FYBR v Minister for Home Affairs

FYBR v Minister for Home Affairs | Case summary | Zoe

Mr Shah is a 41-year-old Indian citizen, who migrated to Australia with his wife on 26 April 2008 originally on a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa at the age of 23. On 5 April 2017 Mr Shah was granted a Class VB Subclass 887 Skilled - Regional visa. Mr Shah and his wife have one daughter aged nine. His wife and daughter are Australian citizens.
Since his arrival in Australia Mr Shah has departed Australia on numerous occasions, returning to India several times and holidaying in Fiji.
Mr Shah and his wife grew up in the same neighbourhood in India but came from different castes. They met while they were both still at school and married on 13 September 2007. Mr Shah reported they married against the wishes of their parents and the societal pressures of their community. Mr Shah and his wife reported they came to Australia for a better life and to escape the shunning they had encountered because of their love and marriage against the tradition of their region.
Mr Shah completed his education in India obtaining a bachelor's degree in accounting before he commenced work in the construction industry. When he arrived in Australia, he originally resided in Sydney, where he worked in a carwash. He and his wife then relocated to Melbourne where he worked in a warehouse as a store supervisor and forklift driver from 2008-2016.
Mr Shah and his wife purchased and commenced their own courier business in June 2015, which they had intended to operate as a side venture However the business began to collapse in June 2016 after Alpha Logistics, who they provided the majority of their services to, went into receivership leaving them unable to recover $110,000 owed. Whilst Mr Shah successfully litigated, and entered into a payment plan with Alpha Logistics, he never recovered any money. Mr Shah was left with considerable debt, as he had borrowed money to purchase three vans and was paying his driver from his own savings as he waited to receive the outstanding contractual payments.
Mr Shah sustained an injury at work around 2015 and eventually underwent spinal surgery in 2016. A series of events resulted in Mr Shah leaving his role at the warehouse, and it was around this time he turned to substance abuse to deal with his back pain and financial stress. Mr Shah's wife was also pregnant at this time and was suffering significant complications with the pregnancy which required Mr Shah to drive his wife three times a week to medical appointments. Following the birth of their daughter Mr Shah's parents-in-law arrived from India to help his wife but this only added to Mr Shah's stress, shame and eventual depression.
Mr Shah reported to Ms Carla Ferrari, Forensic Psychologist in a pre-sentencing report of 8 July 2020 that:
- He commenced self-medicating with methamphetamine around September 2016 to numb his emotional and psychological symptoms, and then began using heroin for his physical pain related to his back injury.
- He began selling to support his habit and as his dealer was no longer available, people began coming to him.
- In 2018, he received a custodial sentence and 15-month Community Corrections Order (CCO) for various drug trafficking charges, deal property suspected proceeds of crime, and weapon possession.
- In January 2020 due to contravention of his CCO and further offending (possession of heroin in September 2019); the original order was varied to a 21-month CCO and an additional 200-hour community work condition was included.
- He had four sessions of counselling through Caraniche in 2019 as part of his CCO, however regretted his involvement with them, indicating that being honest about having relapsed led to further DHHS involvement in June/July 2019, and he was subsequently removed from his family home for a second time.
- He attended six sessions at ReGen for AOD counselling last year and was provided with details for prescribing doctors for Suboxone, however encountered significant difficulty and delay due to waiting periods of up to two months. He eventually commenced Suboxone 8mL in November 2019, after another relapse.
- DHHS became involved around October/November 2016 and he was rendered homeless as he was unable to remain in the family home.
- Throughout 2019, he was reconnecting with his wife and daughter, attending Corrections appointments, completing community work, attending the Kickstart program and trying to build their courier business again. This was extremely stressful for him as he had multiple appointments four days of the week which impacted his ability to work, and logistically, he and his wife shared a vehicle which meant he had to drop his wife at work and daughter at childcare before attending his own appointments and program, putting further pressure on himself and his family.
- He had informed his CCO worker he was not coping and was referred to Caraniche for AOD counselling. He had three CCO workers in four months and found it frustrating having to explain his circumstances each time as it would cause him to constantly relive his stressors.
- He relapsed in April 2019 due to these issues, as well as feeling judged by their friends and family, and further financial stress owing to being unable to work due to the requirements of his CCO (attending CCO appointments and community work on different days, and another two days per week of the Kickstart program).
- DHHS was again involved, he was homeless, had lost his family again, resulting in severe depression which further gave rise to his substance use.
- He admitted he began to sell substances again to support himself and his habit, as well as supporting his family. Mr Shah reported feeling as though it was easier to source drugs than it was to get help, particularly after the setbacks he faced in trying to engage with a prescribing doctor for opioid replacement therapy.
Mr Shah's wife completed her education in India and obtained a diploma of hospitality in Australia, before working for 12 years in food services in a large Melbourne hospital. For the last five years she has worked for a real estate agent starting as a personal assistance and progressing to a property manager.
Mr Shah's offending commenced in 2017 and continued on and off until his arrest on 26 May 2022.

