ZJLB and Minister for Home Affairs (Migration)

ZJLB and Minister for Home Affairs (Migration) [2019] AATA 178 (19 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7009
Re:ZJLB
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:19 February 2019
Place:Melbourne

The Tribunal decides to:
1.set aside the decision made by a delegate of the Respondent on 28 November 2018 to decline to revoke the decision dated 6 December 2017 to cancel the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa.
2.substitute a decision that the decision dated 6 December 2017 to cancel the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958.

.....................[Sgnd]..............................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Lau and Minister for Immigration and Border Protection [2017] AATA 138
Leha and Minister for Immigration and Indigenous Affairs [2000] AATA 1054
YNQY v Minister of Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA, 22 December 2014
REASONS FOR DECISION
Senior Member B J Illingworth
19 February 2019
INTRODUCTION

This matter relates to an application for review filed by ZJLB (“the Applicant”) on 30 November 2018. The decision which the Applicant seeks to review is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 28 November 2018 not to revoke the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa.
BACKGROUND FACTS
The Applicant is a 35 year old citizen of Egypt. He was born in 1983 in Cairo, Egypt.
The Applicant was educated in Egypt and studied for a Bachelor Degree in Tourism and Hotel Management. Upon its completion, he then travelled to Ukraine for two years to study for a Diploma in Computer Programming. The Applicant said he did not complete that Diploma due to issues he had with certain students about Muslim beliefs, which culminated in the Applicant being assaulted.
The Applicant thereafter decided to travel to Australia to study. The Applicant arrived in Australia on 26 September 2005 on a student visa when he was 21 years of age.[1] He studied for a Diploma of Printing and Graphic Arts at a TAFE college, and successfully completed that Diploma.
[1] Exhibit A, G Documents, Movement Record, page 235.
At the time of his arrival, the Applicant’s parents and older sister continued to reside in Egypt. He also had a fiancée in Cairo. The Applicant has now resided in Australia for over 13 years.
The Applicant’s father is a former General in the Egyptian Army. He retired from the Army in about 2002 and started his own business in the computer industry. In 2005, he became involved in politics and the Al-Ghad Party, which was in opposition to the then President Mubarak. The Applicant’s father was subsequently interviewed by the Egyptian Department of Intelligence Services and was advised not to be unfriendly to the regime of President Mubarak. He was subsequently warned by a friend that, because he had not ceased his political activities, a warrant was being prepared for his arrest. The Applicant’s father then travelled to Australia in 2006 and resided with his son. At that time, the Applicant was unaware of the gravemente of his father’s circumstances which caused him to travel to Australia, however those circumstances have since been explained to him.
On 27 October 2006, the Applicant’s father made an application for a Protection (Class XA) visa,[2] naming his son as a second applicant under the family unit. It is noted here that the Applicant has not made a specific claim under the Refugee Convention[3] for himself.
[2] Exhibit F, Protection (Class XA) visa decision record.
[3] Convention Relating to the Status of Refugees, 189 UNTS 151 (entered into force on 22 April 1954) (“the Refugee Convention”).
On 8 May 2007, a delegate of the Minister for Immigration and Multicultural Affairs made a decision to grant the Applicant and his father a Protection (Class XA) visa. The decision was expressed in the following terms:[4]
[4] Exhibit F, Protection (Class XA) visa decision record, page 12.
I am satisfied that X (the Applicant’s father) and Y (the Applicant) are owed protection obligations for the purposes of section 36 of the Migration Act and has met the prescribed Regulations, Schedule 2, Part 866 for the grant of a Protection (Class XA) subclass 866 visa. Accordingly, I grant X and Y Protection (Class XA) Permanent Protection visas.
Whilst studying at TAFE, the Applicant worked in restaurants as a waiter. He had an interest in horses, having been a former member of the Egyptian National Polo Team. After completing his degree, he took up employment as a track rider at Flemington racetrack and completed a Certificate II to become a jockey. The Applicant also studied a Certificate III in Racing (Track Rider), however he did not complete it due to work commitments. His work day consisted of waking up at 3 a.m. to arrive at the race track at 4 a.m. when he would then begin track work with the horses. The Applicant would then finish work between about 10:30 a.m. and 11 a.m. each day.
After some months, the Applicant changed jobs to work with another stables also at Flemington racetrack. He said, and I accept, that the foreman of those stables encouraged him to lose weight and offered him drugs to assist him to do so. The Applicant immediately became addicted and thereafter was taking methamphetamine and heroin. He subsequently left that employ after approximately two months as a result of a pay dispute.
Unemployed and needing money to pay for his drug habit, the Applicant turned to opportunistic petty theft and burglary to acquire goods such as pushbikes, mobile phones, and computers which he would sell to obtain money to purchase drugs.
The Applicant said that he tried to cease the use of drugs however suffered withdrawal symptoms which included pain, diarrhoea, stomach cramps and an inability to walk. He said that he was ashamed to tell others that he was a drug addict, particularly his parents with whom his relationship began to deteriorate despite being reunited when his mother arrived in Australia in 2008.
