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

XSHM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3364 (19 October 2023)
Division:GENERAL DIVISION
File Number: 2023/1223
Re:XSHM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:19 October 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
.................................[SGD].......................................
R Cameron, Senior Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of Class WE Subclass 050 Bridging General (Temporary) visa – substantial criminal record – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction no. 99 – frequent offending in short space of time – repeated breaches of community correction orders – convictions for carrying of knives and resisting or hindering police officers in the execution of their duties – drug addiction and limited capacity to cope and limited insight – protection of Australian community – strength, nature and duration of ties to Australia – expectations of Australian community – extent of impediments if removed – health problems – difficulty of procuring employment in Egypt – emotional hardship – reviewable decision affirmed
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Immigration and Border Protection [2022] HCA 17
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
R Cameron, Senior Member
19 October 2023
INTRODUCTION

The applicant seeks review of a decision made on 12 October 2022 by a delegate of the respondent, not to revoke the mandatory cancellation of the applicant’s Class WE Subclass 050 Bridging General (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘Act’) (‘the reviewable decision’).
A brief mention should be made in these reasons of the procedural history of this matter. The applicant on 18 October 2022 brought a proceeding in this Tribunal seeking revocation of the reviewable decision.[1] That application was heard on 15 December 2022. Prior to written reasons being delivered in that application, the Full Court of the Federal Court of Australia delivered its decision in Pearson v Minister for Home Affairs (‘Pearson’).[2] The Full Court held in Pearson that an aggregate sentence cannot be relied upon when assessing if a person has a substantial criminal record for the purpose of considering mandatory cancellation under the applicable provisions of the Act. The Department upon consideration of the fact situation applicable to the applicant identified his position as being affected by the decision of the Full Court in Pearson. Accordingly, the applicant was released from immigration detention.
[1] Application no: 2022/8551.
[2] [2022] FCAFC 203 (‘Pearson’).
Also, this Tribunal, applying the decision in Pearson, dismissed an application no: 2022/8551, giving written reasons.[3]
[3] The Tribunal's written reasons of 4 January 2023 are document G18.
Following the decision of the Full Court of the Federal Court of Australia in Pearson the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into force when it received royal assent. The effect of this amendment to the Act was that the original cancellation of the applicant’s visa was retrospectively validated.
Consequently, on 27 February 2023 the applicant applied again to this Tribunal seeking to have the reviewable decision revoked.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence before the Tribunal. The applicant gave oral evidence and was cross-examined. Mr Hamawi, a director of the applicant’s former employer Fineline Bricklaying Pty Ltd, and a friend, Mr Asmar, also gave evidence.
The applicant lodged with the Tribunal an array of documentary evidence which included several Mental Health Assessments, an undated letter of support from his former employer, a further statement made by him on 23 November 2022, and a psychiatric report from Dr Goodison dated 9 August 2022.
Also, in evidence before the Tribunal were the ‘G’ documents, a supplementary bundle of documents and a bundle of documents entitled ‘Hearing Folder’ that had previously been received in evidence for the purposes of hearing application no: 2022/8551.
For the sake of completeness, it should be recorded that by a direction made in this application on 20 March 2023, the evidence in application 2022/8551 was taken to be evidence in this application.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) 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.
The character test referred to in s 501(3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[4]
[4] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 99’).
DIRECTION 99
It is not necessary to reproduce the entirety of Direction 99. However, it is useful to refer to several paragraphs of it.
Paragraph 5.2, ‘Principles’, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for their full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(b)the Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct 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; and
(c)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6, ‘Exercising discretion’, provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraph 8, ‘Primary Considerations’, and paragraph 9, ‘Other considerations’, where relevant to the decision.
Paragraph 7, ‘Taking the relevant considerations into account’, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
Paragraph 8, ‘Primary considerations’, mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9, ‘Other considerations’, provides that in making decisions under s 501(1), 501(2) or 501CA(4), the following considerations must also be taken into account, where relevant, and include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.[5]
[5] Document G2 of the G documents, attachments G, H, I, J, K, L1 and L2.
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is ‘another reason’ why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. This is because, by operation of s 501(6)(a) and s 501(7)(c) of the Act, he has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more.
With respect to the question of a substantial criminal record within the meaning of s 501 of the Act, although the applicant’s sentence was served under an intensive correction order, such a sentence is nevertheless a prison sentence of more than 12 months within the meaning of s 501(7) of the Act. The reason for this is the operation of s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Crimes Act’). Section 7(1) of the Crimes Act provides as follows:
A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.
BACKGROUND AND OFFENDING
The applicant is 33 years of age, having been born in Egypt in April 1990. He is a citizen of that country.
He arrived in Australia by boat at Christmas Island on 2 May 2013.
Details of the applicant’s offending can be best reproduced in tabular form as follows:[6]
[6] These particulars of the applicant’s offending are derived from the National Criminal History check dated 16 March 2022 which forms part of document G2 of the G documents at pages 35-52.

DATE

COURT APPEARANCE AND OUTCOME

27 May 2020

The applicant appeared at the Fairfield Local Court for driving with privileges withdrawn.

Fined $1,000.

28 August 2020

The applicant appeared at the Parramatta Local Court and was convicted for destroying or damaging property.

Penalty: 12-month conditional release order.

16 November 2020

The applicant appeared at the Fairfield Local Court on the following charges:

·     Custody of a knife in a public place;

·     Possession of equipment for administering prohibited drugs;

·     Driving when privileges withdrawn; and

·     Possessing a prohibited drug.

Convicted and fined, licence disqualification and placed on two 18-month community correction orders.

3 December 2020

The applicant appeared in the Parramatta Local Court for custody of a knife in a public place.

Convicted and fined $500.

21 December 2020

The applicant appeared in the Parramatta Local Court for:

·     Having goods in personal custody suspected of being stolen (three counts);

·     Failing to appear in accordance with a bail acknowledgement;

·     Resisting or hindering a police officer in the execution of duties;

·     Custody of knife in public place;

·     Possessing a prohibited drug (two counts); and

·     Destroying or damaging property (two counts).

Fined and received various community correction orders ranging from 6 to 12 months for the first four sets of offences.

Received four 12-month community correction orders for the last two sets of offences.

21 January 2021

The applicant appeared at the Fairfield Local Court for:

·     Custody of a knife in a public place; and

·     Having goods in personal custody suspected of being stolen.

On the charge of custody of a knife in a public place as it was a subsequent offence, he was placed on a community correction order for 12 months.

On the charge of having possession of goods in personal custody suspected of being stolen, the applicant was convicted and fined $300.

9 February 2021

The applicant appeared at the Parramatta Local Court on a charge of shoplifting.

He was convicted and fined $500.

17 February 2021

The applicant appeared at the Parramatta Local Court on a charge of possessing a prohibited drug.

He was convicted and fined $400.

11 August 2021

The applicant appeared at the Fairfield Local Court for:

·     Custody of a knife in a public place;

·     Failing to appear in accordance with a bail acknowledgement;

·     Goods in personal custody suspected of being stolen (three counts);

·     Resisting or hindering a police officer in the execution of duties;

·     Possessing a prohibited drug (two counts);

·     Disposing of property – theft;

·     Larceny (two counts);

·     Entering a vehicle or boat without consent of the owner or occupier; and

·     Destroying or damaging property.

The applicant was sentenced to an aggregate term of imprisonment of 24 months and fined $300 for the offence of entering a vehicle or boat without consent of the owner or occupier.

31 August 2021

The applicant appealed the sentence imposed on him by the Fairfield Local Court on 11 August 2021 to the Parramatta District Court.

Upon hearing and determining the applicant’s appeal, the trial judge upheld the appeal and set aside the aggregate term of imprisonment. In lieu thereof, the applicant was sentenced to a term of imprisonment of 18 months to be served within the community by way of an intensive correction order.[7]

[7] The details of the appeal and the reasons for sentence are document G2 of the G documents at page 53-55.
A BRIEF GENERAL OBSERVATION OF THE APPLICANT’S EVIDENCE

The Tribunal considers it is appropriate to make some general observations about the basic tenor of the applicant’s evidence. The applicant has given evidence before this Tribunal on two occasions. On both occasions the applicant’s demeanour was particularly disappointing, if not unsatisfactory. There were several features of his evidence that warrant reference in a general sense. Specific examples of the unsatisfactory nature of his evidence will be addressed at various stages throughout these reasons.
Frequently, the applicant’s evidence was punctuated by extreme acts of flippancy. Not infrequently he laughed when questions were asked of him, particularly in cross-examination. The questions were about serious subject matter and that was quite clear to him from the nature of straightforward questions asked of him. There were examples of when he smirked and from time to times pulled faces in response to questions properly and fairly put to him. This application is no laughing matter.
Another unfortunate aspect of his approach to giving evidence was that rather than giving a straightforward answer to a properly framed and completely comprehensible question from the cross-examiner Mr Duldig, he responded with a question so as to avoid giving an answer. This was particularly so when an inconsistency in his evidence was being probed or he was faced with careful questions about his offending and use of drugs.
On other occasions there were outbursts which were unnecessary and did not assist his case. Often this was in a comparatively raised tone of voice which was not necessary. In particular, in response to a question about his drug taking and drug addiction, which he admitted were needed for self-medication, he responded with a most intemperate outburst in the following terms, ‘You didn’t let me go [to see my mother when she passed away]. You didn’t give me permanent residency to go and see mum. You were the reason. You are dogs, you are animals. You are the reason behind that.’ On another occasion he stated, ‘I wouldn’t leave Australia, not because I like Australia, I don’t like Australia at all because this country doesn’t give humans their rights. This country only looks after animal rights, not human rights.’
On other occasions his evidence was given in a way that was exaggerated and embellished, if not bordering on the bombastic. It did not reflect well on him. On other occasions his evidence was implausible. Specific examples of this will be given later in these reasons.
DIRECTION 99
Primary consideration 8.1 of Direction 99 - Protection of the Australian community
Paragraph 8.1(1) of Direction 99 provides that when considering the protection of the Australian community, decision-makers (in this case the Tribunal) should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 99 further states:
(2) Decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of Direction 99 - The nature and seriousness of the applicant’s conduct.
Paragraph 8.1.1(1) of Direction 99 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.
Paragraph 8.1.1(1)(a) of Direction 99 provides that, without limiting the range of conduct that may be regarded as very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.