(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 safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Interception and search of your motor vehicle > > 5. On 26 May 2022 at about 1:45am, First Constable Ronald Medcraft and Sergeant Timothy Ryan observed a white Holden Captiva driving along Banksia Street in Ivanhoe. They followed the vehicle and saw you driving at a speed of approximately 81 km/h in a 60 km/h zone (Summary Charge 27). You were intercepted. > > 6. You produced your Victorian driver licence upon request. When asked if you had previously been involved with police, you admitted you 'had for drugs' and said you were undergoing rehabilitation and mandatory drug testing. You also said you had not used drugs for quite some time. > > 7. Medcraft asked if he would find drugs if he searched your car, to which you replied '100% no'. You appeared nervous and Medcraft asked you to exit the vehicle. A search of your car was conducted during which a zip lock bag containing 0.3 grams of methylamphetamine was discovered in a console near the steering wheel. You admitted ownership of the bag when it was shown to you. You denied using ice that night. > > 8. In the console Medcraft also found a quantity of cash wrapped in facemasks and a zip lock bag containing 1.4 grams of heroin. You 'swore' the money was not the proceeds of selling drugs. A pink case was then located under the driver's seat which contained two large zip lock bags with numerous smaller zip lock bags filled with powder. The powder was subsequently tested and found to be methylamphetamine, totalling 43.4 grams in weight, of which 35.94 grams was pure. > > Search of your home > > 9. At approximately 8am the same day, police attended your residential address in Rosanna. Your wife was home at the time and informed police there were two rooms connected to the garage, one used for storage and the other used by you. Your wife told police you spend the majority of your time in that area and rarely venture into the house. > > 10. During a search of the room used by you, police located the following items: > > (a) On a desk, an orange container containing methylamphetamine in the form of crystal residue (Charge 1). > > (b) In a drawer of the desk: > > (i) 7.0 grams of methylamphetamine (Charge 1); > > (ii) various quantities of heroin totalling 11.1 grams (Charge 2); > > (iii) $600 in cash (Charge 7); and > > (iv) scales. > > (c) In a black pencil case located in a box underneath the desk: > > (i) 10.9 grams of methylamphetamine (Charge 1); > > (ii) various quantities of heroin totalling 6.4 grams (Charge 2); and > > (iii) 1.8 grams of cocaine (Charge 6). > > (d) In a black box underneath the desk: > > (i) various quantities of cannabis totalling 24.5 grams, some of which was wrapped in individual foils (Charge 3); and > > (ii) small zip lock bags. > > (e) In another desk drawer, a handwritten note evidencing drug transactions. > > (f) In a backpack, $10,000 in cash (Charge 7). > > (g) Inside a plastic bag on a shelf, a further quantity of cannabis (Charge 3). > > (h) In a wooden 'Yo-Yo' box underneath the staircase: > > (i) a quantity of methylamphetamine (Charge 1); > > (ii) a quantity of heroin (Charge 2);[13] > > (iii) $18,900 in cash (Charge 7); and > > (iv) empty 'deal' bags. > > (i) In a harmonica box underneath the staircase: > > (i) 234.8 grams of methylamphetamine (Charge 1); > > (ii) 10.3 grams of cannabis seeds (Charge 3); > > (iii) 60 diazepam tablets (Charge 4); > > (iv) 7 oxycodone tablets (Endone) (Charge 5); > > (v) 0.04 grams of quetiapine (Syquet) (Summary Charge 50); > > (vi) 9 zopiclone tablets (Imrest) (Summary Charge 51); > > (vii) a quantity of sildenafil tablets (Viagra) (Summary Charge 52); and > > (viii) 3 pregabalin tablets (Lyrica) (Summary Charge 53).(j) $300,050 in cash located in a shoebox in a green bag. > > 11. The total amount of cash found at your address was $329,550 (Charge 7).

