Abraham and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 714
•5 June 2025
Abraham and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 714 (5 June 2025)
Applicant/s: Josh Abraham
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/2555
Tribunal:Senior Member K Raif
Place:Sydney
Date:5 June 2025
Decision:The Tribunal affirms the decision under review.
[SGND]
Statement made on 05 June 2025 at 11:22amCatchwords
MIGRATION – mandatory cancellation of Class BS Spousal visa under s 501CA(4) of the Migration Act 1958 (Cth) – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 501(6), 501(7)(c), 501CA(3), 501CA(4), 501CA(4)(b)(ii)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BS Spouse visa previously held by the Applicant.
The Applicant is a national of Lebanon, born in February 1975. The Applicant travelled to Australia in June 1999 and was subsequently granted a Spouse (Residence) visa. In January 2019 the Applicant was convicted of offences and sentenced to a term of imprisonment of 9 years. On 2 May 2023 the Applicant’s visa was mandatorily cancelled. On 30 May 2023 the Applicant made representations to revoke the cancellation and on 21 March 2025 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 2 and 3 June 2025. The Tribunal received oral evidence from the Applicant’s former partner, two children and Mr Watson-Munro. For the following reasons, the Tribunal has concluded that the decision dated 21 March 2025 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
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.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of [protection of the Australian community] is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report issued in October 2022. Information before the Tribunal indicates that the Applicant had been convicted of the following offences.
17/01/19
· Dishonestly for gain damage property by fire/explosive
· Possess prohibited drug
· Receive/dispose stolen property (multiple counts)
· Goods suspected stolen in/on premises (multiple counts)
Imprisonment (aggregate) 9 years
Taken into account on Form 1
The Tribunal finds that in January 2019 the Applicant had been sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE REVOCATION SHOULD BE REVOKED?
The Applicant concedes that the does not past the character test and that his offending was very serious, however, he states that there was no prior criminal history and no pattern of reoffending. The applicant submits that the risk of reoffending is low and he does not pose a risk to the community, having regard to a variety of factors. The applicant submits that the main issue is the weight to be given to the primary consideration of protection of the Australian community. The Applicant submits that while his offending was serious, he does not pose an unacceptable risk to the community and even though this consideration weighs against the non-revocation, other considerations should outweigh that consideration.
The Respondent submits the offending, in particular the property damage, should be considered very serious. While the Applicant has been assessed at low risk of reoffending, the Respondent submits that the risk should be considered unacceptable. Together with the expectation of the community, these considerations weigh heavily in favour of non-revocation and should be given greater weight than other considerations.
The Tribunal’s considerations are set out below with regard to Direction 110.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
At sub-paragraph (c) of paragraph 8.1.1(1), the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequently of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
In this case, the Applicant had been convicted of multiple crimes on a single occasion. There is no evidence concerning the frequency of offending and no suggestion that there is any trend of increasing seriousness.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the NSW Police Facts Sheet and the sentencing remarks of Judge Hunt delivered on 17 January 2019. The Tribunal has also been provided with the Crown Case Statement prepared in relation to the criminal proceedings. His Honour Hunt J sets out the circumstances of the ‘damage property’ offence as follows. The Applicant was the manager and an equitable owner of the Friendly Grocer business at Regents Park. In February 2014 the Applicant met with two others and undertook acts preparatory to the lighting of fire within these commercial premises. The Applicant was likely to benefit from a successful insurance claim upon significant damage or destruction of business premises. The Applicant and another person were engaged in actions consistent with covering equipment in anticipation of ignition and the Applicant also removed a large amount of stock from the premises. The actual person who ignited the fire was not identified. There were four residential flats a above the business premises with residents including young children. A number of residents had to be treated in hospital but there were no serious injuries. His Honour was satisfied that the Applicant must have known that there would have been people in the residential premises and he must have known there was a great likelihood that some of those residents would have been asleep at the time of fire and had no notice of it. The premises were substantially damaged by the fire and the premises gave the appearance of having been ransacked, designed to suggest an intrusion and arson.
His Honour noted that ‘the notion of putting human life at risk for financial gain is an odious one’. His Honour found the objective seriousness of the matter to be of a high order but not the most serious end of range, being above mid-range.
The Tribunal has had regard to the police facts sheet in relation to the ‘goods suspected stolen’ offending. It indicates that in April 2014 a phone interception warrant was issued to intercept the Applicant’s mobile phone and during investigation the police discovered a receiving syndicate in which the Applicant would purchase items stolen or unlawfully obtained from numerous shoplifters. It is stated that the Applicant would supply ‘shopping lists’ of items he wanted stolen and would sell these to shop owners as legitimate stock. It is stated that the Applicant was instrumental in being the catalyst for numerous products being stolen from Woolworths and other stores and he benefitted financially from the proceeds of these crimes. The facts sheet refers to several intercepted calls between the Applicant and others in which the sale of stolen goods was discussed. It is stated that when the police executed a search warrant at the Applicant’s home address, and searched the bedroom belonging to the Applicant’s children, they found a sports bag in the bedroom containing drug paraphernalia and a bag containing synthetic marijuana.