Paragraph 8.1.1(1)(b)(ii) of Direction 99 provides that, without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties are considered by the Australian Government and the Australian community to be serious.
Paragraph 8.1.1(1)(c) of Direction 99 also provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the decision-maker must have regard to, the sentence imposed by the courts for a crime or crimes.
Paragraph 8.1.1(1)(d) of Direction 99 also provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
Paragraph 8.1.1(1)(e) of Direction 99 also provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the cumulative effect of repeated offending.
There is somewhat limited material before the Tribunal concerning the circumstances of the applicant’s offending. Frequently in applications such as this, the Tribunal is furnished with sentencing remarks of the Magistrate or Judge concerned, however in this matter the only sentencing remarks in evidence before the Tribunal are those from the Local Court at Fairfield on 11 August 2021,[8] and the subsequent appeal to the District Court at Parramatta on 31 August 2021.[9]
[8] The sentencing remarks of the Magistrate sitting at the Fairfield Local Court on 11 August 2021 are at pages 56-62 of document G2 of the G documents.
[9] The sentencing remarks of the District Court Judge of Parramatta on 31 August 2021 can be found at document G2 of the G documents, at pages 53-55.
The only other source material available to the Tribunal with respect to the applicant’s offending, apart from the National Criminal History Check, is a New South Wales Police Facts Sheet dated 17 July 2020 (‘Facts Sheet’). The Facts Sheet was apparently the basis of a prosecution summary given to the Local Court at Parramatta on 28 August 2020, when the applicant was convicted and sentenced on two charges of destroying or damaging property.[10] The applicant was asked in cross-examination about the Facts Sheet, and he agreed that its contents were correct. However, the applicant stated there were further additional facts, of which he provided details. They will be recounted later in these reasons.
[10] The New South Wales Police Facts Sheet is at pages 63-66 of the G documents.
The offending for which the applicant was convicted in the Local Court at Parramatta on 28 August 2020 (details of which are contained in the Facts Sheet) occurred late in the afternoon on 16 July 2020. The applicant and the victim of his offending were, apparently, co-tenants of a house which they occupied with others. Seemingly, there had been tensions between the applicant and the other occupants of the house over some time, concerning accusations that the applicant had not been paying rent and had refused to leave the premises. The victim heard a loud banging noise on the rear internal door of the premises. Shortly after hearing this noise, the victim went out the back of the premises and observed the applicant attempting to damage the lock on the rear internal door with some kind of tool. Immediately thereafter, the applicant then damaged the lock to the door by using a metal pole which struck the lock, causing it to dislodge. As a result of these acts, the applicant damaged the lock to the door. Whilst the applicant was damaging the lock to the door, as has been described, the victim recorded some of the applicant’s acts on his phone. The applicant then approached the victim and slapped the phone from his hand, causing it to land on the floor. When the phone landed on the floor the screen cracked.
After the victim’s phone landed on the ground, he retrieved it. This prompted the applicant to move towards the victim, (who had by this stage apparently retreated to the kitchen) where he took a hold of the victim by his coat with both hands and dragged the victim towards himself. The applicant then attempted to remove the victim’s phone from his person. The applicant was unsuccessful in obtaining possession of the victim’s phone.
Immediately following this interaction, the applicant took a hold of the victim’s coat with two hands again, and pushed him to his right-hand side, which resulted in the victim falling to the ground. As the victim fell, he struck his head on the side of a kitchen bench. The victim sustained a laceration to the right side of his head, felt immediate pain and began to bleed.
The police subsequently attended at the premises and arrested the applicant. A tape-recorded interview was undertaken between the applicant and the police. In that interview, the applicant admitted to damaging the rear internal door of the premises and damaging the victim’s phone. He denied the allegations of assaulting the victim and stated he did so in self-defence as the victim had approached him with a knife.
When providing oral evidence at the hearing of this application before the Tribunal, the applicant’s explanation for his actions during this incident were that he wanted to use the bathroom and the shower and had told the victim at least 10 times to leave the door open. He said that he had no choice but to break the door. He even, somewhat remarkably, said that anyone in his place would have done the same thing if they wanted to use the bathroom. He went on to describe it as ‘the normal thing to do’. The Tribunal finds this evidence somewhat puzzling. It also seems apparent from such a response that the applicant has not gained an insight into his offending, even though when pushed in cross-examination he did concede ultimately that he had done the wrong thing.
As noted above, there are some sentencing remarks with respect to the offences to which the applicant was convicted of in the Local Court at Fairfield on 11 August 2021, which such sentence he subsequently appealed to the District Court in Parramatta on 31 August 2021.
The 23 March 2021 offending occurred whilst the applicant was subject to what is known as a ‘conditional release in the community’. The applicant has previously been placed on several community correction orders commencing as far back as 16 November 2020, following his appearance in the Parramatta Local Court. Whilst the precise terms of the community correction orders to which the applicant was subject are not before the Tribunal, counsel who appeared on his behalf before the Local Court at Fairfield did observe that he was the subject of conditional liberty at that time. The sentencing Magistrate also recorded in her reasons for sentence that, in relation to the breach of the terms of the community correction orders, the applicant had disobeyed the good behaviour condition of such orders.
The applicant stole a large quantity of tools from a parked motor vehicle on 19 March 2021. Following his theft of the tools, the applicant sought to sell them by means of an advertisement he placed on his Facebook page. The victim of the applicant’s offending saw the advertisement on Facebook and further observed that the description of the tools was consistent with those that had been recently stolen from his car. He arranged to meet with the applicant. At the same time, he informed the police. The applicant was readily apprehended and charged. He pleaded guilty to those charges.
When probed about this offending during cross-examination, the applicant’s evidence was given in a very flippant manner. He sought to deflect the seriousness of his offending by saying that ‘it is me but it is not me’. He ascribed his offending to being on drugs. He also stated, in an almost nonchalant way, that whilst it was bad offending ‘it could have been worse’. He stated that others have committed worse crimes. Whilst not ultimately denying that he did commit the offences, the flippancy of his evidence displayed a tendency to downplay the nature and gravity of such offending. It did not reflect well upon him.
As to the seriousness of these offences, some observations should be made. Firstly, the applicant’s counsel in the hearing before the sentencing Magistrate submitted to her that the applicant’s offending, which took place on 19 March 2021, was objectively serious. This submission was made for several reasons, namely the value of the items taken, the degree of planning involved in relation to disposal of the stolen property, and because the offences took place while he was the subject of conditional liberty at the time whilst serving several community correction orders.
The sentencing Magistrate also recorded that the breach of each of the good behaviour conditions of the various community correction orders that he was subject to was serious. It was also noted by her that of the offences before the court, the larceny, the disposal offences and the attempted dispose offences were the more serious. She also commented that, from a sentencing perspective, the applicant was not assisted by his conviction history.
When the applicant appealed to the District Court of New South Wales, the sentencing judge made the comment that he considered the matters for which he had been convicted all to be relevantly minor offences. He described their objective seriousness as ‘towards the lower end’. It was also recorded by the sentencing judge that counsel and the instructing solicitor representing the Director of Public Prosecutions agreed with such an assessment.
Also in evidence were 14 incident reports concerning the applicant’s conduct whilst in immigration detention.[11] These incidents ranged from several minor assaults, use of force, abusive aggressive behaviour, and minor disturbances. Overall, the applicant admitted that he had been involved in these incidents. However, from time to time his evidence shifted and he also sought to significantly downplay the effect of such incidents. It is not necessary to analyse each of these incidents, however a number have been discussed below.
[11] The documents headed "Client Incidents" are at pages 103-117 of the G documents.
On one occasion, dated in the incident report as being on 12 May 2022, the applicant threw a chair which struck a SERCO officer. On another occasion outlined in the incident report, dated 3 December 2021, the applicant threw a container full of warm to hot water on a SERCO officer. Initially in cross-examination the applicant denied he did so. His evidence then shifted where he admitted he did, and that he had obtained the water from the shower by filling up a container with the shower water. The applicant’s evidence concerning several of these incidents had a degree of flippancy, and on occasion he laughed about the questions when they were put to him in cross-examination.
A further incident report dated 23 January 2022 detailed an incident that had occurred where the applicant was reported to have begun swearing abusively and aggressively towards female kitchen staff. As a result of this incident, the kitchen staff pulled down the shutters of the servery. The applicant disagreed with the contents of the incident report. However, in cross-examination, he did concede that he said to the female kitchen staff member concerned, ‘I said you are rude give me my fucking food.’
Having had the opportunity to observe the applicant in cross-examination concerning these incidents that had occurred whilst in immigration detention, the Tribunal is satisfied that the incident reports contain accurate summaries of the events as they occurred. The applicant’s evidence with respect to them was not particularly satisfactory, as has been noted.
This conduct in immigration detention does not reflect well on the applicant. It also indicates to the Tribunal that these are manifestations of what was identified in the report of Dr Goodison, a psychiatrist, dated 9 August 2022, which concerned the applicant. Dr Goodison opined that many of the applicant’s difficulties ‘relate to his personality style and likely Cluster B personality traits which means he has limited capacity to cope and limited insight’.[12] She further stated that he is ‘quick to temper and impulsive, tends to be fairly concrete and black and white in the way he views the world’.[13] She went on to state in this report that he is ‘prone to interpersonal difficulties at times, demonstrates aberrant coping skills and poor distress tolerance and has a tendency towards impulsive self-harm in the context of not having his needs met’.[14] This opinion is also relevant to primary consideration 8.1.2 of Direction 99, ‘The risk to the Australian community’, should the applicant commit further offences or engage in other serious conduct.
[12] These comments of Dr Goodison are found at page 374 of the G documents. Her report commences at page 362 of the G documents.
[13] Ibid.
[14] Ibid.
On the material before it, the Tribunal considers that the applicant’s offending must be viewed, objectively, as serious. There are several reasons for this.
It should not be forgotten that in the District Court of New South Wales on 31 August 2021, for his most recent offending, the applicant was sentenced to a term of imprisonment of 18 months. The difference on appeal was that the term of imprisonment was to be served within the community by way of an intensive correction order. A term of imprisonment on any objective analysis is a reflection of the fact that the applicant’s offending was serious. It is, as has been observed in many decisions of this Tribunal and of course intermediate and appellate courts, the last resort or option open to a court in the sentencing hierarchy which reflects the comparative gravity of the offending concerned. The Tribunal considers that it should place considerable weight on the length of a sentence imposed on an offender in determining whether such offending is serious. An imprisonment term of 18 months is a lengthy term of incarceration and clearly reflects the sentencing Court’s views with respect to the seriousness of such offending.
There are the number of offences for which the applicant has been convicted that have been enumerated in the table above in these reasons. He has been convicted of approximately 34 offences between May 2020 and August 2021. Whilst one may contend that individually most of the offences committed by the applicant are on the lower end of the scale, as one sentencing Magistrate observed, the applicant’s conviction history is not a good one. It is a significant number of offences over a comparatively short time. The Tribunal considers that the frequency of the applicant’s offending elevates it to a level of seriousness which weighs heavily against revocation of the mandatory cancellation of the applicant’s visa.
The applicant, both before this Tribunal and before some of the courts in which he appeared, explained his offending by reference to his drug use. Both the sentencing Judge and Magistrate observed, as is the case, that drug use does not provide a good excuse for the commission of such offences. The sentencing Magistrate also observed that, notwithstanding the applicant’s drug addiction, he was capable of engaging in crime and that he knew what he was doing and that it was wrong. Once again, the Tribunal agrees. The fact that the applicant may have offended whilst under the influence of drugs or subject to a drug dependency does not diminish the seriousness of his offending.
The Tribunal notes, with some concern, that with respect to the applicant’s drug problem, the sentencing Magistrate in the Local Court at Fairfield on 11 August 2021 recorded that the applicant had not demonstrated that he was genuine in his alleged motivation to address this problem during his previous period of supervised release in the community. She recorded that the applicant’s response to supervision, pursuant to the existing community correction orders, was described in his sentencing assessment report as ‘deemed borderline satisfactory’.[15]
[15] G2 of the G Documents, page 60 lines 11 – 12.
Whilst it is probably more relevant to the primary consideration contained in paragraph 8.1.2 of Direction 99, ‘The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct’; some reference should be made to the question of the applicant’s drug taking in the context of the nature and seriousness of the applicant’s offending. It is quite apparent that the applicant’s use and dependency on drugs have been a significant factor in his offending. Indeed, he has been convicted on several occasions for possession of prohibited drugs. However, it must be repeated as observed above, that drug use and dependency or being under the influence of drugs whilst committing such crimes, as the applicant did, does not have the effect of diminishing the seriousness of such offending.
Another reason why the Tribunal views the applicant’s offending as serious is due to the fact that the applicant has offended on numerous occasions when he was subject to a good behaviour condition in various community correction orders. It should be repeated that the applicant was first placed on a supervision order by the Parramatta Local Court on 28 August 2020. He was subsequently placed on similar orders on numerous occasions. He repeatedly breached the good behaviour conditions of those orders with his further offending on each occasion.
It is more probable than not when placed on a community correction order that the applicant would have signed an undertaking to the court to be of good behaviour in the future. Additionally, as is the usual practice, it is more probable than not that the sentencing Magistrate, not to mention the lawyers who appeared on the applicant’s behalf, would have given him a clear-cut warning of the obligation to be of good behaviour in the future and not to reoffend. That the applicant not only reoffended, but frequently did so after being placed on several community correction orders that contained good behaviour conditions, and after having been warned of the consequences of breaching them, is of concern to the Tribunal. It is of concern as it reflects a disregard or a degree of indifference to the laws of Australia that is simply unacceptable. In this context, the Tribunal concludes that the breaching of the good behaviour conditions, which is a crime, is serious and weighs heavily against the revocation of the decision to cancel the applicant’s visa.
There is another dimension to the applicant’s offending which also causes the Tribunal to regard it as serious. The applicant has been convicted of the offence of custody of a knife in a public place on four occasions. Carrying a knife is an objectively serious offence. Whilst one might give the applicant some degree of latitude with respect to the offence of knife carrying if it were a one-off event, the fact that he has been convicted four times is of concern. It is apparent from his subsequent court appearances for this offence that the applicant has not learned his lesson.
In his oral evidence, the applicant sought to downplay or deflect attention from the seriousness of his convictions for carrying knives in a public place, by asserting that he was not carrying a knife at all and described the knives he carried as ‘a cutter not for causing problems’. In another part of his evidence, he proffered the excuse for carrying a knife on one occasion because he was working at the time in a fruit shop and the knife was necessary for his employment duties there. He explained that he left the knife in his bag by mistake and was intercepted subsequently by the police when he went to an automated teller machine carrying the bag. He then in a rather emotional, and at times flippant, way repeated that it was a work knife, that he had never stabbed anyone, that it was not a heavy weapon, and he had no intention of hurting anyone. He repeated, ‘I have no problem with anyone and didn’t use it to stab anyone’. He offered no excuse for being convicted four times in possession of a knife in a public place.