91. Mr Shah is a 36-year-old male who developed severe symptoms of depression in the context of a period of protracted psychosocial stress including financial hardship, business failure, and familial difficulties. He began to self-medicate physical, psychological and emotional pain with methamphetamine and heroin, resulting in a severe substance use problem which further worsened his circumstances, and contributed to his offending. > > 92. The impact of losing his business and being unable to support his family, especially during such a crucial time when his first child had been born, had profound consequences for Mr Shah's mental health, and this was repeatedly reinforced by further stressors which have occurred over the past four years, albeit some of these related to the choices he has made. > > 93. At the time of the current offending, he had deteriorated into another depressive episode due to feeling a sense of urgency in completing his CCO as this was impacting his ability to work and financially support his family, and feeling overwhelmed by these pressures and the lack of support he was receiving. His mental state was also being exacerbated and retriggered by the program he was undertaking, as it was constant repetition of the mistakes he had made in the past and reliving these experiences. > > 94. Whilst depression in itself does not directly cause an individual to offend, it is important to note that affective states can alter an individual's cognition and behavior, impairing impulse control, ability to rationalize, consider alternative responses, and impacts their decision-making. This is due to the neurological changes in the brain caused by depression and anxiety; a reduction in serotonin can impact the functioning of the prefrontal cortex, that is, the area of the brain responsible for emotional regulation, executive functioning and impulse control. > > 95. His self-medication with substances during this period heightened Mr Shah's risk of engaging in impulsive and reckless behavior, as well as further impairing insight, decision-making and judgement; this ultimately affects an individual's usual functioning as well as worsening underlying mental health issues. It can impair cognitive ability, and result in emotional dysregulation, disinhibited and poorly considered behavior, increasing the risk of criminal misconduct as in Mr Shah's case. > > 96. It appears that there are a number of factors outlined above which are causally linked to Mr Shah's behavior and impaired functioning at the time of the offending. His deteriorated mental health played a significant role in the incidents and in his self-medicating with methamphetamine and heroin. There does not appear to be evidence of a criminal belief system; Mr Shah's actions are more a reflection of his untreated psychological symptoms, distress, and self-medication in an attempt to numb himself. > > 97. Protective factors for Mr Shah include improving insight into his problems, an understanding that his mental health remaining untreated is likely to continue to cause him issues in the future, and acknowledgement of the role of substances in maintaining his offending. He is motivated to reform himself for his family, explaining the support from his wife who now understands his turmoil and is supportive of him is paramount to his recovery. He hopes to address his issues and restore his premorbid level of functioning so as to provide a stable, supportive, secure environment for his wife and daughter, and to demonstrate to their parents that he has taken responsibility for his actions and learned from his mistakes.

The Respondent's representative contended that if Mr Shah was to reoffend in a similar manner to the previous serious offences he has committed, it was highly likely such reoffending would involve wide-reaching harm resulting from perpetuating and enabling the presence of harmful and illicit drugs in the community, leading to physical, psychological and economic harm of both individual members of the Australian community and the Australian community overall. Further, submitting Mr Shah's actions could cause physical and psychological harm if he reoffends by speeding or committing further assaults/family violence.
The Respondent's representative contended the Tribunal should conclude that Mr Shah presents a real and not insignificant risk of reoffending. While The Respondent's representative accepted Mr Shah has shown some remorse and consideration of his offending on his family and the community, he has a significant history of illicit drug abuse and drug trafficking and of disavowing the numerous drug treatment and rehabilitation opportunities afforded to him.
The Respondent's representative submitted this was reflected in his Honour's remarks, noting Mr Shah's last offending was "the third time you have faced similar charges and you have had numerous opportunities to reform". The Respondent's representative submitted Mr Shah has continuously committed offences while on a CCO.
The Respondent's representative submitted the report of Clinical Psychologist Carla Lechner noted Mr Shah had "became caught in a cycle of not being able to obtain employment on account of his criminal history, would turn to crime and his employment problems would be magnified." The Respondent's representative contended this situation would likely remain an obstacle for Mr Shah when he is next released.
The Respondent's representative submitted his Honour's comments regarding Mr Shah's motivations and rehabilitative prospects highlight the risks of his reoffending and subsequent harm this would inflict on the community:

The Respondent's representative submitted his Honour took a grim view about Mr Shah's prospects for rehabilitation noting that the risk of reoffending would be contingent on him remaining drug free. The Respondent's representative contended the Tribunal should remain equally guarded and find that there is a real and appreciable risk that Mr Shah will reoffend which is an unacceptable risk - particularly where Mr Shah has been unable to remain drug free while incarcerated.
The Respondent's representative contended Mr Shah presents a real and not insignificant risk of reoffending. The Respondent's representative submitted Mr Shah has had numerous opportunities conferred by CCOs, noting the treatment, rehabilitation programs and testing he was previously required to undertake, has not resulted in him remaining drug free. The Respondent's representative submitted Mr Shah has disregarded these opportunities in pursuit of more serious criminal offending.
The Respondent's representative contended the repeated and serious nature of Mr Shah's offending demonstrates that he will be unable to remain drug free, noting the material from Corrections Victoria before the Tribunal demonstrates Mr Shah has continued to use and deal in illicit substances whilst in prison.
The Respondent's representative contended Mr Shah's family has not served as a protective factor with him being prepared to perpetuate harm on the Australian community while exposing his child to the dangers of illicit substances and drug trafficking activities. The Respondent's representative contended that, despite Mr Shah having the support of his very caring wife, and despite describing the birth of his daughter as one of the pivotal moments in his life, much of the Applicant's offending occurred after his daughter was born.
The Respondent's representative acknowledged it was to Mr Shah's credit that he has done several courses in prison, including a drug and alcohol course, and has been placed on medication to deal with his addiction. The Respondent's representative also acknowledges that Mr Shah appears to have been drug free since January this year, but this was a recent development in the context of his being in prison and the background of seven years of offending. The Respondent's representative submitted it was too early to tell if Mr Shah was indeed a changed man and he had not been tested in the community where he had failed last time after remaining drug free for over 12 months.
The Respondent's representative submitted Mr Shah, in his evidence, did not at any point in time appear to acknowledge that he was dealing drugs, despite that obviously being what was occurring, given the quantity of drugs in his possession, people coming to and from the house in which he resided with his wife and child, and his phone constantly pinging after his arrest. The Respondent's representative contended this should give the Tribunal considerable concern for whether the Applicant truly acknowledged the extent and the seriousness of his drug use.
The Respondent's representative contended the salient question for the Tribunal to weigh up was should Australia bear the risk of Mr Shah reoffending, given that obviously Mr Shah has reoffended multiple times before, has been given multiple opportunities before and unfortunately has not taken those opportunities. The Respondent's representative acknowledged that Australia is a generous nation where offenders are given a second chance to prove themselves, however in Mr Shah's case this was not his second chance but his fourth, as he has continued to reoffend regardless of the penalties and the consequences. Simply put, Mr Shah was a moderate risk of reoffending, and this would be too heavy a price for the Australian community to bear.
The Respondent's representative contended Mr Shah presents a real and not insignificant risk of reoffending and if he were to reoffend, significant harm would be visited upon the Australian community. And as such the Tribunal should place substantial weight on this consideration in favour of Mr Shah's visa remaining cancelled.

Offence seriousness > > 16. Trafficking in a commercial quantity of a drug of dependence and trafficking in a drug of dependence are serious criminal offences, as indicated by the maximum penalties of 25 years' and 15 years' imprisonment respectively. This shows, unambiguously, how seriously the community, through the Parliament views the conduct you have committed in Charges 1, 2 and 3. > > 17. The Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offences, it will always be of importance. All things being equal, the greater the quantity trafficked, the more serious the trafficking offence. Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it. > > 18. It is also relevant for me to consider the harm that is inflicted on the community by offences involving trafficking in drugs of dependence such as methylamphetamine, diacetylmorphine (heroin) and cannabis. > > 19. I recognise Charge 1 is a single date offence and there is no evidence before me of the frequency or regularity of your trafficking, nor is there an allegation you were engaged in 'Giretti' trafficking. Nonetheless, you did possess a commercial quantity of methylamphetamine for sale. You possessed a total of 391.6 grams of mixed drugs of which 319.6 grams was pure, a purity of over 80%. This is over six times the commercial quantity threshold of 50 grams (pure). This quantity and purity supports the prosecutor's submission that I can draw the inference you were motivated by financial gain. However, there is no evidence you acquired significant wealth from your drug related offending conduct or were living a grandiose lifestyle. Moreover, I cannot exclude as a reasonable possibility that at least part of your motivation for selling drugs was to support your own drug habit. > > 20. I also observe, possession of a drug of dependence is a serious enough criminal offence. So far as Charge 2 is concerned, you trafficked, by possessing for sale 22.3 grams of heroin (mixed weight), which is about seven times the traffickable quantity and almost 10% of a commercial quantity. So far as Charge 3 is concerned, you trafficked 27.5 grams of cannabis, which is close to half the 'small quantity' of 50 grams. > > 21. Knowingly dealing with proceeds of crime intending to conceal that it was proceeds of crime is also a serious criminal offence. While I cannot make any findings on the available evidence regarding the source of the cash that was located at your premises, I consider this is a serious example of the offence given it involves a large sum of money. Moreover, you have a number of prior convictions for similar offending. > > 22. Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you on Charges 1, 2, 3 and 7.

