Migration Act 1958 (Cth): s 501

Direction [no. 41] - Visa Refusal and Cancellation under section 501

1. Mr Ali has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

1. Mr Ali was born in Fiji in 1976 and is a Fijian citizen. He first arrived in Australia on 19 November 1987 at the age of 11 and was granted permanent visa status on 18 March 1992. He is now aged 35. At the time of cancellation, the visa held by Mr Ali was a Class BF Transitional (Permanent) visa. Mr Ali is single but has a daughter aged 17 who is living in Australia. All Mr Ali's immediate family live in Australia.
2. Mr Ali has an extensive criminal history dating from 1992. Between 1992 and 1994, he committed 31 juvenile offences including assault, stealing, break enter and steal, goods in custody, resisting arrest, carrying a cutting weapon and various driving offences. Since he turned 18 in 1994, Mr Ali has been convicted of 36 offences including assault occasioning actual bodily harm, goods in custody, break enter and steal, escape/attempt to escape by prisoner from lawful custody, custody of a knife, maliciously destroy or damage property, aggravated robbery with wounding/grievous bodily harm, and driving offences.
3. Mr Ali has received numerous prison sentences, many of 12 months or more. On 26 July 1996, he was sentenced to 2 years and 6 months for the offence of 'break, enter and steal in circumstances of aggravation', with an additional term of 2 years and 6 months. On 17 December 1997, Mr Ali was sentenced to 2 years imprisonment for the offence of 'stealing' with an additional term of 2 years, and also 2 years for 'assault occasioning actual bodily harm' to be served concurrently. On 21 June 2002, he was sentenced to 8 years imprisonment with a non-parole period of 5 years and 6 months for 'aggravated robbery with wounding/grievous bodily harm' committed on 19 February 2002 while he was on parole. Mr Ali was not released immediately at the end of the non-parole period because of an adverse report from the Probation and Parole Service. When, ultimately, he was released on 15 August 2008, he was taken into immigration detention at Villawood. He was released from Villawood on 28 November 2008 on his deportation order being revoked (see below).
4. Most recently, on 15 December 2010, Mr Ali was sentenced to 20 months imprisonment for the offence of 'recklessly wound any other person', 18 months imprisonment for a second count of this offence, and 6 months for the offence of 'accessory after the fact to discharge firearm with intent to cause grievous bodily harm'. These offences were committed on 29 September 2009 while Mr Ali was on parole. On appeal to the NSW Court of Criminal Appeal, the Court found an error in the trial judge's sentencing on the second count and reduced Mr Ali's non-parole period so that this expired on 15 August 2011: Ali v R [2011] NSWCCA 184. Mr Ali was released from prison on 15 August 2011 and taken into immigration detention at Villawood where he is presently.
5. Mr Ali has been in prison (or at large having escaped) for 13 of the last 16 years. During this time, he has been punished for disciplinary offences on 101 occasions including, most recently, on 25 July 2011 for disobeying a direction. He was also punished for an assault on 26 March 2011 by being locked in his cell for five days and, on 13 October 2010 and 15 August 2010, for intimidation, by, respectively, three days and one day locked in his cell.
6. On 3 April 1999, the Minister ordered his deportation under s 200 of the Migration Act 1958 (the Act). On a review by the Tribunal, this order was set aside but, after Federal Court proceedings and a remittal to the Tribunal, ultimately, on 7 January 2005, the deportation order was affirmed. An appeal to the Federal Court was unsuccessful. After Mr Ali was released on parole on 15 August 2008 and taken into immigration detention, the deportation order was reviewed and, on 28 November 2008, a delegate of the Minister revoked the order but decided that Mr Ali's case should be reviewed under s 501 of the Act. On 21 July 2009, a delegate of the Minister decided not to cancel Mr Ali's visa but issued him with a formal warning that cancellation of his visa might be reconsidered if he committed further offences or otherwise breached the character test.
7. On 4 March 2011, the Department notified Mr Ali of its intention to consider cancellation of his visa and invited him to respond. In response, Mr Ali made various submissions and letters of support were received from members of his family. On 11 August 2011, a delegate of the Minister decided to cancel Mr Ali's visa and he was notified of this on 12 August 2011. His application for review by the Tribunal was received on 19 August 2011.