Knives are dangerous weapons, and the Tribunal finds it disturbing that the applicant was carrying such a weapon, whilst he was using and unquestionably under the influence of drugs. Whilst under the influence of drugs there is a risk that the applicant’s judgement when armed with a knife could have been seriously impaired. There is a distinct probability that in such a setting there would be a higher risk of the applicant offending by resort to the use of a knife. It is another reason why the Tribunal finds that the applicant’s offending is serious and weighs against revocation of the decision to cancel his visa.
The applicant has twice been convicted of resisting or hindering a police officer in the execution of their duty. This offending is simply unacceptable and must be objectively viewed as serious. Once again, it is of particular concern as it reflects a disregard for the law, institutions of this country and overall, a degree of indifference that cannot be tolerated. As is well known from recent events, police officers face unique challenges in discharging their duties. The Tribunal agrees with the respondent’s contention that paragraph 8.1.1(1)(b)(ii) of Direction 99 provides that, without limiting the range of conduct that may be considered serious, crimes committed against government representatives or officials ought to be considered especially serious. These actions by the applicant are considered by the Australian Government and the Australian community to be serious.[16] It also accepts the respondent’s contention that the rationale for this is clear. It is because government officials, particularly police officers, other law enforcement officers and emergency workers, place themselves in vulnerable positions for the protection and service of the broader community. Where police officers are resisted or hindered in the execution of their duties, such offending should and must be viewed as particularly abhorrent.
[16] See paragraph 21 of the respondent’s Statement of Facts, Issues and Contentions of 4 April 2023.
The Tribunal has commented earlier upon the applicant’s behaviour whilst in immigration detention. It is an unfortunate reflection upon his attitude towards authority that he has engaged in the conduct recorded in the incident reports, which was largely admitted by him in cross-examination. As noted earlier, it is also a reflection of his particular personality traits as identified by Dr Goodison in her report dated 9 August 2022, and of what she described within this report, and as was apparent to the Tribunal, of the applicant’s limited capacity to cope and limited insight. It is the limited insight into the applicant’s own offending and other conduct in immigration detention that, in the view of the Tribunal, amplifies the seriousness of his behaviour.
By reason of the foregoing, the Tribunal considers that the applicant’s offending must be viewed, objectively, as serious. The history and pattern of the applicant’s offending has been outlined. There are the remarks of the sentencing Magistrate and Judge, and the repeated breaches of good behaviour conditions of various community correction orders that are unacceptable. The convictions for the carrying of knives and resisting or hindering police officers in the execution of their duties is similarly unacceptable and reflects a disregard for the laws of this country and a degree of indifference on the applicant’s part. Therefore, by reason of concluding that the applicant’s offending is serious, it must weigh heavily against the revocation of the decision to cancel his visa.
Paragraph 8.1.2 of Direction 99 - The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(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:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In undertaking the assessment required of this primary consideration, paragraph 8.1.2(2)(a) of Direction 99 requires the Tribunal to assess the nature of the harm should the applicant engage in further criminal or other serious conduct.
In assessing the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct, some guidance can be obtained by a consideration of the applicant’s previous history of offending that has been outlined earlier in these reasons. That history would indicate that should the applicant engage in further offending, the range of harm that could be caused by him would include loss or damage to property, commensurate economic and financial harm, use of drugs which would fuel the illicit drug trade, and possible adverse psychological and mental health consequences for his potential victims.
The Tribunal is also concerned that, with respect to the nature of the harm to individuals or the Australian community should the applicant offend in the future, there is, given his propensity to carry knives in a public place, the risk of serious harm or injury to potential victims should he resort to the use of a knife, particularly if he is under the influence of drugs. As well as his potential victims suffering physical injury from the possible use of a knife, victims of such crime almost inevitably suffer significant psychological impact that from time to time remains with them for many years. In addition to the actual physical harm to potential victims, there is the cost to the community of the provision of hospital and other health care services that such victims would inevitably require to recover from their injuries.
Another aspect of harm that may arise from the applicant’s offending in the future relates to his drug use. The applicant freely acknowledged, as was evident from an array of other documentary evidence before the Tribunal, that his offending occurred whilst he was a frequent user of drugs. If the applicant takes drugs, he seems almost inevitably to have a tendency or propensity to offend. It is possible that if the applicant continues to take illegal drugs, and offend whilst under their influence, that he will require hospitalisation, the use of mental health services and, more likely than not, recourse to drug and alcohol treatment services. Almost inevitably cost of these services will have to be borne by the Australian community via the taxpayer. It is an aspect of potential harm that could be caused which should not be underestimated.
The Tribunal considers that there is a significant likelihood of the applicant engaging in further criminal or other serious conduct due to his involvement in drugs. The applicant on his own admission readily, and somewhat flippantly, conceded that he has taken drugs whilst in immigration detention. In cross-examination he stated that he had taken drugs in immigration detention twice during a period of approximately 18 months. He stated the last time he took drugs was approximately 8 months ago. He also conceded that during the brief period he was released from immigration detention he did smoke drugs with a friend on one occasion.
The applicant’s use of drugs in immigration detention was also recorded in clinical notes of treating health care professionals who have seen the applicant during that time. For instance, clinical notes of a Mental Health Consultation undertaken by a psychiatrist with the applicant on 29 March 2022 recorded, amongst other things, the following:
Is continuing to use crystal methamphetamine intermittently in detention and has a history of amphetamine dependence.
Another clinical note of a Mental Health Consultation between the applicant and a psychiatrist on 29 March 2022 contained the following entry:
Used crystal methamphetamines daily smoking in the community. Says he has continued to use crystal methamphetamine in jail and detention, says this provides comfort when he ruminates about his past. Says he smokes 3-4 time more crystal methamphetamine in detention than he did outside. Says he is not a junkie, and he can stop at any time.
Several things emerge from a consideration of these clinical notes. Firstly, the note recording that the applicant smokes three to four times more crystal methamphetamine in detention than he does outside is completely inconsistent with the applicant’s evidence from the witness box to the Tribunal. In the witness box he stated that he had not taken drugs for the last 18 months. Then his evidence shifted, where he said he had relapsed only twice in that time. Clearly, this is inconsistent with the contents of the clinical note. Also, it indicates that the applicant, when ruminating on his past or acting impulsively at times when he finds it difficult to cope, has a tendency to resort to the use of drugs. Unfortunately, this inconsistency was not put to the applicant and, therefore, the Tribunal, will not place any reliance upon it. However, it does highlight the distinct and real risk that the applicant, particularly under times of pressure or when he acts impulsively, may resort in the future to taking drugs if he is released into the community. If that were to occur and he had resort to drugs there seems to be realistically, a high risk of him reoffending.
The Tribunal, as noted earlier, has regarded the applicant’s convictions for resisting or hindering police officers in the execution of their duties as serious. Particularly, if the applicant has interactions with police officers in the future, whilst he is under the influence of illicit drugs, and potentially whilst carrying a knife, there is the potential for physical and psychological harm to be inflicted on police officers and/or any other emergency service personnel with whom he may engage.
In undertaking this assessment reference should be made to the remorse that the applicant has expressed for his offending. Expressions of remorse appear in several parts of the material before the Tribunal. Counsel who appeared for the applicant in the Local Court at Fairfield on 11 August 2021 submitted that the applicant was ‘extremely remorseful for his conduct’ and had ‘learned his lesson and he is motivated to stay out of trouble’. Remorse was also expressed in a letter sent by the applicant to the National Character Consideration Centre on 1 August 2022.[17] In his Request for Revocation of a Mandatory Visa Cancellation form lodged with the Department of Home Affairs on 17 February 2022 under Part 10, ‘Criminal History and Risk of Reoffending’, the applicant expressed some remorse.[18] The applicant also expressed similar sentiments in his evidence before the Tribunal, including in his witness statement of 23 November 2022.[19] The Tribunal acknowledges these expressions of remorse.
[17] The letter forms part of document G2 of the G documents pages 95-97.
[18] The document forms part of document G2 of the G documents at pages 77-94. In that section of the document, he stated as follows:
When I committed the offences, I was on drugs. I have regret (sic) the crimes that I’ve done in Australia and I’m so ashamed of myself that I broke the law and let myself down. I’m totally learned (sic) my lessons and become much wiser and mature and responsible of my behaviour and ready to mix with society again.
I'm willing to improve myself by taking a step forward and start doing programs and courses that helps me to behave.
[19] Hearing Folder pages 409-411.
Paragraph 8.1.2(2)(b) of Direction 99 requires the Tribunal to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information, evidence, the risk of reoffending and the evidence of rehabilitation.
There is limited evidence of the attempts that the applicant has undertaken at rehabilitation by the time the matter was before the Tribunal. He has successfully completed courses in ‘Basic English Speaking Skills’, ‘Drug and Alcohol Abuse 101’ and ‘Anger Management’ whilst in immigration detention.[20] There is no evidence before the Tribunal that the applicant has undertaken any other courses in aid of his rehabilitation, notwithstanding that he has been on many previous community correction orders, prior to these courses being completed in August and November 2022.
[20] Certificates of completion for the courses ‘Basic English-Speaking Skills’, ‘Drug and Alcohol Abuse 101’ are at pages 101-102 of the G documents. They are dated 2 and 3 August 2022. The certificate for ‘Anger Management 101’ is at page 401 of the Hearing Folder and is dated 8 November 2022.
With respect to the ‘Drug and Alcohol Abuse 101’ course undertaken by the applicant in August 2022, the Tribunal has to question whether the applicant truly gained much from it. This is because, as mentioned above, based on the applicant’s own admission, when giving evidence to the Tribunal in this application, the applicant whilst he has been in immigration detention has continued to use drugs. On his own admission he has taken drugs after he undertook the ‘Drug and Alcohol Abuse 101’ course. He also said while in the witness box during cross-examination that ‘Such courses wouldn’t help; it’s all fake.’ This does not reflect well upon him and poses the question whether he has genuinely rehabilitated and again, whether he might succumb to the temptation to use drugs if released into the community. The Tribunal considers it to be a distinct and real risk.
Some other evidence concerning the applicant’s attempts to rehabilitate with respect to his use of drugs were commented on by the sentencing Magistrate in the Local Court at Fairfield on 11 August 2021. It was recorded by that Magistrate, as noted earlier, that whilst the applicant claimed to be motivated to address his drug problem, he had not demonstrated that desire in a genuine way during his period of supervised release in the community. This is of concern to the Tribunal, particularly given the fact that he had previously been placed on numerous community correction and supervision orders which required him to be of good behaviour and to refrain from consuming drugs. These observations do not instil confidence in the Tribunal that the applicant’s efforts to remain drug-free in the future will succeed. If he does not remain drug-free he is more likely than not to offend again in the future.
As noted above, the applicant tendered in evidence a report dated 9 August 2022 prepared by Dr Goodison, a psychiatrist.[21] At the outset, with respect to this report from Dr Goodison, the applicant conceded in cross-examination, as was obviously the case, that it was arranged by the lawyers he had retained for the purposes of making a claim for compensation for personal injuries he suffered as a result of the car accident in which he was involved in January 2017. It was not prepared for the purposes of this application or seeking an opinion from Dr Goodison as to the likelihood or risk of the applicant reoffending.
[21] Page 362 of the G documents.
In her report, Dr Goodison expressed the opinion that the applicant’s substance abuse issues have evolved because of dependence on pain medications due to his perception of pain, as a result of him being injured in a car accident on or about 15 January 2017. The applicant reported that in the accident he sustained an injury to three intervertebral discs in the lower back region. As a result of this injury to his lower back region, he experienced sustained pain and difficulty moving. He explained to Dr Goodison that immediately after the accident he began using substantive amounts of pain relief, including tramadol, which he received through his general practitioner. Additionally, the applicant informed Dr Goodison that he took morphine tablets, as well as illicit drugs, to manage the pain as it ‘took it away’.[22]
[22] Page 365 of the G documents.
Dr Goodison also expressed the opinion that the applicant did not meet the threshold for a diagnosis of clinical depression. He was not found to be clinically depressed. She also found that the applicant does not suffer from any clear primary psychological injury as a direct result of the motor vehicle accident. Also, she stated in the report that PTSD screening and specific anxiety screening were negative. As also noted earlier, the opinion was expressed by Dr Goodison that many of the applicant’s difficulties related to his personality style, and likely ‘Cluster B’ personality traits.[23] This means that the applicant has a limited capacity to cope and limited insight. She also expressed the view that the applicant is quick to temper and impulsive, tends to be fairly concrete and black and white in the way he views the world. She said he is prone to interpersonal difficulties at times, demonstrates aberrant coping skills and poor distress tolerance and has a tendency towards impulsive self-harm in the context of not having his needs met.
[23] There were several Mental Health Consultation review notes prepared by several psychiatrists who have examined the applicant whilst he has been in immigration detention. Those clinical notes record that the applicant has a Cluster B personality disorder. They also observed that the applicant possessed impulsive traits. It was also noted in some clinical notes that he had no coping strategies. These clinical notes are at pages 422, 430, 462, 547, 549 and 552. The entries in these clinical notes are corroborative of the opinion expressed by Dr Goodison.
The Tribunal accepts the contentions of the respondent that, for the purposes of this application and the matters that it must determine in applying this portion of paragraph 8.1.2(2)(b) of Direction 99, the report of Dr Goodison is of limited utility. There are several reasons for this, including that Dr Goodison was not asked and did not express an opinion as to the risk of the applicant reoffending.
Additionally, Dr Goodison did not refer to the applicant’s criminal history anywhere in her report. It cannot be determined from an examination of the report whether she was aware of the applicant’s offending either in whole, in part, or at all. One would have expected that if Dr Goodison had been instructed about the applicant’s history of offending, she would have referred to that in detail in the section of her report entitled ‘History’. It should not be lost sight of that there is a reasonably detailed history included in Dr Goodison’s report.
There is another aspect of Dr Goodison’s report and the history that she recorded that warrants reference. In addition to her report not recording any of the applicant’s criminal history it also does not record a matter that was raised by the applicant’s counsel in the plea made on his behalf before the Local Court at Fairfield on 11 August 2021. In the plea made on behalf of the applicant, which he agreed during his evidence in this application was accurate, several submissions were made that are of relevance.