With respect to this offending, his Honour Hunt J noted that between April and July 2014 the Applicant was identified as an active member of a group involved in the receiving of stolen goods from supermarkets. He had knowingly purchased items that were stolen or unlawfully obtained and he on-sold them to other vendors as legitimate stock. His Honour determined that the supply of prohibited drug falls towards the lower end of the range of objective seriousness while the receiving matters have low objective seriousness but assume greater objective seriousness given the number of similar matters.
The Applicant provided with his revocation request extracts from several media reports relating to the offending and sentencing. In his SFIC, the Applicant concedes that his conduct should be deemed as serious because he endangered the life of innocent victims when he set the shop on fire. The Applicant notes, however, that he has no prior history of offending and no pattern of reoffending and there have been no incidents of misconduct in jail or detention.
The Tribunal considers the offending to have been very serious. As His Honour notes, the Applicant put human life at risk for financial gain. His Honour notes that some victims had to be hospitalised as a result of the incident and the fact that nobody had died or seriously injured was a matter of luck rather than any calculation by the Applicant. His Honour determined that the Applicant would have been aware that there were people above the shop, including small children, and that they would have likely been sleeping at the time when the fire was set to the business. The Applicant must have recognised there was a real possibility of people being injured or even killed. He appears to have been indifferent to that prospect.
The Applicant was also convicted for an offence relating to the possession of drugs and for receiving stolen goods, with the latter offending appears to have been perpetrated on some considerable scale and for a period of time. The latter type of offending is capable of causing financial loss to other businesses and the harm arising from, and related to illegal drugs, is well recognised.
The Tribunal has formed the view that the offending was very serious and this is also reflected in the substantial custodial sentence given to the Applicant. The Tribunal is of the view that, should the Applicant engage in further offending of similar kind, there could be a significant level of physical and emotional harm to others and there is also a risk of financial harm.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The Applicant submits that the risk of reoffending is low and does not pose an unacceptable risk to the Australian community. The Applicant states that:
(1)in 2019 Hunt J described him as a person of good character at the time of offending demonstrating good prospects of rehabilitation;
(2)he has no prior criminal record and Judge Hunt recognised that his lack of criminal history distinguished him from individuals with a more extensive criminal record and entitled him to leniency;
(3)the Applicant referred to factors contributing to past conduct;
(4)he has shown genuine insight and remorse for his offending;
(5)he had participated in several educational programs and held various roles during incarceration which would provide him with the skills to re-integrate into society and engage in employment; and
(6)he held C3 security classification and was able to participate in unescorted leave program, where he was able to leave jail and catch public transport and complied with requirements, so that his rehabilitation has been tested in the community. (The Tribunal places very limited weight on that factor, given the nature of the offending and the fact that the type of offending that occurred previously is unlikely to have been possible during the short periods of leave from jail.)
The Applicant also refers to his compliance with parole conditions over a period of some years, stating there was no other offending. He was trusted to leave jail and do outside work and was trusted not to commit any offending. The Applicant refers to his participation in rehabilitative courses as a means of bettering himself. The Applicant notes that he continues to be subject to parole conditions until June 2027 with ongoing monitoring and supports.
The Applicant submits that he has not reoffended for a lengthy period which is an indication of his desire not to reoffend. The Applicant states that the prospect of being removed from Australia and losing his family will act as a strong incentive not to reoffend. The Tribunal accepts that this is so. The Applicant refers to the various assessments which identified the risk of reoffending as low. The Applicant submits that while protection of the community weighs against him, the risk that he poses is not an unacceptable risk.
The Respondent submits that the offending has been very serious and there was potential of serious harm to others. The Respondent acknowledges that the risk of reassessment has been determined as being low but submits that the applicant continues to lack insight (for example, by claiming he was following legal advice when pleading not guilty). The Respondent submits that some of the courses completed by the applicant may not have been highly relevant, given the nature of his offending.
As noted above, the Tribunal has formed the view that the nature of harm to individual to the community would be very serious, if the Applicant was to engage in similar conduct in the future, including conduct capable of causing significant physical harm, and harm arising from the use and distribution of drugs. The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Applicant provided to the delegate a personal statement in which he apologised for his criminal behaviour and expressed remorse and stated that prison has ‘truly opened his eyes’ to the consequences of his actions. The Applicant also repeatedly expressed remorse in his oral evidence to the Tribunal. The Applicant states in his written statement that during his incarceration he learned about Australian values and has been exposed to the ramifications of violence and criminality on society. In oral evidence the Applicant referred to the hardships of prison life and he stated that he was always respectful towards others and started to understand the crimes he has committed, particularly through his participation in programs. The Tribunal does not accept that evidence as the Tribunal does not accept that the Applicant was unaware of the potential consequences of his actions prior to his incarceration. The Tribunal does not accept that the applicant would have failed to recognise that his actions had endangered others. The Tribunal does not accept the Applicant’s suggestion that he has only recognised the seriousness of his conduct during incarceration. Neither does the Tribunal accept that the Applicant learned about the Australian values during his incarceration, noting the lengthy period of time he has spent living in Australia and in the community prior to the incarceration. The Tribunal is mindful that values relating to endangering the lives of others for financial gain and stealing are not uniquely Australian. The Tribunal is of the view that the Applicant was well aware of the seriousness of his conduct and the potential effect of his criminal endeavours when the crimes were committed.