1. Section 501(2) of the Act provides that the Minister may cancel a visa if "the Minister reasonably suspects that the person does not pass the character test" and "the person does not satisfy the Minister that the person passes the character test". Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. 'Substantial criminal record' is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
2. Mr Ali has been sentenced to terms of imprisonment of more than 12 months on many occasions. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Ali's visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of 'primary' and 'other' considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
3. The 'primary' considerations in Direction No 41 are set out in paragraph 10(1):
   1. The primary considerations
      • (1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered:
        • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
        • (b) whether the person was a minor when they began living in Australia;
        • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
        • (d) relevant international obligations, including but not limited to:
          • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
          • (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

1. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of 'other' considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the 'primary' considerations. Those 'other' considerations are discussed below.

1. The 'primary' considerations relevant in Mr Ali's case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of relevant children. These considerations are addressed below.

1. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

1. With regard to the seriousness of Mr Ali's conduct, the Tribunal notes that "Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community" (paragraph 10.1.1(1) of Direction No 41). Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41 are grievous bodily harm, reckless injury, assault, aggravated assault and robbery. Mr Ali has been convicted of offences related to all of these. Mr Ali has a long and extensive criminal history including some very serious offences involving violence.
2. Paragraph 10.1.1(3) of Direction No 41 states that "The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community", and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
3. As noted above, Mr Ali has received lengthy prison sentences on a number of occasions including, on 21 June 2002, 8 years for 'aggravated robbery with wounding/grievous bodily harm' in respect of the robbery of a TAB on 16 February 2001 in which Mr Ali was described by the sentencing judge, Judge Sorby, in the District Court of NSW, as having committed "a deliberate act of gratuitous violence" in which he stabbed the victim "who was doing everything to cooperate, in the upper arm, wounding him".
4. As noted above, Mr Ali was not released at the end of the non-parole period of 5 years and 6 months because of an adverse report from the Probation and Parole Service. This report, dated 6 June 2007, refers to Mr Ali as having had some good reports but others describing him as "argumentative and demanding", "refuses to take responsibility for his own actions", "constant verbal abuse ... of younger, quieter inmates", "disruptive". Mr Ali claimed that these reports were inaccurate. The report states that "Mr Ali has exhibited little understanding of his problematic behaviour". However, he had good work reports, had "attended psychology in Grafton CC" and had completed the Think First Program and Personal Effectiveness Program at Lithgow CC from which he said he had learned a lot. The report recommended against release on parole because of "a poor prison performance; a poor history of community supervision; he has not addressed his offending behaviour (anger, AOD and violence) and his risk of re-offending is medium-high".
5. Mr Ali was released on parole on 15 August 2008, but detained at Villawood until 28 November 2008 when he was released into the community. His most recent offence was committed on 29 September 2009 while he was on parole. At that time, the Probation and Parole Service had, independently of his arrest, prepared a report recommending that his parole be cancelled. This report was not provided to Mr Ali's counsel, Mr Poynder, until after the expiry of the two clear business days before the hearing, thereby preventing the consideration of any contradictory documentary evidence from the applicant by the Tribunal pursuant to s 500(6J) of the Act. While I agreed to admit the report into evidence over the objection of Mr Poynder, I indicated that I would give the report little weight in light of the fact that the accuracy of the report would have been challenged by Mr Poynder, since Mr Ali disagreed with a significant part of it. I do note, however, the general comment in the report about Mr Ali's "apparent disdain towards the staff of the Service and his parole requirements" which accord with the Probation and Parole Service report of 6 June 2007.