Firstly, it was submitted that the applicant started using illicit drugs approximately 15 months beforehand. This puts the date at which he commenced using drugs in approximately May 2020, not in 2017 following the car accident, as he explained to Dr Goodison. Secondly, his counsel stated that he was instructed the applicant started using drugs after learning that his mother had passed away and said that he simply lost his way with drugs and that he was using methylamphetamine daily.
This submission made on the applicant’s instructions to the Local Court at Fairfield does not accord with the history of drug taking recorded by Dr Goodison in her report. She recorded that the applicant commenced using illicit drugs, as well as prescription medication, to manage the pain, as it ‘took it away’, emanating from three intervertebral discs in his lower back that were injured as a result of a car accident the applicant was involved in in January 2017. This history recorded by Dr Goodison was consistent with evidence that the applicant gave at the hearing of this application that he became addicted to drugs after he was injured in a car accident in early 2017. When giving this evidence he stated that also the main reason was that he was cut off from Medicare and unable to access prescription drugs for pain relief.
To put it bluntly there are two inconsistent versions of the events. The applicant’s attempts to explain these inconsistent versions was not satisfactory. He was asked specifically why there was no mention made of the car accident in 2017 to the Local Court at Fairfield in August 2021 and why there was no mention to Dr Goodison of the effect that the death of his mother had upon him and it being the catalyst for him to commence using illicit drugs in the year 2020.
Initially when confronted with the inconsistency between these two versions of the events he stated that he could not remember why there was no mention of the car accident to the Local Court at Fairfield. Then when asked why there was no mention of his mother’s death when furnishing a patient history to Dr Goodison his response was given in a very flippant manner when he said, ‘I wouldn’t mention my mother every time … my mum is not a sort of streetwalker, I can’t mention my mum in front of everyone.’ Then his evidence shifted to explaining that, ‘I can assure you that those two reasons were the reasons I turned to drugs.’ A further version then followed when he said, ‘I saw the psychiatrist for the car accident. It had nothing to do with mum passing away.’ He conceded that Dr Goodison took a detailed history from him and then sought to deflect that somewhat by saying that, ‘I didn’t say everything that related to my life … I was seeing her specifically in relation to the car accident. She wasn’t a friend and not a private doctor that I can relate to her every aspect of my life.’
The question was repeated that he was saying one thing to the court and another to Dr Goodison. The applicant’s response was to the effect of, ‘I only mentioned to her anything related to the accident. Nothing outside the accident. I was answering questions whatever she asked of me. She didn’t ask me about my mother. Frankly it didn’t cross my mind. She didn’t ask me, and I didn’t think of it. I can’t remember. It didn’t cross my mind to say it.’ The Tribunal found these several responses to this inconsistency unconvincing. It was specifically put to the applicant that the responses were unconvincing. It evoked a response from the applicant questioning which part was unconvincing.
A further inconsistency in all of this emerges from the evidence of the applicant in this matter, as noted earlier, when he said that he started taking drugs when he was cut off from Medicare and unable to obtain prescription medication for pain relief. One would have expected that if this was indeed the case, the applicant would have submitted that to the Local Court at Fairfield in August 2021 when a plea was made on his behalf by counsel. It was surely relevant to such a plea. Further, one would have also expected it to have been furnished to Dr Goodison when she examined the applicant in August 2022. These inconsistencies do not reflect well on the applicant and raise serious questions about his reliability as a historian, whether he has really gained an insight into his offending and the danger that future use of drugs poses to him, not to mention the community, and amplify the risk to the Australian community should he commit further offences.
Notwithstanding the limited utility of Dr Goodison’s report, as previously recorded, it does express some opinions concerning the applicant’s character traits that are of relevance to the Tribunal’s considerations in this application. It is of concern, as noted above, that she observed that the applicant has a limited capacity to cope and limited insight.[24] The Tribunal agrees with Dr Goodison’s observations that the applicant has a limited capacity to cope (a view or opinion that is corroborated from the clinical notes made by several healthcare professionals including psychologists and psychiatrists who have examined the applicant whilst he has been in immigration detention). Furthermore, the Tribunal finds the applicant certainly has a limited insight into his offending and also the danger that drug taking poses to him. This was evident to the Tribunal when observing him give his evidence. Realistically, this conclusion must raise some doubts about the applicant’s capacity to properly rehabilitate himself. It also must raise concerns about the risks of the applicant reoffending if he does have limited insight as to what he has done in the past, which appears to be the case.
[24] See paragraph 58 above.
By reason of the foregoing, the Tribunal does conclude, as contended for by the respondent, that the applicant poses a real and not insignificant risk of reoffending. In summary, it should be repeated that there are several reasons for this. Firstly, the finding of the sentencing Magistrate that the applicant had not demonstrated in a genuine way that he was motivated to address his drug problem during a period of supervised release in the community. Secondly, there are the limited attempts at rehabilitation undertaken by the applicant that have been articulated earlier. There is a real doubt that the applicant in any event, has genuinely learned from the ‘Drug and Alcohol Abuse 101’ course that he has undertaken because of his self-confessed further use of drugs in detention after completing such course. Thirdly, there is the opinion expressed by Dr Goodison (corroborated by the clinical notes from the several mental health care professionals who have seen the applicant whilst he has been in immigration detention) that the applicant has a limited capacity to cope and limited insight. If he has a limited capacity to cope and limited insight one has to question whether, if he is released into the community, he will yield to the temptation and relapse into drug use. It is far from clear whether the applicant has an ongoing ability to abstain from use of illicit drugs. This is particularly so if he is released into the community and not subject to the supervision and scrutiny of the custodial environment of both prison and immigration detention. Fourthly, there is the applicant’s extensive conviction history. Fifthly, as contended for by the respondent, the applicant’s capacity to refrain from reoffending has not been tested in circumstances where he is not under some form of intensive correction or supervision order, or the relatively regulated environment of immigration detention. Finally, there are also the Tribunal’s own observations obtained from observing the applicant give his evidence, in the manner that he did, as has been explained previously in these reasons. It did not reflect well upon him.
Therefore, although the applicant has taken some steps towards rehabilitation, the Tribunal cannot conclude that the applicant’s risk of reoffending in the future is low. The risk of him reoffending is unacceptable. The Tribunal finds, in applying this primary consideration to the circumstances surrounding the applicant, that it must weigh heavily in favour of refusing to revoke the mandatory cancellation of his visa.
Primary consideration 8.2 of Direction 99 – Family violence committed by the non-citizen
The respondent contends, and the Tribunal agrees, that the evidence as it currently stands is insufficient to demonstrate that either of the applicant’s victims were members of his family within the meaning of the term ‘Family Violence’ in Direction 99. Accordingly, the Tribunal will not attach any weight to this consideration.
Primary consideration 8.3 of Direction 99 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 states as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant has no immediate family members present in Australia. Therefore, the Tribunal accepts the respondent’s contention that paragraphs 8.3(1) and (2) are not relevant to an issue for determination in this application.
The applicant has resided in Australia for just over 10 years, which is a reasonable period of time. It is also acknowledged that prior to the applicant being injured in a car accident, and his subsequent period of offending, he did have a reasonably consistent work history. The applicant had been employed as a bricklayer and, it would seem, was a hard-working and reliable employee. A reference to this effect was furnished to the Tribunal from Mr Hamawi, the proprietor of Fineline Bricklaying Pty Ltd. Mr Hamawi gave oral evidence. He explained that the applicant was very reliable, honest, easy-going, trustworthy and a good character. Mr Hamawi stated that he did find out about the applicant’s criminal history which came as a shock to him. If the applicant were to be released into the community, he stated that he would immediately re-employ him. In addition to being the applicant’s employer, Mr Hamawi stated that they have become good friends. By reason of these facts, it does appear to the Tribunal that, prior to his offending, the applicant was contributing, to some extent, positively to the Australian community.
Another witness, Mr Asmar, gave evidence. He stated that he had known the applicant for more than 7 years. They used to live together for approximately 2 or 3 years. He explained that he knew the applicant as a very good man who had helped him frequently over some time. Additionally, the applicant did work with Mr Asmar from time to time undertaking bricklaying and rendering jobs. The applicant was described by him as a very good bricklayer in particular. If the applicant is released into the community, Mr Asmar gave evidence that the applicant could live with him and his mother in Guildford. Similarly, he was aware of the applicant’s criminal history and did not think any less of him for it.
Save as aforesaid, was no other evidence before the Tribunal concerning the strength, duration and nature of any social links that the applicant has or has had with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The respondent observed that there was little more evidence before the Tribunal concerning this consideration. For instance, there was no evidence before the Tribunal about the applicant having engaged with the Australian community more broadly through activities such as sport, community clubs and organisations or voluntary work. Whilst it is contended that this does not count against the applicant, nonetheless, it does to some extent, moderate the weight that the Tribunal might place upon this consideration.
By reason of the foregoing matters the Tribunal places moderate weight on this primary consideration in favour of revocation of the mandatory cancellation of the applicant’s visa.
Primary consideration 8.4 of Direction 99 - Best interests of minor children in Australia affected by the decision
This paragraph of Direction 99 requires the Tribunal, as decision-maker, to determine whether the non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The consideration applies only if the child is, or would be, under 18 years old at the time when the decision not to revoke the mandatory cancellation of the visa, is expected to be made.
Once again, the Tribunal agrees with the respondent’s contention that this consideration should have no weight placed upon it. This is because the applicant does not have any minor children present in Australia.
Primary consideration 8.5 of Direction 99 - Expectations of the Australian Community
Paragraph 8.5 of Direction 99, ‘Expectations of the Australian Community’, provides:
(1) 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 they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) causing a person to enter into, or being a party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) 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.
This primary consideration and its application have been the subject of much judicial comment over several years. Mortimer J in YNQY v Minister for Immigration and Border Protection has provided guidance as to its application.[25] The judge observed:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[25] [2017] FCA 1466, 27-8 [76].
The Tribunal agrees with the contention of the respondent that the expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not an independent assessment conducted by it.[26] The assessment of community values are expressed as norms in Direction 99.
[26] See FYBR v Minister for Home Affairs [2019] FCAFC 185, 22-3 [73]–[75] (Charlesworth J), 30-1 [103]–[104] (Stewart J).
The applicant, who was self-represented, did not make a submission that directly addressed this primary consideration. From the way in which the applicant did present his evidence to the Tribunal, it is prepared to infer that the thrust of his submissions was that this primary consideration should not weigh against him. The reasons for this advanced by him were several. Firstly, the fact that he had been in Australia for approximately 7 years before his offending commenced. Secondly, that his offending took place over a comparatively short space of time. Thirdly, that his offending occurred whilst he was in the grip of an addiction to drugs. Such addiction occurred as a result of the injuries he sustained in a car accident in early 2017, the death of his mother and also being denied Medicare assistance. The applicant contended that whilst he was under the influence of drugs, he was not aware of what he was doing. Fourthly, that he is remorseful for his offending. Fifthly, that he has taken steps towards rehabilitation and does not intend to use illicit drugs in the future, which he submitted was the cause of his offending. Sixthly, that if he is released into the community, he has employment arranged as a bricklayer with Fineline Bricklaying Pty Ltd. A director of this company, Mr Hamawi, had provided a letter of support to the Tribunal and also gave evidence.[27] Once he has secured employment upon his release, he wishes to work hard to get married and have children.
[27] Page 404 of the Hearing Folder.