This deterioration was further exacerbated in 2009 when the Applicant’s father and a family friend, whom he called “uncle”, both wanted him to marry the uncle’s daughter who resided in Australia. The Applicant, however, still wanted to marry his fiancée in Egypt. On 18 June 2009, when preparing to travel and on advice from the Department of Immigration, the Applicant changed his Protection visa to a Class BB (Subclass 155) Resident Return visa. This is the visa that is the subject of this application for review.
On 28 July 2009,[5] the Applicant travelled from Melbourne to Egypt via Dubai, consuming drugs prior to departure. He spent a few hours in Dubai at a cousin’s wedding, and then travelled to Egypt with the intention of marrying his fiancée. Upon arriving at the airport, he was detained and taken to a high security psychiatric hospital where he remained involuntarily and underwent Electroconvulsive Therapy. He remained in therapy for three months until his uncle (his mother’s brother), who resided in Egypt, paid money for his release, collected him from the hospital, and took him to the airport. From there, he returned to Australia on 26 October 2009.[6] The Applicant originally believed he had been in psychiatric detention for six months but, upon reviewing the travel documents/movement records,[7] he accepts that he was detained for three months. He later learned that the family friend in Australia, whom he called uncle, was the person who arranged for his hospitalisation in Egypt.
[5] Exhibit A, G Documents, page 235.
[6] Ibid.
[7] Ibid.
It was after his return from Egypt that the Applicant’s father explained to him the issues that led to his him fleeing Egypt and coming to Australia.
Upon his return to Australia, the Applicant continued to use methamphetamine and heroin, and engage in criminal offending to fund his habit. He then met his wife who was also a drug addict, and they married after three weeks.
In 2012, his wife gave birth to their son, AM, now aged approximately 6 years. Prior to the birth of his son, the Applicant served a sentence of imprisonment of approximately eight months and, when he was released, his son was aged approximately 3 months old.
The Applicant’s mother and father played a major role in the care of his son. His mother travelled every day to the Applicant’s home to care for him.
In 2015, the Applicant’s wife gave birth to their daughter, AZ, who is now aged approximately 3 years. After her birth, the Applicant, and more particularly his parents, had the sole care of the children. The Applicant’s wife was sentenced to two years imprisonment for similar offending and hence, for the first two years of his daughter’s life, the Applicant and his parents cared for the two children.
During this time, the Applicant was also imprisoned for about four to five months and, at the time of his release, his daughter was aged approximately 8 months. However, other than when he was imprisoned, the Applicant cared for his children with the support and assistance of his parents with whom he lived.
The Applicant thereafter continued his recidivist offending which has been similar in nature throughout the period of his criminal history, except for the breaches of a family violence intervention order and threats to kill which I will refer to later.
On 17 December 2010, the Applicant was dealt with by the Melbourne County Court for offences, including burglary, for which he was sentenced to 440 days imprisonment suspended upon 180 days being served.[8]
[8] Exhibit A, G Documents, ACIC Check Results Report, pages 15-19.
On 7 July 2011, the Applicant was sentenced by the Melbourne Magistrates Court to six months imprisonment suspended for 12 months for similar offences.[9]
[9] Ibid.
On 2 September 2011, the Applicant was issued with a Notice of Intention to Consider Cancellation of visa (“NOICC”)[10] under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he appeared to have a “substantial criminal record”. He was invited to make representations and did so. However, during this time, the Applicant continued to offend and be sentenced to terms of imprisonment.
[10] Ibid, pages 209-214.
On 18 August 2014, the Applicant was notified of the delegate’s decision not to cancel the visa but was given a formal warning of visa cancellation should he commit further offences.[11] This letter, however, was returned to sender and the Applicant claims to have never received it.
[11] Ibid, pages 206-207.
On 19 October 2017, the Applicant was convicted and sentenced to 175 days imprisonment for the following offences:
(a)Burglary – intent to steal;
(b)Theft (2 charges);
(c)Commit indictable offence whilst on bail;
(d)Burglary;
(e)Handle/receive/retention stolen goods; and
(f)Dishonestly assist in relation of stolen goods.
In addition, the Applicant was placed on a 12 month community correction order to begin upon release from custody. The purpose of the community correction order was to facilitate the Applicant’s engagement in community-based drug rehabilitation.
On 6 December 2017, the Applicant’s visa was cancelled by a Ministerial delegate pursuant to s 501(3A) of the Act (“the Original Decision”). This was a mandatory cancellation as the Applicant had been sentenced to two or more terms of imprisonment to be served with the total of those terms being 12 months or more.[12]
[12] Ibid, pages 228-232.
Subsequently, the Applicant made representations seeking revocation of the mandatory visa cancellation.[13]
[13] Ibid, pages 99-205.
After serving the sentence of imprisonment, the Applicant was immediately transferred to immigration detention on 17 December 2017. Therefore, he was unable to engage in rehabilitation as ordered by the sentencing court on 19 October 2017.
On 29 November 2018, the Applicant was notified of the Ministerial delegate’s decision that he was not satisfied that he passed the character test or that there was another reason why the Original Decision should be revoked.[14]
[14] Ibid, pages 275-277.