6. In his sentencing remarks on 21 June 2002, Judge Sorby noted that when, in the past, Mr Ali has been released on parole, "he has not met his parole obligations. For a person so young it is a poor record". The Judge commented: "The prisoner has shown no remorse or contrition for these offences, in particular the robbery with wounding." In terms of rehabilitation, the Judge referred to "a glimmer of hope for the future".
7. The events of 29 September 2009 are described by Judge Ashford in her sentencing remarks in the District Court of NSW on 15 December 2010. Mr Ali had been staying at a friend's house while Mr Ali was looking for a property to rent. When the friend, Ms Z, told Mr Ali to leave, he "apparently refused to move out of the premises" and the friendship became strained. While Ms Z was interstate, Ms Z's sister had the locks changed and Mr Ali's property was placed on the front veranda. On 28 September 2009, Ms Z's house was "broken into and ransacked" and Ms Z was suspicious that Mr Ali was responsible. Ms Z had a close friend, Hassan, whose brother phoned Mr Ali to question him about the break in. Mr Ali denied any involvement and, after an argument, the call was terminated.
8. Mr Ali then phoned his friend, Tarek, to discuss what had happened and worried that Hassan would go to Mr Ali's parents' house in Homebush. The following evening, Hassan and some friends went to Homebush to confront Mr Ali. Mr Ali said that when he arrived home, he noticed a van parked in the road outside the block of units where his parents live and was concerned about this. A short time later, he left the block of units as a passenger in a Ford driven by a female friend. Hassan and his friends followed in two vans. When Mr Ali realised that he was being followed, he phoned Tarek for assistance. At some traffic lights, one of Hassan's friends, whose van was adjacent to the Ford, held out a note for Mr Ali. Mr Ali got out of the rear door of the Ford, approached the van and stabbed the driver twice in the right forearm. Mr Ali gave evidence that the knife was in the lap of the van driver who made to grab him as he approached. Mr Ali said he responded by grabbing the knife and stabbing the van driver.
9. Mr Ali was asked why he had not contacted the police. He said the police never acted unless there had been an incident and, in the particular circumstances, it did not occur to him to contact them. Mr Ali denied escalating the dispute even though he was the first to react. He said that Hassan and his friends came to his house first and his actions were in self-defence. However, he acknowledged that if he had known what was going to happen, he would have taken a knife in self-defence.
10. After the stabbing, a car chase ensued. At one point, the injured van driver struck Mr Ali on the back of the head with what the Judge described as "numchuckas" (presumably nunchucks), injuring him. At further traffic lights, Mr Ali "swung his knife into the cabinet of the van resulting in [Hassan] receiving a stab wound to his right shoulder". Hassan then fired a nail gun at Mr Ali. A short while later, Tarek appeared in another car and "discharged" a handgun approximately four times "resulting in a bullet penetrating [Hassan's] right ear and another bullet being lodged in his right shoulder". Those injured drove separately to Auburn Hospital for treatment and it was there that Mr Ali was arrested after a 3.5 centimetre laceration to the back of his head had been treated. Judge Ashford said that the van driver and Hassan were also treated for their injuries: "It seems that the woundings were not severe."
11. At the trial, the Crown conceded that "there was some degree of provocation in the commission of the offences" although Mr Ali's actions in self-defence "were not reasonable in the circumstances". The Crown conceded "that the level of objective seriousness is below the mid-range accepting there to have been some provocation". Judge Ashford concluded:

Having considered the matters I am of the opinion the reckless wounding charges do fall substantially below the mid-range for offences of this kind. Clearly this offender was in a situation where he was not acting calmly and rationally when he was chased and outnumbered and in such a situation whilst I believe he did act excessively in defending himself, I believe that the charges do fall substantially below the mid-range for offences of these kind.

1. Mr Ali said he did not know his friend Tarek had a gun. When he first phoned Tarek, he wanted Tarek to mediate on his behalf. Mr Ali said he believed that he had no alternative to acting as he did in self-defence, although he accepts responsibility for what happened and he pleaded guilty to the charges laid. He said the Judge accepted that there were extenuating circumstances and this was reflected in the sentence imposed of 18 months imprisonment.
2. In my view, notwithstanding that there may have been extenuating circumstances, the violence - the stabbing - by Mr Ali makes this incident a very serious one. I note that Mr Ali's previous criminal conduct has on a number of occasions involved violence in which he has used or been in possession of a knife (convictions dated 26 July 1996, 25 January 2001, and 21 June 2002). Such conduct is of a very serious nature and poses a significant threat to the safety and welfare of the Australian community.

1. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Ali's previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders. As noted by the sentencing judges, Mr Ali also has a history of breaching his parole orders.
2. Mr Poynder said that most of Mr Ali's offending took place over a period of about nine years, from May 1992, when he was 16, until February 2001 when he committed the TAB robbery, when he was 25. Thereafter, apart from two minor driving offences, his only convictions arose out of the events of 29 September 2009. Whilst this is true, as Mr Markus, for the Minister, pointed out, Mr Ali has been in custody or detention for most of the period from February 2001 to September 2009. Moreover, despite the circumstances of the disciplinary charges incurred by Mr Ali while he was in prison not being revealed by the Department of Corrective Services record provided to the Tribunal, he has, nevertheless, a significant number of such charges. Bearing in mind comments made about Mr Ali's conduct in the Probation and Parole Service report of 6 June 2007, the general impression I have formed is that his conduct in prison continued to cause concern at times throughout the course of his imprisonment. For example, his classification was regressed from E2 to E1 on 14 March 2007 "due to numerous and ongoing security issues".
3. Mr Ali has completed various rehabilitation programs and psychological counselling while in custody, some of which have been referred to above. He has also been assessed by a number of psychologists including Dr Jane Selby, clinical psychologist (report dated 14 October 2004), and Mr Tim Watson-Munro, consultant forensic psychologist (reports dated 12 December 2010 and 19 October 2011). Dr Selby noted that in a report dated 13 May 2002, Dr O Nielssen, forensic psychologist, diagnosed Mr Ali as having a Personality Disorder with anti-social traits, but she said there was no evidence that he continued to suffer from this disorder. Dr Selby described Mr Ali as "an intelligent young man in some turmoil", seeking to demonstrate that he had undergone a significant change in attitude, while managing significant depressive symptomology related to his appeal against deportation.
4. Mr Watson-Munro first assessed Mr Ali for the District Court proceedings in December 2010. In his report dated 12 December 2010, Mr Watson-Munro stated:

Your client acknowledges longstanding symptoms of anxiety, depression and low self-esteem consistent with a diagnosis of an adjustment disorder according to DSM-IV criteria. ...

In more recent times Mr Ali has developed symptoms of post-traumatic stress arising from the assault upon him at the time of the offences. ... He also has ongoing nightmares and suffers from hypervigilance to danger, increased irritability, impaired concentration and substantial depression.

Mr Watson-Munro said psychometric testing confirmed the level of Mr Ali's emotional distress.

1. In his recent report dated 19 October 2011, Mr Watson-Munro stated:

In terms of his current symptomology, Mr Ali stated that he is finding it difficult to cope with his circumstances, with him reporting ongoing sleep disturbance, a sense of despair regarding the future and a sense of defencelessness in the context of his believing that he is going to be kicked out of the only country he has known. ...

Mr Ali describes ongoing feelings of despair, some suicidal ideation and reflective of his anxiety, a significant loss of weight approximating 5 kilograms. ...

... relating to Major Depression with features of anxiety and very low self-esteem. Mr Ali stated that his primary concern beyond being placed in a country that is unfamiliar to him and him having no family support, relates to his 17 year old daughter who is deeply troubled at a psychological level. ...

1. A number of Mr Ali's family members who provided statements said he has changed and is a more mature person. However, both his sister and step father acknowledged that they had made similar statements in support of Mr Ali in 2004 when his deportation was being considered at that time.
2. One would have thought that the long history of consideration being given to Mr Ali's deportation might have acted as a deterrent to further criminal conduct in more recent years: the fact that Mr Ali was first issued with a formal warning about his conduct and his liability to deportation on 2 July 1996; that he received a warning of possible liability to deportation by letter dated 27 January 1998, and was invited to make submissions in relation to his possible deportation by letter dated 24 November 1998; that a deportation order was made 3 April 1999, followed by further Tribunal and court proceedings over the next five years with, ultimately, a revocation of the deportation order made on 28 November 2008; that consideration was then given to the cancellation of his visa under s 501 of the Act, with a formal warning when it was decided not to cancel his visa on 21 July 2009. Mr Ali has been on notice for many years about the effect of further misconduct on his situation.
3. In my view, all of this indicates that there is a real risk of Mr Ali reoffending. Given the seriousness of his criminal conduct and the violence that has been involved in a number of these offences including in more recent ones, the protection of the Australian community strongly favours the cancellation of his visa.