In his written statement to the Tribunal, the Applicant states that after the fire incident, he was advised by his lawyer to plead not guilty. He told the Tribunal that although he had a choice about his plea, he followed his lawyer’s advice to plead not guilty (he was found guilty after a trial). The Applicant also told the Tribunal that he knew the goods he was receiving were either stolen or counterfeit.
In his revocation request, the Applicant states that he received a C3 security classification, indicating he was assessed by a committee not to be a risk to public interest and safety. The Tribunal acknowledges that classification assessment but is mindful that the Committee would have based its assessment on very different considerations than those that are relevant to the present review. The Applicant states that his classification entitled him to participate in unescorted external leave program and he was able to undertake community programs, indicating that his rehabilitation has been tested in the community. The Tribunal does not accept that this is necessarily so given the nature of the past offending and the very limited scope for the applicant to commit similar offending while on leave from prison. While in the community, either on bail or prison leave, the Applicant did not run a business and would not have had an opportunity to engage in insurance fraud or damage cause the business. He is also unlikely to have had the opportunity to deal with stolen goods. The Tribunal is not convinced that the Applicant’s rehabilitation has been tested in the community. The Tribunal is not convinced that the fact that the applicant has not committed any further crimes is necessarily an indication that he has rehabilitated.
The Applicant notes that he has an offer of employment which is an important protective factor. There is before the Tribunal an offer of employment from Bellevarde Constructions. The Tribunal accepts that evidence, while noting that his past employment did not prevent the Applicant from committing the crimes and it is, indeed, the Applicant’s past employment that provided him with the opportunity to engage in the property damage offence and the receipt of stolen goods offence. Given the nature of past offending, the Tribunal does not consider the availability of employment to be a strong protective factor.
The Applicant states in his revocation request that during his term of imprisonment he had actively participated in rehabilitative undertakings such as intervention workshops, educational seminars and religious activities and behaviour reform program as he has a genuine desire to address the underlying causes of his criminal offending. He has recently completed a Victim Impact and Risk Management Support seminar which promotes violence prevention strategies. The Applicant also provided to the Tribunal evidence of having completed other programs including a Heartfelt Connections course and a Positive Lifestyle program. The Applicant told the Tribunal that he completed educational courses, an EQUIPS program (although he claims he never had a drug or alcohol dependence issue), a course on the effect of drugs, and violence prevention program and he refers to having completed other programs in VIDC. The Applicant told the Tribunal that he did those courses to better himself and his involvement in these courses was voluntary.
The Tribunal accepts that the Applicant has completed a number of rehabilitative courses, as well as academic courses. However, the Tribunal does not necessarily accept these would support the Applicant’s rehabilitation. For example, the Tribunal is not convinced the violence prevention course or the drug prevention courses would equip the Applicant from committing further crimes of the nature he committed before, given that his offending did not involve violence (while Mr Watson-Munro refer to arson being violence, the motivating factor of the offending was financial gain rather than violence as such) and was not resultant from drug dependence and the Applicant claims he has never had a drug issue. The Tribunal acknowledges that the completion of courses may be indicative of the Applicant’s desire to reintegrate into the community but the Tribunal considers the rehabilitative benefits of some of the completed courses to be very limited.
It is significant, in the Tribunal’s view, that the Applicant claims the offending occurred because he was depressed about his inability to support the family. The Applicant claims that he is presently depressed because of his circumstances and is seeing a counsellor. While the Applicant completed a number of programs, these do not necessarily equip the Applicant to effectively address his mental health issues and there is little evidence before the Tribunal to show that the Applicant has made firm plans about adequate and ongoing mental health treatment. The Tribunal is concerned that the Applicant’s depression may again affect his insight and his conduct in the future.
The Applicant also blames his conduct on his association with others. The Applicant has not satisfied the Tribunal that he has acquired the skills that would enable him to disassociate himself from bad influences in the future.
