WQKK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

WQKK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 634 (11 April 2024)
Division:GENERAL DIVISION
File Number: 2022/6994
Re:WQKK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date:11 April 2024
Place:Brisbane

The decision under review is affirmed
...........................[SGD].............................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XA Subclass 866 Protection visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – persistent offending including after visa previously cancelled and reinstated – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
11 April 2024

The Applicant is a stateless Faili Kurd. His family, except for one of his sisters, reside in Iran. In 2010, he entered Australia as an unauthorised maritime arrival and in 2012 he was granted a Class XA Subclass 866 Protection visa (“visa”). His visa was cancelled due to his criminal offending, and he asked the Tribunal to revoke that cancellation.
BRIEF PROCEDURAL HISTORY
In 2019, the Applicant’s visa was mandatorily cancelled because of his criminal offending, which largely consisted of driving offences and using fraudulent means to obtain fentanyl. Fentanyl is a prescription medication that can be extremely dangerous when not used under the supervision of a doctor. In recent years, fentanyl has been trafficked and used as a recreational drug.
The Applicant asked for the cancellation of his visa to be revoked. A delegate of the Minister refused to revoke the cancellation, and the Applicant applied to the Tribunal for review of that decision. In that Tribunal proceeding (“the 2020 proceeding”), the Applicant claimed that he intended to send fentanyl to his father and daughter in Iran for pain relief as it was difficult and expensive for them to obtain it in Iran. If that were the case, one might wonder “What is the harm to the Australian community from this offending?”. The Applicant also explained his driving offences as necessary in order to assist his family, e.g. he needed to drive to work to earn money to send to them. He indicated that his father and daughter no longer needed the level of pain relief that they did before, and he promised he would not re-offend. It is apparent from the cross examination of the Applicant in the 2020 hearing that the Minister did not accept the Applicant’s explanation for the fentanyl offences and that his account was problematic. The Tribunal set-aside the non-revocation decision and the Applicant got his visa back.
Within a few months, the Applicant again used fraudulent means to obtain fentanyl. He was imprisoned once more and his visa was, again, mandatorily cancelled. He obtained legal representation and asked for the cancellation to be revoked. A delegate of the Minister (“the Respondent”) refused to revoke the cancellation. The Applicant once again applied to the Tribunal for review (“the second proceeding”). The Respondent again challenged the claim that the purpose was to send the fentanyl to Iran. The Tribunal affirmed the Respondent’s decision. The Federal Court found that the Tribunal’s decision was affected by jurisdictional error and remitted the matter for a fresh review by the Tribunal (“this proceeding”).
On 11 July 2023, the Minister made a Residence Determination, so the Applicant was released from the immigration detention centre where he had been accommodated, and he was permitted to live in “community detention” subject to conditions.[1] The government paid for his accommodation in a two-bedroom unit with a yard, medical treatment and other expenses associated with the Residence Determination, and he was given a monetary allowance. He was not allowed to engage in paid work, and he needed permission to engage in study or unpaid work.
[1] Exhibit A2, Residence Determination.
On 24 November 2023, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”), the Applicant was granted a Class WR Bridging R (subclass 070) visa, also called a Bridging (Removal Pending) (subclass 070) visa, which I will refer to as a “BRV”. It allows him to remain in the wider community subject to conditions.[2]
[2] Under regulation 2.25AA of the Migration Regulations 1994 (“Regulations”)
The Applicant was ably represented in this proceeding by Human Rights for All. The hearing commenced via video conference on 23 August 2023. The Applicant and a trauma counsellor gave evidence. The Applicant was assisted by an interpreter.
Six days before the hearing, the Tribunal had sent an email to the Applicant’s legal representative that included the following paragraph:
“Whether or not the Applicant circulated fentanyl (or any prescription or illicit drug) in the Australian community is an important issue that is relevant to Primary Considerations 1 and 5 of Direction 99. The Presiding Member wonders if there is other corroborative evidence available to the Applicant such as (but not limited to) postal slips, a courier account. (sic) or receipts or account statements showing payment for postage to Iran. If the Applicant wishes to file further corroborative material, please do so by Friday 18 August 2023 to avoid the 2 day rule”.[3]
[3] Exhibit T1, admitted into evidence following the hearing.
At that stage, the only evidence (partially) corroborating the Applicant’s explanation for the fentanyl fraud was the evidence of his wife. The Applicant confirmed in his evidence that he was aware of the Tribunal’s request.[4] However, no further corroborative evidence was put forward.
[4] Transcript, page 34, lines 40 to 45.
On the first day of the hearing, the Applicant’s explanation for the fentanyl fraud was challenged. The second day of the hearing was interrupted by a medical episode. Before the hearing resumed some weeks later, the Applicant filed further material. A fourth hearing day was listed, and the Applicant again filed more material. The material did not include evidence to corroborate the Applicant’s claim about what he did with the fentanyl. The final hearing day took place on 21 December 2023.
The exhibits in this matter are listed in the attached exhibit list, marked “Annexure A”. The hearing was recorded and transcribed. The sound recording provides a more accurate record of the hearing than the transcript.
The Applicant claimed he was not literate in any language and that he had a poor grasp of English. However, in the hearing, he gave responsive answers to some questions before they were translated and he told the interpreter that he had mistranslated a question.[5] Accordingly, I think he is reasonably proficient in English, although I accept that he is not fluent and that his proficiency has increased over time, meaning he was less proficient in the past.
[5] Transcript, pages 107, 112 and 126.
This decision has unfortunately taken some time. In the administrative decision-making continuum, the Applicant has given multiple accounts that are inconsistent and/or improbable in many respects. Because of that, determining what is most likely to have occurred in relation to his offending, and the circumstances of his offending, has been painstaking and challenging. So has the task of setting it out it in a coherent form.
THE LEGAL FRAMEWORK
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In February 2021, the Applicant was sentenced to imprisonment for 18 months. He was immediately released on parole, but he breached his parole, so his parole was cancelled, and he commenced serving his sentence in prison. While he was in custody, the Respondent mandatorily cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence.
The Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Respondent decided not to revoke the cancellation. The Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(BA) of the Act.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[6]
[6] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should cancel non-citizens’ visas if they engaged in conduct in Australia or elsewhere that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The considerations in paragraphs 8 and 9 that are relevant in this matter are:
·Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct;
·Primary Consideration 5 – Expectations of the Australian community;
·Primary Consideration 3 – Strength, nature and duration of ties to Australia; and
·Other Consideration (a) – Legal consequences of the decision.
The mandatory considerations that are not relevant in this matter are:
·Primary Consideration 2, relating to acts of family violence, because there is no suggestion that the Applicant has ever committed an act of family violence;
·Primary Consideration 4, relating to the best interests of minor children in Australia, because there is no evidence that the best interests of any minor child in Australia is affected by the decision;
·Other Consideration (b), concerning impediments to the Applicant re-establishing himself and maintaining basic living standards in the receiving country, because there is no prospect of him being returned to Iran or Iraq in the reasonably foreseeable future, and it is not possible to predict whether he will be able to be returned at some point in the future and, if so, what life would be like for him in either country at that time;
·Other Consideration (c), concerning victims, because there is no evidence that the decision would affect any victims of the Applicant’s offending; and
·Other Consideration (d), concerning Australian business interests, because there is no evidence that the decision would affect any Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
I may take into account other matters as far as they are relevant to whether there is another reason to revoke the cancellation of the visa, and that will depend on the scope and purpose of the legislative scheme.
BACKGROUND
The Applicant was born in 1967 in Iraq. Due to discrimination against Faili Kurds, he relocated to Iran. There he was violently attacked, and he was even shot at a checkpoint in Iran for not having identification documents. He witnessed people of Kurdish ethnicity being attacked and killed. His wife is also Faili Kurd. They had two daughters, one of whom, “Ms A”, recently passed away. I accept that as the family were stateless, they did not enjoy the same rights and privileges as Iranian citizens, including the same access to education, social security, and government employment. I accept that the Applicant’s family does not have access to subsidised healthcare and, due to economic sanctions, sometimes Iranians can only access medications on the black market which can be expensive.
In July 2010, the Applicant came to Australia unlawfully. In early 2012, he was granted a Protection visa and released from immigration detention.
According to the Applicant, upon his release from immigration detention, he worked for various employers in the Sydney area. He has given different accounts at different times of who employed him and when, but he essentially claimed to have worked as a handyman, a driver for a removalist, and for a painting business called “Father and Son”.
According to the Applicant, while in immigration detention, he was prescribed painkillers for back pain resulting from the gunshot injury. Initially he took Tramadol (an opioid). In 2015, that was changed to Lyrica, and in late 2016 or early 2017, he changed to fentanyl (dispensed as Durogesic in varying mcg dosages).[7] I note that in the 2020 Tribunal hearing, he said he started fentanyl “before 2016” but this is contradicted by evidence he gave in the other two Tribunal hearings. Fentanyl patches come in a box of five[8] and they last for 72 hours.[9] The Applicant claimed he only used a patch when he was in a lot of pain, maybe one per month.[10] If he had any left-over past the expiry date, he put them in the bin.[11]
[7] Transcript, page 119; Exhibit G5; Remittal Bundle, pages 2194 and 2909 (transcript of the second hearing).
[8] Exhibit G5, Remittal Bundle, page 2912.
[9] Exhibit G2, Remittal Bundle, pages 499 to 504; Exhibit G4, Remittal Bundle, page 2185.
[10] Exhibit G5, Remittal Bundle, page 2910.
[11] Transcript, page 48.
EARLY OFFENDING
The Applicant has an extensive history of driving offences, starting in 2013. In May 2013, he was detected speeding by more than 20kmph. In that year, he was also caught driving while using a mobile phone. He was caught speeding in 2014, and again on 14 April 2016 – by at least 20kmph. On 31 July 2016, he was detected disobeying traffic lights.[12]
[12] Exhibit G1, Remittal Bundle, pages 288 to 294.
At 9.00pm on Sunday 16 April 2017, the Applicant was caught with 1.13g of crystal-methamphetamine (“ice”) in his shirt pocket and four fentanyl patches in his jeans pocket. According to contemporaneous police records, he was at a location that was well known for drug deals, and he was standing with two other people next to a car that had containers holding over 20g of ice attached to the undercarriage with magnets. The fentanyl patches and ice were seized.[13] The Applicant has not provided an explanation as to why he was carrying around four fentanyl patches if they were for his personal use, given one patch lasts for 72 hours. The Applicant subsequently pleaded guilty to possession of a prohibited drug.
[13] Exhibit G2, Remittal Bundle, page 534.
The Applicant has given varying accounts of this offending. In his 2019 revocation request, he said the amount of ice involved was 0.1 gram, which he described as the smallest “street” quantity, and that he occasionally used it to stay awake, and for energy to work long hours so he could make money to send home (meaning Iran).[14] However, the quantity he was caught with was over ten times that amount. He made the same claim about another drug possession offence he committed in 2018[15] and that was also incorrect.
[14] Ibid, page 522.
[15] Ibid.
In the 2020 hearing, he claimed he was going to get a pizza, the police were searching somebody and then they wanted to search him as well. It is not entirely clear, but he appeared to indicate that he found the ice on the street and picked it up in front of the police. He said he used ice once or twice per week for around a six-month period to help him to work longer hours.[16]
[16] Exhibit G2, Remittal Bundle, page 597.
In September 2022, the Applicant told a psychologist, Dr Mamta Sidhu, that he first used ice in 2017, and he used it approximately three times per week for around six months.[17] In this proceeding, he claimed that at the time of this offence he had never used methamphetamine, and that he had obtained the ice from a friend the previous day. This friend, from work, had given it to him, saying it was good for diabetes. He denied that the location was well known for drug deals, and he claimed he was there waiting for a pizza.[18] He denied having used methamphetamine at all in 2017 but admitted to having used it for six months in 2018.[19]
[17] Exhibit G5, Remittal Bundle, page 2691.
[18] Transcript, page 26.
[19] Transcript, page 27, lines 40 to 46.
There is nothing in the evidence before me that suggests that the police who dealt with the Applicant had reason to record anything other than what they observed. As the Applicant was at a location known for drug deals, standing next to other people and a car with a large quantity of ice hidden underneath it, and he had a small quantity of ice in his pocket, it can readily be inferred that he had acquired the ice from those people. He has not provided a credible alternative explanation. I am therefore satisfied that he obtained the ice in a drug deal on that occasion. On the basis of that and his admission to Dr Sidhu, I am satisfied that he used ice in 2017.

