Ahmad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Ahmad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2882 (15 July 2020)
Division:GENERAL DIVISION
File Number: 2020/2532
Re:Ahmad Abdul Razzack Ahmad
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date of decision: 15 July 2020
Date of written reasons: 12 August 2020
Place:Melbourne

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 22 April 2020 not to revoke the mandatory cancellation of the Applicant’s Class BC Subclass 100 Partner (Migrant) visa.
.................[sgd].......................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – failure to pass character test - whether to revoke the mandatory cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) visa – substantial criminal record – Ministerial Direction 79 – primary considerations – other considerations – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Scuster-McFaden v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Australian Institute of Health and Welfare, ‘Alcohol, tobacco & other drugs in Australia’ (23 April 2020)
Australian Government, Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Lebanon’ (19 March 2019)
Harvard Health Publishing, ‘Gambling and Anxiety’ (March 2012)
Lana Khattab and Henri Myrttinen, International Alert ‘Gender, Security and SSR in Lebanon’ (November 2014)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
12 August 2020
INTRODUCTION

The application before the Tribunal involves a review of the decision made by a delegate of the respondent under section 501CA(4) of the Migration Act 1958 (the “Act”) to not revoke the mandatory cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) visa (the “visa”).
The hearing in this matter was held on 2 and 3 July 2020. The applicant was represented by Mr Vikas Jain, a Principal Solicitor with Wickham Lawyers. The respondent was represented by Ms Siran Nyabally, a lawyer with the Australian Government Solicitor.
BACKGROUND
The applicant is a 38-year-old citizen of Lebanon born and raised in Tripoli by his mother and father together with seven siblings. The applicant’s parents and siblings all still reside in Lebanon.
The applicant first arrived in Australia as a 21-year-old in March 2003 on a Provisional Partner (Subclass 309) visa which was sponsored by his wife, Ms H.
The applicant completed secondary schooling in Lebanon and commenced a post school course in journalism and business. The applicant was conscripted into the Lebanese army when he was 18 years old and served in the army for 12 months. The applicant was shot in his right leg in combat and was subsequently honourably discharged. In 2009 the applicant was diagnosed as suffering symptoms of Post-traumatic Stress Disorder (“PTSD”) as a consequence of the trauma he was exposed to during his service.
The applicant met his former wife, Ms H, in 2002 while Ms H was visiting Beirut from Australia. They were married later that year. Ms H is an Australian citizen. The applicant and Ms H have two daughters, RR who is 16 years of age and YR who is 15 years of age. Both of the applicant’s daughters were born in Australia and are Australian citizens.
The applicant has not been back to Lebanon since he migrated to Australia.
Upon arriving in Australia the applicant engaged in a variety of work as a labourer, security guard and subsequently established a pizza shop business.
On 27 July 2006, the applicant pleaded guilty and was convicted in the County Court of Victoria with dishonestly causing a loss to a Commonwealth entity and dishonestly causing a risk of loss to a Commonwealth entity. The convictions arose out of the applicant’s involvement in illegal tobacco related activities which occurred in August 2004. The applicant was sentenced to 9 months and 12 months imprisonment to each charge respectively to be served concurrently but was released upon entering a recognizance to be of good behaviour bond for three years and paying reparations of $10,000.
The applicant subsequently failed to pay the reparations owed and also breached the conditions of his recognizance by committing further offences.
In either late 2006 or early 2007 the applicant discovered that his wife had been involved in an extramarital affair with his best friend. The applicant and Ms H separated in 2007 and subsequently the applicant discovered that Ms H was pregnant with a child as a result of the affair. The applicant’s evidence in relation to the precise dates of these events has been inconsistent but the Tribunal is satisfied that nothing material turns on this point.
In part as a consequence of the breakdown of his marriage, as well as in response to his underlying pre-existing mental health issues, the applicant developed a significant drug and gambling addiction. The applicant also accumulated significant personal debts and engaged in further criminal activities as a means of paying his debts and also facilitating his ongoing gambling drug addictions.
In April 2006, prior to the sentencing for his tobacco related offence, the applicant was found in possession of ecstasy tablets and $4,080 in cash. In August 2006 the applicant was convicted of trafficking ecstasy, possessing ecstasy and three counts of dealing in property suspected to be the proceeds of crime. The applicant was sentenced to a 12 month community based order.
In August 2009 the applicant was convicted of unlawful movement of tobacco, failure to answer bail, driving while suspended and being in possession of an imitation handgun.
In October 2009 the applicant was convicted for the breach of the recognizance for his 2006 tobacco related conviction and was ordered to serve the unexpired potion of the sentence.
On 28 July 2010 the applicant was notified of an intention by the respondent to consider whether to refuse the applicant’s application for a Partner visa under section 501(1) of the Act.
On 30 September 2010 the respondent notified the applicant that a delegate of the respondent had decided not to exercise their discretion to refuse the applicant’s visa application but warned him that if he were to engage in further criminal or other serious conduct he was at risk of having his visa cancelled or any future application refused.
On 21 October 2010 the applicant’s visa was granted and as a consequence he become entitled to permanent residence.
In January 2011, May 2012, July 2012 and May 2014 the applicant was convicted of a number of further offences including possess prohibited weapon, possess ecstasy, use amphetamine, failure to answer bail, obtain financial advantage by deception, drive while suspended, deal in property suspected to be the proceeds of crime, possess counterfeit money, possess methamphetamine, traffic ecstasy and theft of a motor vehicle. The applicant was sentenced to a variety of sentences including further periods of imprisonment.
In July 2011 the applicant was shot in the abdomen while he was asleep by an acquaintance whom the applicant claims he was trying to help in managing a drug addiction. As a consequence of the shooting incident the applicant underwent a number of operations and associated rehabilitation. Following the shooting incident the applicant’s former wife made the decision to sever the applicant’s contact with his two children.
On 18 May 2015 the applicant was convicted in the County Court of Victoria for a number of further offences which included:
(a)handle/receive/dispose of stolen goods
(b)resist police
(c)possess cartridge ammunition without licence/permit
(d)use methylamphetamine
(e)two counts of possess methylamphetamine
(f)possess a schedule 4 poison
(g)a number of driving offences including exceed the speed limit
(h)two counts of trafficking in methylamphetamine
The applicant’s Statement of Facts, Issues and Contentions (SFIC) describes the convictions as resulting from a “routine check by police in the early hours of 15 July 2014” where his car was searched. The applicant’s SFIC describes the searches having revealed the following items in the applicant’s car:
(a)a backpack containing a Zip lock bag with 3g of cocaine,
(b)three knives and two vials with one holding 7.4g of 1,4-butanediol and 11.3g of gamma-butyrolactone while the other contained 8.4g of boldenone,
(c)three 30.30 calibre bullets,
(d)one Apple iPad Air tablet, two GPS units and various NAB documents in another person’s name.
The car boot contained a backpack holding numerous cards and documents in different identities, a purse and seven Zip lock bags holding a total of 7.42g of methylamphetamine of varying purity and 0.5g purity of methylamphetamine.
As consequence of the 2015 convictions the applicant was sentenced to a further aggregate of six months imprisonment and was placed on a community corrections order for 12 months to perform 125 hours of unpaid community work.
On 8 February 2017 the applicant was convicted in the County Court of Victoria of a number of further offences, namely:
(a)prohibited person in possession of a firearm,
(b)theft;
(c)trafficking a drug of dependence; and
(d)seven counts of possess a drug of dependence.
According to the Sentencing remarks of His Honour Judge Hicks, the applicant’s offences arose out of an incident that occurred in July 2015 where police observed the applicant driving a stolen BMW. The police subsequently executed a search warrant and searched the applicant, locating the keys to the BMW and $455 in cash. Police also searched the BMW and found two firearms, 26.3g of methamphetamine and other small quantities of drugs of dependence.
As a consequence of the convictions the applicant was sentenced to a further aggregate term of four years and six months imprisonment, with a non-parole period of three years.
On 12 September 2017 the respondent cancelled the applicant’s visa under section 501(3A) of the Act on the basis that the applicant has a substantial criminal record and was serving a sentence of imprisonment, on full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory.
The applicant was invited to make representations in response to the decision and did so in accordance with the requirements set out in the Act.
On 22 April 2020 respondent notified the applicant that a delegate of the respondent had made the decision to not revoke the cancellation of his visa.
On 30 April 2020 the applicant applied for a review of the decision which is the matter currently before this Tribunal.
ISSUE
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted or person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6) (a) (substantial criminal record), on the basis of paragraph (7) (a), (b) or (c); or
(ii)paragraph (6) (e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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:
(1)that the person passes the character test (as defined by section 501); or
(2)that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
The applicant has conceded that he does not pass the character test by reason of his substantial criminal record in accordance with sections 501(6)(a) and 7(c) of the Act.
Therefore, the issue for the Tribunal to determine is whether it is satisfied that there is another reason why the cancellation of the applicant’s visa should be revoked in accordance with section 501CA(4)(b)(ii) of the Act.
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such a direction.
On 20 December 2018 the then Minister issued Direction No. 79 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of the Visa under section 501CA in accordance with section 499 Act (the “Direction”). The Direction came into effect on 28 February 2019.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 6.1(1) of the Direction states that “[t]he objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.
Paragraph 6.2 of the Direction sets out general guidance for decision-makers as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about the future.
(3)The principles provide a framework within which decision-makers should approach this task of deciding whether to refusal cancel and non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The Principles referred to are set out in paragraph 6.3 of the Direction as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, they commit serious crimes in Australia or elsewhere.
(3)A non-citizen was committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of this refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction requires that a decision-maker, informed by the principles in paragraph 6.3, must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction provides that:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary consideration should generally be given greater weight than other considerations.
(5) One or more primary considerations may outweigh other primary considerations.