The Tribunal cannot accept that there is a risk that the applicant will face forced recruitment by the Muslim Brotherhood. There are several reasons for this. The starting point is that the applicant’s claims for protection were comprehensively considered by the delegate, and then subsequently by the IAA reviewer in the report of 12 July 2018. Whilst this Tribunal is not bound by the decision of the IAA reviewer and clearly must consider all material that is placed before it in evidence for the purposes of this application, it is nonetheless an important piece of evidence that should be taken into account. It is apparent from an examination of the report of the IAA reviewer that the applicant’s claims were comprehensively assessed based upon a significant body of evidence that was placed before them. In addition to written statements that were placed before the IAA reviewer the applicant was subject to a detailed protection interview.
Additionally, the Tribunal is concerned about the inconsistencies in the applicant’s evidence that have been identified previously. The several inconsistencies in the applicant’s evidence lead the Tribunal to conclude that his credibility is, in some respects, wanting. In particular, the differing accounts he has given concerning the Muslim Brotherhood to the Tribunal and the IAA reviewer as has been noted above. It seems to be a glaring oversight not to have mentioned, as he did to the IAA reviewer, that he had been previously kidnapped by the Muslim Brotherhood. Therefore, because of these inconsistencies in the applicant’s evidence which have been identified, the Tribunal concludes that the applicant’s evidence concerning the risks to him from the Muslim Brotherhood are exaggerated or otherwise embellished.
Another reason why the Tribunal considers that the risk of the applicant being forcibly recruited into the Muslim Brotherhood is unlikely arises from the contents of the DFAT Report that was in evidence.[36] The DFAT Report observes that since the July 2013 military intervention that removed the president from office, Egypt’s security apparatus and courts have carried out a significant crackdown on the Muslim Brotherhood’s members and activities. Also, it records that tens of thousands of the Muslim Brotherhood members have been arrested and detained since July 2013. It states that key members of the Muslim Brotherhood senior leadership have been in detention since the July 2013 military intervention, and much of the leadership is fragmented.
[36] Pages 301-347 of the Hearing Folder.
The DFAT Report additionally notes reports from analysts that the Muslim Brotherhood has undoubtedly been weakened by the government’s broadly applied crackdown, and the movement has been driven underground. It concludes that broad popular support for the Muslim Brotherhood was reportedly damaged considerably by the incompetence demonstrated by the year in power.
Nowhere in the DFAT Report does it refer to the risk of kidnapping and forced recruitment into the Muslim Brotherhood. Were this prospect a distinct and real risk, one would have expected such a reference to have been made in such an authoritative report.
Finally, with respect to this topic, the applicant was searchingly cross-examined. During such cross-examination, notwithstanding that he was given ample opportunity to do so, he could not provide any specific information or evidence to support his contention that he was at risk of harm by reason of forced recruitment by the Muslim Brotherhood. The Tribunal considers that this fact also counts against him and his claims for non-refoulement by reason of it.
Therefore, by reason of the foregoing matters, the Tribunal concludes that the applicant does not face a real threat of being forced to join an extremist group known as the Muslim Brotherhood and no international non-refoulement obligation arises in his favour. It does not place any weight upon this factor.
Another ground relied on by the applicant to claim that any international non-refoulement obligation is owed to him arises as a consequence of the Immigration Department’s data breach in February 2014. He contends that there is a risk of Egyptian authorities knowing sensitive details of his protection visa application. It is contended that he holds a well-founded fear that means it is not safe for him to return to Egypt because the Egyptian authorities would know sensitive details of his protection visa application, and intelligence officers may have accessed this material.
There is limited evidence before the Tribunal as to what did actually occur with respect to the Immigration Department’s 2014 data breach. In the IAA report of 12 July 2018, some details are provided. That report notes that the information about the applicant that was inadvertently published on the Immigration Department’s website was limited to the applicant’s full name, gender, citizenship, date of birth, when immigration detention began, the location of immigration detention, boat arrival details, and reasons why the applicant was deemed to be unlawful (e.g. arriving unlawfully by boat). The information was published on 10 February 2014 and remained on the Department’s website until 19 February 2014.
Contrary to the contentions advanced by the applicant, there is no evidence before the Tribunal that any sensitive details of the applicant’s protection visa application were the subject of the data breach concerned. It was, as noted above, relatively basic data about the applicant published on the Immigration Department’s website. Additionally, there is no evidence before the Tribunal that anyone, let alone anyone from Egyptian intelligence, or a relevant Egyptian government agency, accessed the website concerned. There is no evidence that the data breach concerned would expose the applicant to any particular risk of harm.
The Tribunal also considers that there is no real risk of harm to the applicant arising from the data breach due to the observations contained in the DFAT Report concerning conditions for returnees. In that report, DFAT assesses that failed asylum seekers will not face adverse attention because of their failed application for asylum when they return to Egypt. It further states that Egypt accepts involuntary returnees. Egyptian officials generally pay little regard to failed asylum seekers on return to the country. It does note that it is possible that some individuals will be questioned upon entry or have their entry delayed. However, this is all predicated on the authorities concerned having actual knowledge that the applicant made an application for a protection visa whilst in Australia and otherwise sought asylum here. It is far from clear to the Tribunal that this is indeed the case.
It should also be noted that the IAA reviewer of the 12 July 2018 IAA review considered the question of the applicant’s claims relating to a fear of persecution as a consequence of the Immigration Department’s data breach in February 2014. The IAA reviewer concluded that the 2014 data breach did not, itself, give rise to a real chance of the applicant facing serious harm in Egypt then or in the reasonably foreseeable future. This conclusion was reached by the IAA reviewer because of the limited information that was published on the Department website, and in particular that the information available to be accessed did not include details as to whether detainees had lodged protection visa applications or any other type of visa application. The IAA reviewer also concluded that it was more likely than not that the information available on the Immigration Department’s website about the applicant would be evident to Egyptian authorities upon the applicant’s return, as those authorities would need to be contacted to provide the applicant with a travel document enabling him to travel to and enter Egypt. The Tribunal sees no reason why these findings by the IAA review should not be accepted.
By reason of the foregoing matters, the Tribunal concludes that no international non-refoulement obligation arises in favour of the applicant by reason of the Immigration Department’s data breach in February 2014.
Another ground relied upon by the applicant in support of a claim to be owed an international non-refoulement obligation is that he contends that were he to return to Egypt, he would not be able to receive adequate and appropriate medical attention for his complex medical needs.
The Tribunal considers that this ground is more appropriately considered under paragraph 9.2, ‘Extent of impediments if removed’. It is acknowledged from the material that the applicant does suffer from a drug addiction and mental health problems.
The only evidence before the Tribunal concerning access to health care in Egypt was, once again, contained in the DFAT Report. That report notes that the Egyptian Constitution provides that every citizen is entitled to comprehensive health care. It commits the state to establishing a comprehensive health care system, maintaining public health facilities and to allocation of a specific percentage of the nation’s GDP to health care. As at the date of preparation of that report, the government was in the process of introducing a compulsory universal health insurance scheme that was intended to provide basic health care coverage to around 30% of the population who could not previously afford any.
The DFAT Report does record that many Egyptians lack access to affordable public health care, particularly in rural areas, and that the standard of public hospitals is very low. It also reports that the availability of mental health care is limited. Most mental health resources are allocated to a small number of centralised psychiatric hospitals, rather than being integrated into primary health care. The number of beds available for psychiatric patients requiring acute inpatient care is insufficient to meet demand.
With respect to drug addiction, the DFAT Report notes that the government is increasing efforts to rehabilitate addicts. This has been through expanding the number of drug treatment centres, with plans to establish one in every governorate, along with hotlines to help make drug addicts aware of treatment and rehabilitation services.