On 10 May 2017, the Applicant disobeyed a red arrow.[20]
[20] Exhibit G1, Remittal Bundle, pages 288 to 294.
THE APPLICANT’S FATHER AND DAUGHTER
The Applicant put forward some documents, with certified English translations, that purport to confirm that Ms A suffered from brain cancer. These were first provided to the Tribunal before the 2020 hearing.[21] The earliest in time is a brain scan dated 24 April 2017, which shows a patch of cloudiness. It is not apparent what that indicates to a lay person. It is dated eight days after the Applicant was caught in possession of ice. The next document is a letter dated 5 May 2017 from the Imam Khomeini Relief Foundation District 15 of Tehran, which indicates that Ms A had been diagnosed with a brain tumour, she was to undergo chemotherapy, and the foundation would cover 20% of the costs of her treatment. The next is a medical certificate, dated 16 November 2019, from a neurosurgeon, stating that Ms A had a malignant brain tumour and had been undergoing chemotherapy “since 2016-2017”. It is not apparent where the date range came from. The Applicant claimed the cancer was diagnosed in 2017, and his lawyer contended that the Tribunal should accept his evidence about that. The final document appears to be a chemotherapy invoice dated 20 May 2019.
[21] Ibid, pages 149 to 158.
The Applicant also put forward an English translation of a document that purports to be a list of medication prescribed by the “Mohebbe Mehr Specialized Hospital Endocrinology and Diabetes Clinic” for the Applicant’s father, dated 20 August 2017. It states “The aforementioned patient was diagnosed with diabetes that has caused severe infection in his foot which was amputated by the specialists in this clinic” and the list of medications includes “Durogesic 100 mg Patch”.[22] I accept that in Persian a reference to a foot can mean feet, and I accept that some time later, the Applicant’s father had to have a second amputation where he lost more of each leg.
[22] Exhibit G4, Remittal Bundle, pages 2147 to 2148.
Another document that was put forward was what appeared to be a medical certificate dated 13 September 2022, confirming that Ms A had a malignant brain tumour, and that due to the rapid and uncontrollable progress of the disease, treatment had been stopped.[23]
[23] Exhibit G4, Remittal Bundle, page 2142.
The Applicant has a history of using forged documents. However, despite my reservations, I am prepared to accept these document as genuine.
In the 2020 hearing, the Applicant said:
“In 2017 I was told that my daughter has brain cancer. After I heard this news after three, four months they told me that my father due to his diabetes had to cut both his legs. After that time I was under a lot of pressure. I had to be able to send money for my daughter to be able to have her chemotherapy, medication was under sanction in Iran so I had to send her medications. My problems started from then.”[24]
(Underlining added)
[24] Exhibit G2, Remittal Bundle, page 592
In a statutory declaration dated 10 June 2022, he said he was told about Ms A’s cancer towards the middle of 2017.[25] That is consistent with the medical letter, dated in May 2017, confirming her cancer, which followed the brain scan dated in late April 2017. However, in his oral evidence in this proceeding, the Applicant was careful not to agree that he found out about Ms A’s cancer after the brain scan, instead, saying it could have been before or after.[26]
[25] Exhibit G1, Remittal Bundle, page 139.
[26] Transcript, pages 23 and 24.
The Applicant was later asked if it was his case that the entirety of his offending, including traffic and drugs offences, started after he was informed of Ms A’s diagnosis in 2017. He answered in the affirmative. When he was reminded of his earlier traffic offences, he said:
“I did not mean the traffic offences, because I was a removalist and although this was my fault, but it was because of my work. I was referring to other offences…Anyone can get traffic fines. I was new to the country, and I was not familiar with all the regulations.”[27]
[27] Transcript, page 30, lines 20 to 25.
However only minutes earlier he had said “my traffic fines started after I was informed of my daughter’s issue”.[28] This is one of many examples of the Applicant giving evidence that is so inconsistent, it was difficult to track.[29] I am inclined to accept the evidence he gave in his statutory declaration – that he found out that Ms A had brain cancer towards the middle of 2017. I am satisfied that he learned of his father’s leg amputations a few months later. That means his first drug offence and several traffic infringements were unrelated to his family’s medical problems.
[28] Transcript, page 28, lines 33 to 35.
[29] Other examples, of marginal relevance, include the reason why his sister in Australia did not provide a letter of support and whether there is shrapnel lodged in his back.
FENTANYL
Durogesic patches each come in a sachet that is peeled away from the patch.[30] According to information published by the New South Wales and Victorian departments of health:[31]
·Fentanyl is a highly potent synthetic opioid;
·Fentanyl patches are designed to provide a steady release of fentanyl over 72 hours. One fentanyl 100mcg/hour transdermal patch applied every three days is the equivalent of 300mg of morphine orally daily;
·Use of fentanyl patches requires care when commencing treatment and is only appropriate in patients in whom opioid analgesic treatment is well established. Use in opioid naive patients is rarely if ever/never justified;
·The risk of drug dependence is high when using fentanyl patches. Fentanyl can be extracted from patches and misused. The use of fentanyl patches carries a number of risks of overdose, with a small margin between an appropriate therapeutic dose and a toxic dose. Injection of fentanyl extracted from patches, or multiple patches applied for an intoxicating effect, has resulted in a number of overdoses, including fatal overdoses;
·Serious injury from the injection of fentanyl includes ischaemic limb injury and amputation, thrombophlebitis and severe skin ulceration;
·Fentanyl patches have a high illicit value and are subject to trafficking. In Australia, the main source of fentanyl patches used illicitly is from those obtained on prescription; and
·In Australia, there have been increasing reports of misuse of fentanyl patches by people who inject drugs, with evidence suggesting a particular problem in Queensland and New South Wales.
[30] Exhibit G4, Remittal Bundle, page 2188.
[31] Exhibit G2, Remittal Bundle, pages 499 to 504.
CONTINUED OFFENDING
In July 2017, the Applicant exceeded the speed limit and drove without lights. On 24 August 2017, he was again detected speeding.[32]
[32] Exhibit G1, Remittal Bundle, pages 288 to 294.
In early October 2017, the Applicant was caught attempting to obtain fentanyl using forged prescriptions in the name Ali Tavakol. He made unsuccessful attempts at two pharmacies. He returned to the second the following day and tried again at which time the police attended. A search of his vehicle turned up prescriptions and other documents, including identity documents, in that name. The police thought the document had been forged in an unsophisticated manner. The Applicant told the police he was Ali Tavakol, and later he told them Ali was his friend and “He is overseas now. No contact. I get his medicine” but refused to elaborate further. No such name was found on police or immigration records. The police also found a diary with the addresses of numerous medical centres, two mobile telephones, a knife and a glass pipe, which is an item commonly used for smoking ice. One phone contained a message that referred to the Applicant as “Mr Patch King” but most of the messages were in another language.[33]
[33] Exhibit G2, Remittal Bundle, pages 472 to 473.
The Applicant later admitted to the police that he had deceived a doctor into believing he was Ali. He said he had not used a Medicare card. When asked why he did not use his own information to obtain medication, he said “because of Medicare”.[34] Since then, the Applicant has revealed that he used legitimate prescriptions for fentanyl for himself to make fake prescriptions.[35] In this proceeding, he admitted that he knew Medicare kept records of everyone who obtained fentanyl, and when he obtained fentanyl that was not for his own use, he did not use his Medicare card because he did not want the government to track those purchases.[36]
[34] Ibid, pages 472 to 473.
[35] Ibid, pages 508 to 524.
[36] Transcript, page 121.
The Applicant was remanded in custody on 8 October 2017. On 31 October 2017, he was interviewed for the purpose of a pre-sentence report. The report[37] indicated that he was asked about the message referring to him as Patch King. He claimed that he gave a patch to a friend one day due to her pain levels, and the message was her saying thank you and referring to him as a king for helping her.
[37] Exhibit G2, Remittal Bundle, pages 477 to 479.
However, 18 months later in the 2020 Tribunal hearing, he gave a different explanation. He said “Patch King” was “like a joke” made by a friend who knew he was using patches so would say “How are you, Patch King?”. He identified this friend as a male (not a female) called Mola whose surname he did not know. He claimed the police asked him about the name at the time and he told them “Because I’m taking all the time patches.”[38]
[38] Ibid, page 642.
In the 2022 Tribunal hearing, he denied that Mr Patch King was a reference to him being known for supplying patches to people. In this proceeding, he said it was a joke made by someone, but he had not supplied a patch to that person. When the pre-sentence report was put to him, he admitted to having given a patch to a female friend. When asked if she called him Patch King, he said he could not recall who sent him the text message. Contrary to what he said in the 2020 Tribunal hearing, he said he did not use patches much because his doctor had warned him that they could be addictive. He denied having said he was always taking patches in the 2020 hearing, claiming he had said he always “had” them.[39] That is not reflected in the transcript. Further, it seems implausible that he carried around medication intended solely for personal use, rather than keeping it at home, and that other people knew that. It is even more implausible that he was called Patch King merely for having or using that particular medication. Further, he was clear in the pre-sentence interview that the female to whom he had given a patch had sent the message calling him Patch King to thank him, which is inconsistent with his evidence in this proceeding.