99.In regard to general risk of reoffending, empirical literature outlines a number of risk factors identified in research as increasing an individual's propensity for recidivism (Andrews and Bonta, 2016). It considers a number of dynamic factors or "criminogenic needs" to be relative to recidivism risk, including psychosocial circumstances (accommodation, employment, financial situation), antisocial peer group, lack of supports, drug and alcohol issues, emotional and personal factors (i.e. impulsivity, psychopathy, risk-taking, poor problem-solving and self- regulation), criminal attitude or orientation, attitudes towards intervention, as well as other relevant stable factors such as criminal history and gender. > > 100.Mr Shah's risks are considered moderate; on the basis of his similar priors; previous involvement with an antisocial peer group whom were also involved in substance use; recent history of substance abuse which appears to be a form of self-medication against his untreated depressive disorder. > > 101.These risk factors are however amenable to treatment and can be managed through a combination of psychological intervention and potentially psychotropic medication if his symptoms do not improve through psychological therapy, however it appears his symptoms have improved significantly since ceasing substances upon being remanded. The effect of these factors can be minimized with treatment and thus his risk of recidivism will substantially reduce. > > 102.He now has support from his wife and their families and is motivated to reform his lifestyle to improve his future and restore their faith in him, as well as to provide a stable and secure future for his daughter. He is deeply hurt and ashamed for his actions which have disappointed his loved ones. There does not appear to be a criminal belief system and he displays positive attitudes towards intervention, recognizing the need for treatment in order to learn to manage stress and his mental health more effectively without relapsing.

Mr. Shah reports that after his most recent release from custody in 2020, he remained abstinent from drugs or almost one year. He was not however, able to obtain employment, he was initially unable to live at home, have contact with, or care for his daughter. He felt shunned by members of his community. He reports that he had immense difficulty in accessing a doctor to prescribe Suboxone. All of these factors led to a decline in his mood, relapse to drugs and the current offences. > > Mr. Shah requires intensive therapeutic support that focuses on both his addiction and depression. It is likely that a combination of pharmacotherapy and psychological intervention would assist him. A residential rehabilitation facility or assessment by the Drug Court team may be a suitable option for him. > > .... > > SUMMARY & OPINION > > 3. At interview, Mr. Shah impressed as cognitively capable of reflective and consequential thinking but burdened by his deep-seated feelings of inadequacy and failure. His negative lens on himself has made him extremely sensitive to the acceptance and approval of others; he believes that he constantly falls short of their expectations hence the cycle of negativity continues. Mr. Shah is able to identify triggers to his negative feelings but is less well able to manage them adaptively. He is currently reporting symptoms of a "moderate" level of psychological distress and "extreme" level of depression. The possible benefits of anti-depressant medication need to be discussed with him, in addition to a replacement program to assist with relapse prevention when he is in the community. > > 4. In respect of these offences, I understand that the matters have not yet been fully finalized given that this is a sentence indication. Mr. Shah reports that he was using a significant quantity of both Ice and heroin at the time of these offences and admits to selling drugs to support his addiction. He reports that he had fallen into a deep depression and used drugs as a means of "self-medication". He stated that at such times he "loses" and "isolates" himself. The quantity of drugs that he reports using, coupled with his depressed mood state, are likely to have compromised his capacity for good judgement and decision-making, with Mr. Shah having little regard, at that time, of the longer-term ramifications. > > The repetitive nature of his offending suggests that his prognosis is currently guarded.