The Tribunal concludes that, on the limited information available to it concerning health and drug addiction treatment programs in Egypt, that access to such services in that country will not be as readily available or as high of a standard as it is in Australia. However, notwithstanding this disparity between the services available in both countries, it does not give rise to the level of an international non-refoulement obligation. It does, as noted earlier, relate to an impediment if removed, which is a separate question.
Therefore, with respect to the applicant’s contention that an international non-refoulement obligation arises in his favour because if he were to return to Egypt he would not be able to receive adequate and appropriate medical attention for his complex medical needs, the Tribunal places no weight upon it. The Tribunal places no weight upon the applicant’s contention because, as explained earlier, it is a submission that is more appropriately addressed in the analysis of paragraph 9.2 of Direction 99, ‘Extent of impediments if removed’.
Concerning the applicant’s claims that he had a fear of persecution because since his arrival in Australia in May 2013 he has become ‘westernised’, the IAA reviewer considered and rejected these claims.
In support of his contentions to the IAA reviewer that this was a well-founded fear, the applicant relied upon the fact that he drinks alcohol and holds a liberal attitude towards relationships.[37] The reviewer, whilst acknowledging Egypt is a socially and religiously conservative country, rejected the applicant’s contentions on several grounds.
[37] The Tribunal is somewhat puzzled by the suggestion in the IAA review that the applicant drinks alcohol. The issue was not explored during the hearing of either this application or the earlier one. However, this suggestion that the applicant drinks alcohol was inconsistent with what is recorded in documents in evidence before the Tribunal. In a Mental Health Assessment undertaken on 31 October 2022 the applicant is recorded as a ‘non-drinker’. The Mental Health Assessment is at pages 381-386 of the G documents. In the clinical records of a psychiatrists’ Mental Health Consultation on 29 March 2022, the applicant is recorded as saying he doesn't drink much alcohol. Further it is recorded that he said it was two years since he last had a drink. The clinical note of the Mental Health Consultation of 29 March 2022 is at pages 462-465 of the G documents. However one interprets these clinical records, it seems that alcohol consumption is not a significant factor for the applicant.
The reviewer noted that sale of alcohol to Egyptians is not illegal, and that beer is brewed legally in Egypt. It was further observed that many Muslims in Egypt drink in the privacy of their homes. There was no evidence before the reviewer to suggest that Muslims in Egypt who drink alcohol would face arrest and detention for doing so unless they engaged in drinking which resulted in public drunkenness.
As for the applicant’s liberal attitude towards relationships, the IAA reviewer observed that the applicant had not claimed to be involved in any kind of relationship which may attract opprobrium, or otherwise be illegal in Egypt. It was also recorded that the applicant had not stated that he intended to promote his opinions about relationships were he to be returned to Egypt in any event.
Finally, the IAA reviewer observed that the applicant had provided no supporting country information that ‘westernised’ Muslims returning to Egypt suffer serious or significant harm, for reasons of their appearance, behaviour or imputed political or socio-cultural opinions.
Therefore, the reviewer concluded that given the lack of country information or other evidence supporting the applicant’s claims, they could not be satisfied that he would suffer serious harm by reason of him becoming ‘westernised’.
The Tribunal agrees with the reasoning and findings of the IAA reviewer on this topic. The Tribunal is fortified in this conclusion by reason of the matters contained in the DFAT Country Information Report for Egypt that is in evidence before it. In the section entitled ‘Conditions for Returnees’, several things that are relevant to this consideration are recorded. It is appropriate to repeat parts of it as follows:
DFAT assesses that people who returned to Egypt after several years’ absence will not face any adverse attention on their return due to their absence. Likewise, DFAT assesses that failed asylum seekers will not face adverse attention because of their failed application for asylum when they return to Egypt.
Egypt accepts involuntary returnees. Egyptian officials generally pay little regard to failed asylum seekers upon their return to the country, although it is possible that some individuals will be questioned upon entry or will have their interest delayed. Many thousands of Egyptians enter and leave the country every day. Egyptians who out-stay their work or tourist visas in other countries are regularly returned to Egypt with no attention paid to them by authorities. DFAT is not aware of failed asylum seekers being reported by airport authorities to the Ministry of the Interior or any of the security services beyond the normal processes for returning Egyptian nationals.
If there were any risk to the applicant, or returnees in general, upon returning to Egypt if they have been ‘westernised’ as contended for by him, one would normally have expected appropriate details of that risk to be included in the DFAT Country Information Report for Egypt. The Tribunal concludes that it is more probable than not, that there is no reference to such a risk because none exists. It also accepts the conclusions in that report that people who return to Egypt after several years’ absence do not face any adverse attention upon their return, whether or not they have been an asylum seeker.
By reason of the foregoing matters, the Tribunal concludes that there is no risk to the applicant by reason of him having been ‘westernised’ were he to return to Egypt.
Removal
The applicant’s application for judicial review of the decision of the IAA review affirming a previous decision not to grant the applicant a protection visa remains to be heard and determined by the Federal Court of Australia. The consequence of this Tribunal not revoking the mandatory cancellation of the applicant’s visa would be that he would remain in immigration detention. He would remain in immigration detention until such time as there is an outcome of the application for judicial review of the IAA decision.
If the applicant’s application to the Federal Court seeking judicial review of the IAA decision is successful, presumably, there would be an acceptance of his claims for protection and, therefore, under s 197C(3) of the Act, s 198 does not require or authorise removal of such a person for whom a protection finding has been made.
It is acknowledged, as contended for by the applicant, in the absence of the application for judicial review of the IAA decision, the immediate effect of a decision to affirm the non-revocation decision is that the applicant is liable for removal to Egypt under s 198 of the Act. He also contends that the prospect of removal must weigh heavily, and indeed determinatively, in favour of revocation.
The applicant, in submissions lodged on his behalf and in the witness box to the same effect, stated that he would not voluntarily leave and therefore, removal would amount to an expulsion that would not plainly be voluntary.
However, the legal consequence of removal of the applicant to Egypt, as contended for by the applicant, is predicated on his contention that he is owed an international non-refoulement obligation. If he were to be removed to Egypt were he owed such an obligation, it would constitute refoulement and breach international law. For the reasons articulated above, the Tribunal has found that this is not the case.
Therefore, the Tribunal places no weight upon this consideration.
Indefinite detention
The applicant contends that if the mandatory cancellation of his visa is not revoked, there is the possibility that he will be subjected to indefinite detention. He argues it should be concluded that there is no realistic possibility that he will be granted any visa, including a bridging visa by Ministerial intervention, and so his indefinite detention is not attended by any likely relief.
Therefore, it is contended there is nothing preventing the applicant remaining in immigration detention until his death.
It has been observed earlier in these reasons that the prospective length of the applicant’s immigration detention will be dependent on when the application for judicial review of the IAA decision is finalised. One way or the other that will be the end point. The Tribunal cannot on the material before it determine when that will be.
The applicant has also emphasised that the prospect of indefinite detention will have a detrimental effect on his health issues. This, therefore, would breach Australia’s international obligations. Such a consideration must, it is contended, weigh heavily, and indeed determinatively, in favour of revocation.
There was no evidence before the Tribunal that enables it to reach a definitive conclusion that the applicant’s indefinite detention is a realistic prospect. For instance, there was no evidence about whether or not he is the holder of a valid Egyptian passport, or other travel document that would enable him to return to Egypt. The only evidence concerning the applicant’s passport status was contained in the IAA review of 12 July 2018. The IAA reviewer recorded that the applicant departed Egypt as the holder of a valid genuine passport, and that he was able to obtain a replacement passport in August 2013 from the Egyptian embassy in Hong Kong after his first passport was stolen. There was an expired passport in the materials, not a valid one. The IAA reviewer recorded that they were satisfied that the applicant’s passport was lost at sea during the boat trip from Indonesia. It did not say whether the applicant was then the current holder of a valid Egyptian passport.