[39] Transcript, pages 47 to 48.
I accept the Respondent’s submission that the explanations the Applicant gave for the text message referring to him as Patch King are inadequate. One inference that is reasonably open on the limited independent evidence before me is that the Applicant was called Patch King because he was known for supplying patches.
The pre-sentence report indicated that the Applicant talked about his wife and two daughters in Iran, and he mentioned friends and social supports in the community. He said he was working two days per week, earning approximately $600 per fortnight, and receiving $300 from Centrelink. His claimed employment could not be confirmed because he did not wish to disclose his employer’s details. He has never provided the Respondent or the Tribunal with independent evidence of employment.
With respect to his offending, he told the Community Corrections officer he was attempting to illegally obtain additional fentanyl patches so he could send them to his father in Iran who was very ill. He did not provide any evidence of that either. He did not refer at all to Ms A having cancer. In this proceeding, when he was asked about that omission, he said he did not know why but it might have been because at the time he might have thought his father losing a leg was more important.[40] This seems unusual if Ms A had been undergoing chemotherapy for brain cancer. The Applicant told the Community Corrections officer “I am sorry”, “I made a mistake” and “I will never do it again”. His risk of re-offending was assessed as low to medium.
[40] Transcript, page 35, lines 39 to 45.
On 20 November 2017, the Applicant was sentenced to a 12 month good behaviour bond for
·obtain prescription by false representation x 2;
·obtain or attempt prohibited drug by false representation x 3;
·obtain false document to obtain property x 3; and
·custody of a knife in a public place.
He was released from custody that day.
According to the Applicant, he sold his car in 2017 because of engine trouble and after that he hired cars from a person he knew.[41]
[41] Transcript, page 49, lines 27 to 47.
On 7 December 2017, the Applicant was caught speeding by more than 45kmph.[42] His license had been suspended due to demerit points. He told the police he did not know about the suspension, and they issued him a suspension advice notice.[43]
[42] Exhibit G1, Remittal Bundle, pages 284 to 285.
[43] Exhibit G2, Remittal Bundle, page 540.
On 16 January 2018, according to police records, the Applicant pulled into a random breath testing site at a speed that caused danger to the officer signalling him in. He produced what purported to be an Iranian drivers licence with English translation and a false date of birth. He was warned that it was an offence to provide false details to the police. He said he did not have a New South Wales licence, but eventually admitted he was lying after police told him they knew who he was and told him to stop lying. He also admitted he knew his license was suspended and he was on a good behaviour bond.[44] In the 2020 proceeding, he said he initially lied to the police because he thought if he told them his license was suspended, they would take him to prison.[45] His claim that he feared imprisonment is undermined by the fact that he kept offending.
[44] Exhibit G1, Remittal Bundle, page 284.
[45] Exhibit G2, Remittal Bundle, page 656.
Only two weeks after that offence, on 28 January 2018, the Applicant was again caught driving while suspended. When the police stopped him, he admitted that his licence was suspended and said he was going to a pharmacy to get his medication. The police facts noted that he was employed as a handyman and was earning about $1,200 per month and receiving about $380 per fortnight in Government benefits.[46] On 20 February 2018, he was fined $600 and disqualified from having a license for three months.
[46] Ibid, pages 539 to 540.
During the disqualification period, on 1 March 2018, he was caught speeding. Eleven days later, on 12 March 2018, he was caught driving while disqualified, and he failed to appear in court. On 26 March 2018, he was fined $500 and disqualified from having a license for three months for one of the disqualified driving offences.
On 23 April 2018, the Applicant was again caught driving while disqualified.[47] In May 2018, he was fined and disqualified for 12 months for disqualified driving.
[47] Ibid, pages 484 to 485.
On 1 June 2018, the Applicant was discharged from hospital after a procedure to investigate xanthogranulomatous cholecystitis. He was told to return to Westmead Hospital the following week for an elective operation (laparoscopy, cholecystectomy and liver resection).[48] A pathology report addressed to the Applicant described acute chronic cholecystitis associated with xanthogranulomatous inflammation of the Applicant’s gall bladder and noted “no evidence of carcinoma” and “no evidence of malignancy”.[49] Yet, since that time, the Applicant consistently told courts, the Respondent and the Tribunal that he had cancer.[50] It appears he also reported that to hospital staff when he underwent an endoscopy in 2022: a letter to him regarding that procedure on 7 April 2022, mentioned a history of cholangiocarcinoma (bile duct cancer) in 2016.[51] There is no evidence that the Applicant ever had cancer, and enquiries with Westmead Hospital by the Applicant’s lawyer in September 2022 confirmed that there was no cancer diagnosis. The Applicant claimed he must have misunderstood his treating doctor.[52] In this proceeding, he admitted he made no further enquiry about his apparent cancer even though he acknowledged that cancer is a very serious diagnosis.[53] I find it quite implausible that he believed he had cancer, given the absence of any cancer treatment and his failure to make any enquiries about the apparent diagnosis.
[48] Exhibit G5, Remittal Bundle, pages 2600 to 2605.
[49] Exhibit G2, Remittal Bundle, page 2622.
[50] For example, in his statutory declaration dated 10 June 2022 at Exhibit G1, Remittal Bundle, page 141.
[51] Exhibit G3, Remittal Bundle, page 1178.
[52] Exhibit G5, Remittal Bundle, pages 2526 to 2534.
[53] Transcript, page 36.
A day after being discharged from hospital, on 2 June 2018, the Applicant was found in possession of 0.2g of ice along with a pipe for smoking it.[54] He was still subject to a good behaviour bond at this time. He was fined for this offence in July 2018.
[54] Transcript, page 61.
On 30 July 2018, the Applicant was interviewed for the purpose of a pre-sentence report for driving offences. He said he was driving for work purposes and had recently been employing a friend to drive him to various jobs. He said his priority was working to financially support his family in Iran, he was working full-time as a handyman, and he was not receiving a Government benefit. He claimed to have been diagnosed with stomach cancer in 2017 and to suffer from insulin dependent diabetes, but it was noted that these claims were unsubstantiated. He said his gall bladder was removed in June 2018. He made no specific mention of his father or daughter suffering from medical conditions.[55]
[55] Exhibit G2, Remittal Bundle, page 488.
On 15 August 2018, the Applicant was re-sentenced for the offences that were punished with a good behaviour bond in November 2017 to eight months imprisonment, fully suspended. For two offences of driving while disqualified and his third drug possession offence,[56] he was sentenced to 12 months imprisonment, fully suspended.
[56] It is not apparent when this was committed.
Less than a month later, at 1.05am on 8 September 2018, the Applicant was caught speeding along the Hume Highway at 132kmph in a 100kmph zone while still disqualified from driving. He told the police he had left his license at home. When the police told him his license was disqualified, he said “No, that’s the person I live with”. He subsequently admitted that his license was disqualified and that he was scared at first to tell the truth.[57]
[57] Exhibit G2, Remittal Bundle, page 458.
When he was subsequently sentenced for this, on 14 December 2018, he told the learned Magistrate that he was driving with a pregnant lady who could not drive because she was in pain, and he was only driving for two minutes to a medical centre. When the Magistrate queried this and pointed out he was driving at 1.00am and speeding when he should not have been driving at all, he repeated that she was in pain and said they were just driving to her medical centre. When the Magistrate asked him where he was going, he said he did not know, he was looking at Google, and the first medical centre was 45km away.[58]
[58] Exhibit G1, Remittal Bundle, page 50.
In this proceeding, he said he was driving because he was travelling a long distance with a married couple who had come to Australia on the same boat as him. They saw he was not feeling well so they wanted to take him from Sydney to Melbourne to look after him for four or five days. The wife got a “tummy ache” so he drove. He denied having told the police that it was his housemate whose license had been disqualified but admitted that he told them his licence was at home. He admitted that after the police pulled him over, the wife drove for another 40 or 50 km, and she saw a doctor “the next morning” which, in context, appeared to mean later that morning.[59] His own evidence indicates that there was not a medical emergency, and the pregnant woman was capable of driving.
[59] Transcript, page 83.