The Tribunal has had regard to the psychological assessment prepared by Mr Visser, dated 25 June 2023. It sets out the Applicant’s background, family, education and relationship history. With respect to psychiatric and psychological history, it is stated that the Applicant denied any specific trauma and intrusive or arousal symptoms and he also denied drug and alcohol use or misuse of prescription medication. With respect to the incident, Mr Visser states that the Applicant described financial difficulties in the business and the Applicant claimed that he listened to bad advice and they organised someone to burn the shop. Mr Visser has addressed various factors in his assessment of risk of recidivism and states that the risk of recidivism is low. Mr Visser described psychological testing and states that the Applicant’s responses show his acknowledgement of important problems and perception of a need for help but despite the potential areas of treatment, his general denial of mental health issues means he is less likely to engage in a productive therapeutic relationship than other individuals. Mr Visser also reports on his interview of the Applicant’s brother who referred to the hardship that would be caused to the Applicant’s family if he was removed from Australia.
The Tribunal has had regard to the pre-release report prepared by Lynda Mclean dated 5 March 2024. It is stated that the Applicant reported financial difficulties in the running of the business and he participated in the activities in an attempt to alleviate his financial situation and he is ashamed of it. The report refers to the Applicant’s current family and social circumstances. In identifying factors relating to offending, Ms Mclean states that the Applicant has no history of prior offending and he reports that his actions were motivated by financial gain. It is stated that the Applicant denied having knowledge the goods he was receiving were stolen but thought they were ‘fakes’ and he also denied the supply of prohibited drug, stating he was simply storing the drugs in his house. It is stated that the Applicant expressed willingness to participate in intervention. During detention he was a compliant inmate. He had not participated in offence related programs but completed educational programs (evidence of which is before the Tribunal). Ms Mclean states that the Applicant has been assessed as at a low risk of reoffending. The Tribunal has been provided with the Applicant’s case notes reports relating to his incarceration period.
The Tribunal has had regard to a report by Mr Luan dated 14 April 2025. It states that the Applicant has begun working on identifying the psychological and emotional factors underlying past offending and has taken steps reflecting on the consequences of his actions. Mr Luan states that in his professional opinion, the Applicant currently presents a low risk to the community. He has shown no signs of aggression, hostility or impulsive behaviour during treatment and his current circumstances and motivations appear oriented towards stability, rehabilitation and reconnection with family. Mr Luan sets out recommended treatment plan.
There is before the Tribunal a report by Mr Watson-Munro prepared in May 2025. Mr Watson-Munro refers to the Applicant’s expression of remorse for past conduct and his present circumstances. He states that the Applicant’s mood state and judgment have improved but he remains anxious about the possibility of removal. Mr Watson-Munro refers to the protective factors reducing the risk of reoffending and states that in his opinion, the risk of reoffending is low. The Tribunal has also been provided with an earlier report by Mr Watson-Munro dated September 2018.
In oral evidence Mr Watson-Munro confirmed his opinion that the risk of reoffending is low, taking into account the assessments undertaken by others, as well as his own opinion and other factors such as ongoing treatment with a psychologist, absence of prior history, expression of remorse, lack of alcohol abuse. Mr Watson-Munro expressed the view that the applicant has showed insight, noting that there was no offending during the four years of parole, compliance during custody and immigration detention etc and stated that the applicant appreciated the impact of his offending on others. Mr Watson-Munro stated that the applicant’s engagement in programs which may not be directly related to his offending (such as EQUIPS or violence-related program) are not unusual. Mr Watson-Munro notes that the offending took place over 10 years ago and in that time, the applicant has developed insight, has matured and is in a better psychological state. Mr Watson-Munro states that continuing psychological sessions would be of benefit to the Applicant but the absence of ongoing sessions would not alter the assessment of risk. Mr Watson-Munro confirmed that lack of insight does not necessarily correlate with a higher risk of reoffending. Mr Watson-Munro suggested that there would be a clear decline in the applicant’s mental health if he was returned to Lebanon and he may have limited capacity to access treatment. If the Applicant was able to remain in Australia with his family, his depression may decrease.
The Tribunal has had regard to the reports by the Serious Offenders Review Council regarding the Applicant’s classifications. The Applicant provided to the delegate a number of character references and the Tribunal is prepared to accept that those who provided references believe the Applicant to be of good character.
The Tribunal has considered whether the protective factors to which the Applicant refers would reduce the risk of reoffending. The Applicant refers to the general education he has completed while in prison, including a number of Certificates. In his supplementary submission in support of the revocation request the Applicant also refers to his engagement with rehabilitation efforts and protective factors, including completion of programs, positive institutional behaviour, family and pro-social support, increased insight and his commitment to personal growth. The Tribunal acknowledges that evidence but, as noted above, the Tribunal is also mindful that many of these factors were present when the offending occurred. For example, the Applicant had family and pro-social support and, indeed, he claims that it was his inability to provide for his family that led to the most significant offence.
As noted above, the Tribunal does not necessarily consider the completion of various rehabilitative programs to be a strong protective factor. This is not the case where the offending occurred due to the Applicant’s substance use or his emotional dysregulation. Mr Luan in his report states that the Applicant has shown no signs of aggression, hostility or impulsive behaviour during treatment. There is no evidence that the Applicant’s conduct was influenced by such matters and as such, the absence of aggression, hostility, impulse behaviour and drug/alcohol use will not act as a protective factor. The Applicant refers to having concerns about his finances and ability to support his family as a reason he committed the crimes and it is entirely possible that the Applicant will experience financial hardship in the future.
