3 October 2007 (set out in paragraph 28 above) or Dr Febbo’s psychiatric report of 3 May 2011 (set out in paragraph 29 above) to the applicant’s having been tortured or otherwise ill-treated by the secret police or any other government agency in Egypt because of his political beliefs or for any other reason.

18. Having regard to the matters referred to in paragraphs 71 and 72 above, and having observed the applicant give evidence at the hearing in this matter and having listened to his evidence, I do not regard the applicant’s evidence regarding his treatment by the secret police in Egypt in 1986, 1988 and 1989, and his fears of “certain torture and probably death” because of his political beliefs if he were returned to Egypt, as credible or reliable and I do not accept that evidence.  Nor do I regard the abovementioned Amnesty International documents (Exhibit A5) as, to any extent, substantiating or supporting the applicant’s claim that he would be subjected to torture and probably killed because of his political beliefs if he were returned to Egypt.

19. In short, having regard to the evidence before me, I am not satisfied that any non-refoulement obligation exists in respect of the applicant pursuant to either of the Conventions, or pursuant to the International Covenant, referred to in paras 10(1)(d)(ii), 10.4.2 and 10.4.3 of Direction [41]. Accordingly, I attach no weight to the primary consideration relating to international obligations arising under either of those Conventions or that International Covenant in the applicant’s case.

    Conclusion regarding relevant international obligations

20. As previously mentioned, this primary consideration, insofar as it relates to the obligation under the CROC to have regard to the best interests of the applicant’s two children under the age of 18 years, weighs against cancellation of the visa.  In the circumstances of this case, however, I do not, for the reasons referred to in paragraphs 64 and 65 above, attach substantial or significant weight to this primary consideration.

    Other Considerations

1. Paragraph 11 of Direction [41] states:

   “ 11.     Other considerations

   Note: These are not primary considerations.

   (1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

   (2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

   …”

   Paragraph 11(3) sets out a non-exhaustive list of “other considerations”. 

2. In his statement filed on 8 June 2012 (part of Exhibit A1), the applicant sought to rely on the following considerations:

   ·his family and business ties to the Australian community;

   ·his age and health; and

   ·the efforts made by him to improve his education and thereby increase his capacity positively to contribute to the Australian community through employment.

3. As regards family ties, the applicant referred only to his two children under the age of 18 years and submitted that they “will suffer emotionally, financially and culturally from the non existence of their father”.  I note, however, that the best interests of those children have previously been considered as a primary consideration.  Although the applicant is presently still married to an Australian citizen (Ms Sourour), they have been separated for 10 years and, having regard to Ms Sourour’s evidence, they are likely to be divorced in the near future.  In these circumstances, I do not attach any weight to this consideration.

4. As regards business ties, the applicant referred only to his “interpreting and translating business” and he submitted that that business “will be destroyed completely if [he] were to be deported”.  There is, however, no objective evidence before me that that business is presently a going concern and I am unaware of the current status of that business.  In these circumstances, I do not attach any weight to this consideration.

5. As regards his age and health, the applicant submitted as follows:

   “ I am 51 years old, I suffer from cardiac problems and mental health problems which makes it very hard to have an access to medical care in Egypt.  It is very hard to start all over again for a man of my age, in a different country.” (sic)

   I am prepared to accept that it may be more difficult for the applicant to obtain necessary medical treatment in Egypt than in Australia but there is no objective evidence before me on the basis of which I could be satisfied that he would be unable, or even find it very difficult, to obtain such treatment in Egypt.  Nor am I satisfied that the applicant’s age would make it significantly more difficult for him to make a fresh start in Egypt – the country in which he was born and lived until he was about 30 years of age – than in Australia.  Accordingly, I attach little weight to the abovementioned considerations concerning the applicant’s age and health.

6. As regards his efforts to improve his education and his capacity positively to contribute to the Australian community through employment, the applicant submitted:

   “ … I have participated and enrolled into numerous courses and programs and obtained several tickets and licences to improve my chances of being employed at all times, I want to kindly remind this Tribunal that I can work as an Accountant, Bookkeeper, Interpreter & Translator, Stock Controller and Forklift & Front-end Loader Operator.” (sic)

   I note that the applicant has also worked as a taxi driver.  I accept that this consideration weighs in the applicant’s favour but, having regard to the lack of evidence before me as to the content and standard of the various educational courses which the applicant has undertaken in prison during his present period of incarceration, I do not attach significant weight to this consideration.

7. I accept, furthermore, that the applicant would be likely to experience hardship if he were removed from Australia, namely, great emotional hardship by reason of his being physically separated from his two children (whose own best interests have previously been considered as a primary consideration), and some hardship by his being returned to Egypt where, according to his evidence, he has not resided since 1991 and not visited since 1999.  As far as I am aware, there are no members of the applicant’s immediate family (other than his two children) in Australia who would be likely to experience hardship if the applicant were removed from Australia.  I accept, however, that, by reason of the abovementioned hardship that the applicant would be likely to experience, this consideration weighs against cancellation of the visa.

8. On the other hand, the applicant was formally warned, by letter dated 16 April 2008 from an officer of the Department, that “any further criminal convictions or any other conduct on [his] behalf that comes within the scope of subsection 501(6) [of the Act], could result in the consideration of the cancellation of [his] visa” (Exhibit R1, G19, pp 106-107). Notwithstanding that warning, the applicant subsequently committed the 19 serious offences, in the period between September 2008 and September 2009, in respect of which he was sentenced to imprisonment on 17 June 2011 (as set out in paragraph 5 above). This consideration clearly weighs against the applicant.

   Overall Assessment of the Primary Considerations and the Other Relevant Considerations.

9. Having considered the primary considerations and the other relevant considerations in this case, my ultimate task is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.

10. As regards the primary considerations I have, for the reasons previously discussed, concluded as follows:

    ·the protection of the Australian community weighs heavily in favour of cancellation of the visa;

    ·the fact that the applicant was not a minor when he began living in Australia weighs neither for nor against cancellation of the visa;

    ·the fact that the applicant commenced to engage in criminal activity in Australia less than one year (more specifically, about 11½ months) after he commenced ordinarily to reside in Australia weighs in favour of cancellation of the visa;

    ·the only international obligation which exists in this case, namely, the obligation under the CROC to have regard to the best interests of the applicant’s two children under 18 years of age in Australia, weighs against cancellation of the visa, but not to a substantial or significant degree.

    In my assessment, the primary considerations, on balance, clearly weigh in favour of cancellation of the visa.

11. As regards the other abovementioned relevant considerations discussed in paragraphs 78-83 above, my assessment is that they, on balance, weigh against cancellation of the visa, but only slightly.

    Conclusion

12. Having had regard to the primary considerations and the other relevant considerations in this case, my conclusion is that they, on balance, clearly weigh in favour of cancellation of the visa. I am, furthermore, of the opinion, having considered all the circumstances of this case, that the applicant’s remaining in Australia would present an unacceptable risk of harm being caused to the Australian community from serious criminal activity on his part. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.

    Decision

13. For the above reasons, the decision under review is affirmed.

I certify that the preceding 88 (eighty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

........[sgd D Brodie....................

Administrative Assistant

Dated 20 July 2012

Dates of hearing	14, 20 June 2012
Date of decision	20 June 2012
Date of receipt of request for written reasons	28 June 2012
Counsel for the Applicant	Mr S Walker
Solicitor for the Applicant	Ms S Chan
Representative of the Respondent	Ms C Darcy Senior Legal Officer Department of Immigration and Citizenship