While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
CONSIDERATION
[1] Re Scuster-McFaden v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
Primary considerations
Paragraph 13(2) of the Direction provides that in deciding whether to revoke the mandatory cancellation of the noncitizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
The protection of the Australian community
Paragraph 13.1 of the Direction provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention or the immigration status is resolved.
(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.
Nature and seriousness of the conduct
Paragraph 13.1.1 the Direction provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of the violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escape from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
By any objective measure the applicant has an extensive criminal record that includes very serious offending.
The Tribunal accepts that the applicant’s initial tobacco related offence involved the applicant playing a relatively minor role in a broader criminal scheme. This was acknowledged in the sentencing remarks of Her Honour Judge Lewitan where it was accepted that the applicant’s actions had been limited to the renting of a storage unit and a number of instances of unloading the illegal tobacco. Her Honour however noted that the nature of the offences must be still considered to be serious given the increasing frequency of offending of that kind.
However, the applicant’s subsequent offending has been extensive and repeated and, in the Tribunal’s view, has involved a degree of increasing seriousness and has also had a significant cumulative impact. This has been reflected in the sentences imposed on the applicant which culminated in an aggregate term of imprisonment of four years and six months in respect of his February 2017 convictions. The applicant’s offending has included the trafficking of illicit drugs, firearm offences and also breaches various court orders and bail conditions. Drug-trafficking has the capacity to cause very significant harm to members of the Australian community, firearm offences can put members of the Australian community and significant personal risk and the breach of court orders or bail conditions reflect a disregard of the law which can undermine public confidence in the rule of law. In the Tribunal’s view all of these types of offences are viewed very seriously.
The submissions on behalf of the applicant included an acknowledgement that the applicant’s offences were serious but “not ‘so serious’ as to overwhelm all of the other balancing factors”. A number of claims were made on behalf of the applicant regarding the context of the applicant’s offending or other “mitigating features” which are said to temper the seriousness of the applicant’s offending. Those claims may be summarised as follows:
(a)the applicant has continued to experience the mental health impacts of his PTSD which arose as a consequence of the trauma he was exposed to during his time serving in the army in Lebanon. His PTSD has also contributed to poor judgment at certain points in his life.
(b)his mental health had deteriorated significantly as a consequence of the trauma experienced following his discovery that his wife was engaged in an extramarital affair and the subsequent impact of their separation, as well as discovering that his wife was pregnant with a child as a consequence of the affair.
(c)the combination of these experiences led him to gambling and drug use as a way of coping. The applicant developed an addiction to methamphetamine or “ice” as a way of numbing his pain and removing himself from the reality of his situation. The applicant also developed a gambling habit as a means of both distancing himself from the emotional pain he was feeling at the time, as well as facilitating some level of increased social interaction.
(d)As a result of both his gambling and drug addiction the applicant accumulated debt to friends and work contacts and, in part, engaged in criminal activity in order to meet his financial debts as well as facilitating his ongoing drug and gambling addictions.
(e)the applicant felt unable to seek assistance or support in managing his mental health conditions at this time due to language and cultural barriers. He told the Tribunal that he felt ashamed and embarrassed within his community as a consequence of the breakdown of his marriage. This caused him to feel more isolated and further reinforced his dependency on gambling and drug use as a coping mechanism.
(f)the applicant’s mental health conditions were further exacerbated by what he perceived as cultural pressures to be “strong” and emotionally and financially self-reliant and his consequential reluctance to acknowledge his emotions and effectively address them at an earlier stage.
(g)the applicant’s poor English language ability on his arrival into Australia, together with unfamiliarity with Australian-based institutions further contributed to the applicant failing to seek appropriate assistance and support to cope with his drug addiction and mental health conditions at an earlier time.
(h)his mental health was again further impacted as a consequence of his wife’s decision to sever the applicant’s contact with his two daughters following the shooting incident in 2011. The applicant claims the separation from his children was a further traumatic experience which increased his sense of isolation.
(i)At the time of his later criminal offences the applicant was effectively separated from his family and isolated from the broader Lebanese – Australian community and unable to have the benefit of their support or guidance.
(j)the applicant’s sentencing outcomes are at the lower end of the scale when compared to sentences that were otherwise available which reflects the “mitigating features” in the context to the applicant’s offending.
(k)the applicant’s criminal offences, although serious, were not violent or sexual in nature and were not committed against women, children or vulnerable members of the community.
(l)the applicant committed his criminal offences as a consequence of “diminished mental capacity due to the narcotics he was reliant on and as a result of the financial stress that it was experiencing at the time”.
(m)the applicant “found it difficult to think and make sound decisions at the time, as a result of the emotional stress he was under in the depression and the PTSD that he suffered time”.
(n)at the time of his offending the applicant had less support available in order to assist him in the management of his personal issues.
It was claimed on behalf of the applicant that having regard to the above mitigating features the applicant’s offending should not be considered to be so serious as to justify a decision not to revoke the cancellation of the applicant’s visa.
The Tribunal accepts that the applicant’s personal circumstances, including his traumatic early life experiences, his mental health conditions, the break-down of his marriage, his drug and gambling addiction, his separation from his daughters, his earlier language difficulties, his sense of cultural isolation as a new migrant to Australia and subsequent sense of isolation from the Australian-Lebanese community all present as legitimate context to his offending. However, the Tribunal rejects the suggestion that such context mitigates the objective seriousness of the offending. There is ample evidence of the significant impact trafficking in illicit drugs can have on the Australian community. The Tribunal materials included a report from the Australian Institute of Health and Welfare titled Alcohol, tobacco & other drugs in Australia dated 23 April 2020 which documents in some detail the serious and short-term impacts of various illicit drugs including ecstasy and methamphetamine. In relation to methamphetamine the report notes the significant contribution the use of the drug has on Australian’s suffering disease, injury, including road traffic injuries, suicide, self-inflicted injuries and death. The report also notes that the consumption of methamphetamine can have a considerable negative impact on mental health and that it appears to be increasing.[2] It is a matter of public record that many of these direct impacts have very serious flow on consequences for families and communities.
[2] Supplementary G Docs at 557;
The applicant’s materials included reference to an article titled Gambling and Anxiety published by the Harvard Health Publishing dated March 2012 which describes the strong link between gambling and anxiety and the tendency of people to resort to gambling as a way of managing their anxiety. The article contends that for many gamblers effectively managing their anxiety is a prerequisite to effecting substantive change in their gambling behaviour. The article cites a number of techniques that can be applied to help manage anxiety to this end. The Tribunal certainly accepts that there is a coping mechanism involved in the applicant’s gambling history and his potential to re-engage in such activities is, to some degree, linked to the effective management of his mental health conditions.
The Tribunal accepts the applicant’s evidence that following his arrival in Australia the applicant initially remained heavily involved in the Australian-Lebanese community and felt an obligation to meet the traditional cultural expectations of the community. The applicant’s materials also include reference to an article titled Gender, Security and SSR in Lebanon dated November 2014. The article describes gender-based cultural expectations within Lebanese security institutions with a particular focus on the Internal Security Forces of Lebanon. The article describes the security institutions as involving male dominated patronage networks and a “masculine” public image which is reflected in certain behaviours within those institutions. The article also describes gender-based factors relevant to referrals to the security institutions. Notwithstanding the very specific institutional context to which the article refers, the article makes a number of references to broad gender-based cultural expectations and associated behaviours that the Tribunal accepts have relevance by extrapolation to other cultural settings. This evidence was reinforced by the direct evidence of the applicant himself. Consistent with this evidence the Tribunal accepts that the applicant has, at various times in his life, experienced significant cultural expectations of being “strong” and self-reliant which have discouraged him from confronting his emotions and properly addressing his mental health conditions at an earlier point in time. Again, however, the Tribunal does not accept that this in any way excuses the applicant from his criminal behaviour or reduces its objective seriousness.
The Tribunal rejects the contention on behalf of the applicant that he was suffering from reduced mental capacity that should in any way reduce the extent of his personal and criminal responsibility for his crimes. There is no compelling evidence that the applicant lacked a mental capacity to an extent that would justify such a conclusion. His crimes were a result of decisions he voluntarily made and his responsibility for those decisions are reflected in his criminal convictions.
The Tribunal accepts that there is no evidence that the applicant has engaged in offending involving violence, sexual offending or offending against, women, children or other vulnerable members of the community. However, these are aggravating factors. The absence of them does not mitigate the seriousness of the applicant’s offending.
While the Tribunal accepts that some of the sentences the applicant has received were toward the lower end of the sentencing options for the offences committed, there is no doubt that he has accumulated a number of terms of imprisonment which reflect the serious nature of his criminal record when considered as a whole. In addition, his 2017 convictions resulted in a sentence of four years and six months which by any objective measure is a serious sentence, reflecting the serious nature of the applicant’s offending. This is further reinforced by the comments of the sentencing Judge in that matter who stated in his sentencing remarks:
Against the matters in mitigation, however, put by your counsel, is that you did commit serious crimes. Principles of denunciation and general deterrence, specific deterrence and protection of the community, all have their part to play in this sentencing exercise.
An aggravating feature of your offending is that you committed the offences before me whilst undergoing a sentence, namely that on 18 May 2015 at the County Court at Melbourne, you were convicted and released on a community corrections order for a period of 12 months and ordered to perform 125 hours of unpaid community work and to undergo supervision. You committed the offences before me some two months after being given a community corrections order and only two months after being released from prison.
Your moral culpability, in my opinion, is high considering you had only been released from custody on 18 May 2015 and committed these offences on 13 July 2015.
For these reasons, the Tribunal is satisfied that the applicant’s criminal offending is very serious.
The risk to the Australian community
In considering the risk to the Australian community, the Direction provides that 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 series conduct;
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).
As stated above, the applicant’s offending has included trafficking in illicit drugs which has the potential to inflict serious harm on those who acquire the drugs. It also has a flow on effect for families and communities. The Tribunal is satisfied that should offending of the type the applicant has engaged in in the past be repeated it has the potential to cause very serious physical and psychological harm to members of the Australian community.
It was submitted on behalf of the applicant that the applicant is now rehabilitated and that he is not at risk of engaging further offending or other serious conduct and is not a risk to the community. In this context, a number of claims were made on behalf of the applicant regarding his changed personal circumstances since the time of his offending. Those claims can be summarised as follows:
(a)the applicant’s criminal offending was the result of a diminished judgement caused by his drug addiction and mental health issues together with a lack of personal support to assist him in managing his personal circumstances and those circumstances have now changed.
(b)the applicant is now effectively rehabilitated as stated in Dr Snowden’s psychological report;
(c)the applicant has completely ceased all use and reliance on drugs during his most recent incarceration and has not used drugs for more than three years and is now rehabilitated. The applicant’s SFIC referred to the applicant’s pathology results dated December 2019 which record the applicant as having tested negative for several forms of illicit and prescription drugs including amphetamines, buprenorphine, methamphetamines, cocaine, opiates, benzodiazepines, cannabinoids and methadone.
(d)the applicant has developed insight into the adverse impact of drugs and that he was previously using drugs as a form of self-medication;
(e)the applicant has received psychological counselling during his incarceration which has enabled him to better understand his mental health conditions, the triggers for those conditions and how to effectively manage them.
(f)the applicant recognises the positive impact counselling has had for him and remains committed to ongoing counselling in the management of his mental health conditions.
(g)the applicant is highly motivated to remain drug free on his release, for his own personal benefit but also to maximise the prospect of him being reunited with his daughters, to be a good role model for them and to provide for them.
(h)by becoming drug free the applicant has been reminded of how much better his life was without drugs;
(i)the applicant has clear plans for the future including to take up accommodation with his adoptive mother, take up employment, take steps to secure ongoing access to his daughters, remain off all drugs, continue drug and alcohol counselling and clinical psychological treatment and stay away from all adverse peer influences;
(j)the applicant now has stronger support and guidance from family and friends than he had when previously released from prison; More specifically the applicant has been offered the opportunity to live with his adopted mother and has also been offered various employment opportunities from family and friends including job opportunities at a gym and also a restaurant; The applicant has also been offered both financial and emotional support from family and friends to assist in his transition back into the community; The applicant is committed to surrounding himself with people of good character and avoiding all contact with previous contacts whom he considered to be toxic and a poor example to him;
(k)the applicant has acknowledged his mistakes, shown insight into his offending, shown remorse for his offending and is now genuinely committed to being law abiding and living a productive life;

