Federal Court of Australia

Ahkeni v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 349

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the first respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, a citizen of New Zealand, arrived in Australia in October 2006. On 17 April 2019, he was convicted in the District Court of New South Wales of the offences of: (1) using an unauthorised pistol with a sentence of five years and three months imprisonment; and (2) firing a firearm in or near a public place with a sentence of three years imprisonment. Both sentences were to run concurrently. On 20 May 2020, the applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The applicant sought revocation under s 501CA of the Act. On 3 August 2023, a delegate of the first respondent refused to revoke the cancellation. The applicant sought a review by the second respondent (the Tribunal). On 30 October 2023, the Tribunal affirmed the delegate’s decision to not revoke the cancellation of the applicant’s visa. This is an application for review of the Tribunal’s decision.

2    The applicant argued three points which allege errors in the Tribunal’s reasons (although this does not reflect the grounds of review in his application). First, an error at [140] in respect of the offence which triggered the revocation, being use of an unauthorised pistol (said to be part of grounds 3 and 4). Second, an error at [75]-[76] relating to the Tribunal’s assessment of the applicant’s conduct while in prison (said to be ground 2). Third, an error at [100] as to the Tribunal’s assessment of a conviction of assault (said to be another aspect of grounds 3 and 4). I note each of the applicant’s points relate to the Tribunal’s application of Ministerial Direction 99 issued under s 499 of the Act (Direction 99). The remaining grounds of review were not pressed. I approach the assessment of the application on this basis.

3    For the reasons below, the application is dismissed.

Tribunal decision

4    The issue before the Tribunal was whether it was satisfied there was another reason why the original decision to cancel the applicant’s visa should be revoked: s 501CA(4)(b)(ii). In its assessment, the Tribunal was required to consider the matters set out at paragraphs 8 and 9 of Direction 99.

5    It is unnecessary at this stage to repeat in detail the assessment undertaken by the Tribunal. Suffice to say, the Tribunal applied Direction 99 and assessed the considerations required by it. The Tribunal concluded, inter alia, that:

(1)    In relation to primary consideration 1, the protection of the Australian community weighed very heavily against the revocation of the cancellation of the applicant’s visa: at [178]. This was premised on the Tribunal’s findings that:

(a)    the applicant’s conduct can be characterised as extremely serious, at [93] and [177(a)];

(b)    were the applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious, at [177(b)]; and,

(c)    there is not an insignificant risk he may reoffend, where given the seriousness of his past actions, the risk to the community should he reoffend is significant, at [176] and [177(c)].

(2)    In relation to primary consideration 3, the strength and duration of the applicant’s ties to Australia weighed heavily in favour of the revocation of the cancellation of the applicant’s visa: at [208].

(3)    In relation to primary consideration 4, the best interests of minor children in Australia, weighed slightly in favour of the revocation of the cancellation of the applicant’s visa: at [224].

(4)    In relation to primary consideration 5, the expectations of the Australian community, weighed very heavily against the revocation of the cancellation of the applicant’s visa: at [246].

(5)    Pursuant to para 9.2 of Direction 99, the extent of impediments the applicant may face if removed from Australia weighed slightly in favour of the revocation of the cancellation of the applicant’s visa. This consideration was given little weight: at [265].

6    The Tribunal concluded at [283] that in the circumstances of this case, greater weight ought to be given “to the primary considerations of the protection of the Australian community and the expectations of the Australian community”. The Tribunal concluded those considerations outweighed other considerations that weighed in favour of revocation.

Consideration

7    The applicant’s arguments relate to passages in the Tribunal’s reasons concerning its consideration of primary consideration 1 of Direction 99.

8    Given the applicant’s submission, it is timely to recall at the outset, the well accepted proposition that that the Court is not “astute to discern error” in the reasons of an administrative decision-maker: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [38]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. The Tribunal’s reasons should be read fairly, and with any impugned passages to be read in the context in which they appear.

Paragraph [140] – use of an unauthorised pistol offence (the April 2019 conviction)

9    In his written submission the applicant identifies what he submits is the key error in the Tribunal’s reasons, being a sentence in [140]:

The Tribunal is not satisfied that any potential questions pertaining to the Applicant’s state of mind at the time of his offending lessen the risk of the Applicant’s future offending.