On 12 October 2018, the Applicant went to court for a speeding offence and received a fine for speeding. It appears that he completed a traffic offenders rehabilitation course at some stage in 2018.
On 23 October 2018, the Applicant was again caught driving while disqualified. According to the police report, they followed a vehicle after their computer system detected a possible suspended driver and possible expired registration. They intercepted him after he pulled over. He looked nervous and the area was well known for drug supply. He told the police he had a back injury and recent abdominal surgery. The police found a prescription for fentanyl in his car. He insisted he had been given the script. The police also found Durogesic patches in sealed packets but not in the box they came in.
The Applicant told the police he was prescribed the patches by another doctor. When asked why he attended several doctors’ practices to obtain several prescriptions, he said he was scared he would run out and he would need them.[60] This seems implausible when there was nothing stopping him from obtaining another script when each box ran out if he was using them in the manner prescribed. The police later established that the script was fake, but the Applicant was a patient of the doctor who purportedly issued it. They also established that the patches were legally obtained.
[60] Exhibit G2, Remittal Bundle, pages 528 to 531.
I digress here to mention that in December 2021, the Pharmacy Council of New South Wales issued a warning to pharmacists entitled “Shopping for fentanyl”. It referred to the practice of “doctor shopping” whereby a person seeks prescriptions from multiple prescribers and presents them at multiple pharmacies. Some doctor shoppers were becoming more strategic and establishing themselves in a local area, presenting prescriptions for fentanyl 100mcg patches to local pharmacies, effectively setting up an apparently legitimate presence with both the doctors and the pharmacists.[61]
[61] Exhibit G4, Remittal Bundle, pages 2193 to 2194.
On 31 October 2018, the Applicant attended a medical practice and asked for fentanyl for back pain. He showed his injuries as well as scars to his abdomen from recent surgery. He was given a single prescription for Durogesic patches. He left the medical practice without buying the patches,[62] meaning he kept the prescription. On 14 November 2018, he returned and asked for six weeks’ worth of patches on the basis that he needed a supply for an overseas trip to attend his mother’s funeral. The doctor asked to see a copy of the Applicant’s boarding ticket before he was prepared to issue a prescription. The Applicant left and returned about 30 minutes later with a boarding ticket, flight schedule, plane number and invoice number. The doctor warned the Applicant about the addictive effects of Durogesic patches and said he would not consult with him again unless he attended Westmead Hospital to speak with a Drug and Alcohol specialist.[63] The Applicant did not travel overseas. His mother had died in 1997.
[62] Exhibit G2, Remittal Bundle, page 491.
[63] Exhibit G2, Remittal Bundle, page 491.
On 19 November 2018, the Applicant tried to use a fake prescription. When the pharmacist declined to fill it, he became aggressive.[64]
[64] Ibid,page 492.
On 14 December 2018, a sentencing assessment report was prepared in relation to the disqualified driving offence on 8 September 2018 where he was speeding along the Hume Highway. He was given a medium-low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). The report noted that the Applicant was a permanent resident, and he said his driving was necessity for his employment. He said he had limited employment opportunities in the cleaning industry as a result of losing his licence, whereas before he was working for a painter. He claimed to understand the seriousness and consequences of his ongoing offending, and that he understood he could not drive. He said he had organised other transport arrangements which, I note, is what he said in the 30 July 2018 pre-sentence interview[65] before he went on to commit more driving offences. He said he needed to provide financial support to his family.[66]
[65] Ibid, page 488.
[66] Ibid, page 460.
That day, the Applicant was sentenced. He was also re-sentenced for the offences that had been dealt with by way of good behaviour bond in November 2017 and again by way of suspended sentences in August 2018. He was sentenced to periods of imprisonment of twelve months, eight months and six months, with an effective time to serve of six months.
In the Applicant’s dealings with the Respondent, his lawyer made written submissions, dated 14 June 2022, about these sentencing proceedings that:
“However, [the Applicant] instructs that he was not provided a Farsi interpreter in this proceeding during sentencing. As such, [he] was unable to completely understand the questions put to him by his Honour Magistrate Stoddart at the time, nor respond to them in any meaningful way. This is made plain by this document. In these circumstances, this document should not go towards whether [he] was remorseful or had sufficient understanding on (sic) the consequences of offending at the time of these convictions.”[67]
[67] Exhibit G1, Remittal Bundle, page 100.
Respectfully, I do not accept that. The transcript of the sentencing proceedings[68] indicates that the Applicant gave responsive answers to questions and (unsuccessfully) sought to manipulate the Magistrate by putting forward misleading information. To start with, when the learned Magistrate asked him about the driving and fraud matters, he said “Yeah, because I have cancer, I have to go to medical centre for—[not transcribable]” even though he could not have been using cancer medication because he did not, in fact, have cancer. The Magistrate continued “So you just think, ‘Well look, I’m sick and I’ll just break the law.’ Is that what - is that what you think?” to which the Applicant said “No, I have cancer”.
[68] Ibid, pages 48 to 54.
When the Magistrate raised the fraud offences, the Applicant indicated that he did not understand him, however he seemed to understand when the Magistrate called him a liar and a cheat, responding “No, I’m not”. When told “You know you can’t drive”, he said “I sold my car and then I go to class”. However, he had committed the relevant driving offences in vehicles that he had hired after having sold his car. He conceded in this proceeding that he had told the learned Magistrate that he had sold his car to give the impression that he had taken steps to avoid committing any more driving offences, and that this was untrue.[69] When the three instances of disqualified driving were raised, the Applicant put forward the implausible explanation concerning his pregnant female passenger. The Magistrate did occasionally interrupt the Applicant when he tried to make excuses or promised he would not offend again but at no time did the Applicant mention fentanyl or sick family members, whereas he mentioned his own (claimed) cancer and a scheduled operation multiple times.
[69] Transcript, page 50.
When the Magistrate told the Applicant that he was going to gaol, the Applicant pleaded with him and said “If I’m going to judge - to gaol, I swear to God, own mouth, family is gone”.[70] In this proceeding, his lawyer urged me to take that as a reference to the Applicant sending assistance to his family. However, the Applicant’s family survived his incarceration, so I make no finding about what he meant.
[70] Exhibit G1, Remittal Bundle, page 53.
On 23 January 2019, after the Applicant had been in prison for around five weeks, he was sentenced for possession of a forged prescription (one month imprisonment) and disqualified driving (five months imprisonment). He had the assistance of a lawyer and a Farsi interpreter on that occasion. His lawyer submitted that he had no excuse for the driving offence: a friend asked him to pick up this car and he picked it up. In the 2020 Tribunal hearing, he claimed that a friend had been driving the car and he was merely standing next to it when the police arrived,[71] which I do not accept.
[71] Exhibit G2, Remittal Bundle, pages 661 to 662.
In relation to the forged prescription offence, his lawyer said:
“You see my client's record, your Honour. It starts from 2017. That is when the convictions appear on his record. Your Honour before that time he says that he had news that his 27 year old daughter had a brain tumour and he then decided that he would do everything he could to try and send the family money to help her with her treatment. He tells me that if the Court had some doubt about the existence of that brain tumour and her need for treatment and how expensive it was, he is happy to provide some material on a future date. He says that his father is living with his wife and his two daughters and his father had both his legs amputated and he also needed medication for his pain. The forging of the documents or the fraud he committed in relation to obtaining false prescriptions were in an attempt to be able to get medication to send back home…He has, he calls it, stomach cancer because the cancer is in his stomach region but it affects his intestines and everything around that area but it's less about him and more about the operations that his daughter has had to endure and sending help back to his father.”[72]
[72] Exhibit G1, Remittal Bundle, pages 44 to 47.
This was the first time the Applicant linked his offending to Ms A’s cancer. In this proceeding, the Respondent suggested that the Applicant had come up with this account after speaking with other prisoners, and having time to think about what he might say with respect to his criminal charges, while he was incarcerated. The Applicant conceded that he did have time to think and he had spoken with other inmates but “Very little”.[73] He denied having fabricated a story.
[73] Transcript, page 40, lines 16 to 26.
In this proceeding, the Applicant’s lawyer contended that these submissions were not challenged by either the Crown or the Magistrate, so they should be treated as having been accepted by the court as matters of fact, and that is what the Tribunal should do. However, in the sentencing process, it is neither practical nor necessary for the court to require proof of, or comment on, every facet of a plea in mitigation. This is particularly so in the Magistrates Court which is expected to expeditiously deal with a high volume of cases. The Crown decides which claims are worth challenging based on their significance to the outcome and other factors, and the court decides which claims require some proof. The submissions in issue did not concern the essential facts of the offending, they were unsubstantiated, and it is not apparent how much weight, if any, the Magistrate placed on them. The claim that the Applicant suffered from cancer was, in fact, incorrect. I am neither bound, nor inclined, to accept the content of the submissions as fact merely because they went unchallenged.
On 1 March 2019, the Applicant’s protection Visa was cancelled.
In July 2019, the Applicant submitted a request to revoke the cancellation of his visa. He said he was receiving fentanyl for his back injury, and he used legitimate prescriptions to make fake prescriptions so he could send fentanyl patches to his daughter, who had brain cancer, and his father who had both legs amputated because pain management medications were financially out of reach for them. He said the disqualified driving offences were related to his need to earn money to send to his family, but he did not explain the high range speeding or other driving offences. He also understated the amount of ice he was caught with, as I mentioned earlier.[74]
[74] Exhibit G2, Remittal Bundle, pages 508 to 524.
The Applicant claimed to have converted to Christianity in prison and he described this as a moral compass and stabilizer. He said:
“I believe the risk of me re-offending is none to minimal. During the time of my offences I was dealing with my own serious health issues which are currently being managed. Also I was trying to provide relief to my father and daughter during their health crisis, which are also currently being managed”.[75]
[75] Ibid, page 524.
He sought to put a positive spin, which I reject, on his attempts to evade detection by not using a Medicare card thus:
“My offences did none, or minimal harm to the Australian community. (In fact even while committing the offence of fraudulently obtaining prescription medication, I purposefully did not use Medicare and paid full price for them, to avoid negatively impacting government resources).”[76]
[76] Exhibit G2, Remittal Bundle, pages 508 to 524.
On 9 December 2019, while in immigration detention, the Applicant was reported for displaying abusive and aggressive behaviour towards an immigration officer. He allegedly became agitated, pointed his finger at the officer and said “Fuck you and Fuck immigration”. He was told not to swear and to leave the area.[77] He did not deny this.
[77] Exhibit G1, Remittal Bundle, page 222.
On 17 February 2020, the Applicant attended a hearing before Deputy President Britten-Jones with respect to his application to have the cancellation of his visa revoked. After referring to sending medication to Ms A, he was asked “What medications did you send your daughter?” to which he replied “Mostly I did send them painkillers for her as well as for my father”.[78]
[78] Exhibit G2, Remittal Bundle, page 592.
The Applicant claimed he gave fentanyl patches to people who were travelling to Iran and they took it to his family, adding:
“As an example, a friend of one of my friends used to go to Iran and I would ask them if possible to take two or three boxes of these painkillers for my daughter and father”.[79]
[79] Ibid, page 595.
He said he could not recall how many times he had sent fentanyl to Iran but estimated that he started in around June or July 2017 and stopped in December 2018 when he went to prison.[80] That would mean he started sending fentanyl to Iran around the time he found out about Ms A’s cancer but before he found out about his father undergoing amputations. It would make sense if he started sending fentanyl upon finding out about Ms A’s condition, but that is difficult to reconcile with the pre-sentence interview on 31 October 2017 in which he said he was attempting to obtain fentanyl to send to his father, but failed to mention his daughter, or with his explanation that he might have thought his father losing a leg was more important. In the second Tribunal hearing, he said he first started sending patches in October 2017[81], which aligns with the first time he was caught attempting to fraudulently obtain fentanyl, and better aligns with his evidence about when he found out about his father, but does not align with when he says he found out about Ms A’s condition.
[80] Ibid.
[81] Exhibit G5, Remittal Bundle, page 2911.
The Applicant gave evidence in the 2020 hearing that before he went to prison, he used to send around $500 per week to his family, which they used for medication, chemotherapy, doctors or other purposes and his wife saved some of it.[82] I note that the chemotherapy medication invoice dated in May 2019, when the Applicant had been incarcerated for some time, indicates that his family were still able to purchase medication without his ongoing financial help.
[82] Exhibit G2, Remittal Bundle, page 672.
In his effort to convince the Tribunal in 2020 that he would not re-offend, the Applicant said, among other things, that he had learnt his lesson in prison and detention, he did not want to spend one more day in prison, and:
“I will definitely not be committing these circumstances again. It would be impossible for me to be doing so, and I promise to you and to everyone right here and right now that I will not be committing these things anymore.”[83]
(underlining added)
[83] Ibid.
In his closing submissions in the 2020 proceeding, the Applicant said:
“…if I repeat what I did before and if I come into trouble with law, with the police with any kind of - if I have any kind of legal issue with the police, or the law, I will give you a letter signing that I will willingly just go to gaol but I am definite that I won’t be doing and living the life that I lived doing all these things that I did before. I’m never going to do that again.”[84]
[84] Exhibit G2, Remittal Bundle, page 735.
In this proceeding, the Applicant conceded that he had sought to give Deputy President Britten-Jones the impression that Ms A’s condition was a lot better than it actually was so he would think the Applicant did not have a reason to re-offend.[85]
[85] Transcript, page 60, lines 35 to 47.
On 26 February 2020, some 14 months after the Applicant had been placed in custody, the Tribunal revoked the cancellation of his visa. Three months later he re-offended. Up to that point the Applicant’s offending had all been in New South Wales where he lived. However, on 21 occasions in a nine-week period between May and August 2020, he obtained or attempted to obtain fentanyl at pharmacies in Queensland using forged scripts, mostly in fake names as follows:
·     27 May 2020 (forged prescription, false name);
·     29 May 2020 (forged prescription, own name);
·     14 and 15 June 2020 (forged prescription, false name);
·     27 June 2020 – attempt (forged prescription, false name);
·     27 June 2020 (forged prescription, false name);
·     28 June 2020 (forged prescription, false name);
·     3 July 2020 – attempt (forged prescription, false name);
·     4 July 2020 – attempt (forged prescription, false name);
·     4 July 2020 – attempt (forged prescription, false name);
·     11 July 2020 (forged prescription, false name);
·     12 July 2020 (forged prescription, false name);
·     18 July 2020 on three occasions (forged prescription, false name);
·     19 July 2020 (forged prescription, false name);
·     25 July 2020 (forged prescription, false name);
·     27 July 2020 (forged prescription, false name);
·     1 August 2020 on two occasions (forged prescription, false name); and
·     2 August 2020 – attempt (forged prescription, false name).[86]
[86] Exhibit G1, Remittal Bundle, pages 295 to 322.
There were two weekends in this period when the Applicant was not detected offending. During the period, he was caught speeding (on 27 July 2020), he obtained Alprazolam using a forged script, and he was found with five Viagra tablets without the box.[87] He was remanded in custody on 2 August 2020.
[87] Ibid, pages 295 to 322.
In this proceeding, he gave evidence that each script covered two boxes of fentanyl, each box contained five patches, and a patch would last for three days. An analysis of the offences reveals that in a nine-week period, he obtained 32 boxes of fentanyl patches, which contained a total of 160 patches, which is 480 days’ worth. The Applicant claimed that he used one or two boxes for himself, and he sent 26 or 27 to his family[88] which leaves three or four unaccounted for. According to his evidence, he would have sent 390 or 405 days’ worth of patches to his family in Iran.
[88] Transcript, page 125, lines 7 to 22.
The Applicant claimed he obtained fake prescriptions for $100 each from a person he had met in 2017. He unconvincingly said he could not recall how he met this person.[89]
[89] Transcript, pages 62 to 63.
In the course of all three Tribunal proceedings, the Applicant stated that he only ever worked in “cash” jobs (paid in cash or by electronic funds transfer) in Australia so he would not be taxed on his income, knowing it was illegal to avoid paying income tax.[90] He explained his conduct on the basis that he needed to send money to his family. When he was asked how he got the money to fly up to Queensland every week or every second week during the 2020 offending, he said he was working during the week.[91] However, when he was reminded that in his statutory declaration of June 2022 he had said he had no employment of any kind since 2019,[92] he said it was not employment because he did not pay taxes on his wages.[93] However, he had never described the work he did for undeclared income before his incarceration as something other than employment, so I am not satisfied with that explanation.
[90] E.g. transcript, page 110, lines 35 to 40.
[91] Transcript, page 64, lines 30 to 33.
[92] Exhibit G1, Remittal Bundle, page 138.
[93] Transcript, page 109, line 17 to page 110, line 30.