The decision to set fire to the business was a calculated and well thought-out decision (the sentencing judge refers to significant preparation such as hiding equipment and removing stock) designed to bring substantial financial gain to the Applicant, irrespective of any potential harm it could cause to others. In these circumstances, the Tribunal is not convinced that the Applicant’s involvement in various violence – prevention or drug awareness programs would necessarily reduce the risk of further reoffending.
The Tribunal has also rejected the Applicant’s claim that while in prison, he became more aware of the consequences of his actions and had the opportunity to reflect on his ‘irresponsible actions’ realising the severity of his offending conduct. For the reasons set out above, the Tribunal is of the view that the Applicant would have recognised the severity of his conduct in the past and did not only become aware of the consequences of his actions while in prison.
The Applicant refers to the absence of reoffending, noting that he was in the community between July 2014 and June 2018 and during that period there was no reoffending, showing his rehabilitation having been tested in the community. As noted above, the Tribunal does not accept that this is so because on bail, the applicant may not have had the same opportunity to commit the type of offences that he had committed. The Applicant states that the more serious offending occurred only once. The Tribunal accepts that this is so but even the single offence was a serious one.
The Applicant also submits that he was not physically involved in the ignition of fire and he was held liable for what was committed by another person, pursuant to prior agreement, due to the operation of complicity regime. In the Tribunal’s view, that is of no consequence, as Hunt J found that the applicant was aware of what was to occur and participated in the enterprise. If the applicant believes that he is less culpable because another person lit the fire, then despite his claims, the applicant does not have insight into his offending.
The Applicant refers to his personal background and submits that his offending was heavily influenced by negative associates around him and that the ‘criminal endeavour’ was proposed by his associates. The Applicant states that he was more susceptible to accepting participation in criminal enterprise due to financial difficulties he was experiencing which exerted a psychological burden on him. Again, in these claims the applicant appears to wish to minimise his involvement in the criminal activity.
The Applicant presented a statement from Maaz Abdelkader, the Muslim chaplain at a correctional centre who states that the Applicant has shown a genuine remorse and a willingness to repent and become a better human. Mr Abdelkader refers to the Applicant’s ‘excellent’ reputation among everyone in jail and his friendships. Mr Abdelkader states that he believes the Applicant will be a good citizen and a benefit to Australia. The Applicant told the Tribunal that he attended various religious programs in prison.
The Tribunal has had regard to the various reports which suggest that the risk of reoffending is low and the Tribunal accepts the professional views expressed in these reports. While, for the reasons set out above, the Tribunal remains unconvinced about some of the claims put forward by the Applicant, having regard to the several assessments, the Tribunal finds that the risk of reoffending is low. However, given the seriousness of the offending and the severity of potential harm to others (including the risk of death or physical harm) the Tribunal has formed the view that even the low risk of reoffending poses an unacceptable risk in this case.
The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
There is no evidence to indicate that the Applicant had committed family violence. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant in his revocation request refers to the presence of his immediate family in Australia, including his ex-wife, children and siblings, nieces and nephews, uncles and in-laws. The Applicant states that he has limited family in Lebanon (two sisters and no contact with one) and he states that he has not returned to Lebanon and has not been in touch with his family overseas.
The Applicant states that he and his ex-wife divorced in 2019 but they maintain regular and amicable communication. The Applicant states that his partner reported distress and hardship in raising four children with limited support since his incarceration in 2018. In his personal statement in support of the revocation request, prepared in May 2023, the Applicant also states that he felt guilt about the impact of his actions on his wife. The Applicant refers to the financial support he has provided to his family, stating that his partner was not employed. The Applicant states that his partner would face emotional, financial and practical hardship if the cancellation is not revoked. In his declaration of 13 May 2025 the Applicant also refers to his personal background, his family life in Australia and reliance on him by his children.
The Applicant states that he arrived in Australia in 1999 and has been residing in this country for 25 years. All of his significant personal and professional ties are in Australia, including his immediate (ex-partner and children) and extended (siblings, nieces and nephews, cousins, uncles and in-laws) family, friends, employment and social networks. The applicant refers to the support from his family and friends.
The Applicant told the Tribunal that his wife saw that he has changed and she supports him and visits him at VIDC and they wish to re-marry. They decided to get back together and he has regular interactions with his children. The Applicant submits that he has extensive family in Australia with only two sisters in Lebanon. He states that he has lost contact with one of his sisters and has limited contact with the other.