10    He submitted that to properly assess the risk of re-offending, the Tribunal “had to come to grips with the exact nature of the offence and the type of criminal behaviour involved in that event”. The nature of criminal intent and indeed the absence of criminal intent are crucial to the Tribunal’s pathway of reasoning to determine what the risk of re-offending was. In oral submissions the applicant advanced what he said to be an additional error in the Tribunal’s reasons, being another statement made at [140], that the applicant was “reticen[t], in the Tribunal’s opinion, to take full responsibility for his behaviour”. That statement was said by the applicant to have no evidentiary basis. He submitted that he had accepted responsibility because “he plead[ed] guilty at a very early stage”, and the Tribunal had not identified the basis for its conclusion.

11    As a starting point, the sentences at [140] cannot be viewed in isolation.

12    Earlier in its reasons, the Tribunal described and considered the offending conduct: see [11]-[13], [56]-[73]. That description, and the Tribunal’s analysis therein, is not challenged. The description of the offending from [56]-[62] (drawing upon the sentencing remarks of Colefax SC DCJ made on 17 April 2019) is as follows:

56.    In July 2018, the Applicant was on bail in connection with earlier alleged offences of resisting and hindering police as well as assaulting police. In the early hours of 22 July 2019, the Applicant and his friend, whilst on an illicit drug and alcohol ‘bender’, decided to play a prank on a taxi driver by holding a firearm at the head of the driver to frighten him. The Tribunal notes, as was pointed out by the Applicant’s counsel on multiple occasions, that this intention of the Applicant was agreed to by the Crown (“the agreed facts”).

57.    The Applicant booked a taxi on his mobile telephone with his co-offender. The taxi that arrived was driven by the victim, who was working as a driver whilst studying and financially assisting his wife, who was pregnant with their third child. The parties got into the taxi around 5:13am with the Applicant in the back and his co-offender in the front passenger seat. The taxi arrived at a destination where the Applicant pulled the pistol from his jumper, “racked” the pistol, where an unfired round fell onto the floor of the taxi. The barrel of the pistol was then placed on the neck of the victim. Out of fear, the victim grabbed the Applicant’s arm, and in the subsequent struggle, the gun discharged as there was further ammunition still loaded in the weapon. The discharged bullet exited via the windscreen with neither the Applicant, his co-accused, the victim or the public harmed.

58.    His Honour, whilst noting the agreed facts between the Applicant and the Crown were silent on this particular matter, stated that “the only rational inference in the circumstances is that [the Applicant was] aware that the unfired round had fallen from the gun and that [he was] therefore aware of the potential of the gun still being loaded”. The Applicant does not accept this conclusion of the sentencing Judge.

59.    After the discharge of the weapon, the Applicant and his co-offender, as did the victim, ran from the scene. Three days later, on 25 July 2018, the Applicant was arrested when he reported to the NSW Police in relation to his bail that was subsequently revoked.

60.    In relation to the offence of using an unauthorised pistol, His Honour assessed the offence to be above and into the upper range of seriousness. In relation to the offence of firing a firearm in a public place, His Honour assessed the offence to be in the mid-range of seriousness.

61.    His Honour noted the victim impact statement of the taxi driver as well as a report from the victim’s treating psychologist. His Honour noted the severity of the PTSD suffered by the victim, stating “what [the Applicant] did to that man, that night, has been to profoundly shatter his life – not only his life, but the life of his wife and his three children”. Given the extent of the victim’s PTSD, His Honour considered this one of a number of additional aggravating factors in the Applicant’s offending.

62.    His Honour assessed other aggravating factors in the offending were the grave risk of death to another person; the fact the offending occurred whilst the Applicant was on conditional liberty; and the vulnerability of the victim.

13    The Tribunal noted that the Court of Criminal Appeal agreed that the characterisation of the objective seriousness of the first offence being above and into the upper range, and the second offence being midrange “well open to him”: at [66].

14    Against that background, paragraph [140] formed part of the Tribunal’s consideration of the likelihood of the applicant engaging in further criminal or other serious conduct: see [102]-[176] and para 8.1.2(2)(b) of Direction 99.