On 1 February 2021, the Applicant was convicted of 69 offences including 19 counts of fraud-dishonestly gain benefit/advantage, 23 counts of forgery and 23 counts of utter forged document. He was sentenced to 18 months imprisonment with his time on remand declared as time served, and immediately released on parole. When passing sentence, the learned Magistrate commented that the Applicant did not co-operate with the police or make any admissions. However, as is common practice, His Honour accepted the guilty pleas as an expression of remorse. He commented that:
“[The Applicant’s lawyer] raised an issue in respect of a medical condition. That is not supported by the material. It was raised on the basis that it purported to explain the very, very significant number of occasions which you unlawfully obtained this drug. Absence of medical material, I place little weight upon the submission. That said, I certainly draw no adverse inference in relation to the securing the fentanyl in the circumstances, but rather sentence you on the agreed facts that are before me”.[94]
[94] Exhibit G1, Remittal Bundle, page 41.
In this proceeding, the Applicant confirmed that the medical condition spoken of related to him. When it was put to him that:
“It is not part of the explanation that you were seeking to obtain additional illegal drugs - prescription drugs - to send back to your daughter. It was for yourself.”
he replied:
“If I said that I am getting it because of my daughter I had to prove that and I was in detention. How could I do that?”[95]
[95] Transcript, page 65.
I accept that the Applicant may have had difficulty accessing documents from gaol, however, lack of proof did not stop him from claiming the fentanyl was for his own use, so I reject this explanation. The Respondent pointed out that, if one accepts that the Applicant was sending fentanyl to Ms A, then he instructed his lawyer to mislead the court by submitting that he offended because of his own medical condition. This is inescapably correct.
On 23 February 2021, the Applicant breached a condition of his parole by travelling to New South Wales without approval, although he claimed he did not know he needed approval. His parole was suspended and on 1 March 2021, he was returned to custody. On 6 April 2021, his visa was mandatorily cancelled for the second time on character grounds.
In his request for that cancellation to be revoked, the Applicant said:
“…I made a bad decision by sending forged scripts to my daughter and father to help them cope with their sickness as a son and father, I was desperate to help them…I made the wrong decision trying to save my family.[96]
[96] Exhibit G1, Remittal Bundle, page 68.
The Applicant also claimed that his family “are stuck between Iran and Iraq on the border without help or support” which was clearly false as they lived in the capital, Tehran,[97] which is not on the border, and they did have some support as the Iranian medical documents show.
[97] Ibid, page 116
The Respondent declined to revoke the cancellation, and the Applicant applied to the Tribunal for review of that decision.
In IHMS clinical notes made in March and April 2022, a GP recorded concerns that the Applicant had a drug-seeking problem based on his attempt to get more pain medication than she thought he needed.[98] For example, on 30 March 2022, she recorded that she saw him bending down shooting pool looking very comfortable and smiling, before he came to see her to ask for his Lyrica to be increased, saying his back pain was too much.[99] In April 2022, she noted that he repeatedly asked for pain medication to be increased while in detention, and he got very upset with her when she declined to increase his Lyrica. She said he seemed to have a drug seeking problem.[100] The Applicant denied this.
[98] Exhibit G3, Remittal Bundle, page 826.
[99] Ibid, page 908.
[100] Ibid, page 826.
In March and April 2022, the Applicant had four sessions with a trauma and torture counsellor. She provided a report in which she said he presented with symptoms consistent with Post Traumatic Stress Disorder and Depression and he discussed concerns related to a diagnosis of stomach cancer.
On 10 June 2022, the Applicant made a statutory declaration in which he said, among other things:
·when he re-offended, he was not thinking clearly and his daughter did not have enough pain relief medication and he fell into re-offending to help her with her pain. Durogesic is very expensive in Iran and even if his family could find a distributor they could not afford the cost;
·“I never sent the medication in large quantities. For example, Duragesic (sic) comes in a box of patches. I would send a couple (maybe five) every now and then”;
·before he was imprisoned in August 2020, he had managed to send his daughter about a year supply of pain relief medication and he sent his family a large sum of money that he had saved so they could purchase more if that supply ran out; and
·“My offences before 2018 were influenced by my use of ice at the time. I have not taken ice since 2018”.[101]
[101] Exhibit G1, Remittal Bundle, pages 140 to 142.
The Applicant also repeated his claim that he was suffering from stomach cancer.[102]
[102] Ibid, page 83.
Between 22 and 29 October 2022, the Applicant completed an online Traffic Offender’s intervention program.[103]
[103] Exhibit G5, Remittal Bundle, page 2829.
On 8 November 2022, the second hearing took place. Two months prior, in September 2022, the Applicant had said in a statutory declaration:
“At the last AAT hearing, I made the promise that I would never re-offend again. I am sorry that I broke that promise and I take responsibility of it.”[104]
[104] Ibid, page 2530.
However, in the second hearing, when he was reminded of that, he said:
“I promised - I didn’t say I swore to God or anything. I said I promised not to do it”.
The Applicant gave evidence that he started sending patches to Iran in October 2017 and he estimated he sent them approximately 50 times.[105] He gave them to people who were going to Iran, and after COVID started, he “was trying to send them by post” and that was not easy.[106]
[105] Ibid, page 2912.
[106] Exhibit G5, Remittal Bundle, page 2910.
The Applicant’s wife gave evidence in the second hearing. She said the Applicant sent fentanyl patches for their daughter:
“in whatever way could through (sic). He would send them to people, or passengers, or friends, or he post them. Whatever, they would come and give it to us”.
She said he sent patches whenever they needed it, every two or three months, or sometimes it was five or six months when he was not able to find somebody to send them.[107] The Applicant’s wife’s evidence obviously cannot be consistent with his evidence that he sent patches on around 50 occasions if he started in October 2017, was in custody from December 2018 to February 2020, and he was returned to custody in August 2020.
[107] Ibid, page 2941.
The Tribunal (differently constituted) affirmed the Respondent’s decision, and the Applicant remained in immigration detention while an application to the Federal Court for judicial review was determined. The matter was remitted to the Tribunal for a fresh review. On 11 July 2023, the Applicant was released to community detention.
On 31 August 2020, the Applicant had been convicted in absentia in New South Wales of “possess forged prescription” and “forge or alter prescription which includes prohibited drug” and a warrant was issued for his arrest. On 1 August 2023, he presented himself to be dealt with for the offences of which he had been convicted in absentia. He was not further punished.
Ms A passed away shortly before the final hearing day in this matter. A local doctor had been providing morphine injections to help her manage her pain.[108]
[108] Exhibit A8, Applicant’s Updated Psychological Report.
THE FRAUDULENTLY OBTAINED FENTANYL
There is evidence before me that the Applicant lied to the police on several occasions. In this proceeding, he admitted to having given misleading information in order to manipulate a court and a differently constituted Tribunal. He used forged documents and deceived doctors and pharmacists. My impression of the Applicant is that he is prone to saying what he thinks will benefit him at a given time, whether it is true or not. He is not a reliable witness, so I am unable to accept his claims about what he did with the fentanyl at face value. In many ways, his evidence about that does not withstand scrutiny.
The Applicant gave inconsistent accounts of when he started sending fentanyl to his family. Further, he had opportunities to tell the police, community corrections officers and courts that Ms A had brain cancer and she could not access adequate pain relief in Iran. In late October 2017, he told a community corrections officer that he tried to obtain fentanyl for his father, but he did not mention Ms A. The letter asserting that Ms A was undergoing chemotherapy for brain cancer is dated in May 2017. Yet, the Applicant did not disclose Ms A's brain cancer to anyone in the criminal justice system until January 2019 when his lawyer made submissions about it. Nor did he put her condition forward as an explanation for his offending spree in 2020 when he was sentenced for those offences.
The Applicant gave inconsistent evidence about why he resumed offending in 2020. In his June 2022 statutory declaration, he had said he did it because his daughter did not have enough pain relief medication. However, in the hearing, he admitted that that his family had access to, and could afford, morphine. He said fentanyl was preferable because morphine had to be injected daily, whereas a fentanyl patch lasts for three days. He gave that evidence in the context explaining what his family did for pain relief when he was in custody from late 2018 to early 2020: he said that for most of the period his family used fentanyl that he had previously sent, and when that ran out, they relied on morphine.[109] He explained that he had sent more than his family needed because he thought he might be arrested.[110] However, this is inconsistent with his wife’s evidence that he sent fentanyl when the family needed it. His wife did not give evidence in this proceeding.
[109] Transcript, page 124.
[110] Ibid.
The Applicant gave inconsistent evidence about his pattern of sending fentanyl. In his June 2022 statutory declaration, he had said:
“I never sent the medication in large quantities. For example, Duragesic comes in a box of patches. I would send a couple (maybe five) every now and then.”[111]
[111] Exhibit G1, Remittal Bundle, page 140.
Additionally, in the current hearing, he said that towards the end of 2017 he started sending patches with “friends of friends” who were travelling to Iran or by post. When he could not find someone to take it, he put the patches between folded paper inside an envelope and posted them. They took 15 to 20 days to arrive. He sent fentanyl “Sometimes once a month, sometimes once every two months”. He sent between two and four boxes of patches with each traveller. He kept that up until he was imprisoned in late 2018. After he was released, he “sent it for four months and then again [he] was arrested”. He was asked “Okay, so after you got out of detention you resumed the usual pattern of sending between two and four packs every one or two months?” to which he replied “Yes”. He was then asked “Okay, so whenever you’re in the community you sent between two and four packs every one or two months. Is that right?” to which he replied “Yes”.[112]
[112] Transcript, pages 51 to 53.
However, later in his evidence he said that in 2020, he sent 26 or 27 boxes of fentanyl to his family between May and August 2020.[113] That is a lot more than two, three or four packs every one or two months. He was asked why he did not disclose that before. He said he was not asked, although he clearly was. His wife’s evidence is not consistent with him having sent 26 or 27 boxes in a matter of months.
[113] Transcript, page 125.
The Applicant’s evidence about how he sent fentanyl to Iran was equally unconvincing. He claimed that if he heard someone was going to Iran, he asked them to take it and give it to his family. He told them it was medicine for his daughter.[114] He took the patches out of the box, put them together “under a piece of paper or something”, put it in an envelope or box and gave it to the person to deliver.[115]
[114] Transcript, pages 53 to 55.
[115] Transcript, page 52, lines 40 to 44.
He claimed he did not tell these travellers exactly what he was giving them, and none asked. This, seems improbable seeing as, according to a Department of Foreign Affairs and Trade report on Iran that was published in 2020, drug possession was punishable by the death penalty in Iran.[116] The Applicant further claimed that he did not check whether it was legal to take fentanyl into Iran, and that that none of the travellers wanted to be paid to take it (and none were).[117] However, in the second hearing, he indicated that he considered it dangerous to have unregulated medicine in Iran. In response to a question from his lawyer about what would happen to his family if the Iranian authorities discovered they were purchasing medications on the black market, he had said:
“we are talking about the black market, we are not talking about a chemist, so the police might arrest them if the police find out and they can be imprisoned”.[118]
[116] Exhibit G3, Remittal Bundle, page 1561.
[117] Transcript, page 54.
[118] Exhibit G5, Remittal Bundle, page 2893.
The Applicant claimed that when he posted patches, he used standard mail, not a tracked mail service. This conveniently explains why there are no records of him posting items to Iran. When asked “Didn’t you want a guarantee that it would arrive?” he said “I was doing something illegal. How could I ask for a guarantee?”[119] which is inconsistent with his evidence that he did not check whether it was legal to take fentanyl into Iran.
[119] Transcript, page 55, lines 19 to 28.
The Applicant was questioned extensively about why none of the people who he said took fentanyl to Iran provided evidence of that. He said he did not know where they lived and he was ashamed to face them because he would have to tell them he had given them an illegal substance.[120] If they are friends of friends, then I do not accept that he could not have tracked them down. On the first day of the hearing in this proceeding, after the Applicant put forward that excuse, it was put to him that all the alleged couriers knew, and all they would be able to confirm, was that he gave them medicine to take to his family.[121] Some weeks later, on the third hearing day, he was again asked about the lack of evidence from these people and he replied “I didn’t think it was important”. In response to further questioning, he reverted to the excuse that he would have to tell them he gave them an illegal substance.[122] I find his excuses unconvincing, and I am inclined to think that the reason none of these couriers provided evidence is because they do not exist.
[120] Transcript, page 56, lines 4 to 10.
[121] Transcript, page 57.
[122] Transcript, page 127, lines 1 to 18.
The Applicant was asked if it was more likely that he was using the patches in Australia for his own purposes, which he denied.[123] It was later put to the Applicant that he did not send fentanyl to Iran but, rather, he circulated it in the Australian community or gave it to criminal associates. He insisted he sent it all to his family and never sold any in Australia. He pointed out that the police arrested him twice and never found “even a single box of fentanyl”.[124] However, if true, that would not necessarily prove that the fentanyl he obtained went overseas rather than into the Australian community. In any event, the police did find the Applicant in possession of four unboxed patches on one occasion and some re-packaged patches (legally obtained) on another occasion.
[123] Transcript, page 51, lines 25 to 35.
[124] Transcript, page 129.
The Applicant’s legal representative pointed out that there is no evidence in the police records of the Applicant supplying fentanyl or exhibiting the indicia of a lavish lifestyle. On the second point, in the period from May to early August 2020, the Applicant supported himself, flew to Brisbane and back nearly every weekend and, according to him, managed to send a large amount of money to his family.[125] Further, there is no independent evidence of legitimate employment, which leaves open the possibility that the Applicant wholly or partly supported himself through illegitimate means. On the first point, the Applicant was not under surveillance and his home was never searched. The police only interacted with him when he committed other offences. Before 2020, he was never caught successfully obtaining fentanyl by fraud, only attempting to. Yet, he claimed to have sent quantities of fentanyl to Iran regularly between late 2017 and December 2018. Therefore, by his own account, he must have fraudulently obtained fentanyl in that period without being caught. This illustrates the point that the mere fact that the police did not catch him supplying fentanyl does not mean he did not do it.
[125] Exhibit G1, Remittal Bundle, page 142.
The Applicant’s lawyer pointed to the timing of the Applicant’s fentanyl related offending to support his claim that it was all related to helping his family. However, the timing of events is this:
·from 2013, the Applicant committed traffic offences;
·in late 2016 or early 2017, his prescribed pain medication was changed to fentanyl;
·in 2017, he became acquainted with a person who could make fake documents;
·at 9.00pm on a Sunday night in April 2017, the police caught him in a place known for drug deals, with 1.3 grams of ice in one pocket and four fentanyl patches in another pocket;
·some days after that, the scan of Ms A’s brain was taken;
·towards the middle of 2017, the Applicant was informed of Ms A’s cancer, and a few months later he was told about his father’s condition; and
·in October 2017, he was caught attempting to obtain fentanyl using forged prescriptions in a fake identity, there was a message on his phone referring to him as Patch King, and none of his explanations for that name are convincing.
The timing of events could support the Applicant’s claim that he fraudulently obtained fentanyl to send it to his family in Iran if some facts are ignored. An interpretation that is equally open is that the Applicant obtained access to legitimate scripts that could be altered, he was acquainted with drug dealers and a person who could forge documents, and this made it possible for him to illegally obtain and trade in fentanyl patches, hence the nickname Patch King.
I do not accept that the purpose of the pharmaceutical fraud was to send fentanyl to the Applicant’s father and/or daughter. With respect to the 32 boxes of fentanyl the Applicant obtained in 2020, if I accept that he used two or three boxes on himself, which is a lot more than one per month, that leaves some 29 or 30 boxes unaccounted for. In addition, there appears to have been an unknown quantity of fentanyl that the Applicant obtained illegitimately in 2017 and 2018 that is unaccounted for. As the fentanyl is unaccounted for, I accept that it is within the realms of possibility that the Applicant sent some to Iran for his family, but I do not accept that this was his purpose or what he normally did with the fentanyl.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.