The Applicant’s spouse, Ms FM provided a declaration dated 28 May 2025. She refers to the family circumstances and her separation and reconciliation with the Applicant. Ms FM refers to the difficulty supporting the family in the Applicant’s absence. Ms FM described the children’s circumstances. Ms FM provided some medical evidence relating to herself. In oral evidence the Applicant confirmed his concern about his wife’s ability to support the children in his absence. Ms FM in oral evidence also spoke about the hardship the family experienced during the Applicant’s absence and states that the Applicant could help to manage the children better if he lives with the family. Ms FM spoke about the children’s need for their father and the adverse effects on the children of being separated from their father.
There are before the Tribunal statements from the Applicant’s siblings, nephews and nieces and friends expressing support for the Applicant.
The Applicant presented to the delegate statements from his children Issa, Mahmoud and Mariam Ibrahim, who refer to their father being a role model and an inspiration. They state that they do not wish their father to leave them. There is a further combined statement from his children. The Applicant presented a statement from his brother (unsigned) who refers to family history and suffering and the hardship the Applicant and the family would experience if the Applicant was to leave Australia. The Applicant presented a statement from his partner Ms FM who refers to the support that had been provided by the Applicant and the hardship the family would experience due to his removal. The Applicant’s evidence to the Tribunal is that he and his partner have reconciled and have plans to remarry. The Applicant refers to the statements from his partner who relies on him for various supports, noting that she is unable to work and has no savings. The Applicant’s children provided written statements to the Tribunal outlining the impact of the Applicant’s removal on them. The Tribunal accepts that evidence.
The Applicant refers to his past employment in Australia and states that he intends to find employment in the construction industry and has an offer of employment.
The Tribunal accepts that the Applicant has immediate and extended family live in Australia who are Australian citizens or permanent residents. Having regard to the various statements, the Tribunal accepts that they may experience hardship if the Applicant was to leave Australia as a result of his visa being cancelled. That is, the Tribunal accepts there will be a significantly negative impact on the Applicant’s partner and children and other family members in Australia.
The Applicant has been living in Australia since 1999 and he did not arrive as a young child. The Applicant did not begin offending soon after arriving in Australia. He refers to his past employment and contribution to Australia from employment. The Tribunal accepts that the Applicant has formed employment and social ties in this country. He had spent about 20 years contributing to Australia since his arrival in this country and before the offending occurred.
The Tribunal accepts that there may be a significant impact on the applicant’s family as a result of the visa being cancelled. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
In his revocation request the Applicant refers to the presence of his minor children, nieces and nephews in Australia. The Applicant states that the children have not experienced any physical or emotional trauma arising from his conduct and the offending was not directed at them. The Tribunal is unpersuaded by the claim that the offending was not directed to the children in circumstances where the Applicant chose to store a fair amount (over 300g) of illegal drugs in the family home, without securing the drugs or limiting access to the drugs, for example with a lock. Ms FM told the Tribunal that she was unaware of the presence of drugs in their house but when the police located the drugs, she states that they were in a room which is not normally used by the family and the children could not have reached the drugs. (The Police Facts sheet refers to the drugs and other paraphernalia being found in one of the children’s bedrooms which is disputed by the applicant’s wife). Even though the drug offending was not specifically directed at children, the consequences of that offending could have had a significant adverse effect on the children. The drugs were accessible to the children and, again, it appears to have been a matter of luck rather than any design by the Applicant that his children had not located the drugs.
The Applicant states that he endeavours to speak to his four children daily and at least several times a week and he attempted to remain an ’active component’ of his children’s lives. He provided financial support to the children and plays an important role in counselling the children. (The Applicant provided to the delegate evidence relating to child support payments.) The Applicant states that the children have expressed sentiments of love and affection towards their father. The Applicant refers to the difficulties of maintaining contact with his children if he was to live overseas, due to a number of factors, and the difficulty of physically reuniting with his children.
The Applicant submits that his children Mariam and Mahmoud have reported psychological issues arising from their father’s incarceration and he believes his presence in these children’s lives will reinstate a degree of stability. The Applicant states that he has a close relationship with his daughter Noor and a deep affection for his son Issa. The Applicant refers to the financial hardship that the children have experienced due to his Applicant’s incarceration and that was also the evidence of Ms FM and the Applicant’s two children.
The Applicant describes his children’s circumstances in his declaration of 13 May 2025. The Tribunal received oral evidence from Mariam Ibrahim who spoke about the hardship the family experienced after her father went into prison and the need to have a ‘father figure’ in their lives, particularly for the younger siblings. Mariam Ibrahim also spoke about having ‘more direction’ in her life now that she is engaged in full-time study and the support she receives from extended family.
The Applicant’s partner Ms FM gave oral evidence about the effects of separation on the children and the support that the children need from their father. (The Tribunal is mindful that past separation arose due to the Applicant’s criminal conduct and not any other issue). Ms FM’s evidence is that the family would not accompany the Applicant to Lebanon if he was removed from Australia. Ms FM told the Tribunal that the Applicant is a good role model for their children. However, she was unaware of the Applicant’s drug-related conviction and the stolen goods conviction.
The Applicant’s spouse and daughter spoke in particular about the effect of the Applicant’s imprisonment on his son Mahmoud and the behavioural challenges arising from that. Mr Mahmoud Ibrahim also gave oral evidence and spoke about the hardship that the family experienced after the Applicant went to jail, including financial hardship and the future impact of the Applicant’s removal from Australia.
As noted above, the Applicant’s children provided evidence to the delegate and updated evidence to the Tribunal. The Tribunal accepts their claims and the evidence of the Applicant and his partner. The Tribunal accepts that the Applicant has a close and meaningful relationship with his children. The Tribunal accepts that he wants to maintain that relationship and to be present in his children’s lives, and that the children support his presence in Australia. The Tribunal accepts that it would be difficult, if not impossible, for the Applicant to maintain the relationship of the same nature and quality if the Applicant was to live overseas, even if the Applicant is able to maintain some contact with his children. The Tribunal accepts that the removal of the Applicant from Australia may have adverse psychological, financial and other repercussions for his children in Australia.
The Tribunal also accepts that the Applicant has a meaningful relationship with his minor nieces and nephews and wants to maintain these relationships.
The Tribunal finds that it is in the best interests of each of the Applicant’s minor children, as well as other minor children who would be affected by the cancellation, if his visa is reinstated and if the Applicant is able to remain in Australia. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[1] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[2]
[1] [2019] FCAFC 185 (‘FYBR’).
[2] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail[3] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
… para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
[3] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52].
In his revocation request the Applicant states that none of his crimes fall within the categories identified in Direction 99 as giving rise to the expectation that the visa would be cancelled. However, the Tribunal considers the examples of the crimes set out in the Direction to be suggestive, rather than determinative so that if the Applicant has committed offending that is not described in the Direction, it does not mean that the stated community expectations should not apply.
The Applicant submits that it is necessary to take into account his previous good character and absence of further offending. The Applicant submits that the weight attributed to this consideration should be moderated on account of his lengthy residence in Australia. In his submission to the Tribunal the Applicant concedes that the consideration weighs in favour of the revocation but submits that it should be given moderate weight, given his past contribution to the Australian economy through employment.
Given the nature of the offending and the potential harm it could have caused, the Tribunal has formed the view that this consideration weighs heavily against the revocation and that it should be given significant weight against revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. He told the Tribunal he has had a hard childhood in Lebanon and did not want to return there. In his revocation request the Applicant refers to the unsafe situation in Lebanon, the ongoing war and poor security situation. The Applicant states that returning to Lebanon would be a threat to his life and safety. He refers to difficulties in accessing healthcare, living conditions, lack of basic resources and the impact on his children. Mr Watson-Munro in his evidence suggested that the applicant’s mental health may be exacerbated if he is returned to Lebanon.
As the Applicant is not subject to a protection finding, if his visa remains cancelled, the Applicant will be an unlawful non-citizen and may be detained and removed from Australia.
As noted above, the Applicant refers to lack of support, safety and other concerns about returning to Lebanon. These appear to be claims of general application and not concerns arising from the Applicant’s particular characteristics. Whether or not the Applicant’s claims are capable of engaging Australia’s non-refoulement obligations, the Applicant retains the option to apply for a protection visa and the applicant concedes in his written and oral submissions to the Tribunal that the protection application is open to him.
The High Court held in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [30] that in certain circumstances, the assessment of the claims can be deferred and be undertaken through a more suitable process. In this case, the Tribunal is satisfied that the Applicant’s claims could be assessed through a different mechanism of the protection visa process. The Tribunal has decided to defer the assessment.
The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia. He would be separated from his family (whose evidence is that they have no intention of living in Lebanon) and is likely to remain in detention until his removal can be effected. The Tribunal acknowledges that, given the absence of passport and the possibility of making other visa applications in the future, the period of detention may be a lengthy one. The Respondent submits that these are the intended consequences of the cancellation.
The Tribunal is of the view that consideration weighs somewhat in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 50 years of age. He had lived in Lebanon until approximately 24 years of age when he travelled to Australia. The Tribunal does not consider the Applicant will have any substantial language or cultural barriers.
In his revocation request the Applicant refers to a report by Mr Visser and states that he has an unresolved depressive condition and a history of depression and anxiety and Mr Watson-Munro suggested that the applicant’s depression may be exacerbated if he was to live in Lebanon. There are before the Tribunal medical reports which refer to shoulder pain. In oral evidence the Applicant refers to taking some medication, he refers to bladder stones, stomach ulcers, depression and needing medication to sleep. The Applicant told the Tribunal he has ongoing treatment with a psychologist. There is before the Tribunal a report by Oscar Luan and the Applicant told the Tribunal that he has been seeing a counsellor at VIDC. The Tribunal has been provided with the Applicant’s IHMS records. The Tribunal accepts that the Applicant has some health issues.