On 30 November 2018, the Applicant lodged with the Tribunal an application for review of the delegate’s decision.[15]
[15] Ibid, pages 1-6.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been provided to a person if the Minister is satisfied of the following:
(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)…; 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 is defined in s 501(6)(a) of the Act. Under s 501(6)(a) of the Act, a person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act, which provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)The person has been sentenced to death; or
(b)The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more; or
(d)The person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months more;
…
Pursuant to s 501CA(4) of the Act, the Tribunal may revoke the Original Decision to cancel a visa if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)That the person passes the character test (as defined by section 501); or
(ii)That there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; and
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
The Applicant concedes that he does not pass the character test as he has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, Ministerial Direction No 65 (“the Direction”), issued on 22 December 2014, applies.
Ministerial Direction No. 65
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction it states that a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to … revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.

Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The Tribunal will now turn to addressing these considerations.
Primary consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
(a)the nature and the seriousness of the non-citizen’s conduct to date;
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations 13.1(2)(a) and 13.1(2)(b) in turn with reference to 13.1(1).
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the court for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)…
(g)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
On 17 December 2010, the Applicant was dealt with by the Melbourne County Court on an appeal against sentence for various offences for which the Applicant was sentenced to 440 days imprisonment suspended upon 180 days having been served. The sentencing remarks of His Honour Judge Mason noted that the appeal related to up to 60 counts of burglary and theft which occurred in a two to three month period earlier in the year. It was accepted that, because of his addiction, the Applicant became involved in this period of “very serious crime”.[16] His Honour afforded the Applicant a chance, with the help of court and community services, to address the issues in his life which caused his addiction. His Honour went on to say that “Experience shows that getting out of heroin is one of the hardest things a human being can do.” [17] The Applicant was given a very stern warning and His Honour described that moment in court as a defining time that would direct whether the Applicant would spend a great part of the rest of his life in gaol. His Honour went on further to say that “These are serious offences. They are extended over a considerable period and courts will not keep giving opportunities to you if you reject that opportunity.” [18] The Applicant was also placed on a bond for two years and was ordered to attend a Community Correctional Service, undergo assessment and treatment for alcohol and drug addiction, and to submit to medical or psychological or psychiatric assessment and treatment as directed.
[16] Ibid, page 89.
[17] Ibid.
[18] Ibid, page 90.
It is not here necessary to detail each and every offence committed by the Applicant thereafter save to say that he continued to commit similar offences which brought him before the Magistrates Court. He also continued to receive the benefit of community corrections orders and was shown leniency in an endeavour to provide him with support and services to aid with his rehabilitation. It was argued that this was also indicative that the offences were of the less serious type. Only following his reoffending whilst under suspension did the court resort to more substantial periods of imprisonment but, even then, the Applicant was extended some leniency in terms of partial suspension of such sentences.
On 19 October 2017, the Applicant appeared in the Melbourne Magistrates Court in relation to a range of offences including aggravated burglary, persistent contravention of family intervention orders and other offences. In respect of his criminal offending, he was sentenced to a term of imprisonment of 175 days. In relation to breach of community corrections order, he was further sentenced to a period of imprisonment of 60 days, 30 days of which to be served at the same time as the current sentence. The learned Magistrate took into account 155 days of pre-sentence detention. In the transcript of those proceedings,[19] and in an exchange between the learned Magistrate and counsel for the Applicant, counsel advised the court that the Applicant had previously attempted to attend Odyssey House to receive residential rehabilitation treatment in accordance with a previous court order. However, when he arrived, there was a woman present who was known to the Applicant and also receiving treatment. The pair had taken drugs together in the past and his presence upset her. As a result, the Applicant was required to leave without undertaking treatment and was invited to return at a later date after the woman had completed her rehabilitation. However, when he returned the woman was still there and once again he was required to leave. It appears from that exchange that the learned Magistrate had a report which expressed concern about the Applicant’s approach to attending Odyssey House. That report was not before the Tribunal and no context could be given to that exchange. There are no findings of fact made by the learned Magistrate in relation to that issue.
[19] Ibid, page 66.
The Applicant said in oral evidence before the Tribunal that he attended Odyssey House with the genuine intention of undertaking rehabilitation but was unable to do so for the reason explained above. He said that he would still like the opportunity to attend Odyssey House and engage in residential rehabilitation. I accept his evidence.
As to the offences relating to the beach of family violence intervention order, the Applicant and his wife had separated and an intervention order was granted. The Tribunal has not been referred to the circumstances giving rise to that intervention order. However, the first breach related to an occasion when the Applicant’s wife invited him to her home and thereafter the police were called. The Applicant said in evidence, and I accept, that he did not realise attending the home by invitation was a breach of the order. I note that in submissions before the Magistrates Court, counsel for the Applicant submitted that the Applicant’s wife had not been honest with the police in respect to the Applicant’s attendance at her home.
The second breach of intervention order which gave rise to the charge of persistent contravention and related to a derogatory Facebook post about his former wife. The Applicant intended that communication to be received by a small audience. He did not realise it was communicated to the world at large and when it came to the attention of his former wife, she was understandably upset. The Applicant pleaded guilty to both offences and I note there were no allegations of actual violence brought to the attention of the Tribunal.