In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the following matters are relevant:
·the sentences imposed by the courts for the Applicant’s crimes;
·the frequency of his offending and the trend of increasing seriousness;
·the cumulative effect of his repeated offending;
·the fact that he re-offended after being made aware, in writing, of the consequences of further offending in terms of his migration status.
The Applicant’s traffic offending spans from 2013 to 2020, and includes:
·     multiple speeding offences including speeding by at least 20kmph (x 2), 32kmph (while suspended) and 45kmph (while suspended);
·     driving while using a mobile phone, disobeying a traffic light (x 2), and driving without lights;
·     driving while suspended or disqualified on five other occasions.
The totality of the driving offences is serious. The licensing system is aimed at making sure only people who meet certain standards are operating vehicles on the roads in the interests of the safety of all road users and pedestrians. Road rules are there to ensure order and safety. The Applicant’s license was suspended because of his failure to comply with road rules. His persistent flouting of traffic laws, particularly the high range speeding, did not result in any known harm but he exposed road users to increased risk of a collision, and it is well known that traffic collisions at high speeds result in serious injury and even death. The Applicant received a six-month sentence of imprisonment for the disqualified driving offence when he was travelling at 132kmph in a 100kmph zone. Imprisonment is generally imposed as a last resort when no lesser sentencing option is appropriate. He was sentenced to 12 months imprisonment for some older driving offences that had previously been dealt with by way of bond and suspended sentence. The learned Magistrate’s remarks indicated that the sentences in this case partly reflected the Applicant’s persistent disregard for traffic laws.
I am prepared to accept that the Applicant’s consumption of ice did not lead to him committing other offences, so I do not regard the three drug possession offences as serious.
The pharmaceutical fraud is extremely serious. Not only did the Applicant’s offending involve systematic, long-term dishonesty, it also undermined the crucial efforts of the Australian government to classify and regulate medications to minimise the risk of those medications being used in harmful ways. Given the catastrophic harm that can result from the incorrect or unsupervised use of fentanyl, coupled with its addictive properties, it is unacceptable for that drug to be in the Australian community illegitimately. I am satisfied that the Applicant illegally obtained a large amount of fentanyl. While I am unable to make a finding about what exactly he did with it, I am satisfied that all or most of it remained in Australia, at the very least creating a risk that it would be consumed without proper medical supervision, possibly leading to dire consequences.
On at least one occasion, the Applicant was aggressive to a pharmacist who had, quite rightly, declined to fill a fake prescription, which adds to the seriousness of his crimes. The Applicant was sentenced to 18 months imprisonment for his crime spree in 2020, marking the seriousness with which the court regarded that offending.
It is significant that the Applicant committed many of his offences while subject to a good behaviour bond and/or a suspended sentence.
The Applicant’s traffic offending was relatively frequent in 2017 and 2018 after his license was suspended, and the speeding offences increased in seriousness, although he was only caught breaking traffic laws once in 2020. The pharmaceutical fraud became more frequent and sophisticated in 2020.
The cumulative effect of the Applicant’s repeated offending was that:
·     other road users were exposed to increased risk of harm on many occasions;
·     doctors and pharmacists were defrauded on multiple occasions; and
·     the integrity of the Australian healthcare system was undermined with respect to a very dangerous, addictive drug.
The Applicant’s visa was previously cancelled because of his offending. It was done in writing. His visa was given back to him after he told the Tribunal in 2020 that he would not re-offend. I am satisfied that he knew that further offending could result in the cancellation of his visa even though he denied it.
By way of other serious conduct, for the entire time the Applicant worked in the wider community, he chose to work in jobs where he could earn undeclared income for the purpose of avoiding income tax. That means the Australian Taxation Office (“ATO”) was not able to determine what, if any, tax the Applicant was liable to contribute to the public revenue. It was contended on his behalf that the wages that were deposited into his bank account were “trackable”. However, it is not up to the ATO to go searching in people’s bank accounts for assessable income: the Applicant was legally required to declare his income. He was also abusive and aggressive to an officer while in immigration detention.
I note that there is no evidence before me of any tangible harm or detriment actually caused by the Applicant’s offending, and this reduces the weight that I allocate to this Primary Consideration.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Here, I should have regard to the government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[126]
[126] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[127]
[127] Paragraph 8.1.2(2) of the Direction.
The Applicant’s offending and other serious conduct to date includes a range of traffic violations, pharmaceutical fraud involving forged and fake documents, drug possession and efforts to avoid paying income tax. This conduct undermines government systems and creates the risk of physical and psychological harm within the community. His history shows a preparedness to break the law when it suits him and versatility in his offending. There are two recorded instances of aggression when he was unhappy with his circumstances. Accordingly, I am satisfied that any further offending and serious conduct, and consequential harm, would not necessarily be confined to what he has previously engaged in, and it could include low level intimidation. I do not think it would include actual violence as he has not shown a propensity for that.
The Applicant has shown himself to be incorrigible. Over time, he sought to explain all of his offending as necessary in order to help his family. However, I have wholly rejected his explanation for the pharmaceutical fraud. While I accept that he was probably sending money to his family, that does not explain or excuse his traffic offending. If he was working, he could have used alternative means, such as public transport, to get to and from work. Further, some of his traffic offences were obviously not work related, for example speeding along the Hume Highway in the middle of the night.
The Applicant claimed he would not re-offend. He said his wife would leave him if he ended up in gaol or detention again because she would not be able to cope with it. He claimed he no longer had reason to offend as Ms A did not have much time left (and she passed away after he gave that evidence) and his father’s amputations had healed, and he was in the care of the Applicant’s sister.
However, the Applicant has previously indicated that he would not re-offend, then re-offended. On 31 October 2017, he told a Community Corrections officer, in relation to the pharmaceutical fraud, “I am sorry”, “I made a mistake” and “I will never do it again”.[128] On 14 December 2018, he claimed to understand the seriousness and consequences of his ongoing traffic offending. In July 2019, in his request for the first visa cancellation to be revoked, he attributed his offending to the need to help his family and said he would “seek other means to manage similar situations should they ever arise again”. In the 2020 Tribunal hearing, he indicated that he had learnt his lesson in prison and detention, he did not want to spend one more day in prison and he promised not to re-offend. The fact that the Applicant repeatedly broke his word seriously undermines his claims now that he will not re-offend.
[128] Exhibit G2, Remittal Bundle, page 478.
In relation to the traffic offences, the Applicant claimed that, until he engaged in a driving offenders course in 2018, he did not appreciate the seriousness of driving offences. He said:
“I didn’t know that driving – above legal speed limit will attract driving penalty, but I was not correctly familiar with the law. I was under the impression that it is only a driving offence or a law thing, and I can pay it back in instalments”.[129]
[129] Transcript, page 122, lines 17 to 21.
He said the driving course helped him understand “how much I was wrong. How much dangerous it is for me and others”.[130] I find it incredible that the Applicant did not realise before that driving through red lights or high-range speeding was dangerous. His evidence indicates that he did not think these offences were serious because he did not expect serious consequences for himself, i.e. he merely received fines which he could pay in instalments. After that course, he was caught speeding, albeit by less than 13kmph.
[130] Transcript, page 89, lines 15 to 20.
I accept that the Applicant was generally of good behaviour in detention with a limited number of incidents. Before that, he behaved well in prison. However, he did not have the opportunity to commit driving offences, and he had limited opportunities to commit fraud, while in custody. An IHMS General Practitioner did suspect he was seeking pain medication beyond his medical needs and refused to prescribe it. I accept that there is no evidence that the Applicant committed any transgressions in the five months he spent in community detention, where he had much greater opportunity to offend. Nor is there any evidence that he has offended while in the community on the BVR. I take his good behaviour into account in his favour in my assessment of his risk of re-offending.
Between October and December 2018, the Applicant attended weekly counselling at the Drug and Alcohol Multicultural Education Centre.[131] I accept that he stopped using ice in 2018, and there is no evidence that he ever had a problem with alcohol. Since the last period of offending, the Applicant has completed some drug and alcohol and anger management courses, a stress management course, and an online Traffic Offender’s intervention program.[132]
[131] Exhibit G1, Remittal Bundle, pages 22 to 45.
[132] Exhibit G5, Remittal Bundle, page 2829.
I accept that stress management is relevant as the Applicant linked his drug use and poor decision making to the pressure he felt when he found out about Ms A’s cancer. The Applicant said that through these courses he has learnt the importance of social supports when dealing with anger issues, and that the best way to make decisions under stress is to consider the pros and cons of certain decisions with a friend or a counsellor.
The Applicant has engaged well with a counsellor from Queensland Program of Assistance to Survivors of Torture and Trauma (“QPASTT”), Ms Anna Perry, and he said he has found it beneficial in terms of addressing some distressing aspects of his life and finding out about community supports he can contact in situations of stress. Upon his release to community detention, the Applicant returned to Sydney, and he is now receiving counselling from the New South Wales equivalent of QPSATT, Services for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS).[133] He expressed his intention to continue engaging with trauma counselling long-term.[134]
[133] Exhibit G1, Remittal Bundle, page 139.
[134] Exhibit A8, Applicant’s Updated Psychological Report, page 4.
The Applicant conceded that none of the counselling or courses he had done were specifically targeted towards rehabilitation for fraud or forgery related offending.[135] In May 2022, his lawyer asked the Department if fraud rehabilitation was available in detention,[136] and it seems nothing came of that.
[135] Transcript, page 117.
[136] Exhibit G3, Remittal Bundle, page 772.
Dr Sidhu interviewed the Applicant in September 2022 and again in August 2023. In her September 2022 report,[137] she said the Applicant regretted his actions and the damage they had caused to his long-term prospects. She reported that the Applicant first used drugs in 2017, namely ice, to cope with his emotional distress at Ms A’s cancer and his inability to see her, and to have more energy so he could work more. Further, he attended Narcotics Anonymous and saw a psychologist to get himself off ice. She accepted that prior to 2017, the Applicant had no offending history, however he started offending after he received news that Ms A had brain cancer. She further accepted that he sent fentanyl to Ms A because she was unable to access treatment in Iran, and that he “needed more money in order to support his daughter…[who] was unable to access medical treatment”. She interpreted his offending as a response to feeling both overwhelmed and helpless regarding Ms A’s health in circumstances where he did not have support or adaptive coping skills to cope with his emotional distress. She opined that, because of his experience in Iran, where he knew the authorities would not help him and were complicit in his suffering, “his early templates were shaped around the understanding that if he needed help, he would have to procure it himself”. She saw his offending as his way of ensuring his family’s survival. She thought his trauma treatment through QPASTT would reduce his likelihood of offending in a similar manner in the future.
[137] Exhibit G5, Remittal Bundle, pages 2636 to 2651.
The Applicant told Dr Sidhu that his peer supports were pro-social in nature, and he was not in contact with his previous colleagues who endorsed drug use. Due to the length of time he had spent in detention and incarceration, he did not have access to many friends, however he had a handful of friends in the community.
Dr Sidhu applied the Level of Service Inventory-Case Management Inventory (LSI-CMI) risk assessment tool to estimate the risk of re-offending in general. Among the factors that this tool takes into account are attitudes that endorse or condone violence, anti-social attitude or criminality. Dr Sidhu thought the Applicant did not hold any such attitudes. She determined that the Applicant posed a low-level risk of re-offending, and that his awareness about his offending and his engagement with QPASTT boded well for his rehabilitation if he could remain motivated long-term.[138] She opined that the Applicant did not endorse features consistent with a diagnosis of post-traumatic stress disorder.
[138] Exhibit G5, Remittal Bundle, page 2685.
Dr Sidhu’s risk assessment is problematic because it was based on information that is not supported by the evidence, most of which she did not have access to. The Applicant did not have a clean record before he found out about Ms A’s cancer, he did not commit the pharmaceutical fraud to help Ms A or his father. Ms A was able to access treatment in Iran. The Applicant claimed in this proceeding that he does not have any friends. He has demonstrated some anti-social attitudes by his persistent offending and his trivialising of his high-range speeding – “anyone can commit a speeding offence”. Further, whatever the Applicant’s distrust in the Iranian authorities, he chose to come to Australia rather than any other country, then he obtained the Australian government’s assistance in the way of a protection visa, treatment for his back injury while in detention, income support through Centrelink and subsidised medical treatment through Medicare. I do not accept that the Applicant believed that if he needed help, he would have to procure it himself through crime.
Dr Sidhu gave evidence in the second hearing. When she was asked whether she took into account the fact that three months after the Applicant’s visa was given back in 2020 he reoffended, she gave a vague, unhelpful answer. She was told that in the 2020 hearing, the Applicant said the following things:
“I will definitely not be committing these circumstances again. It would be impossible for me to do so and I promise to you and to everyone right here and right now that I will not be committing these things anymore”
“I’m not going to do that again”
“But if someone commits that, you know, makes a mistake, if someone takes the wrong path it doesn’t mean that they’re going to do that for the rest of their lives and it doesn’t mean that they do not realise some time that what they have done was wrong. I’m a human being and everybody makes mistakes and I’ve done mistakes and – but I will never do those again.”
When asked if that gave her some concern, she said “it’s difficult for me to hear this at the time now and make a comment on that right now. It feels very uncomfortable for me to do that”.[139]
[139] Exhibit G5, Remittal Bundle, page 2960.
When asked “You can’t be certain, can you, given the applicant’s history of committing dishonesty offences that what he has told you in the interview is accurate?” she said “I can’t be certain, no”.[140]
[140] Ibid, page 2962.
Dr Sidhu provided an updated report and risk assessment in August 2023.[141] She apparently based her report on the same information as her previous report and did not mention the information the Respondent had given her in the second hearing. She again assessed the Applicant’s risk of re-offending as low.
[141] Exhibit A8, Applicant’s Updated Psychological Report.
It was submitted on the Applicant’s behalf that the Tribunal should accept this risk assessment because Dr Sidhu’s credentials were not questioned, nor was her finding. However, the Respondent had submitted that limited weight should be given to Dr Sidhu’s evidence after pointing out that she was not made available for cross examination. It was the obligation of the party that wanted her report to be accepted to make her available for questioning in circumstances where her evidence was obviously problematic. Often an expert’s opinion is highly influential. However, for the reasons I have stated, I give this expert risk assessment little weight.
It was submitted on behalf of the Applicant that the fact that the Applicant was permitted to return to the wider community under the Residence Determination could indicate that the Minister did not consider him to pose an unacceptable risk. The Residence Determination does not state why it was granted. Neither party put forward any information that would shed any light on that, except that the Respondent pointed out that s 197AB and 197AG of the Act provide that any Residence Determination must be in the public interest (but that term is undefined). The Residence Determination contained a high degree of supervision in the form of limitations on what the Applicant could do, and his medical needs were attended to by the Respondent’s department,[142] meaning he did not have the same degree of access to doctors and prescriptions as he had under his Protection visa. There are also restrictions in the BRV but they are aimed more at monitoring the Applicant’s movements and minimising security risks than managing the risk him re-offending in a manner similar to his previous offending.
[142] Transcript, page 17, lines 19 to 21.