WHETHER A MINOR ON BEGINNING TO LIVE IN AUSTRALIA

1. The second primary consideration relevant in Mr Ali's case relates to his being a minor when he first commenced residence in Australia. Direction No 41, paragraph 10.2(1) states:

If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

1. Mr Ali arrived in Australia in 1987 aged 11. There is no question that he spent some of his formative years in Australia although I note that he was before Bidura Children's Court while still aged 15 in respect of 11 offences including stealing, goods in custody and carrying a cutting weapon. I have been provided with evidence of strong family ties in Australia and Mr Ali states this is the only country he knows. However, in my view, this consideration while favouring Mr Ali's visa not being cancelled, should be accorded less weight than the first primary consideration discussed above.

1. The third primary consideration relevant in Mr Ali's case - the length of time he has been ordinarily resident in Australia - is further explained in paragraph 10.3(1) of Direction No 41. This states that "more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character". I have already mentioned that Mr Ali was before Bidura Children's Court in May 1992 on 11 charges, having been in Australia four and a half years. He was sentenced, without conviction, to a community service order and placed on probation for 12 months. He was back before Bidura Children's Court on 16 July 1992 and was fined, without conviction, for goods in custody. There followed a further eight Children's Court appearances for offences committed while he was a juvenile with his first conviction being recorded on 30 October 1992.
2. In my view, given this history, this consideration should not be treated as favouring his visa not being cancelled.

1. Direction No 41 sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child's age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person's prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
2. Mr Ali has one child, a daughter aged 17, whom I will refer to as D. Mr Ali has spent 13 of the last 16 years in custody or detention and, therefore, has had limited opportunities to establish a normal relationship with his daughter. Nevertheless, I accept that they have a strong and loving relationship. During Mr Ali's 10 months in the community between 28 November 2008 and 29 September 2009, he was not living with D although their evidence indicates that they saw a lot of each other, including D spending at least one or two nights a week staying at her aunt's (Mr Ali's stepsister's) house when Mr Ali was living there. During this time, they also used to go out together. D told me in the hearing that she had previously visited her father two or three times while he was in Goulburn Correctional Centre and the evidence suggests regular telephone contact in recent years while he has been in custody or detention.
3. D told me that, currently, she has no permanent address. For the last couple of months she has been staying for up to two weeks at a time with various friends. She lived with her mother, who now lives in Grafton, until she was 16, but is no longer in regular contact with her, seeing her only two or three times a year on the occasions D sees her two stepsisters who are aged seven and 11, whom she loves. D completed her School Certificate this year and is currently awaiting her results. She was receiving study assistance while studying for the School Certificate but has had no income since late August/early September. She is trying to identify a TAFE course that will help her find a job.
4. D said she is having treatment for mental problems related to her visual hallucinations and the voices she hears. She is taking the medication Zyprexa. Consumer Medicine Information provided by Mr Poynder states this is an antipsychotic medication used to treat schizophrenia and related psychoses. D said her doctors are still trying to work out what the nature of her problem is. Within the last two or three months she was admitted to Banks House (an inpatient psychiatric facility which is part of Bankstown Hospital) for about a week, apparently when she suffered a psychotic episode.
5. D said that if her father is deported to Fiji it will be very difficult for her because she knows nothing about Fiji and she loves her two little stepsisters. I note that in an interview with a departmental officer on 14 July 2011, D stated that she would go to Fiji with her father if he is sent there.
6. In the past, D has been assessed by Dr Christopher Lennings, psychologist, in relation to Mr Ali's legal proceedings: reports dated 15 September 2004 and 5 September 2008. The 2004 report was prepared when D was only 10 and the 2008 report when she was 14. Events since then suggest that the assessments are dated although both reports attest to the strong father/daughter relationship and the psychological impact that Mr Ali being returned to Fiji may have on D. Mr Watson-Munro also spoke with D on 18 October 2011 in the course of preparing his report dated 19 October 2011. He said about D:

She confirmed that she suffers from suicidal ideation referable to the possibility of her losing her father by him being deported. It would appear that she has also had a number of psychiatric admissions referable to psychotic breaks, as a consequence of her substance abusing as a means of self medication. My observation of your client with his daughter confirm a loving and close bond.