Mr Shah > > So I wasn't be able to manage all that, but since, you know, prison and like doing some drug and alcohol counselling and seeing different people and like, you know, few support from the prisoner officer as well, education thing as well working in the team and industry kitchen, like I learned a lot of different skill to deal with the stress, anxiety or like you know, it's OK to share your issue, you know, like it's OK to ask for help. > > But that that's the main thing I learn, you know, like it's OK if you had a issue, you can talk to someone and someone will help you or guide you where you can find help, you know. > > So, like, I wish I would be able to do that in the past > > ... > > (Mr Shah's wife) > > We all do mistakes. > > And he has not murdered anyone. > > That's what I think. > > That's what my belief is. > > So as a human, it's my responsibility to look after him, care and give that that respect what he deserves. > > And if we give, if we get a chance to live together, I'm more than happy to help him how to get that care and what he deserves because he has gone through so much. > > I know he has gone through so much and he, it was, it has never been his intention, but he was surrounded by bad people, I would say and the habits what he has, that was the main cause. > > If those things are not there in life, and that's what we had our discussion last time, that if this is a last chance, if ever I have seen you falling down in that trap, you, just think that you have lost me completely. > > So that was our conversation last time and he has promised me that he will never, ever go back. > > And he has made his plan as well. > > ... > > He wanted to go out and teach people, not teaching, I don't know what the correct word, but he wants to give his example that look, I have made this big change and I'm happy to help you out as well. > > So that's what and I'm, I'm very proud of it. > > I'm seriously very proud of it, on his plans. > > So that's all I can say from my side that I think he deserves another chance to live with his family.

Mr Shah was assessed as a moderate risk of reoffending utilising the general risk of reoffending tool. As such, he was required to attend fortnightly supervision appointments to address his offending behaviour and criminogenic needs. Mr Shah initially engaged well during supervision and demonstrated insight into his offending. He identified loss of employment and financial strain as influencing factors in his offending. He also identified that although his family, specifically his wife, had attempted to support him, he had pushed them away. > > Following these offence-specific discussions, it was identified that education/employment, family/marital, and alcohol/drug problem were Mr Shah's highest criminogenic needs. Mr Shah only expressed motivation to address his unemployment. CCS facilitated this by submitting a referral through the Corrections Victoria Employment Pathway and referred Mr Shah to various employment opportunities in Laverton. However, Mr Shah relapsed with methylamphetamine and heroin use prior to employment being secured, making him ineligible for these employment opportunities. > > Following Mr Shah's relapse. his compliance on his order notably declined and the Department of Health and daughter. This resulted in Mr Shah becoming homeless and only being granted supervised visits with his daughter. > > CCS attempted to canvas housing options and provide Mr Shah with information regarding housing services however Mr Shah declined this support. CCS also attempted to address Mr Shah's substance use, utilising workbook activities, however Mr Shah demonstrated a tendency to divert these discussions by expressing grievances with the services involved in his case, specifically DHHS. Mr Shah further demonstrated a tendency to externalise blame for his substance use and appeared to consider his relapse and inability to regain abstinence at least in part the fault of CCS and DHHS. > > Mr Shah was assessed by Community Offender Assessment and Treatment Services (COATS) and deemed suitable for the Kickstart Program, a group-based drug-intervention. Mr Shah successfully completed this program however he relapsed with methylamphetamine and heroin use during this program. Due to his relapse, Mr Shah was referred to an individual episode of treatment with Caraniche. Mr Shah completed this treatment however requested to be assessed for detox and residential rehabilitation.