These claims were, to some extent, supported by the applicant’s evidence in relation to his offending and his risk of reoffending. That evidence can be summarised as follows:
(a)following his migration to Australia the applicant had taken on various job opportunities to help build a life for his wife and family;
(b)his daughters were born in 2004 and 2005. He had managed to purchase a family home together with his wife and that “life was great”. He stated “I had what I dreamt of, my own family.”
(c)in 2005 he purchased a pizza shop and was working multiple jobs to help support the family;
(d)towards the end of 2006/2007 his marriage had broken down and he separated and ultimately divorced from his wife. He described being left with nothing. He told the Tribunal that this wife left him for his best friend and that they subsequently had a child together. He stated that he found it very difficult to accept and that he didn’t want to lose his wife and family;
(e)the applicant described his heart being broken into pieces as a consequence of the failure of the marriage and that he felt he had gone from having everything to having nothing; the applicant described feeling concerned about being denied the opportunity to see his daughters and that he made an effort to work things out with his former wife;
(f)the applicant described having never used drugs prior to this time in his life and that he was very much against drug use. The applicant described initially having limited but regular contact with his daughters then following the shooting incident which occurred in 2011, being effectively denied ongoing contact with his daughters. He stated “I can’t explain to you that feeling when you are told you can’t see the two most special people that I had created and watch them grow from the day they were born”;
(g)the applicant described turning to drugs as a consequence of the breakdown of his marriage and difficulty he was having gaining access to his daughters; he described not knowing who he could turn to for assistance. He told Tribunal that while he now realises he should have turned to friends and family for support and also commenced counselling to manage his issues he didn’t understand that such support was available to him at that time. He told Tribunal that he wasn’t thinking straight at that time in his life;
(h)the applicant described using speed and methamphetamine on a regular basis from around 2007 until his imprisonment in 2009. The applicant described having a period of remaining off drugs following his release from prison in 2010 but then resuming drug use following the shooting incident in 2011. The applicant stated in his written statement that he had been completely drug free for around five years. However, in his direct evidence the applicant conceded that he had continued to use drugs during the early part of his most recent incarceration but that he has now not used drugs of any kind for approximately three years;
(i)the applicant described jail as having “saved” him; that as a consequence of having the opportunity to get sober and reflect on his life he realised that he could have died from drugs and that that would have resulted in his daughters ending up with no father; he described now realising how selfish he had been;
(j)the applicant stated that he used the time in prison to reflect on his previous life and the consequences of his behaviour. He stated that, while he cannot change the past, he can change the future and that he is determined to be the best version of himself both for himself and for his daughters. The applicant told Tribunal that his daughters are everything to him.
(k)the applicant stated that he had maintained some level of communication with his daughters during his most recent incarceration but that have been limited due to resistance from his former wife. He stated that he knows he has rights as a father to have access to his children and that he intends to pursue that through mediation and through the courts if necessary;
(l)the applicant stated that he now considers himself to be on the right path and that he intends to take up employment opportunities that have been made available to him;
(m)the applicant stated that he is determined to have no further contact with those he undertook drug related and criminal activities with;
(n)the applicant stated that he recognises that remaining in Australia is a privilege that can be taken away from him and that he is now strongly incentivised not to do the wrong thing again; the applicant stated that he understands that if he is given another chance and offends again then he will be sent back to Lebanon and will lose contact with his daughters;
(o)the applicant stated he has learned from his mistakes and that he is very remorseful for his previous conduct and is determined to never repeat such contact again in future;
(p)the applicant stated that he has positive plans for the future if he is released back into the community including living with his adoptive family, taking up employment opportunities, taking steps to resume access to his daughters. The applicant stated that he had made contact with ‘Relink’, a program for men to get assistance in integrating back into the community, although he acknowledged that there was nothing that they could do for him until he is released;
(q)the applicant stated that he accepts responsibility for his criminal offending and that there were no excuses for his behaviour. He described himself as having being “weak, vulnerable and in shock” when he engaged in his offending. He described being ashamed for what he had done and stated that he accepts full responsibility for his conduct;
(r)the applicant stated that he had embarrassed his daughters and that he intends to make them very proud and give them love and support as a father;
(s)the applicant stated that he feels that he is rehabilitated and is very much looking forward to a new chapter in his life;
(t)the applicant stated that he considers himself to have significant support including from friends and from his adopted Australian family;
(u)the applicant described his determination to do the right thing by his daughters stating that he wanted to be there to enjoy his daughters’ life milestones and to support them.
The applicant’s materials included a report by clinical and forensic psychologist Dr Susette Sowden, psychologist, dated 27 March 2020 which was prepared in relation to the applicant’s review application. The report was prepared on the basis of background information provided by the applicant’s representatives together with a forensic interview of the applicant via Facetime, an interview of the applicant’s adopted mother and some behavioural observations of the applicant which appear to have been made by Dr Sowden during her interview of the applicant.
In her report Dr Sowden makes a number of general observations and then also draws a number of conclusions in response to questions put to her by the applicant’s representatives which may be summarised as follows:
(a)the applicant presented as pleasant and of average to above average intelligence;
(b)there was no evidence of psychosis, suicidal ideation, violent ideation or paranoia;
(c)the applicant “has also been observed to have a deeper resilience about him in his capacity to manage his mental health problems particularly since being off all drugs”;
(d)the applicant is “rehabilitated,” noting that he had developed insight into the adverse impact of drugs and that he was using drugs as a form of self-medication of his PTSD and depression and that he is now aware of more effective and constructive ways to address his mental health issues;
(e)the applicant has been free from drugs for five years and also three and a half years;
(f)the applicant believed his counselling had been very helpful to him, he now realised the futility of drug use and was reminded that his life was much better when he was not using drugs.
(g)the applicant has stated that he is highly motivated to remain off drugs in order to ensure he can have ongoing face to face contact with his children.
(h)the applicant has stated that he is highly motivated to return to the workforce;
(i)the applicant’s mental health would be significantly and severely exacerbated if he is forced to return to Lebanon, noting the ongoing conflict there and ongoing war in Syria;
(j)the applicant stated that he had received the strong support from his adopted family, including his adopted mother who is the parent of his best friend of 12 years; The applicant stated that his two younger “adopted” brothers looked up to him and he had taken responsibility for them. He stated that he has regular contact with his friend and adopted family on a daily basis and that he will be living with them if he is released into the community;
(k)the applicant has shown remorse for his offending and that he indicated that he knows that what he did was wrong and that he wants to give back to the country that welcomed him and has looked after his children;
(l)the applicant has strong ties to Australia including through his children and adopted family and he would be devastated if separated from them; The applicant has much closer bonds with his children and adopted family in Australia than with his family in Lebanon;
(m)the applicant stated that he had ongoing telephone contact with his daughters until his former wife found out about a new relationship and then she stopped the contact; He said he ended his relationship with his new partner to enable renewed contact with his daughters but that his former wife had resisted him having contact with his daughters over the past five years. He stated that he wants to have renewed contact with his daughters and that his former wife had indicated that if he is released he can renew contact with them. The applicant has stated that he has always had a strong bond with his daughters and that he wants to be a better example to them.