15    The Tribunal addressed submissions and made findings in relation to them before the passage at [140]. For example, the Tribunal did not accept the applicant’s submission that the offending from the April 2019 conviction is a single isolated incident and not representative of his behaviour: at [127]. It concluded that the evidence was more suggestive of a wider disdain and contempt for the law, and a propensity by the applicant to engage in criminal behaviour with little regard for the consequences: at [127]. The Tribunal also rejected the applicant’s evidence on several topics, including his drug use and knowledge of firearms. On the latter, at [136], the Tribunal said it:

does not accept the Applicant was unfamiliar with the operation of a firearm, or that the events from the April 2019 conviction were an aberration. The Tribunal considers that the more likely scenario is the Applicant was in fact familiar with firearms, and this is relevant to its assessment of the risk of the Applicant re-offending. This naturally follows on to whether the offending from the April 2019 conviction was a prank as the Applicant claimed (and intimated in the agreed facts), or something more sinister. Whatever the situation, the Tribunal considers the evidence before it relevant to its assessment of the risk of the Applicant reoffending. The Tribunal has concerns, based upon the evidence and information before it concerning the Applicant, that there remains a real risk of the Applicant re-offending. The contradictory, evasive and disingenuous evidence that has been put before the Tribunal on the matter of the Applicant’s knowledge of firearms, leads the Tribunal to hold doubts as to the genuineness of the Applicant’s remorse for his past offending behaviour. The Tribunal also holds concerns as to the Applicant’s unwillingness to approach the background to his offending both honestly and openly.

(emphasis added)

16    The Tribunal considered that the applicant’s evidence as to his knowledge of firearms was also relevant to its consideration of evidence of rehabilitation achieved by the applicant at the time of its decision (relevant to para 8.1.2(2)(b)(ii) of Direction 99). This was in circumstances where the applicant had submitted “he lied to various counsellors and medical professionals for years in relation to his knowledge of and familiarity with firearms”. The Tribunal considered the applicant’s dishonesty towards professionals, entrusted with assisting him, demonstrative of someone with a limited genuine commitment to rehabilitation: at [138]. The Tribunal was not satisfied the applicant had demonstrated a genuine commitment to rehabilitation but rather concluded that he demonstrated he is not a witness of truth: at [139].

17    The impugned passage at [140] is in that context, where the Tribunal said it:

has considered the Applicant’s claim there was no criminal motive in the context of future risk. Whatever the Applicant’s motivation, the fact that the Applicant engaged in such behaviour, and his reticence, in the Tribunal’s opinion, to take full responsibility for his behaviour and fully and honestly engage in rehabilitation, leaves the Tribunal with continuing concerns as to future risk. The Tribunal notes again that the Applicant’s offending behaviour occurred whilst he was on bail for violent behaviour towards a police officer and resisting arrest. He has admitted to the Tribunal that he was a seller of illicit drugs at the time of his offending. The Tribunal is not satisfied that any potential questions pertaining to the Applicant’s state of mind at the time of his offending lessen the risk of the Applicant’s future reoffending. Furthermore, even if the behaviour was a prank with no criminal intent, it does not in any way lessen the risk that a repeat of such actions could have catastrophic consequences, nor does it provide satisfactory comfort that the Applicant would not engage in similar behaviour in the future if he is not rehabilitated and gained some genuine insight into his offending.

(emphasis added)

18    The applicant’s submission considers the two sentences out of context. The Tribunal’s reasons reflect a detailed consideration of the material before it and the issues relevant to an assessment of the applicant’s likelihood of reoffending.

19    As to the first sentence, the applicant’s reticence in accepting responsibility, the Tribunal exposes its reasoning underpinning that conclusion in the paragraphs preceding it. The emphasised passage at [136] of its reasons, recited above at [15], provides one example. The applicant’s submission that the finding is not open because he pleaded guilty to the offences, is plainly incorrect. There is no inconsistency in that conclusion.

20    As to the second sentence, the applicant’s state of mind at the time of the offending, it is necessary to appreciate that the Tribunal at [140] was addressing a submission made by the applicant. Even the brief recitation of the Tribunal’s reasons above that described the offending reflects that the Tribunal did not misunderstand the nature of the offence. The applicant described it as an offence absent any criminal intent. He emphasised that he was sentenced on the basis that the conduct was a “prank”. However, focusing on that characterisation distracts from, and ignores, what occurred: the conduct was an intentional act, involved a loaded firearm, targeted a vulnerable person (the taxi driver), involved racking the firearm and putting it to that person’s neck and could have caused serious injury or death. That the applicant was sentenced on the basis it was done with an intention to “scare” or “prank” the taxi driver, does not alter that.