Additionally, there was no evidence before the Tribunal with respect to impediments or barriers to the applicant’s removal and return to Egypt.
As noted earlier, the only real evidence before the Tribunal concerning these questions was contained in the DFAT Report. It should be repeated that DFAT found that failed asylum seekers will not face adverse attention because of their failed application for asylum when they return to Egypt. It also recorded that Egypt accepts involuntary returnees, as the applicant would be in this instance. The DFAT Report also records that Egyptian officials generally pay little regard to failed asylum seekers upon their return to the country.
Therefore, the Tribunal places some weight upon this consideration as a reason why the mandatory cancellation of his visa should be revoked.
Paragraph 9.2 of Direction 99 - Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
As noted earlier, the applicant is presently 33 years of age, having been born in April 1990. The applicant suffers from several health problems. They have been noted earlier in these reasons. They are a lower back condition causing significant pain, mental health conditions, and a drug addiction.
As the applicant grew up and lived in Egypt until he was approximately 23 years of age, there are unlikely to be any substantial language or cultural barriers were he to return.
An overview of the applicant’s potential access to the healthcare system in Egypt has previously been provided in these reasons. It is acknowledged that access to appropriate health care will not be as readily available as it is in Australia. Additionally, the likelihood is that the quality of such health care that the applicant can access will not be to the same standard as found in Australia. However, in the context of what is generally available to other citizens of Egypt, the Tribunal, on the available evidence, concludes that he would have access to similar health care services. There is no evidence to suggest that the applicant would be denied access to health care services that would otherwise be generally available to other citizens of Egypt.
In terms of social and/or economic support available to him, the applicant conceded that he has a brother still living in Egypt with whom he is still in contact. Presumably, that brother would be able to provide him with some social and economic support to enable him to re-establish himself.
As for employment, the applicant stated that he is a bricklayer by trade. He said that if he were released into the community, he would like to take that trade up again, or if he received compensation from the car accident, use that to establish his own business. It is apparent that he is quite prepared to, and able to, work notwithstanding his health conditions which have been touched on earlier.
The rates of unemployment in Egypt are difficult to assess accurately, as noted in the DFAT Report. The DFAT Report also identifies underemployment as being a significant issue. From the limited information available to it in the DFAT Report, the Tribunal concludes that, initially at least, the applicant would find it difficult to procure employment. However, it is more probable than not given the fact that he has a trade, is comparatively young and seems willing to work hard and, with the assistance from his brother in Egypt, that he would ultimately be able to re-establish himself with some form of gainful employment. He would therefore be able to establish himself and maintain basic living standards in the Egyptian context.
The respondent acknowledged that the applicant is likely to face emotional hardship if removed to Egypt. The respondent further states that the respondent does not seek to downplay or minimise this hardship. The respondent contends, however, that on a true and proper construction of paragraph 9.2(1) of Direction 99, decision-makers must consider more tangible hardships rather than emotional hardships. It contends that emotional hardships are likely to be common amongst most, if not all, individuals to whom Direction 99 applies. Therefore, it contends that emotional hardship should be given limited weight by the Tribunal in the context of Direction 99.
Overall, the Tribunal considers that the impediments that the applicant will face if he is removed to Egypt are such that they do weigh in favour of revocation of the decision to cancel the applicant’s visa to a limited degree. However, the weight to be placed upon this other consideration is outweighed by the primary considerations of paragraph 8.1 and paragraph 8.5 of Direction 99, which weigh against revocation of the mandatory cancellation of the applicant’s visa.
Paragraph 9.3 of Direction 99 - Impact on victims
No evidence was placed before the Tribunal concerning the impact on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.
Paragraph 9.4 of Direction 99 - Impact on Australian business interests
There is no real evidence before the Tribunal that related to this other consideration. There was certainly no evidence that if the applicant were not permitted to remain in Australia, it would significantly compromise the delivery of a major project, or the delivery of an important service in Australia.
The only evidence that remotely touched upon this consideration, if indeed it does at all, was the letter of support from Mr Hamawi, the director of Fineline Bricklaying Pty Ltd. That support letter did not describe the applicant’s potential removal from Australia as having any impact on that business in any event. However, the Tribunal does acknowledge that the applicant did work hard and make a positive contribution to the business of Fineline Bricklaying Pty Ltd and given the evidence of Mr Hamawi of the applicant’s hard work ethic and contribution, there has been some impact on that business.
However, on a true and proper construction of this paragraph of Direction 99, this consideration is generally only given weight where the decision to cancel the applicant’s visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The fact that the applicant can no longer work for Fineline Bricklaying Pty Ltd is not captured by the language used in that paragraph. There is no evidence that non-revocation of the decision to cancel his visa in any way significantly compromises the delivery of a major project, or an important service in Australia.
Therefore, the Tribunal places no weight upon this other consideration.
CONCLUSION
Paragraph 8.1.1 of Direction 99, ‘The nature and seriousness of the applicant’s conduct’, weighs heavily against revocation of the mandatory cancellation of the visa. The applicant’s offending, as noted earlier, is viewed by the Tribunal as objectively serious.
With respect to paragraph 8.1.2 of Direction 99, ‘The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct’, the Tribunal has concluded that the applicant’s risk of reoffending is unacceptable. Of particular concern is the question of the applicant’s drug addiction problems, and the expert opinion expressed by Dr Goodison that the applicant has a limited capacity to cope and limited insight. The applicant’s limited insight into his offending was apparent during his oral evidence. The Tribunal has serious reservations as to whether he has really come to terms with the nature of his offending and considers that there is a real risk of him reoffending in the future if he is released into the community. This risk of reoffending is amplified if the applicant were to return to the use of illicit drugs. Therefore, with respect to this primary consideration, the Tribunal has placed heavy weight on it as a reason for refusing to revoke the mandatory cancellation of the applicant’s visa.
The Tribunal places no weight on primary consideration 8.2 of Direction 99, ‘Family Violence committed by the noncitizen’.
The Tribunal places moderate weight on primary consideration 8.3 of Direction 99, ‘The strength, nature and duration of ties to Australia’ in favour of revocation.
The Tribunal places no weight on primary consideration 8.4 of Direction 99, ‘Best interests of minor children in Australia affected by the decision’.
With respect to primary consideration 8.5 of Direction 99, ‘The expectations of the Australian community’, the Tribunal has found that this weighs heavily in favour of non-revocation of the mandatory cancellation of the applicant’s visa.
The Tribunal places some weight on the other consideration under paragraph 9.1 of Direction 99, ‘Legal consequences of decision”, the question of removal and the issue of indefinite detention under section 501 or 501CA.
Under paragraph 9.2 of Direction 99, ‘Extent of impediments if removed’, limited weight is placed in favour of revocation of the decision to mandatorily cancel the applicant’s visa.
The Tribunal places no weight on the other consideration under paragraph 9.3 of Direction 99, ‘Impact on victims’.
No weight is placed upon paragraph 9.4 of Direction 99 ‘Impact on Australian business interests’.
In terms of weighing up the considerations that apply in favour of or against revocation of the decision to mandatorily cancel the applicant’s visa, the Tribunal notes the provision of paragraph 7(2) of Direction 99 which states that primary considerations should generally be given greater weight than the other considerations. As noted earlier, the nature and seriousness of the applicant’s offending, and the risk to the Australian community should the applicant reoffend, weigh heavily against the applicant. The primary consideration of expectations of the Australian community also weighs heavily against the applicant.
Given the guidance contained in paragraph 7(2) of Direction 99, together with the heavy weight that the Tribunal has attached to the primary considerations 8.1.1, 8.1.2 and 8.5, the Tribunal finds that the weight it has attached to those primary considerations collectively outweigh the weight attached to primary consideration 8.3, to which moderate weight has been attached, and the other considerations which have found by it to be in the applicant’s favour, being Paragraph 9.1, ‘Legal consequences of decision’, together with the question of removal and the issue of indefinite detention, and paragraph 9.2 of Direction 99, ‘Extent of impediments if removed’.
Therefore, having weighed all of the primary and other considerations as required by Direction 99, the Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the applicant’s visa.
DECISION
By reason of the foregoing matters the Tribunal is not satisfied there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.
Accordingly, the Tribunal affirms the reviewable decision.