(n)if the applicant was forced to relocate back to Lebanon and not see his daughters he would be devastated. He has said he wants to see his daughters graduate and do well in their lives;
(o)if the applicant is not able see his children and contribute to their lives his depression would be severely exacerbated;
(p)if the applicant is forced to relocate to Lebanon it is highly likely he would lose all contact with his children due to “the mother being reported to have full parental authority over the children”;
(q)the applicant has clear plans for the future if released back into the community including to:
(i)reunite with his adopted Australian family and live with them;
(ii)take up employment as soon as possible;
(iii)contact the Family Relationship Centre to initiate mediation with his former wife to gain ongoing access with his children;
(iv)remain off all drugs, ensuring he keeps away from all adverse peer influences;
(v)continue with drug and alcohol counselling; and
(vi)commence clinical psychological treatment and accept a referral for a treating psychiatrist.
(r)the applicant had stated that he had commenced contacting Relink, a program for assisting men in preparation for integrating into the community after prison;
(s)the applicant requires ongoing clinical psychological care and the applicant has stated that he is keen to work with Dr Sowden and she has indicated she is prepared to accept him as a patient;
(t)the applicant has stated that he will be seeking “whatever assistance is available” to assist in his reintegration into the community;
(u)Dr Sowden is of the opinion that despite the applicant’s criminal history he is not pro-criminogenic and that he does not meet the criteria for an antisocial personality disorder. Dr Sowden is of the opinion that the applicant is not a threat to the Australian community, that he is highly motivated to be with his adopted Australian family, return to work, to seek appropriate mental health care and have ongoing access to his daughters to be able to support them emotionally and assist in their transition into their adult lives;
(v)Dr Sowden is of the opinion that the applicant’s behaviour in “being off all drugs since his imprisonment and whilst in the Detention Centre is evidence of his willingness to change and be of good character and to have ongoing positive rehabilitation”;
(w)Dr Sowden is of the opinion that he is a very low risk of reoffending;
(x)it is apparent that the applicant only engaged in drug use as a form of self-medication and there is no evidence of any drug use prior to his marriage breakdown and no evidence of any pro-criminogenic activities prior to his drug use. The applicant’s drug use rendered him vulnerable to engaging in pro-criminogenic activities;
(y)the applicant has a strong sense of remorse for engaging drug use and subsequent criminal activities;
(z)as the applicant is now free from drugs and receiving counselling with the support of family and friends he no longer represents a risk to the Australian community.
The Tribunal accepts that the applicant has experienced significant personal trauma in his life which has resulted in him suffering mental health conditions including symptoms of PTSD as well as anxiety and depression. The trauma has arisen from very difficult early life experiences including an exposure to the civil war in Lebanon, the deaths of a number of uncles, the death of a cousin who was a very close friend as well as trauma associated with his military service in Lebanon where he was shot and witnessed the death of another close friend. In addition to these traumatic events, it is clear to the Tribunal that the applicant has experienced significant challenges in his transition into life in Australia including initial language difficulties as well as cultural differences. The Tribunal also accepts that the applicant experienced significant personal challenges as a consequence of financial difficulties, accumulating gambling debt, the breakdown of his marriage and separation from his daughters. There is no doubt in the mind of the Tribunal that these experiences collectively have further exacerbated the applicant’s pre-existing mental health conditions and those conditions have been a significant factor in the applicant’s drug and gambling addictions which in turn have been very significant factors in his more serious criminal offending. For these reasons, the Tribunal considers the effective management of the applicant’s mental health conditions, as well as the avoidance of future drug and gambling addiction, and in particular his drug addiction, to be central to the assessment of the risk of the applicant reoffending again in a similar manner.
The Tribunal accepts that the applicant is now drug free and has been so for approximately three years while in prison and detention and that there is no evidence of any ongoing gambling addiction. The Tribunal also accepts that the applicant has had the benefit of psychological counselling while in prison and as a consequence now has, to some degree, a better understanding of his underlying mental health conditions and the role they have played in his gambling and drug addictions and subsequent criminal offending.
In this context the Tribunal acknowledges:
(a)the applicant’s stated commitment to remain drug free if released back into the community and to continue to receive psychological counselling in the effective management of his mental health conditions and to put in place a formal mental health plan;
(b)the applicant stated determination to not reoffend again in any way;
(c)the applicant stated commitment to stay away from previous social contacts who were involved in drug related or other criminal activities;
(d)the positive step the applicant took in seeking contact with Relink to assist in his transition back into the community;
(e)the significant level of social support the applicant has the benefit of through his Australian based adopted family and other friends, including the friend with whom he wishes to pursue a relationship;
(f)positive plans the applicant has for his future as described in his own evidence as well as those reflected in the report from Dr Sowden;
(g)the acknowledgement by the applicant of the significant consequences that are very likely to flow in the event that he is released back into the community and then reoffends again, including the very high likelihood he would be forced to return to Lebanon and is separated geographically from his daughters and his Australian based family and friends and would lose the opportunity to pursue his new relationship;
In assessing the risk of the applicant reoffending the Tribunal has been mindful of the very significant statements of support by a number of the applicant’s Australian based family and friends. Those statements of support consistently described the applicant as being a person of otherwise good character who is decent, caring and trustworthy, who has now seen the error of his ways and who is now reliably committed to remaining drug free and crime free. The applicant’s supporting witnesses made particularly compelling references to the applicant’s determination to do the right thing in the future to make his children proud and to maximise his prospects of re-establishing a face-to-face relationship with. The applicant’s Australian based family and friends have made strong and compelling offers of support for the applicant in his transition back into the community and in addressing his ongoing personal challenges including practical support such as the provision of accommodation, financial support and offers of employment. The Tribunal accepts that those offers are very genuine.
For example, the applicant’s ‘adopted’ Australian mother, Ms R, gave evidence to the Tribunal. Ms R told the Tribunal that she had been introduced to the applicant by her son who had become a close friend of the applicant. She told the Tribunal that she had been a foster parent to a number of children and over time the applicant had become part of her family and that she now considered him to be her adopted son. She stated that the applicant had always presented as extremely respectful, honest and trustworthy and had demonstrated a willingness to help out around the house as well as showing interest in each of her other children. She told the Tribunal that the applicant had been a good mentor to her other children and had always sought to encourage them to avoid drugs. Ms Richardson told the Tribunal that she had maintained regular contact with the applicant during his most recent incarceration and had offered him accommodation in her home if he is released back into the community. She stated that the applicant had expressed an interest in commencing a business with one of his adopted brothers and generally had positive plans for the future. She told the Tribunal that she found the applicant to be a good man who did not mean any harm.
Ms R told the Tribunal that she was convinced that this time the applicant is genuinely committed to remaining free from drugs and was extremely remorseful for his criminal offending. Ms R told the Tribunal that she felt safe around the applicant and she believed the applicant was not a risk to the Australian community. In a written statement to the Tribunal Ms R stated that she believed the local Lebanese community had not allowed the applicant to integrate fully into the Australian way of life and that the isolation he felt was exacerbated following the breakdown of his marriage. She described the applicant as having been devastated at that time in his life. She stated that at that time the applicant had no idea of the extent of support available to him in managing his situation and had unfortunately turned to drugs and become addicted and was surrounded by the “wrong company”.