21    In the impugned sentence, the Tribunal is saying no more than in the circumstances of the applicant’s case (which includes findings, inter alia, as to the nature of the offending, the applicant’s lack of acceptance of responsibility and engagement in rehabilitation, rejection of aspects of his evidence, doubts as to the genuineness of his remorse, that the offending occurred while he was on bail for violent behaviour towards police, and his behaviour in prison), the risk of reoffending is not lessened by his state of mind at the time of the offending. That is, regardless of whether the offending conduct was a “prank”, the applicant remained at risk of reoffending given the offending conduct and the various findings otherwise made by the Tribunal, as noted above. That is consistent with Tribunal’s conclusion and reasoning in [136] (recited above at [15]), in a paragraph not challenged on this application. That conclusion was open to the Tribunal. The applicant has not demonstrated any error in that approach.

22    Given the applicant’s submission is premised on the basis that the offending is less serious than other offences because it was a “prank”, I note for completeness that the Court of Criminal Appeal in Ah-Keni v R [2020] NSWCCA 122 (which judgment was before the Tribunal) stated at [59]: “It matters not whether the applicant was motivated by a desire to engage in a ‘prank’ or intended some more sinister purpose. The risk and potential consequences were the same”: see Tribunal Reasons at [67].

23    Contrary to the applicant’s submission, a proper consideration of the Tribunal’s reasoning does not reflect it made a “subjective” assessment of the incident, or that it sought to “rerun” the criminal trial. The applicant’s submission considers only one aspect of the offending in isolation (being it was a “prank”), whereas an assessment of the risk of reoffending involves a consideration of all the relevant evidence and circumstances, as undertaken by the Tribunal.

Paragraphs [75]-[76] – prison conduct

24    The applicant contends that the Tribunal “misunderstood and misapplied the evidence of the applicant’s prison record” such that it failed to “properly assess” his risk of future offending. He alleged that the Tribunal at [75]-[76] erred in its approach when considering the offences that occurred in prison, having “over emphasised and misunderstood the effect of the applicant’s prison record”. He submitted that an inmate has to protect themselves in prison and the Tribunal failed to understand that. Attention was drawn to the fact that none of the offences for which the applicant was found guilty of in prison resulted in any additional prison sentence, nor referred to a Magistrate, and were therefore best described as disciplinary matters.

25    There is no basis for the applicant’s submission. The Tribunal at [75]-[76] said:

75.     The Tribunal furthermore notes that the Applicant whilst incarcerated has committed multiple transgressions (at least 35) according to Department Corrective Services records between October 2018 and August 2022 (Exhibit 5, 72-74). These included assaults, possession of drugs, failing drugs tests, intimidation, receiving an unauthorised article from a visitor, possession of an offensive weapon, and damaging or destroying of property. The records also demonstrate that the Applicant was discharged from the Intensive Drug and Alcohol Treatment Program for non-compliance and breaching program protocol. At the Tribunal’s hearing and in his written submissions, the Applicant pointed out that he did not receive extra time added to his custodial sentence for this behaviour, submitting that “the misconduct within the prison system is about disciplinary matters rather than criminality” (Exhibit 1, 6 [45]).

76.     The Tribunal does not accept that the fact that the Applicant did not receive an additional custodial sentence should mitigate the seriousness of his behaviour. The evidence suggests rather the Applicant has a significant issue in respecting authority and has a blatant and ongoing disregard for the law. The Applicant’s counsel suggested at the Tribunal’s hearing that that these transgressions are the result of the need for the Applicant to stand up for himself in gaol. The Applicant has suggested the transgressions such as fighting are generally the result of self-defence. There is nothing, beyond the inference drawn by the lack of further time added to the Applicant’s sentence before the Tribunal to confirm this claim. The evidence suggests the Applicant has demonstrated a disregard for the law and authority whilst incarcerated.

26    These paragraphs are in the Tribunal’s assessment of the seriousness of the prison offending. Earlier in its reasons, the Tribunal at [14] summarised the conduct.

27    As apparent from those paragraphs, the Tribunal was aware of the status of the offending. The submission that an inmate is required to defend themselves was considered by the Tribunal, but as it described, there was an obvious lack of evidence to support a claim of self-defence. Indeed, the applicant’s submission in this Court did not complain about that conclusion but rather advanced the submission on the basis that any inmate in prison must defend themselves, and accordingly, any offending conduct must be considered in that context. There is no basis for that submission. The Tribunal was not obliged to accept it.

28    As the respondent submitted, the Tribunal was entitled to consider the applicant’s behaviour both generally and while in detention, in determining the risk that he may reoffend, regardless of whether it was the subject of a criminal conviction. There are “no limitations” on the sources of information that may be considered under s 501CA(4)(b)(ii): Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [18]. Prison conduct can therefore be relevant to an assessment of the risk of reoffending, even if it does not result in a conviction: e.g. SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [92]. The applicant complained about the first sentence of paragraph [76], on the basis that the Tribunal was required to “grade” the seriousness of the offending. However, that is to read the sentence in isolation. As the next sentence of [76] shows, the relevance of the conduct was what, if anything, it said in relation to the applicant’s risk of reoffending. Given the number and nature of the prison transgressions, it was open for the Tribunal to conclude that that the applicant “has a significant issue in respecting authority and has a blatant and ongoing disregard for the law”.

29    The applicant has not established any error in the Tribunal’s approach in assessing his prison conduct. There is no misunderstanding or misapplication of the evidence.

Paragraph [100] – assault conviction

30    This submission relates to the applicant’s conviction of assault of a police officer. The applicant’s allegation is that the Tribunal had misunderstood the nature of the assault the subject of the conviction, submitting the error is reflected in paragraph [100]. Earlier in its reasons, the Tribunal records that the applicant was sentenced for that offence to 8 months imprisonment, with a non-parole period of 3 months.

31    The Tribunal at [100] stated:

The Tribunal furthermore notes the Applicant’s anti-social past offending towards the NSW Police Force in the past that has led to the Applicant being convicted of assault police officer in execution of duty without ABH – T2 and resist or hinder police officer in the execution of duty. The Tribunal has considered that the Applicant has engaged in such violent behaviour against the NSW constabulary, who are entrusted with the safety of the Australian community. The Tribunal considers that the harm that could be caused to the NSW Police carrying out their duties, is significant.

32    The focus of the applicant’s submission was directed to the Tribunal’s description of the assault as “violent” behaviour. The crux of that submission is that was an error because the offence was an assault without actual bodily harm. The applicant submitted that an assault cannot be violent if bodily harm is not alleged. However, an offence of assault does not need to result in harm to nonetheless be described as violent. Assaults by their very nature, are offences of violence. It was open to the Tribunal to describe the offence as it did.

33    The applicant’s submission that the only inference that can be drawn from the conviction is that the applicant had not “engaged in such violent behaviour against the NSW constabulary”, cannot be accepted. Nor, contrary to the applicant’s submission, does the Tribunal in that paragraph, by the impugned words, conclude that he caused actual bodily harm.

34    The applicant has not established there was any misunderstanding by the Tribunal of the nature of the assault conviction. It has not been shown that the conclusion is unreasonable.

Conclusion

35    As explained at the outset, the applicant identified ground 2, that the Tribunal “misunderstood and misapplied the evidence of the applicant's prison record such that it thereby failed to properly assess the applicant's risk of future offending” as relating to the prison conduct. He identified grounds 3 and 4, that the Tribunal “failed to properly apply and interpret Direction No 99” and the “decision was unreasonable” as applying to the April 2019 conviction, and the assault conviction.

36    In respect of each ground of review, the applicant takes sentences from the Tribunal’s reasons in isolation from the issues being considered (and the reasons as a whole), contending in effect, they reveal error in the approach to the assessment of the seriousness of the offending behaviour. The premises underlying those grounds are not established.

37    Given the conclusions above, the applicant has not established grounds 2, 3 or 4.

38    No error has been established in the reasoning of the Tribunal. Accordingly, the application is dismissed with costs.

Associate:

Dated:    11 April 2025