1. I am satisfied from the above evidence that it would be in D's best interests for Mr Ali's visa not to be cancelled. Currently, she appears to be estranged from her mother and reliant for parental advice on her father. Nevertheless, it is, in my view, relevant to note that D is now 17 and approaching adulthood.

1. As noted above, Direction No 41 states that 'other' considerations, where relevant, must be taken into account but, generally, should be given less weight than 'primary' considerations. Relevant 'other' considerations in Mr Ali's case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Fiji, the hardship that may be experienced by both Mr Ali and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
2. Mr Ali said that both his close and extended family live in Australia and he knows nothing of Fiji. I note that Mr Ali is of Fijian Indian background and that his early life, until the age of 11 was spent in Fiji. He came to Australia with his mother, she and his father having separated when Mr Ali was aged 2, according to the social history recorded by Mr Watson-Munro in his report dated 12 December 2010. Mr Ali told Mr Watson-Munro that that he has had no contact with his natural father since he was 13 and believes he may be domiciled in Canada.
3. Mr Ali's mother, stepfather and stepsister gave evidence at the hearing about their relationship with Mr Ali, having previously provided letters of support to the Department on several occasions. His step-father said his wife and daughter and his younger children are very close to Mr Ali. His mother said all her family are in Australia except one sister whom she last saw at a wedding in 2007 and to whom has not spoken since. They do not speak because of a "family matter". If her son is removed to Fiji, it would "destroy the whole family". Mr Ali's step-sister said Mr Ali is her favourite brother upon whom she depends. He has also lived with her and she has supported him. She acknowledged that they have had disagreements from time to time, as do any brother and sister, but when he moved out of her house it was to establish his own home and be independent. His step-sister said their family are very close and she would be very badly affected if he has to return to Fiji.
4. I accept that both Mr Ali and his close family will suffer emotional hardship if he has to return to Fiji. Maintaining contact with his family will, of course, be more difficult in Fiji although the ready availability of telephone and electronic communications will make this easier than formerly. I also note that maintaining contact with his family has been largely at a distance for many years as a result of Mr Ali being in prison. Mr Ali claims that he would also be destitute in Fiji. Undoubtedly, he will suffer hardship in trying to establish himself in Fiji if he has to return there. He claims that he will suffer language difficulties by reason of not speaking Fijian or Hindi but as the Respondent points out, the official language of Fiji is English.
5. In weighing up the various considerations in making my decision, I am particularly mindful about all the warnings Mr Ali has had over a number of years, starting in 1996. He should have been acutely aware of the possibility that his visa could be cancelled after the order was made to deport him on 3 April 1999, which was the subject of legal proceedings over a period of five years and which was only finally revoked on 28 November 2008. Following consideration being given to cancellation of his visa under s 501 of the Act, when it was decided not to cancel his visa, he received a formal warning on 21 July 2009. Mr Ali claimed in evidence that he only ever read the first part of the letter of that date notifying him that it had been decided not to cancel his visa - he says he omitted to read the third paragraph of the letter, in bold, warning him that visa cancellation might be reconsidered if he committed further offences or breached the character test in the future, and that disregard of this warning would weigh heavily against him if his case was reconsidered. Given the events in relation to his proposed deportation and the possible cancellation of his visa which had gone before, over a period of more than 10 years, I find this hard to believe.

1. In my view, in this case the first primary consideration, the protection of the Australian community, outweighs the other primary and 'other' considerations. Whilst I acknowledge this decision will cause hardship - in particular, and noting her present psychological problems, to Mr Ali's daughter - but also to Mr Ali and his close family, essentially he is by his conduct the architect of his present situation. He has chosen to ignore multiple warnings and has continued to commit violent offences which pose a threat to the welfare and safety of the Australian community. When one considers not only his criminal record over many years but also his breaches of parole and the reports from the Probation and Parole Service about his conduct in prison, the risk of him committing further such offences in the future appears to be a very real one.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed: ........... [sgd]..................................................................

Representative for the Respondent A Markus, Australian Government Solicitor