Ms R described the applicant as being held in “high esteem” to those who he had helped and supported. She stated that during his most recent incarceration the applicant has maintained contact with her on almost on a daily basis. Ms R describe the applicant as being a “different man now”. She described the applicant as having previously kept things from her but that during the course of his current incarceration he had opened up to her and was now comfortable coming to her for guidance. Ms R told the Tribunal that she had recently undertaken some training to better understand drug addiction and how to deal with it. Ms R stated that she believed that the applicant’s present circumstances are very different to his circumstances at the time he was previously released from prison.
The applicant’s adopted brother, Mr HR, made a statement in support of the applicant and also gave evidence directly before the Tribunal. Mr HR told Tribunal that he had known the applicant since around 2010 having met him through his older brother, J, and that over time he had become an adopted member of the family. Mr HR described the applicant as being like a big brother/father figure in his life. He told Tribunal that the applicant had always been a positive role model in his life and encouraged him to do the right thing. He told Tribunal that the applicant had specifically dissuaded him from partaking in drugs and that as a consequence of the applicant’s guidance he had never engaged in drugs or any other criminal activity. Mr HR told Tribunal that he was very much looking forward to being able to spend time with the applicant on his release back into the community and that he was interested in potentially pursuing a business opportunity with him. He told the Tribunal that he loved the applicant like a brother.
The applicant’s friend, Ms A, made a statement in support of the applicant and also gave evidence directly to the Tribunal. Ms A described the very close bond she has developed with the applicant. She stated that she had always found the applicant to be a kind-hearted person who was very supportive of his friends in times of need. Ms A described how the applicant had allowed her to live with him in his home for a few months when she had been struggling to find a place to live and she described witnessing first-hand his warmth and love towards his children. She stated that she believed that the applicant would become a hard-working and trustworthy member of the community if given another chance.
Another close friend of the applicant, Ms F, also gave both a statement and direct evidence at the Tribunal in support of the applicant. Ms F told the Tribunal that she had met the applicant at a very vulnerable time in her life and they had developed a very strong bond. They have known each other for approximately 10 years. She told the Tribunal that she had always found the applicant to be kind-hearted, supportive and generous towards her, as well as her disabled mother. Ms F told the Tribunal that she is willing to provide the applicant with practical, emotional and financial support to help with his transition back into the community and to get his life back on track. She told the Tribunal that she was willing to offer him a place to stay if he ever needed it. Ms F also told the Tribunal that she had been impressed by the applicant’s strong love and affection towards his daughters and his determination to re-establish his relationship with them and to play a positive role in their lives. Ms F has completed a diploma in community service and counselling. While Ms F did not present evidence to the Tribunal as an expert she did state in her written statement that in her professional opinion that she considered the applicant to be a “rehabilitated and resourceful man”. She told the Tribunal that she believed the applicant had learnt from his mistakes and was now genuinely motivated to make a positive contribution to the community as well as in his daughters’ lives. She stated that the applicant “isn’t a criminal; his just a human who made a few mistakes, repented, reflected and has paid his debt to society”.
The applicant told the Tribunal that he has put a new relationship on hold due to the uncertainty regarding his future but that he is keen to purse the relationship if all goes well and that the relationship is another significant motivating factor in refraining from drug use and staying on the right track if released and that he will be aided in that effort by the support of a ‘good women by his side”. The Tribunal accepts the applicant’s evidence in this respect.
There was also evidence of the applicant having received a number of offers of employment if released back into the community. This was reinforced through the direct evidence of some of the supporting witnesses and also through documents included in the applicant’s materials. For example, the applicant’s materials included a written employment offer as a kitchen hand from a Mr William Balleau of the Balleau Group which was dated 19 March 2020. The position is located at a restaurant in Collingwood, Victoria.
The applicant told the Tribunal that he is strongly motivated to take up one of the multiple job offers he has received and to make a positive contribution through hard work and to earn money to build his life and look after his children. The Tribunal accepts that the applicant’s commitment in this respect is very genuine.
The Tribunal accepts that the applicant is viewed by his Australian friends and family in high personal regard and that he has demonstrated a significant degree of concern and loyalty towards them. The Tribunal accepts that the applicant has the ongoing benefit of significant personal support in the community. The Tribunal also accepts that each of the applicant’s supporting witnesses expressed a strong degree of confidence that the applicant is a changed man and, as a consequence, now has good prospects of making a positive transition back into the community and remaining drug and crime free. The Tribunal has tempered the weight to the applicant’s supporting witnesses’ evidence regarding his rehabilitation prospects given the apparent limited understanding they each had, in varying degrees, to the full extent of the applicant’s criminal history or his drug use while in prison.
The applicant’s materials included a number of certificates or other letters of acknowledgement which evidence various courses the applicant has undertaken over the years. They include certificates or letters of acknowledgement in:
(a)two modules from the Initial Course in General Education for Adults undertaken at the Fulham Correction Centre in in 2010;
(b)Construction Industry OH&S dated August 2009;
(c)Alcohol and Other Drugs program including training in relapse prevention, chemical dependency, costs of substance abuse, obstacles to change, harm minimisation, tolerance levels and identifying risks dated January 2010;
The Tribunal accepts that the applicant has previously undertaken a number of courses to better understand his drug addiction as well as other general courses while in prison.
Notwithstanding these mitigating factors, the Tribunal is satisfied that there are a number of other factors that are present in this case which would suggest a heightened risk of the applicant re-engaging in illicit drug use again in the future. Those factors include:
(a)Dr Sowden’s acknowledgment in her report that the applicant’s mental health conditions are not fully resolved and that the applicant requires ongoing psychological counselling to ensure the effective management of those conditions.
(b)the Tribunal is of the view that there remains a residual risk that the applicant, despite his stated commitment, does not maintain ongoing counselling on his release. The Tribunal forms this view on the basis of the evidence that the applicant has a history of difficulty in managing his personal affairs including his previous drug treatment order. In this regard the Tribunal notes the comments of Her Honour Judge Quin in sentencing comments regarding the applicant’s May 2015 convictions where Her Honour quoted from a community corrections order report that the applicant “has been chaotic in addressing his drug use and other problem areas and as a result has not fully complied with the treatment plans in place. Mr Razzak’s overall compliance has been sporadic in attending his treatment appointments.’ Her Honour went on to state in respect of the applicant “He presented with a lack of commitment to change and this reflected in his inability to fully comply with supervision and treatment plans”. In his oral evidence the applicant sought to explain away his apparent non-compliance with the drug treatment order however the Tribunal found his explanations in that respect to be unpersuasive;
(c)the fact that the applicant has in the past shown a tendency to resort to drug use when faced with difficult personal challenges and the likelihood that the applicant will confront significant personal challenges again in the future particularly acknowledging the difficulties he is likely to confront in transitioning back into the community as well as the potential for issues to emerge in his attempts to regain access to his daughters;
(d)while the Tribunal acknowledges the very strong statements of support from the applicant’s Australian based family and friends to assist the applicant in meeting his personal challenges including offers of accommodation, emotional and financial support and offers of employment, the applicant has had the benefit of similar statements of support in the past and yet resorted to drug use and reoffending. In his oral evidence the applicant stated that the support being offered this time is different and better informed in relation to the challenges he faces. This position was supported by a number of the applicant’s supporting witnesses including particularly the applicant’s adopted mother. While the Tribunal accepts that there may be some differences in this respect, it is not satisfied that the nature of the support on offer now is so substantially different from that available to him in the past as to render his previous experience of not taking advantage of that support irrelevant in the assessment of future risk.