Ms Perry gave evidence in this proceeding. She is concerned with conducting mental health risk assessments but not assessing the risk of re-offending. I accept that the Applicant is making some progress with this counselling, but I do not accept that this makes much difference to his risk of re-offending as it was not established that trauma in his background contributed in any significant way to his offending.
The risk that the Applicant will commit further offences primarily arises from his compromised moral compass when it comes to the law and honesty. These things have not adequately been addressed. In my estimation, the risk of further offending is at least moderate. Primary Consideration 1 does not require me to take into account, when allocating weight, the fact that any risk that the Applicant poses to the wider Australian community is already upon us because he is living in the wider community. It asks me to take into account the nature of harm to individuals or the Australian community should the Applicant re-offend and the risk that he will re-offend or engage in other serious conduct. That is what I have done.
Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[143]
[143] Paragraph 8.4(1) of the Direction.
The expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[144]
[144] Paragraph 8.4(3) of the Direction.
Paragraph 8.4(4) of the Direction provides the following guidance on how the expectations of the Australian community are to be determined:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
For almost the entirety of his time in the wider Australian community, the Applicant did not consider himself bound by Australian traffic laws or other laws. His offending was persistent, and he was undeterred by fines, good behaviour bonds, suspended sentences or even the cancellation of his visa in 2019. High-range speeding while disqualified from driving and obtaining a drug such as fentanyl by fraudulent means are both examples of serious conduct that, as a norm, would give rise to an expectation that the government would not allow the Applicant to continue to hold a visa. His offending shows disregard for the safety of members of the Australian community. His efforts to manipulate the police, courts, the Respondent’s Department and the Tribunal shows lack of respect for the administration of justice and the Australian government.
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here, I should relevantly consider the strength, nature and duration of any ties the Applicant has to the Australian community. The length of time he has resided in Australia should be given more weight if he has contributed positively to the Australian community in that time. Less weight should be given where he was not ordinarily resident in Australia during his formative years and he began offending soon after arriving in Australia.
The Applicant came to Australia 14 years ago in July 2010. He was well into adulthood when he arrived unlawfully and he committed his first traffic offence, speeding by more than 20kmph, one year and four months after being released from immigration detention. This reduces the weight I allocate to this Primary Consideration.
The Applicant claimed to have been employed when he was in the wider community, but he did not contribute by paying income tax. Nor is there any corroborating evidence that he was, in fact, employed as claimed. Nor are there any references from previous employers pointing to any specific contribution made by him.
The Applicant claimed that when he was in the wider community, he regularly attended a church and Christian community group and that he assisted with ceiling repairs.[145] He claimed that during his second period of incarceration, he worked closely with the prison chaplain and assisted him by preparing coffees for the men who attended religious sessions, and he organised books. I am prepared to accept these claims.
[145] Exhibit G1, Remittal Bundle, page 138.
In the hearing in this proceeding, the Applicant claimed not to have any friends in the Australian community. He previously said he knew many Iranians to have a brief chat with, so I accept he has some superficial social ties to the community. It was submitted on his behalf that he has historical ties to employers, however the wording and context of paragraph 8.3 of the Direction indicate that it refers to current ties to Australia, and the evidence about the Applicant’s employment is weak as I have previously observed.
The Applicant has one sister who lives in Australia. Throughout the multiple Tribunal proceedings, he gave inconsistent evidence about his relationship with her, and the reason he gave for the absence of a letter of support from her was unconvincing. His most recent position was that they are not in contact, and I accept that.
I allocate limited weight to this Primary Consideration.
LEGAL CONSEQUENCES OF THE DECISION
If the Applicant’s visa remains cancelled, he will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa[146] or another Protection visa. However, he is barred from applying for another Protection visa while in the migration zone unless the Minister personally makes a determination in the public interest allowing him to apply.[147] That seems most unlikely.
[146] s 501E of the Migration Act 1958 (“the Act”) and regulation 2.12AA of the Regulations.
[147] Sections 48A and 48B of the Act.
Back in January 2012, the then Minister made a protection finding within the meaning of paragraph 197C(5)(a) of the Act. The finding was based on an Independent Merits Review decision that the Applicant was a stateless Faili Kurd, whose countries of former habitual residence were Iran and Iraq, that he and his family had been expelled from Iraq to Iran, and he had a well-founded fear of persecution by virtue of his race and membership of a particular social group (displaced persons of Iraqi origin). As that finding has been made, the Applicant cannot be involuntarily removed to Iran or Iraq, unless a decision is made under section 197D of the Act that a protection finding would no longer be made.[148] Nor can the Applicant be confined in immigration detention on an involuntary and indefinite basis.[149] The Respondent conceded that there is no real prospect of the Applicant’s removal from Australia becoming practicable in the reasonably foreseeable future.[150]
[148] See s 197C(3) of Act.
[149] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
[150] Exhibit R4, Respondent’s Supplementary Submissions.
The Applicant is currently in the community under a BRV.[151] This visa is not time limited but it will cease at the earliest of the following events: the Minister gives a written notice to the Applicant that his removal is reasonably practicable; the Minister gives a written notice to the Applicant that he breached a condition of the visa; or the Minister grants another Bridging R (Class WR) visa.[152]
[151] Exhibit R5, Notice of Conditions and Acknowledgement
[152] Item 070.511 of Schedule 2 of the Regulations.
The BRV is subject to a range of conditions, and failure to comply with specified conditions is an offence punishable by at least 12 months imprisonment. The conditions do not prohibit the Applicant from driving, working, studying, receiving medical or mental health treatment, practicing his religion or engaging socially in the community. The grant notice invited the Applicant to make representations to the Minister about why the visa should not be subject to the curfew and monitoring device conditions, and the Applicant’s lawyer indicated that such representations have been made.
The Applicant suffers from some medical conditions but there is no evidence that his access to medical care is any less under the BRV than it would be under a Protection visa.
The Applicant suffered when he was in Iraq and Iran, he has suffered through his father’s medical problems, he particularly suffered through Ms A’s illness and now he is mourning her untimely death. Whether this is relevant to this Other Consideration or constitutes a separate consideration, I take it into account by adding some weight to this Other Consideration in the Applicant’s favour. I also take into account the fact that his wife and remaining daughter are living in hardship and have suffered the same loss. They would all be better off if they were together.
I accept that if the Applicant got his Protection visa back, it would give his wife and remaining daughter a better chance of coming to Australia as he would be able to propose or sponsor them with respect to an application based on familial links or humanitarian grounds, whereas he is unable to do that while on a BRV. The Applicant’s lawyer made submissions (which appear to have been mistaken) that his visa was a temporary protection visa and if it were returned to him, then it would become permanent at some stage through the Resolution of Status process. However, it appears that the Applicant always held a permanent visa (and he reported that to a Community Corrections officer in December 2018) so I am satisfied that he was always in a position to assist his family to come to Australia and, if his visa is returned to him, he would immediately return to the same position. I accept that the Applicant’s continued separation from his family, and his inability to assist them to come to Australia, will cause some hardship to him and his family.
I accept that the Bridging visa is more onerous than a Protection visa as the Bridging visa is subject to many conditions with the threat of imprisonment if certain specified conditions are broken, while the Protection visa is not.
I accept that the Applicant finds the curfew and wearing the ankle bracelet distressing, and there remains uncertainty about whether those conditions will be lifted. I further accept that he feels general uncertainty about his future in terms of his immigration status, and matters that flow from that, and that this is a source of stress.
This Other Consideration weighs to a moderate extent in favour of revocation of the mandatory cancellation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. The Applicant engaged in serious offending which continued and escalated after he had his visa cancelled and returned to him. While his and his family’s circumstances evoke sympathy, the considerations that favour revocation of the cancellation of his visa do not outweigh the considerations that favour non-revocation.
There is not another reason to revoke the cancellation of the visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 202 (two hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

.................................[SGD]..............................
Associate
Dated: 11 April 2024

Dates of hearing:
23 and 24 August, 14 and 26 September 2023, and 21 December 2023.

Solicitor for the Applicant:

Ms Allison Battison

Human Rights for All Pty Ltd

Solicitor for the Respondent
Mr Matthew Hawker

Sparke Helmore

ANNEXURE A - EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

WQKK - Remittal Bundle - 20.06.2023_Part1

T

-

30 June 2023

G2

WQKK - Remittal Bundle - 20.06.2023_Part2

T

-

30.06.2023

G3

WQKK - Remittal Bundle - 20.06.2023_Part3

T

-

30.06.2023

G4

WQKK - Remittal Bundle - 20.06.2023_Part4

T

-

30.06.2023

G5

WQKK - Remittal Bundle - 20.06.2023_Part5

T

-

30.06.2023

T1

Email from Tribunal to Applicant’s lawyer

T

17.08.2023

17.08.2023

Applicant

A1

QPASTT Report_July2023

A

18.07.2023

25.07.2023

A2

Residence Determination

A

-

25.07.2023

A3

Applicant’s Statutory Declaration

A

-

25.07.2023

A4

Applicant’s Statement of Facts Issues and Contentions

A

-

25.07.2023

A5

Court Order – Local Court of New South Wales at Fairfield

A

1.08.2023

2.08.2023

A6

Medical records Applicant

A

-

2.08.2023

A7

Notice of Penalty

A

19.07.2023

2.08.2023

A8

Applicant Updated Psychological Report

A

7.08.2023

9.08.2023

A9

Applicant – selected pages from Clinical Records 19 January 2023 to 11 July 2023.

A

Various

14.08.2023

Applicant Submissions 05.09.2023

A10

Audi evidence 1, Car rental information

A

-

5.09.2023

A11

Audi evidence 2, Car rental information

A

-

5.09.2023

A12

Certification of Ms A’s malignant brain tumour of Ependymoma type, dated 16 November 2019.

A

16.11.2019

5.09.2023

A13

Mohebbe Mehr Specialised Hospital Endocrinology and Diabetes Clinical Report dated 20 August 2017.

A

20.08.2017

5.09.2023

A14

Letter - Surgeon and Specialist in Orthopaedics and Bone Setting

A

-

5.09.2023

A15

Specialist Medical Imaging Report on X-Ray and CT Lumbar Spine - Applicant

A

29.08.2017

5.09.2023

A16

Summary of Psychological Treatment

A

13.09.2023

14.09.2023

A17

Musumeci and Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs (Migration) [2022] AATA 2885

A

2.09.2022

26.09.2023

A18

YFLK and Minister for Immigration, Citizenship and Multicultural Affairs

(Migration) [2023] AATA 2218

A

26.07.2023

26.09.2023

Respondent

R1

Ministerial Direction 99

R

23.01.2023

3.08.2023

R2

Respondent’s Statement of Facts Issues and Contentions

R

3.08.2023

3.08.2023

R3

Department of Foreign Affairs and Trade Country Information Report IRAN

R

24.07.2023

23.08.2023

R4

Respondent’s Supplementary Submissions

R

20.12.2023

20.12.2023

R5

Notice of Conditions and Acknowledgement

R

26.11.2023

20.12.2023

[2024] AATA 634

11 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	WQKK - Remittal Bundle - 20.06.2023_Part1	T	-	30 June 2023
G2	WQKK - Remittal Bundle - 20.06.2023_Part2	T	-	30.06.2023
G3	WQKK - Remittal Bundle - 20.06.2023_Part3	T	-	30.06.2023
G4	WQKK - Remittal Bundle - 20.06.2023_Part4	T	-	30.06.2023
G5	WQKK - Remittal Bundle - 20.06.2023_Part5	T	-	30.06.2023
T1	Email from Tribunal to Applicant’s lawyer	T	17.08.2023	17.08.2023
Applicant
A1	QPASTT Report_July2023	A	18.07.2023	25.07.2023
A2	Residence Determination	A	-	25.07.2023
A3	Applicant’s Statutory Declaration	A	-	25.07.2023
A4	Applicant’s Statement of Facts Issues and Contentions	A	-	25.07.2023
A5	Court Order – Local Court of New South Wales at Fairfield	A	1.08.2023	2.08.2023
A6	Medical records Applicant	A	-	2.08.2023
A7	Notice of Penalty	A	19.07.2023	2.08.2023
A8	Applicant Updated Psychological Report	A	7.08.2023	9.08.2023
A9	Applicant – selected pages from Clinical Records 19 January 2023 to 11 July 2023.	A	Various	14.08.2023
Applicant Submissions 05.09.2023
A10	Audi evidence 1, Car rental information	A	-	5.09.2023
A11	Audi evidence 2, Car rental information	A	-	5.09.2023
A12	Certification of Ms A’s malignant brain tumour of Ependymoma type, dated 16 November 2019.	A	16.11.2019	5.09.2023
A13	Mohebbe Mehr Specialised Hospital Endocrinology and Diabetes Clinical Report dated 20 August 2017.	A	20.08.2017	5.09.2023
A14	Letter - Surgeon and Specialist in Orthopaedics and Bone Setting	A	-	5.09.2023
A15	Specialist Medical Imaging Report on X-Ray and CT Lumbar Spine - Applicant	A	29.08.2017	5.09.2023
A16	Summary of Psychological Treatment	A	13.09.2023	14.09.2023
A17	Musumeci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2885	A	2.09.2022	26.09.2023
A18	YFLK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2218	A	26.07.2023	26.09.2023
Respondent
R1	Ministerial Direction 99	R	23.01.2023	3.08.2023
R2	Respondent’s Statement of Facts Issues and Contentions	R	3.08.2023	3.08.2023
R3	Department of Foreign Affairs and Trade Country Information Report IRAN	R	24.07.2023	23.08.2023
R4	Respondent’s Supplementary Submissions	R	20.12.2023	20.12.2023
R5	Notice of Conditions and Acknowledgement	R	26.11.2023	20.12.2023