My daughter is the light of my life and has always been the center of our family, along with my wife. I share a very close and loving bond with her. Before my incarceration, we spent a lot of time together doing simple but meaningful activities. We would laugh, play, and dance around the house, take trips to the park, and enjoy drives together. I was very involved in her daily routine, and when my wife was at work, I would cook for her and make sure she was well taken care of. These everyday moments created a deep connection between us. > > Since my incarceration, I have been in regular contact with her through weekly video calls. These calls are incredibly important to both of us, as they help maintain the bond we've built over the years. I can see that she anxiously awaits our calls, and she often expresses how much she misses me and looks forward to the day when I can be with her again. > > Despite the physical distance, I still play a significant emotional role in her life. I try to offer guidance, encouragement, and love, even from afar, to help her through these difficult times. I know that my absence has been hard for her, and she often talks about how much she needs me back home. Being reunited with her is one of my greatest motivations, as I want to continue being the father she deserves, providing her with love, stability, and support. > > My daughter is already experiencing emotional distress due to my absence. As a 8-year-old, she is at a critical stage of her development, and not having her father around has deeply affected her sense of security. She misses me terribly and often expresses feelings of sadness and anxiety, which are evident during our weekly video calls. The uncertainty surrounding my future and the possibility of permanent separation weigh heavily on her, and I fear that this is already taking a toll on her mental and emotional well-being. > > If a negative decision is made, I believe the impact on my daughter would be profound and long- lasting. Losing her father permanently during such an important stage of her life could lead to deep emotional scars, affecting her self-esteem and ability to trust. She may struggle with feelings of abandonment, confusion, and insecurity, which could affect her as she grows into adulthood. This emotional burden could hinder her ability to focus on her education and personal growth, potentially leading to long-term consequences in her future. > > Furthermore, in both our Australian and Indian communities, the stigma associated with having a parent incarcerated and deported could result in social isolation and discrimination. Our community may treat her as a second-class person, and this could significantly damage her self- esteem and sense of belonging. The judgment and exclusion she might face would add further emotional strain, potentially leading to feelings of shame and isolation at a very vulnerable age. > > In summary, a negative decision would not only cause immediate emotional distress to my daughter but could also have long-term psychological and social consequences. It would deprive her of the security and support that a father provides, leaving her to cope with feelings of lose and rejection that could affect her for the rest of her life.

Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12. The word "generally" contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.

To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations: non-citizens will obey Australian laws when in Australia; it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere; in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive." This limited expression of "community expectations" by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is "appropriate" in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of "what would the community expect in this case?" It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
The Tribunal considered that a finding proportionate to the nature and circumstances of Mr Shah's offending which has resulted in serious harm to the community needed to be determined and as such this consideration weighs heavily against revocation.
The Tribunal considered that Mr Shah has indeed clearly breached the expectation that he obey the law, and the length of the custodial sentences imposed on him clearly demonstrates the gravity of his crimes. The Tribunal concurred with the Respondent and pervious Tribunal findings that although Mr Shah's crimes have not involved violence or harmed vulnerable people, the impact of illicit drugs in our society is far reaching and devastating.
The Tribunal accepts that the Australian community would expect Mr Shah 's visa to remain cancelled simply because of the nature of his repeated offences. Noting the extent and impact of Mr Shah's offending as outlined in his Honour's sentencing remarks:

Relevantly, the legal consequence of the Minister's decision is that the applicant will be removed from Australia and cannot satisfy the special return criteria in cl 5001 of Sch 5 of the Regulations. In substance, that means that the applicant is ineligible for most classes of visa that would otherwise relate to him. That is not a matter of speculation. It is not necessary to wait for an application for a visa to be made to know that he cannot be granted a visa in any of the applicable classes. Therefore, the practical reality in human terms that flows from the legal consequences of the Minister's decision is that the applicant will be removed from Australia and, thereafter, will be precluded from travelling to, entering and (or) remaining in Australia unless he is able to bring himself within the criteria of a visa class to which the special return criteria does not apply. In much the same way that a legal consequence may be characterised as 'indefinite detention', the legal consequence here may be characterised as removal and 'indefinite exclusion' from Australia. Moreover, in my view, not only is that a legal consequence it is manifestly a purpose of the applicable statutory framework and scheme that includes s 501(3). > > It is evident that a purpose of specifying that the special return criteria be satisfied for the various visa classes in Sch 2 is that persons who have had their visas cancelled under s 501(3) cannot satisfy the visa criteria and, therefore, cannot be granted visas in those classes and lawfully travel to, enter and (or) remain in Australia. It would plainly defeat a purpose of s 501(3) of the Act if persons who have had their visas cancelled on the grounds of national interest could, upon removal from Australia, immediately be granted a visa and return to Australia because all other criteria for the grant of that visa are satisfied. > > It follows that the applicant's indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa under s 501(3) of the Act. Accordingly, that was a consideration the Minister was bound to take into account.