(e)Despite the applicant’s acceptance of the accuracy of his criminal record the Tribunal retains a genuine concern regarding the extent to which the applicant has fully acknowledged the nature and consequences of his offending. The Tribunal accepts the respondent’s contention that at times during the course of his oral evidence the applicant sought to minimise the full extent of his offending. For example, in relation to his 2006 tobacco offence, while accepting his conviction, the applicant sought to suggest to the Tribunal that he had not been aware that what he was doing was illegal and told the Tribunal that he thought he was just moving some boxes. The Tribunal found the applicant’s evidence in this respect to be wholly unpersuasive. Similarly, in recounting the circumstances of the applicant’s first drug trafficking conviction in 2006 the applicant accepts the conviction but insisted to the Tribunal that he knew nothing about the drugs and was set up and only pleaded guilty on advice of his lawyer. The Tribunal found the applicant’s evidence in this regard to be completely unpersuasive and does not accept the truthfulness of it. The applicant again said in respect of each of his drug offences in May of 2011 that he had no knowledge of the drugs despite having again pleaded guilty to the offences. The applicant claimed he did so because at the time he was more concerned about another more serious charge involving a firearm. The applicant made a similar statement also in respect of his most recent offences. He told the Tribunal that on that occasion he was simply in the wrong place at the wrong time and denied he was at fault stating that on that occasion he had just been a passenger in the car. Again, the Tribunal found the applicant’s explanation to be completely implausible and rejects the truthfulness of his account.
(f)In addition, the Tribunal retains a concern regarding the applicant’s failure to acknowledge the potential harmful impact his offending has had on other members of the Australian community. In giving his evidence the applicant was at pains to point out to the Tribunal that he has never physically hurt anyone in any way. He told the Tribunal that he is proud of that. What struck the Tribunal in this respect was the absence of any acknowledgment from the applicant that his offending may have had a significant adverse impact on others. Drug trafficking is not a victimless crime and the absence of an acknowledgment of the impact of his crimes on others when seeking to make a point about not hurting people was of some concern to the Tribunal. When asked whether he was a threat to the Australian community the applicant stated that he was not and that “in all the wrong things that I did or the things that I commit the most person I hurt in that situation was myself”.
(g)While the Tribunal accepts that elsewhere in his oral evidence the applicant acknowledged the impact his offending has had for his daughters, the suggestion by the applicant that his offending has not hurt other members of the Australian community, in particular through his drug-trafficking activities, was of some concern. For these reasons the Tribunal is not satisfied the applicant has demonstrated full insight into his offending. Further, while the Tribunal acknowledges that on a number of occasions in his evidence the applicant stated that he accepted full responsibility for his offending and was remorseful for it, in the Tribunal’s view, given the absence of full insight, is that those statements must be tempered to some degree. The applicant’s statements of remorse are also further tempered by the fact that he has made such statements before and yet reoffended.
(h)the capacity of the applicant to remain free from drugs has not yet been tested in the community on this occasion. This is particularly significant given that the applicant has been drug free for periods in the past and yet, following further personal challenges, and despite previous counselling and offers of support the applicant has resorted back to drug use. While the Tribunal accepts that there are some differences between his current period of abstinence and those he has experienced in the past, including that on this occasion he has been drug free for a significantly longer period and he does appear to have demonstrated a better understanding of the relevance of his mental health conditions to his offending, again the Tribunal does not accept that the differences are so significant to render his previous relapse as irrelevant to the assessment of risk.
(i)While the Tribunal acknowledges that the applicant has strong incentive not to reoffend given the significant personal consequences for him, as well as for his relationship with his daughters, the applicant had significant motivation not to reoffend in the past and yet did so. In reaching this conclusion the Tribunal has been particularly mindful of the warning the applicant received in 2010 in relation to his future visa status and yet the applicant again reoffended.
In his direct evidence the applicant told the Tribunal that his criminal offending can be explained by his mental health problems which had been impacted by the breakdown of his marriage and the fear of losing access to his children which in turn led to gambling and drug use. The applicant stated that he had previously resorted to drugs to numb the pain from the break-down of his marriage and the loss of access to his daughters and that he had pushed all of those who wanted to help him away. He told the Tribunal that having now had the opportunity to reflect through his most recent time in prison, and also having now had the opportunity to better understand the impact of his mental health conditions he is more open to the support he needs and better placed to avoid the destructive behaviours of the past.
While the Tribunal accepts that some of the challenges the applicant has previously faced are now in his past, for example the breakdown of the applicant’s marriage and the discovery that his former wife was pregnant to his friend, the Tribunal is satisfied that significant personal challenges are very likely to confront the applicant again in the future. Further, some of the issues that the applicant found difficult to manage in the past have a real prospect of presenting again, for example, concerns around access to his daughters.
The Tribunal is satisfied that central to the difficulties the applicant has had are his underlying mental health conditions which predate his marriage breakdown. It is for this reason that the Tribunal considers the prospect of mitigating the risk of the applicant resorting to drug use again in the future is the effective management of his mental health conditions. While the Tribunal accepts that through his more recent counselling the applicant has acquired a further developed understanding of his underlying mental health issues to some degree, the applicant’s evidence makes clear that he has had the benefit of counselling, support and education in the past and yet on each occasion relapsed and reoffended. The Tribunal remains unconvinced that his circumstances today are as significantly different to those he has enjoyed previously as he now represents.
The applicant first went to prison in 2009. In his oral evidence he told the Tribunal that it had an impact on him and made him reflect on his circumstances. He said this was when things first started to make sense for him and that this was when he first realised the services that were available to help him. He realised he was lost but he found himself again. Being clean made things clearer for him. It was a wake-up call. He said he was resolved to live a better life. He realised how important it was for his kids to be in his life. The applicant has made these same points in respect of his most recent stint in prison.
The applicant also undertook a drug and alcohol program during his first stint in prison, in January 2010, which he described as having been very impactful. He told the Tribunal he had learned a lot and as a consequence of the course and that it made him realise just how damaging drugs are. He also described having had the benefit of a drug court intervention order which again he described as having been very useful. He told the Tribunal again that he considered this to have been the first time he had really had the benefit of the necessary supports and yet despite these earlier opportunities the applicant on each occasion resorted to drugs and reoffended.
In addition, while the applicant describes his previous reluctance to be open with others and seek help as something that has changed significantly as a consequence of his reflection during his most recent stint in prison, the Tribunal retains some ongoing concern regarding the full extent of this change given that when pressed in giving evidence a number of the applicant’s supporting witnesses appeared to have a very limited knowledge of the scale of his offending and also some appeared unaware of his drug use during the early period of his incarceration.
Further, the applicant told the Tribunal when describing his release from prison in 2013 that he felt that he had, for the first time, really opened up to others and been willing to have the benefit of support from family and friends and yet despite the offers of support at that time the applicant resorted back to drugs and reoffended.
For these reasons, while the Tribunal accepts that the applicant has taken some positive steps to better understanding his issues and being more open to support on offer from others it accepts this only to a limited degree. The Tribunal remains unpersuaded that there is a material difference in the circumstance of the applicant now when compared to his circumstances when previously released from prison. On previous occasions, despite commitments to the contrary, the applicant resorted to drug use and offending. He told the Tribunal that he didn’t have the same amount of support from his friends and adopted family that he has now. Again, the Tribunal does not accept this. It is clear from the evidence that the applicant had significant offers of support from the R family when he was previously released from prison including having lived with them for a period of time.