Those breaches of the family violence intervention order demonstrate the naivety and immaturity of the Applicant. However, I am satisfied the offending was not occasioned by intentional acts of actual violence, nor were they conscious and deliberate acts performed in contempt of a court order.
It is also convenient to here note that the Applicant’s antecedent history identifies that he was dealt with for threats and threat to kill. It was explained by the Applicant’s counsel that the threat to kill was directed at a taxi driver during an argument about the poor service provided and the reimbursement of monies paid for the taxi fare. He did not act upon that threat nor did he have a weapon in his possession.
The Applicant’s criminal history demonstrates recidivist offending of the same or similar type committed for the purpose of funding his drug habit. The offences involving threats and threat to kill, although serious, were in the nature of the Applicant “mouthing off” inappropriately. He never acted upon those threats. That does not trivialise the conduct and the consequence such threats had upon the recipient of them, but it does demonstrate poor behaviour when affected by drugs.
The Applicant submits that the offending should be viewed at the lower end of the scale of seriousness. He expressed his remorse, contrition and apologised for his past behaviour.
The Respondent contends that, taking into account the persistent nature and cumulative effect, the offending is serious.
The Respondent submitted that the Australian community expects non-revocation of the visa cancellation for crimes of a certain nature and, given the nature of the Applicant’s offending including threats of violence, there is an expectation that the Applicant’s visa would not be reinstated. The Respondent submitted that significant weight should be given to this consideration. There is strength in that submission.
As the Direction sets out in paragraph 13.1(1), the government is committed to protecting the Australian community from harm. The recidivist offending was serious and an abuse of the privilege granted to the applicant to reside in Australia. Australian citizens are entitled not to feel threatened, even if such threats are in the nature of “mouthing off”, and nor should they have their homes invaded and have their property stolen.
I now turn to the next aspect of this primary consideration.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant’s offending history does not demonstrate an escalation in the seriousness of his criminal conduct. On the available evidence, should the Applicant engage in further criminal activity, it is likely that further criminal activity would be similar offences of dishonesty and threats brought about by the use of drugs, but without actually committing acts of violence.
In considering the likelihood of reoffending, matters to be taken into account overlap with primary consideration B.
The Applicant was an impressive witness and was clearly distressed by the circumstances in which he found himself before the Tribunal. Despite the warning contained in the NOICC, it is only now that the enormity of his recidivist offending and multiple sentences of imprisonment have become apparent to him.
The Applicant has only seen his children once in the last 14 months whilst in detention. His parents took the children to see the Applicant four months after he was placed in detention. The children were upset and distressed. After that time, the Applicant’s former wife removed the children from the care of the Applicant’s parents and has not brought the children to the detention centre to see the Applicant. Further, the Applicant’s former wife no longer sees his parents and her whereabouts and the whereabouts of the children is currently unknown. The Applicant and his parents have attempted, through the legal system, to locate the children and re-engage without success. The Applicant and his parents are highly motivated to renew that relationship and intend to continue that process should the Applicant be released into the community.
The Applicant and his parents have been the principal carers of both children for the majority of their lives. The Applicant’s evidence is that his wife remains a drug addict as is her new partner. The Applicant and his parents remain very concerned for the well-being of both children.
The Applicant’s parents both gave evidence to which I will refer later, but they were both very impressive and genuinely concerned for the children’s well-being and the role both they and the Applicant will play in their future upbringing.
The Tribunal received a report of Dr Nina Zimmerman dated 10 January 2019.[20] Dr Zimmerman also gave evidence by telephone. Dr Zimmerman is a consultant forensic psychiatrist in private practice. She has worked as a consultant with Forensicare in acute and rehabilitation settings in prisons and in Thomas Embling Hospital. In her report, Dr Zimmerman described her work in the following terms:
[20] Exhibit C, Applicant’s Material, pages 29-40.
My work has involved evaluations of risk and risk management in relation to transition of offenders back to the community. I have on occasion managed patients in prison and high secure hospitals who are asylum seekers/refugees and have carried out evaluations of patients in detention centres.
Dr Zimmerman was asked to provide her opinion on the likelihood of the Applicant re-offending should he be released. She stated that she visited the Applicant in the detention centre for about 90 to 120 minutes. She reported that the Applicant engaged well, appeared to be frank, and did not refuse to answer any questions. Further, he did not contradict himself and was not irritable. In her report, she states that the Applicant remains deeply attached to his two children, and further gave evidence that he spoke with emotion, and was distressed and teary about not seeing them.
Dr Zimmerman received the material before the Tribunal, albeit only shortly prior to giving evidence was she provided with a copy of the Supplementary G Documents.[21] Dr Zimmerman was aware of the Applicant’s significant criminal history directed to supporting a not insubstantial drug habit. She was of the opinion that, if not for the Applicant’s involvement with drugs, he is a person who would not have offended.
[21] Exhibit B.