The Applicant claims he has no passport and has not applied to renew one. The Tribunal accepts that if the Applicant was to be removed, the passport renewal process may result in prolonged detention. There are no language or cultural barriers that the Applicant would face if returned to Lebanon.
In his revocation request the Applicant refers to the poor situation in Lebanon, including poor economic, political, social and security situation. The Applicant refers to various publications regarding the situation in Lebanon. The Applicant states that he will not have family support and does not own a property and has no savings, so he is at risk of homelessness in the absence of assets and family support.
The Applicant submits that there is a collapse of basic services in Lebanon and he will not have access to essential services, threatening his health, safety and well-being. The Applicant refers to the psychological trauma due to the deaths of his father and two brothers in Lebanon, and he states that he has an ‘imminent fear of serious injury or death’ in Lebanon, referring to the psychological impact of such fear.
In his written submission to the Tribunal the Applicant also states that he has no family support in Lebanon and has lost connection with his extended family. The Applicant told the Tribunal that he has two sisters in Lebanon but has no contact with one of his sisters, while his other sister is not in a position to offer him accommodation or financial help. He has expressed ‘deep concern’ about permanent separation from his wife and children in Australia and he regards Lebanon as being unsafe for his children to visit or relocate to. The Applicant states that the consequence of his removal would result in permanent separation from his children. The Tribunal accepts that this is likely to be the case.
The Applicant states that he has not been diagnosed with a mental health condition but psychologist Mr Visser noted that a depression condition in remission could not be ruled out. He has also been diagnosed with mild degeneration in his shoulder joint which requires ongoing management and the Applicant submits these conditions would be difficult to manage if he is removed to Lebanon where access to medical treatment is limited.
The Applicant refers to the risk for his personal safety in Lebanon, as well as employment barriers and financial hardship, noting the length of time he has spent in Australia.
The Tribunal accepts that the Applicant would have limited, if any, access to supports and services in Lebanon because only limited services are available to the general population. The Tribunal accepts that the Applicant is unlikely to have family support and may not, at least initially, have ready access to accommodation. The Tribunal accepts that the applicant may not be able to access adequate healthcare in Lebanon. The Tribunal accepts the Applicant’s evidence about the general situation in the country and the Tribunal has been provided with DFAT report on Lebanon. The Tribunal is also prepared to accept that the Applicant’s mental health may be exacerbated due to his family’s and personal circumstances and, in particular, his separation from the family. The Tribunal accepts that there will be a significant impediment if the Applicant is removed to his home country. This consideration weighs heavily in favour of the revocation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal to indicate that a decision not to revoke the cancellation of the Applicant’s visa would significantly compromise the delivery of a major project or of an important service in Australia. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has determined that the protection of the community and the expectations of the community weigh heavily against the revocation. The Tribunal gives these factors considerable weight.
The Tribunal has found that the Applicant’s ties to Australia, the extent of impediment if removed and the best interests of the children weigh heavily in favour of the revocation and these considerations are also given significant weight.
The Tribunal has found that the legal consequences of the decision weigh somewhat in favour of the revocation. Other considerations such as family violence and business interests are neutral.
The directions provide that some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In the Tribunal’s view, this is such a case. The Applicant had engaged in conduct that put the lives of other people at risk, purely for financial gain. As the Applicant knew that there were residential flats above the business, he would have been aware that his actions could endanger the lives of others. The Applicant provided to the delegate media reports which indicate that there were other instances where innocent people had died in similar circumstances where fire was set to business premises in proximity to residential premises. The Applicant could not have been unaware of that possibility and, in the Tribunal’s view, he has shown a wanton disregard for human life. Even though the risk of reoffending may have been greatly reduced to a variety of factors to which the Applicant refers, and is now assessed as being low, the Tribunal finds that if the Applicant were to engage in similar conduct again, the harm that may be caused to others is so serious that any risk of reoffending is unacceptable.
The Tribunal also considers other offending, while less serious, to be significant. The Applicant was found in possession of considerable amount of an illicit substance and other paraphernalia. There could be significant harm to the community if the Applicant was to engage in drug offending in the future. His offending of receiving stolen goods caused financial harm to others and if the offending was to be repeated, there could be financial harm to other businesses. These offences on their own are capable of causing measurable harm to others.
While the Tribunal accepts that there are strong reasons in favour of the revocation, the Tribunal has decided to place greatest weight on the protection of the community and the expectations of the community. Paragraph 7(2) of the Direction provides that the primary consideration (protection of the Australian community) is generally to be given greater weight than other primary considerations. In the circumstances of this case, the Tribunal has decided that the applicant poses an unacceptable (albeit low) risk to the community and that these two considerations outweigh other considerations.
The Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Class BS Spouse visa.
Date(s) of hearing: 2 and 3 June 2025 Solicitors for the Applicant: M. Mamarot, South West Migration and Legal Services Solicitors for the Respondent: S. Vallippian, Australian Government Solicitor
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