For these reasons this consideration weighs neither for nor against a revocation of the cancellation of the applicant’s visa.
Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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 whether non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to the 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (whether as family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Tribunal accepts that during the time the applicant has lived in Australia he has developed strong ties to the Australian community. The applicant has lived in Australia for a very significant portion of his adult life having arrived here as a 21-year-old in 2003.
The applicant has two daughters and several adult cousins who reside in Australia. The balance of his immediate family all reside in Lebanon.
In addition, the Tribunal accepts that the applicant has been informally adopted as a member of the R family who all reside in Australia and are Australian citizens. The applicant has established a very strong bond with his adopted family having known them now for more than 10 years. The applicant met his adopted family through one of his best friends, J. In addition to J, as well as a number of his other adopted siblings, the applicant has developed a particularly strong bond with the matriarch of the R family, Ms R, and the applicant refers to her as his “Aussie mum”.
The applicant told the Tribunal that he considered himself to be a member of the R family and he valued their love and support enormously. He told the Tribunal that he was determined to not reoffend again, in part, due to a desire to vindicate their faith in him. He told Tribunal that it was his intention to reside with Ms R if he was released back into the community and that if this occurred he was committed to providing practical assistance to Ms R who has recently suffered from some health issues. He told the Tribunal that he is keen to explore a potential business opportunity with his adopted brother, HR, and that he was committed to doing what he could to support all of his adopted siblings and to be a good role model and mentor for them.
In her evidence to the Tribunal Ms R noted that she had developed a close bond with the applicant and very much looked forward to him being able to come and live with her and also to help her with day-to-day needs around the house. Ms R also noted that she had recently suffered from a number of health issues that she was, to some degree, relying on the applicant to be able to help her around the house.
In his evidence to the Tribunal, the applicant’s adopted brother, HR, told the Tribunal that he considered the applicant to be like a father figure to him that he relied on his advice and guidance. He told Tribunal that he was interested in potentially going into business with the applicant. He told the Tribunal that he very much looked forward to the applicant being released into the community and being able to spend time with him.
Both Ms R and HR told the Tribunal that they had maintained very regular contact with the applicant during his most recent incarceration.
The Tribunal accepts that the applicant is a genuinely valued member of his adopted family. The Tribunal accepts that a decision requiring the applicant to return to Lebanon will have a significant adverse emotional impact on the members of his adopted family who are likely to be devastated by such an outcome. In addition, Tribunal accepts that such an outcome is likely to have a practical consequence for Ms R in particular given the more recent emergence of a number of health issues she is suffering and the practical support the applicant could provide her in that context if he were to be released into the community.
There was also evidence before the Tribunal of the very strong bond the applicant has developed with a number of close personal friends. It was clear to Tribunal based on the materials before it as well as evidence provided by the applicant and other supporting witnesses that the applicant is held in high regard by his friendship group.
The Tribunal materials also included a number of personal statements in support of the applicant. In addition, a number of close friends gave direct evidence to the Tribunal at the hearing attesting to their strong relationship with the applicant and their strong desire for him to be released back into the community.
The Tribunal accepts that if the applicant is forced to relocate back to Lebanon that the relationships he has with his close friends in Australia are likely to be very significantly impacted due to the geographical dislocation and that the applicant’s friends are likely to be significantly emotionally affected by such an outcome. The Tribunal accepts that the applicant’s capacity to be able to provide strong practical support to his friends will also be adversely affected by such an outcome. The Tribunal forms this view acknowledging that in such a scenario the applicant will retain a capacity to be able to maintain some level of relationship with his friends via phone or other electronic means.
The applicant told the Tribunal that he had recently commenced a new relationship but in fairness to his friend he had put the relationship on hold due to the uncertainty regarding his future. The applicant indicated that he was keen to pursue the relationship if all goes well including potential starting a family. The applicant told the Tribunal that his friend is very scared about the outcome and is depressed. The Tribunal accepts that a decision to revoke the cancellation of the applicant’s visa is likely to materially adversely impact on the potential for that relationship to develop and that such an outcome is likely to have an emotional impact on the applicant’s friend.
There was limited evidence before the Tribunal in relation to the relationship that the applicant has with his biological cousins in Australia but again be Tribunal accepts that a decision requiring the applicant to relocate back to Lebanon is likely to have a negative emotional impact on his Australian based biological family members.
It was claimed on behalf of the applicant that during periods when the applicant has remained drug-free he has demonstrated a capacity to make a positive contribution to the community through hard work and association with sporting clubs, and also by being supportive of others facing difficult personal challenges. This was supported in personal statements from friends and family included in the applicant’s materials as well as through direct evidence of supporting witnesses. A number of supporting witnesses gave specific examples of where the applicant had helped them in their lives. It was claimed on behalf of the applicant that if released back into the community the applicant is determined to make a positive contribution to his family and friends and also to the broader community through employment and supporting others in the future.
The applicant told the Tribunal that he wants to act as a mentor to others who are facing challenges similar to those he has faced in his life. In particular, he emphasised his determination to support his daughters and also his adopted family members. He told the Tribunal he was determined to take up employment and work hard to provide for his family in the future if released into the community.
In addition, there was evidence before the Tribunal in relation to the contribution that the applicant has made to the Australian community through his employment and other business-related activities. The Tribunal accepts that the applicant had an extremely strong work ethic and prior to becoming consumed by his drug addiction the applicant had successfully established a small business and made a contribution to the community in that regard also.
While acknowledging the strong ties the applicant has developed with the Australian community and the contribution that he has made through his employment and business activities as well as is broader community activities, the Tribunal has tempered to some degree the weighting to be given to this consideration having regard to the significant amount of time the applicant has spent in prison or detention as a consequence of his criminal activities during the period he has resided in Australia. The Tribunal has also been mindful of the fact that the applicant committed his first offences relatively shortly after he first arrived in Australia.
For these reasons, the Tribunal is satisfied that this consideration weighs moderately in favour of a revocation of the cancellation of the applicant’s visa.
Impact of Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no specific evidence before the Tribunal as to the impact of revocation of the cancellation of the applicant’s visa would have on any victim of his offending. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
Paragraph 14.5 (1) of the Direction provides that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in a country.
In assessing this consideration the Tribunal acknowledges the extremely difficult economic circumstances currently being experienced in Lebanon as well as the significant political unrest that exists in the country. These circumstances are documented to some degree in the Country Report. At 572 of the G Documents the Country Report states:
The Syrian civil war has had a major impact on the Lebanese economy. The conflict cut off one of Lebanon’s major markets and a transport corridor to the Gulf, while the influx of Syrian refugees has heightened competition for low-skilled jobs and public services. Lebanon continues to face several long-term structural weaknesses that predate the Syrian crisis, including political dysfunction, weak infrastructure and poor service delivery. Chronic fiscal deficits have increased Lebanon’s debt to GDP ratio, which is the third highest in the world. These factors combined to slow economic growth to the one to two per cent range between 2011 and 2017, after four years of averaging 8 per cent growth.
… The World Bank estimates that some 200,000 additional Lebanese have been pushed into poverty as a result of the Syrian crisis, adding to the previous 1 million poor (defined as living below USD3.84 per capita per day). Densely populated cities have limited housing stock, and the price of shelter and food has risen considerably. Social protection, government support, and access to employment is far more limited in mountainous rural areas in the coastal belt, and poverty is particularly acute in the north of the country and in the Beka’a Valley.
The Country Report, again at 572 of the G Documents also notes the following in respect of Lebanon’s high levels of unemployment:
unemployment is a major problem, particularly for the young. The official unemployment rate is low: Trading Economics put it at 6.7 per cent at the end of 2017. This rate, however, measures only the number of people actively looking for a job as a percentage of the overall labour force, and considerably understates the true number of Lebanese who are either out of work or underemployed. In August 2017, the labour minister estimated that the overall unemployment rate was 25 per cent, with unemployment amongst those under 25 years of age at 37 per cent.
The Tribunal accepts the applicant’s contention that there has been further significant deterioration in Lebanon’s economic circumstances and political unrest over the course of recent months. In addition, the Tribunal accepts that the challenges currently being faced by Lebanon are currently being further compounded by the impact of the global COVID-19 pandemic.
The Tribunal is satisfied that the applicant is not likely to experience any substantial language or cultural barriers in Lebanon acknowledging that he was brought up there and lived there until he was 21 years of age. However, the Tribunal accepts that given his absence for 17 years the applicant will find some aspects of life in Lebanon unfamiliar and that this will require some adjustment.
The Tribunal is also satisfied that, with the exception of his mental health conditions and ongoing challenges in seeking to remain drug free, the applicant is otherwise relatively young and healthy and relatively well placed to manage a transition in that respect.
However, the Tribunal accepts that the applicant would experience significant obstacles in seeking to re-establish his life in Lebanon for a number of reasons.
First, the applicant is without any financial means and the Tribunal accepts he is unlikely to have any substantive financial support from his Lebanese based family, although the Tribunal does note the apparent good relationship the applicant has with at least one of his nephews in Lebanon. The Tribunal also notes the offer of some financial assistance from the applicant’s long time Australian friend Ms F which the Tribunal is satisfied was genuine and of substance.
The Tribunal accepts that the applicant is likely to have significant difficulty obtaining employment in Lebanon, at least in the short term, given the extremely significant economic deterioration and financial crisis and high unemployment currently being experienced there. These challenges are likely to be further compounded by his absence from the country for more than 17 years, his lack of family support and also due to the existence of corruption and political patronage networks which may further limit the employment opportunities available to the applicant.
Notwithstanding these issues the Tribunal is satisfied that there are a number of factors that make it more likely the applicant is able to secure some form of employment in the medium to longer term including his relatively young age and good physical health, his strong work ethic and his significant practical work experience. In addition, given that a number of international groups and NGO’s are currently operating in Lebanon the Tribunal is satisfied the applicant’s experience of having worked in a Western country with a relatively good practical understanding of English would also be of advantage.
The Tribunal accepts that for these reasons, in the short term at least, the applicant is likely to be without a reliable source of income and that given the lack of reliable government support this will present significant challenges for the applicant in meeting his day to day needs including accessing food, basic services and accommodation. The Tribunal has a higher level of confidence in the applicant being able to obtain work in the medium to longer term for the reasons set out above. These circumstances are tempered to some degree by the offer of some financial assistance from Ms F, although Tribunal accepts that the precise extent of that support is uncertain. The Tribunal is also satisfied that there are a number of NGO groups currently operating in Lebanon that provide support for people in meeting basic needs which may be of assistance to the applicant although there is no evidence before the Tribunal for it to be certain about the extent of such support. The Country Report at 604 of the G Documents noted that there are several NGOs operating in Lebanon that provide resettlement services for returnees including the Caritas Lebanon Migrants Centre and the International Organisation for Migration.
The Tribunal also accepts that the applicant is likely to face significant challenges in obtaining quality mental health services in Lebanon. As referred to earlier in these reasons, there is evidence in the Country Report of the limited mental health services available in Lebanon, particularly public funded services although there is some evidence of government efforts to improve services as well as NGO’s operating in Lebanon providing such services including in particular for those who have suffered drug addiction.
The Country Report notes at 574 of the G Documents:
Mental healthcare has been an increasing public concern, particularly given Lebanon’s long and traumatic civil war: individuals exposed to war-related events are at significantly higher risk of developing a mental disorder.
… Similar to the general health system, mental health services are predominantly provided by the private sector as well as mostly skewed to specialised outpatient and inpatient care. Provision of mental health services in outpatient care comprises mainly private clinics involving psychiatrists and psychologists. In a few cases multiple mental health specialists work in a multidisciplinary team to provide services. There are currently eight psychiatric wards in general hospitals that provide inpatient mental health services, and five active mental health hospitals. In 2014, as part of the MoPH plan for integrating mental health into primary health care (PHC), doctors, nurses, and social workers of 50 PHC centres within the MoPH network received training on assessing, identifying, managing, and referring mental health cases.
…The latest mental health decree law (72/1983) focuses on the organisation of the care, treatment, and rehabilitation of patients with mental health conditions, as well as protecting the rights of these patients and their families. It regulates guardianship issues for people with mental conditions and facilitates access to in-hospital care for the most vulnerable groups. The law stipulates the creation of a mental health body, under the governance of the MoPH, to oversee and implement mental health policies, and to monitor mental health services and treatment practices in health facilities. The decree law is currently under revision to address issues such as access to free community-based mental health care, standards and regulations for involuntary admissions, and the working modalities of the mental health body, in addition to accreditation of mental health professionals.
There was evidence in the Country Report of a significant NGO presence operating in Lebanon addressing a range of issues including specifically interventions for the rehabilitation and abstinence from drug use. At 575 the Country report states that:
Several non-government organisations (NGOs) are actively addressing issues related to substance use disorders through a variety of interventions such as prevention, rehabilitation, abstinence, and harm reduction. NGOs offer rehabilitation services in residential settings or in outpatient clinics.
The Tribunal accepts that if the applicant is forced to relocate to Lebanon he would be denied the opportunity to have access to his Australian based psychologist and would be unable to access the same quality of counselling services in Lebanon as those available to him in Australia. The Tribunal also accepts that the capacity of the applicant to be able to pay for any private services that do exist is likely to be significantly reduced given the significant possibility that he will, in short term at least, not have a reliable source of income. This is tempered to a small degree by the offer of financial assistance from Ms F although the Tribunal accepts that it is uncertain exactly what level of assistance Ms F will be able to provide and therefore that support cannot be relied upon.