Dr Zimmerman discussed the Applicant’s motivation to attend rehabilitation. Dr Zimmerman described the Applicant as being genuinely upset at not being able have the opportunity to proceed to the rehabilitation centre following the completion of the sentence of imprisonment. In discussing the Applicant’s insight, she said he recognised that his issues and offending are solely linked to substance abuse.
Further, Dr Zimmerman referred to the Applicant’s connection with his family. She said people who are isolated are likely to relapse into drug taking. However, the support of his parents, and his strong desire to provide for and be a father to his children, are positive factors mitigating against relapse.
Dr Zimmerman observed that the Applicant has been in detention for a significant period of time and is on the methadone program. He has now detoxed but that fact does not mean that he will not have cravings, albeit the Applicant has denied having such cravings. Upon release, the Applicant will need intense support systems in place immediately. In that respect, the Applicant is anxious to attend Odyssey House.
In cross-examination, Dr Zimmerman confirmed she had recently received the criminal history report contained in the Supplementary G Documents. From her oral evidence, it was clear that she had read it in detail and, although received after the date of the report, she was able to speak about its contents. In particular, she noted the threats of violence were not occasioned by any act resulting in physical harm being done, although she did not trivialise the conduct. She was also aware of the Applicant’s recent inappropriate Facebook post regarding his former wife. However, it was relevant that she opined that he never acted upon any threats that he had made.
Dr Zimmerman was also aware of the community corrections orders that had been breached and the referral of the Applicant to Residential Rehabilitation Treatment. She was aware of the Applicant’s attempts to attend Odyssey House and the reason why he could not undertake the rehabilitation service provided. Dr Zimmerman’s attention was taken to the transcript of the Melbourne Magistrates Court dated 19 October 2017 to which I have referred. She had read and considered that transcript of evidence.
Dr Zimmerman had also considered the Victorian Police Incident Summary reports[22] relating to the breaches of family violence intervention orders and threats of violence. She noted that there was no evidence that the Applicant threatened his partner and that, insofar as he attended her home, he did so at her invitation.
[22] Ibid.
To her credit, Dr Zimmerman was prepared to revise her opinion contained in her report. That opinion relevantly reads as follows:
Given the absence of a history of violence against others, even during a period of prolonged drug dependence, I believe that the risk of violence to the community is low. I believe that the risk of property offending is currently low and can be managed through appropriate drug and alcohol counselling.
Dr Zimmerman varied that opinion to include the risk of threats of violence. To that extent, she opined that the risk of threats of violence also remained low should the Applicant be returned into the community.

Dr Zimmerman noted a number of factors which were relevant to her opinion, including:
(a)The Applicant is now detoxed;
(b)He is not using drugs;
(c)He is more highly motivated than ever to continue with drug abstinence;
(d)Supports are able to take advantage of his current circumstances unlike before when he was not detoxed;
(e)The fact of potential deportation is an influencing factor in reducing the risk of reoffending; and
(f)He is on an opiate replacement therapy which therefore increases the chance of his use of supports.
Dr Zimmerman was also aware of the Applicant’s current relationship with his fiancée, AC, whom he met two days prior to being taken into custody. She knew AC had a young daughter. Dr Zimmerman acknowledged that such a relationship can be a significant challenge, particularly with the demands of a young child, but she also said there were many positives to such a relationship. Nonetheless, Dr Zimmerman was firm in her view that the Applicant was now a low risk of returning to drugs and criminal offending.
Dr Zimmerman was a very impressive witness. In addition to her consultation with the Applicant, she had given thorough consideration to all of the material before the Tribunal.
Counsel for the Applicant submitted that he was genuine in his expression of remorse for the nature and extent of his criminal offending, and that he was frantic to convey he did not wish to be separated from his children. He clearly understood the seriousness of his conduct and what will happen to him should he renew his drug habit.
The Applicant relied on the report and evidence of Dr Zimmerman which, was said, weighed heavily in the Applicant’s favour. In cross-examination, she was unshaken in her opinion that the Applicant’s risk of re-offending was low. That evidence confirmed the Applicant’s strong desire to pursue rehabilitation, and his excellent insight into his drug abuse and offending.
Counsel referred to the Applicant’s connection to family which was very supportive, his determination to play a role in his children’s lives, prolonged abstinence from drug use, continued involvement in the methadone program, and previous productive life up until the age of 25, as other factors that weigh heavily in the Applicant’s favour.
The Respondent submitted that the likelihood of reoffending is high. It was submitted that factors militating against the Applicant included the inevitable stressors of his current relationship, the issues he will be faced with in respect of gaining access to his children, and that, despite the best will in the world, these challenges represent an unacceptable risk of reoffending.
Further, the Respondent submitted that although the Applicant has been prescribed medication for depression and anxiety and is on the methadone program, he has not been tested in the community and there continues to be concerns for public safety as the effectiveness of the rehabilitation has not been assessed.[23] It was argued that the nature and seriousness of the offending and the harm caused are matters the Tribunal should give significant weight to.
[23] Lau and Minister for Immigration and Border Protection [2017] AATA 138 at [60].
Conclusion: Primary Consideration A
The Applicant’s criminal offending is serious and it is the Tribunal’s view that the Australian community would have a low tolerance for the Applicant’s recidivist offending against a background of drug abuse. It is significant that the Applicant has abstained from drugs for 21 months in an environment where, on the Applicant’s evidence, they can be easily obtained in detention. This demonstrates his dedication to remaining drug-free and, although the Applicant has not been tested in the community and there will be stressors for him to deal with, I find him to be genuine in his expression of remorse and contrition, and determination to pursue the supports that are available to him.
The circumstances in which the Applicant was introduced to drugs might incite some sympathy. Plainly, the courts have extended leniency to the Applicant on many occasions. There are significant factors, as outlined by Dr Zimmerman, which influence the likelihood of the Applicant’s reoffending. Having regard to those matters which militate against the Applicant reoffending, I find that the risk of reoffending is low. Were it not for the opinion of Dr Zimmerman, the support that the Applicant has from his parents, and his motivation to care for his children, pursue rehabilitation, and start a new life with his fiancée, the weight which I would have given to this consideration would be very different.
Taking into account all of the evidence, I have decided that moderate weight should be given to this consideration in favour of the Respondent.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next primary consideration the Tribunal should have regard to and relevantly provides:
(1)     Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision is expected to be made.
(3)     If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)     In considering the best interests of the child, the following factors must be considered where relevant:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is the biological parent of two minor children, namely AM, aged approximately 6 years, and AZ, aged approximately 3 years. The Applicant’s fiancée also has a young daughter, P, who is also approximately 3 years of age. The Applicant has not met his fiancée’s daughter but he speaks to her daily by telephone from detention. They have that a good relationship but he hopes to strengthen ties with P should he be released from detention.
Hence, there are three children and the best interests of each child must be given individual consideration. The interests of AM and AZ are the same but are to be considered differently to that of P. I will deal first with AM and AZ.
As referred to above, apart from periods when the Applicant was imprisoned, AM and AZ resided with the Applicant and his parents. Even when the Applicant was in gaol, his mother spent each day at the Applicant’s home caring for AM. Immediately following the birth of AZ, the Applicant’s former wife was sentenced to a substantial period of imprisonment. When imprisoned, the Applicant and his parents were the sole care providers to both children. The Applicant’s wife has only had the care of both children following her release from prison at or about the time the Applicant went into immigration detention. There is currently an interim order from the Family Court which enables the Applicant to see the children one day per week in detention. However, apart from the one occasion when the grandparents took the children to see the Applicant four months after he commenced detention, he has not seen them.
The Applicant’s parents both gave evidence and were impressive. They both had a close and loving relationship with their grandchildren and are very distressed that they are currently prevented from seeing them, and that their current whereabouts is unknown.
The Applicant’s mother told the Tribunal that the former wife had also taken out an intervention order against her husband for reasons unexplained. However, the Applicant’s mother would regularly go to a library where the children could be seen playing in the garden. In her evidence, she said that she felt prevented from approaching them should there be an adverse consequence brought to bear on her husband and family for breaching the intervention order. Nonetheless, she would watch them for some time.
She last saw her granddaughter from a distance in late 2018. When the Applicant’s former wife saw her, she covered up AZ so that the Applicant’s mother could not be seen and walked away. This was clearly distressing to the Applicant’s mother.
The Applicant and his parents have continued to pursue access to the children through the appropriate authorities which will further continue should the Applicant be released from detention. The Applicant expressed the fear that if deported to Egypt, his contact with his children will be lost.
Given the young age of the children, the Applicant has the opportunity to play a positive parental role with the support of his parents. It is important that he be in a position to have access to his children and provide such support and guidance that the Family Court will permit. That is particularly so in circumstances where the children’s mother is a drug addict and in a relationship with another addict. I accept the Applicant’s evidence in that respect.
As for the child P, the Applicant said he has not seen P but has spoken to her each day whilst in detention. The mother, AC, confirmed in evidence the nature of their relationship and their commitment to marry. She said that P has a strong affection for the Applicant and would be upset if he were returned to Egypt.
Conclusion: Primary Consideration B
I accept that the Applicant has been a good father to his children to the extent that he has provided care and support to them save for periods of incarceration. I also accept that the Applicant’s parents have also been a major contributor to their day to day care, particularly when the Applicant or his former wife were in custody.
The current circumstances relating to the care of the children is of concern and it is important that the Applicant and his parents be given the opportunity to renew that relationship through the assistance of the Family Court. It is in the best interests of the children that the renewal of that relationship is given the opportunity to occur. The Tribunal places great weight on this primary consideration as it relates to AM and AZ.
As for the child P, the Applicant has had no significant involvement in her care save for the daily telephone conversations which have occurred whilst in detention. His relationship with P and future role in providing parental support as a stepfather is untested and speculative. I accept that P may be distressed should she lose daily telephone contact with the Applicant, however there is no evidence to suggest this will be long-term or particularly adverse. Accordingly, the Tribunal gives no weight to the interests of P with respect to this consideration.
Primary Consideration C: Expectations of the Australian community
Paragraph 13.3 of the Direction sets out the third of the primary considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other series conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The Applicant has resided in Australia for approximately 13 years, however his criminal offending commenced within a short time of his arrival in Australia. As referred to above, the circumstances in which he was introduced to drugs by his employers incite sympathy. However, the Applicant must bear the consequences for his own actions.