213. I certify that the preceding 212 (two hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

......................[SGD]...........................
Associate
Dated: 19 October 2023

Date of hearing: 26 September 2023

Applicant:

Advocate for the Respondent:

Self-represented

Mr Ingmar Duldig

Solicitors for the Respondent: Clayton Utz

[2023] AATA 3364

19 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

DATE	COURT APPEARANCE AND OUTCOME
27 May 2020	The applicant appeared at the Fairfield Local Court for driving with privileges withdrawn. Fined $1,000.
28 August 2020	The applicant appeared at the Parramatta Local Court and was convicted for destroying or damaging property. Penalty: 12-month conditional release order.
16 November 2020	The applicant appeared at the Fairfield Local Court on the following charges: · Custody of a knife in a public place; · Possession of equipment for administering prohibited drugs; · Driving when privileges withdrawn; and · Possessing a prohibited drug. Convicted and fined, licence disqualification and placed on two 18-month community correction orders.
3 December 2020	The applicant appeared in the Parramatta Local Court for custody of a knife in a public place. Convicted and fined $500.
21 December 2020	The applicant appeared in the Parramatta Local Court for: · Having goods in personal custody suspected of being stolen (three counts); · Failing to appear in accordance with a bail acknowledgement; · Resisting or hindering a police officer in the execution of duties; · Custody of knife in public place; · Possessing a prohibited drug (two counts); and · Destroying or damaging property (two counts). Fined and received various community correction orders ranging from 6 to 12 months for the first four sets of offences. Received four 12-month community correction orders for the last two sets of offences.
21 January 2021	The applicant appeared at the Fairfield Local Court for: · Custody of a knife in a public place; and · Having goods in personal custody suspected of being stolen. On the charge of custody of a knife in a public place as it was a subsequent offence, he was placed on a community correction order for 12 months. On the charge of having possession of goods in personal custody suspected of being stolen, the applicant was convicted and fined $300.
9 February 2021	The applicant appeared at the Parramatta Local Court on a charge of shoplifting. He was convicted and fined $500.
17 February 2021	The applicant appeared at the Parramatta Local Court on a charge of possessing a prohibited drug. He was convicted and fined $400.
11 August 2021	The applicant appeared at the Fairfield Local Court for: · Custody of a knife in a public place; · Failing to appear in accordance with a bail acknowledgement; · Goods in personal custody suspected of being stolen (three counts); · Resisting or hindering a police officer in the execution of duties; · Possessing a prohibited drug (two counts); · Disposing of property – theft; · Larceny (two counts); · Entering a vehicle or boat without consent of the owner or occupier; and · Destroying or damaging property. The applicant was sentenced to an aggregate term of imprisonment of 24 months and fined $300 for the offence of entering a vehicle or boat without consent of the owner or occupier.
31 August 2021	The applicant appealed the sentence imposed on him by the Fairfield Local Court on 11 August 2021 to the Parramatta District Court. Upon hearing and determining the applicant’s appeal, the trial judge upheld the appeal and set aside the aggregate term of imprisonment. In lieu thereof, the applicant was sentenced to a term of imprisonment of 18 months to be served within the community by way of an intensive correction order.[7]