The Respondent's representative accepts Mr Shah may face some difficulties in re-establishing himself in India, however this factor would only present as a short-term hardship and would not preclude resettlement.
The Respondent's representative submitted Mr Shah is 41 years old male who has he has ongoing mental health issues, including a history of depression since 2016 when he injured his back at work. The Respondent's representative accepted Mr Shah's health conditions may require ongoing treatment. However, they contended Mr Shah would be able to access health supports in India in a similar manner to other Indian citizens.
The Respondent's representative acknowledged that the social, medical and economic support available to Mr Shah in India would not be comparable to Australia, but it would be comparable to what other Indian citizens would be able to obtain. The Respondent's representative accepted Mr Shah's drug use issues would probably not be able to be managed quite as effectively if he were to return to India, and the ability to which those things were managed might depend partly upon whether his wife returned with him or not.
The Respondent's representative submitted Mr Shah had reasonable prospects of employment and an array of different employment options available to him if he were to return to India noting it was a credit to him he had been doing work in the wood department while in prison.; it was apparent that his back issue was no longer causing the same issues as before and he has a Bachelor of Accounting.
The Respondent's representative submitted Mr Shah's parents and brother reside in India. The Respondent's representative acknowledged Mr Shah's evidence had been that it will be difficult for him to reintegrate into the conservative community due to fear of rejection and stigma from both his unaccepted love marriage and incarceration.
The Respondent's representative acknowledged Mr Shah's evidence that he will face emotional hardship upon his return, due to his separation from his wife and daughter.
The Respondent's representative submitted that Mr Shah would likely face no substantial language or cultural barrier on return, particularly given he spent his formative years in India and his extended family continues to reside there.
The Respondent's representative contended this other consideration weighs moderately in favour of revocation of the visa cancellation decision.

Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; [2016] 241 FCR 461, 'the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501'.
As the Tribunal has found Mr Shah does not pass the character test, it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of his visa should be revoked.
Mr Shah's representative, whilst accepting that he does not pass the character test, contends that the Tribunal having heard all the evidence should set aside the decision under review and substitute a decision to revoke cancellation of his visa.
Mr Shah's representative contended that taken as a whole, the combination of Primary Considerations 3 and 4 and the other considerations weigh very strongly in favour of revoking the cancellation and on balance outweigh Primary Considerations 1, 2, and 5.
The Respondent's representative contended there was not "another reason" why the cancellation decision should be revoked, and that the Tribunal having heard all the evidence should affirm the determination. Particularly as the primary considerations of the protection of the Australian community and the expectations of the Australian community weigh heavily against Mr Shah.
The Respondent's representative contended Australia has given Mr Shah sufficient opportunity to turn his life around and he has not taken that opportunity. The Tribunal should conclude that much of Mr Shah's offending appears to be motivated by self-interest which has taken precedence over morality and should find there is a real risk that this will simply recur.
The Respondent's representative contented the Tribunal was required to affirm the determination as the Direction clearly articulates these considerations outweigh the cumulative weight that should be given to the remaining primary considerations and other considerations.
Of the Primary Considerations the Tribunal found:
- Whilst Mr Shah has been found to be a moderate risk of reoffending, the nature, seriousness, repetition and escalation of Mr Shah's offences, were such that it must be considered serious. The Tribunal considered that protection of the Australian community weighs heavily in favour of not exercising discretion to revoke the cancellation of his visa;
- The evidence before the Tribunal demonstrated Mr Shah had been convicted of family violence and found that this consideration weighs in favour of not exercising discretion to revoke the cancellation of his visa;
- The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh in favour of discretion being exercised to revoke the cancellation of his visa. Mr Shah has lived in Australia for many years, his wife and child are Australian citizen and prior to his offending had contributed positively to the Australian community; and
- The Australian community would expect someone who had committed serious repeated drug trafficking offences not to be granted a visa, and found this factor weighs in favour of not exercising discretion to revoke the cancellation of his visa.
Of the other considerations, the Tribunal determined:
- That the extent of impediments if removed, was engaged, and weighed in favour of discretion being exercised to revoke the cancellation of his visa, finding Mr Shah's drug addiction and mental health issues and lack of support networks in India were a considerable impediment to his return; and
- The Tribunal considered all the other factors were neutral.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of Mr Shah's visa should be revoked. That is because the three relevant primary considerations favouring non-revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations. As a general principle, the Direction establishes that on this basis his visa should be cancelled.

At a glance

Court

Decision date

Source

Judgment (149 paragraphs)

Shah and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2008 (2 October 2025)

Parties

Legislation Cited (2)

Cases Cited (3)