The Applicant rightly concedes that his criminal history is problematic but stated that he did not engage in any criminal activity prior to his drug addiction. The Applicant’s counsel referred the Tribunal to Leha and Minister for Immigration and Indigenous Affairs[24] and the comments of Deputy President McCabe in Do and Minister for Immigration and Border Protection[25] stating that Australian citizens are fair-minded, non-vengeful and do not expect matters before the Tribunal to be used to inflict penalty. Counsel further explained that there is an expectation that the Applicant be given a final chance to rehabilitate. In this respect, it is important therefore to weigh the risks of further offending.
[24] [2000] AATA 1054.
[25] [2016] AATA 390 AT [34].
The Respondent referred the Tribunal to YNQY v Minister of Immigration and Border Protection[26] in which Mortimer J said:
[26] [2017] FCA 1466 at [75].
“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.”
The Respondent relies on that judgment which he rightly submits is binding upon the Tribunal, and that there is an expectation not to reinstate the visa which is a matter to be given significant weight.
Primary Consideration C: Conclusion
The Applicant has spent one third of his life in Australia. In that time, he has clearly breached the expectation of the Australian community that he will be law-abiding. His antecedent history is significant. It is also reasonable to infer that offending of the type committed by the Applicant is sadly not uncommon with those in the community who are under the grip of drug addiction. However, it is relevant that the Applicant has now remained drug free for 21 months, is determined to pursue with the support this parents and fiancée, residential rehabilitation, and, as indicated above, is a person that presents a low risk of reoffending. Having regard to the whole of the evidence, in such circumstances, I have decided that the risk that he will breach that trust in the future is an acceptable one.
Accordingly I give only slight weight in favour of the Respondent to this primary consideration.
Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations, as set out in paragraph 14 of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

The Applicant has previously been found to have been owed protection by Australia when he was granted a Protection visa on 8 May 2007.
The Applicant is not prevented from reapplying for a Protection visa if he wishes and therefore it may not be necessary for the Tribunal to consider this other criteria pursuant to paragraph 14.1(4) of the Direction. However, at both parties’ request, the Tribunal will address this other consideration.
The Applicant referred to the decision of a delegate of the Minister for Immigration and Multicultural Affairs dated 8 May 2007 to grant Protection visas to the Applicant and his father.[27] Under heading “Assessment of Claims”, and in reference to the Applicant’s father, the delegate said as follows:
[27] Exhibit F.
The Applicant was able to elaborate on his claims at interview and it is my impression that he is truthful and credible, although he was reluctant to provide much information about his role in the Egyptian army.
…
Having considered the Applicant’s claims and the country information in this case I am satisfied by the applicant’s evidence that there is a real chance that he could be subject to harassment and harm by the addiction authorities because of his political beliefs and that this is likely to happen in the reasonably foreseeable future.
The Applicant argues that his refugee status has not changed.
The Applicant referred to the evidence of his father and his role in the Al-Ghad Party. Albeit there has been considerable change in the political landscape in Egypt since the grant of the Protection visa, it was the father’s evidence that political persecution continues. He referred to a number of people who were recently the subject of persecution and who have fled Egypt. His role as a General in the Egyptian army and thereafter in politics gives him valuable insight into politics of Egypt, particularly at the time of his departure and, to a lesser extent, since. He has come to Australia and has been “asleep” such that the Egyptian authorities do not know he is here and under protection. However, he fears for his son’s safety in Egypt, should his family connection become known.
Both the Applicant and his father referred to the real likelihood that, immediately upon his arrival in Egypt and when asked if he has completed his national service, which he is obliged to do before the age of 30, that it will become known that he has not done so, and so he will be taken into custody. Albeit, as the only son, the Applicant would be exempt from national service, however he would still be required to prove his identity before he could be released. It was argued that this in and of itself would further persecute the Applicant and result in him being imprisoned. The Applicant also points out that, if returned to Egypt, he will have no Australian or Egyptian passport and he will be immediately scrutinised upon his return.
The Applicant’s tendered the book of material which contained reference to the current political landscape and the disappearance or purported disappearance of supporters of opposition political movements.[28] It is argued that the current political authority, El-Sisi, is unchecked with power to facilitate abuses greater than that of President Mubarak. Further, it is submitted that political opposition in Egypt is virtually non-existent due to fear of criminal prosecution and imprisonment.
[28] Exhibit C, Applicant’s Material, Country Information, pages 55-256.
The Respondent does not accept the Applicant’s arguments. The Respondent argues that the Applicant no longer holds refugee status. The Respondent referred the Tribunal to Part 2 of Direction No 75.[29]
[29] Exhibit A, G Documents, pages 272-273.
The Respondent argued that there was nothing put on behalf of the Applicant to raise fear of harm to the extent of the level of a real chance of foreseeable harm should he return to Egypt. The Applicant also tendered Wikipedia printouts on the Al-Ghad Party and its leader, Moussa Mostafa Moussa.[30]
[30] Exhibit D.
The Respondent referred to the evidence of the Applicant’s mother who has, since her arrival in Australia, travelled back to Egypt. She was asked in cross-examination how often she had returned to Egypt in the last 5 years. She said annually. In re-examination she said she travelled on an Australian passport. There was no evidence about whether and, if so, how often she travelled using an Egyptian passport. The Respondent nonetheless submitted that it was a reasonable inference that she did. In the absence of direct evidence on that point, I will not draw such an inference.
It is therefore argued by the Applicant that where the Applicant is returned to Egypt, this would constitute refoulement.
Conclusion: Other Consideration 1
It is not necessary for me to resolve the question of whether the Applicant retains his refugee status. I accept there has been substantial change in the political landscape in Egypt over a number of years. However, I also accept that there is a real possibility that upon arrival in Egypt, the Applicant will be taken into custody, at the very least, because of issues relating to his failure to complete his military service. What may follow from that is uncertain. Accordingly, I give this other consideration significant weight in favour of the Applicant.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i)Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely) must be examined.
The Applicant has resided in Australia since September 2005, when he was granted a student visa. His offending commenced in 2008 and he offended regularly until his imprisonment in 2017 and subsequent detention. He has two children who are Australian citizens, but otherwise his contribution to the Australian community has been minimal.
The Applicant’s parents now reside permanently in Australia and are Australian citizens. The Applicant is seen as the person who will provide them with support in their aging years. Although his mother would see him when she travels to Egypt annually, it is unlikely that the Applicant will see his father again should he return to Egypt. He has strong ties with his children and again it would be unlikely he will see or communicate with them in the foreseeable future should the Tribunal decline to revoke the cancellation of his visa.
The Respondent argues that the Applicant knows the Egyptian culture and language, and has a sister who resides in Egypt. Further, he has an academic qualification and a considerable command of the English Language which would be of benefit to him should he be returned to Egypt.
Conclusion: Other Consideration 2
Having regard to the whole of the evidence, the Tribunal accepts that the Applicant has significant ties with his two children and both his parents, all of whom are Australian citizens. Other than his sister who resides in Egypt, he no longer has ties to his country of birth.
Having regards to the whole of the evidence, I give moderate weight to this other consideration in favour of the Applicant.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to the impact on Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence was advanced that the revocation of the Original Decision would have a negative impact on members of the Australian community or any victims of the Applicant’s criminal behaviour such that it is of any relevance in determining the application.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction considers 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.
I have detailed the Applicant’s age and health above. There are no substantial language or cultural barriers and he will likely have the support of his older sister should he return to Egypt. However, methadone will not be available to him in Egypt. The Respondents have referred the Tribunal to an alternate drug, Vivitrol.[31] The Applicant points out that Vivitrol is expensive at $1,300.00 per month wholesale, which is prohibitive, and there is nothing to indicate that it is available in Egypt. The Applicant will also require ongoing support and medication for his mental condition which he will likely have to access through the Mental Health Service. The Applicant submits that, given his lengthy absence from Egypt, it would be a struggle for him to integrate back into Egyptian society.
[31] Exhibit E.
The Applicant again relies on his dependence on the methadone program as being the key impediment to removal. The Respondent accepts that the quality of support may not be as great as that received in Australia, however this should not be insurmountable. Nonetheless, the Respondent accepts that some weight should be given to this other consideration.
Conclusion: Other Consideration 5
I do not accept, on the evidence before the Tribunal, that the Applicant will receive necessary and appropriate supports to address his drug relate issues, and to a lesser extent his ongoing treatment for depression, should he return to Egypt. He draws much support from his parents and his fiancée and to separate him from them would likely have an adverse impact upon him, and particularly upon his mental health.
Having regard to the whole of the evidence, I give moderate weight to this other consideration in favour of the Applicant.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, I find:
(a)Primary consideration A weighs moderately in favour of the Respondent;
(b)Primary consideration B weighs heavily in the Applicant’s favour;
(c)Primary consideration C weighs slightly in favour of the Respondent; and
(d)The combined weight of the other considerations add weight in favour of the Applicant and, when considered in conjunction with primary consideration B, they outweigh the weight attributed to primary considerations A and C.
I therefore find that, taking into account all of the considerations in the Direction, that they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, I exercise the discretion to revoke the cancellation of the Applicant’s visa pursuant to s501CA(4) of the Act.
DECISION
For the reasons I have given, I set aside the decision made by a delegate of the Minister on 28 November 2018 to decline to revoke the decision dated 6 December 2017 to cancel the Applicant’s visa. In its place, I have substituted a decision that the decision to cancel the Applicant’s visa be revoked.

146. I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

................[Sgnd]..........................
Associate
Dated: 19 February 2019

Date of hearing: 14 and 15 February 2019

Advocate for the Applicant: Hugo Moodie, Counsel

Advocate for the Respondent: David Brown, Australian Government Solicitors

[2019] AATA 178

19 February 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Date of hearing:	14 and 15 February 2019
Advocate for the Applicant:	Hugo Moodie, Counsel
Advocate for the Respondent:	David Brown, Australian Government Solicitors