In addition, the Tribunal accepts that there continues to be a significant level of social stigma associated with accessing mental health services in Lebanon. However, for the reasons set out in the section dealing with international non-refoulement, the Tribunal is not satisfied that the social stigma that exists is likely to significantly inhibit the applicant in seeking access to such services nor is the Tribunal satisfied, on the evidence before it, that such stigma is likely to materially adversely impact the applicant in any other way.
The Tribunal accepts that given the significant challenges the applicant is likely to face in transition to life in Lebanon his mental health conditions are likely to be exacerbated. The Tribunal notes the conclusion of Dr Sowden’s report in this regard. In addition, to the extent that the applicant is unable to access quality mental health services in Lebanon, his mental health conditions are likely to be further exacerbated. This will likely impact his general emotional well-being as well as his capacity to remain drug-free. This in turn could make dealing with other impediments he is likely to face extremely challenging.
The Tribunal also accepts that the applicant would be forced to deal with impediments of the kind described above without the immediate face to face support of his Australian family and friends. Further, while it is reasonable to infer that having lived in the country for 21 years the applicant is likely to have some connections there, and also that there was evidence of a good relationship with at least one nephew, the Tribunal otherwise accepts that the applicant has a strained relationship with his other immediate family members in Lebanon and therefore is not able to rely on them for practical support in any meaningful way.
The Tribunal also accepts that if relocated back to Lebanon the applicant will lose the opportunity to resume a face to face relationship with his daughters. While there may be some capacity to maintain contact by phone or other electronic means this is likely to be subject to constraints imposed by the applicant’s former wife which have been significant in the past. The Tribunal accepts that this is likely to have a very significant emotional impact on the applicant given the strength of his desire to re-establish a relationship with them.
The applicant would also be exposed to personal safety risks as a consequence of the recent escalation in violence in Lebanon as referred to earlier in these reasons.
For these reasons, the Tribunal satisfied that the impediments on return consideration weighs very heavily in favour of the revocation of the cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) by reason of his substantial criminal record. Therefore, the Tribunal is required to consider whether or not to exercise the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the applicant’s visa for “another reason”.
The Tribunal is satisfied that the applicant’s offending conduct is very serious, in particular as a consequence of his drug trafficking offences, weapon offences and the number of offences the applicant has committed in breach of court orders and bail conditions. The Tribunal is satisfied that if the applicant were to commit further offences of the same kind it has the potential to cause very significant harm to members of the Australian community.
The Tribunal is satisfied that the risk of the applicant recommencing his use of illicit drugs is real and that if he does so the risk of him reoffending again in a similar manner to his previous offences is high. As a consequence, the Tribunal is satisfied that the risk of harm to the Australian community is an unacceptable one.
The Tribunal accepts that the applicant has a genuine bond with his two daughters and a strong desire to re-establish a relationship with them and play a very significant role in their future lives. For the reasons set out above, the Tribunal is satisfied that the best interests of the applicant’s daughters would be served by a revocation of the cancellation of the applicant’s visa, although this is tempered by the interrupted nature of the relationship he has had with them, the relatively brief period before they turn 18 years old and also the fact that the applicant does not currently perform an active parental role in respect of them.
In relation to the applicant’s claims of potential harm should he be forced to relocate back to Lebanon, again for the reasons set out above, the Tribunal satisfied that those claims do not enliven Australia’s international non-refoulement obligations.
The Tribunal acknowledges the significant ties the applicant has developed with family and friends in Australia. The Tribunal notes in particular the significant relationship that the applicant has developed with his adopted Australian family and the positive role he has previously played and could continue to play in their lives if he were to be released back into the community. The Tribunal accepts that the decision to not revoke the cancellation of the applicant’s visa is likely to have a significant detrimental effect on both his adopted family and his circle of close personal friends, including his new potential relationship. The Tribunal also acknowledges the contribution the applicant has made to the Australian community through work, business activities and his association with various community groups although this contribution is tempered to some degree by the applicant’s offending relatively shortly after he first arrived in Australia as well as the significant period of time he has spent in prison or detention while residing here.
The Tribunal accepts that should be applicant be forced to relocate back to Lebanon he is likely to face very significant impediments in re-establishing his life there. The Tribunal acknowledges that given the state of the economy, high unemployment, political unrest, COVID-19 pandemic as well as existing practices of corruption and political patronage the applicant is likely to face significant difficulty in obtaining reliable employment in Lebanon in the short-term. This is likely to impose serious financial limitations on the applicant and in turn impact on his capacity to meet his day-to-day needs in the short term. In addition, the Tribunal accepts that the applicant is likely to have significant difficulty in accessing mental health services and that his mental health conditions are likely to be adversely impacted as a consequence of his relocation. The Tribunal acknowledges that the applicant has some risk of being exposed to violent activity as a consequence of the current political instability being experienced in Lebanon. The Tribunal also accepts that the applicant will be forced to manage these impediments without the immediate support of his Australian based family and friends and that he will be denied the opportunity to re-establish a face to face relationship with his daughters. For these reasons, the Tribunal is satisfied that the impediments on return consideration weighs very heavily in favour of the revocation of cancellation of the applicant’s visa.
While the consequences for the applicant in being forced to return to Lebanon are significant the Tribunal is also mindful of the significant breach of trust the applicant has engaged in through his repeated offending over an extended period of time. Despite multiple chances the applicant has continued to reoffend and the Tribunal is satisfied that there continues to be an unacceptable risk that he will do so again in the future. For these reasons the Tribunal is satisfied that the expectations of the Australian community consideration weighs heavily against revoking the cancellation of the applicant’s visa.
Having weighed the relevant considerations carefully, on balance, the Tribunal is satisfied that the heavy weighting against revocation with respect to the primary considerations of protection of the Australian community and expectations of the Australian community are, in the circumstances of this case, determinative. The Tribunal forms this view as a consequence of the applicant’s significant criminal history, serious nature of his offending, the unacceptable risk of future harm to the Australian community, the significant number of chances the applicant has been afforded and the fact that despite those chances the applicant has continued to reoffend.
Accordingly, the decision under review is affirmed.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 22 April 2020 not to revoke the mandatory cancellation of the Applicant’s Class BC Subclass 100 Partner (Migrant) visa.

201.
I certify that the preceding 200 (two hundred) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

..........................[sgd].......................................
Associate
Dated: 12 August 2020

Dates of hearing:
2 – 3 July 2020

Advocate for the Applicant:

Solicitors for the Applicant

Mr Vikas Jain

Wickham Lawyers Pty Ltd

Advocate for the Respondent:
Ms Siran Nyabally

Solicitors for the Respondent:
Australian Government Solicitor

[2020] AATA 2882

15 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Dates of hearing:	2 – 3 July 2020
Advocate for the Applicant: Solicitors for the Applicant	Mr Vikas Jain Wickham Lawyers Pty Ltd
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor