Barghachoun and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Barghachoun and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2304 (31 July 2023)
Division:GENERAL DIVISION
File Number:2022/4150
Re:Imad Barghachoun
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:31 July 2023
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 12 May 2022, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.............[Sgd].................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – Applicant fails character test – substantial criminal record – offences include armed robbery, dishonesty offences, assaults, property and traffic/ driving offences – Applicant is a 53-year-old man who arrived in Australia when he was 13 years old – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no family violence – strength, nature and duration of ties to Australia – best interests of minor stepchildren, great nieces and great-nephews in Australia – expectations of the Australian community – legal consequences of the decision – consideration of the Applicant’s protection claims deferred – extent of impediments if removed to Lebanon – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 197C, 499, 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report, Lebanon (26 June 2023)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1.1, 9.1.2, 9.1.2(1), 9.1.2(2), 9.1.2(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
31 July 2023
BACKGROUND

The Applicant is a 53-year-old man who was born in Lebanon.
He came to Australia on 2 August 1983 when he was 13 years old.
On 13 December 2012, the Applicant was convicted in the Sydney District Court of six offences relating to the armed robbery of a truck. These included the offences of “in company rob while armed with dangerous weapon-SI” for which he was sentenced to eight years and six months imprisonment, and “robbery while armed with dangerous weapon-SI” for which he was sentenced to six years imprisonment. The Applicant appealed the severity of his sentences for the six offences to the Court of Criminal Appeal. His appeal was successful with respect to the two offences I have mentioned with those sentences being reduced to six years and four years respectively (R1/84-85).
Consequently, the Applicant’s Class BF Transitional (Permanent) visa (Visa) was mandatorily cancelled on 25 October 2016 while he was in prison pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he failed the character test because he had a substantial criminal record and was serving a fulltime sentence of imprisonment (R1/269) (Cancellation Decision).
The Applicant requested revocation of the Cancellation Decision but on 12 May 2022 a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/48) (Reviewable Decision).
The Applicant sought review of the Reviewable Decision in the General Division of this Tribunal, but on 8 August 2022, a differently constituted Tribunal affirmed the Reviewable Decision (R1/2494) (First Tribunal Decision).
The Applicant appealed the First Tribunal Decision in the Federal Court of Australia. On 29 September 2022, the Federal Court, by consent, set aside the First Tribunal Decision and ordered that the application be remitted to the Tribunal to be heard and determined according to law. The Court noted that the First Tribunal Decision was affected by jurisdictional error due to a failure to properly consider the impact of the decision on the Applicant’s immediate family members in Australia (R1/2898).
Thus, the decision under review is the Reviewable Decision of 12 May 2022.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
The re-hearing of this application was in person on 18 and 19 April 2023.
The Applicant was represented by Dr J Donnelly of Latham Chambers. The Respondent was represented by Ms C Taggart of Francis Burt Chambers instructed by Ms C Mumford of The Australian Government Solicitor.
The Applicant gave evidence on the first day of the hearing.
On the second day of the hearing, clinical and forensic psychologist Dr Emily Kwok gave evidence by Microsoft Teams. So did the Applicant’s wife, Souraya, and his nephew, Abdul, who gave evidence by telephone.
I admitted the following documents into evidence at the hearing:
(a)Supplementary statement of the Applicant dated 26 January 2023 with annexures A-I (Exhibit A1);
(b)Supplementary statement of Souraya dated 26 January 2023 with annexures A-D (Exhibit A2);
(c)Psychologist report of Dr Kwok dated 9 December 2022 (Exhibit A3);
(d)Remittal Bundle, labelled 1-15, comprising pages 1- 2955 (Exhibit R1);
(e)Supplementary Remittal Bundle, labelled 16-17, comprising pages 2956-3164 (Exhibit R2);
(f)Respondent’s Further Tender Bundle, labelled RTB49-RTB54, comprising pages 1-22 (Exhibit R3); and
(g)Email trail between the Applicant’s wife and Dr Kwok between 28 September 2022 and 2 December 2022 (Exhibit R4).
The Applicant filed a Statement of Facts, Issues and Contentions (SFIC) dated 26 January 2023. At that time, Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) applied.
However, a new Ministerial Direction, Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) commenced on 3 March 2023. The Respondent filed a SFIC dated 6 March 2023 which addressed Direction No 99.
The Applicant filed submissions in reply on 12 April 2023 which also updated the Applicant’s 26 January 2023 SFIC to include submissions regarding Direction No 99.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a 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.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(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 a 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:
i.      that the person passes the character test (as defined by section 501); or
ii.     that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. As I mentioned above, this Direction replaced the previous Direction No 90 made on 8 March 2021.
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
A person will not pass the character test due to the operation of s 501(6)(a) of the Migration Act if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I mentioned in the background section above, on 13 December 2012, the Applicant was convicted in the Sydney District Court of six offences relating to the armed robbery of a truck. These included the offences of “in company rob while armed with dangerous weapon-SI” for which he was sentenced to eight years and six months imprisonment, and “robbery while armed with dangerous weapon-SI” for which he was sentenced to six years imprisonment. After appealing the severity of his sentences, his appeal was upheld with respect to those two offences, with the sentences being reduced to six years and four years respectively. His appeal was dismissed with respect to the other four offences, for which he had been sentenced to terms of imprisonment of 12 months or more. These sentences comprised: two offences of “larceny value >$15000-T1” for which the Applicant was sentenced to two years imprisonment; an offence of “larceny value <=$2000-T2” for which he was sentenced to 12 months imprisonment; and “take and drive conveyance without consent of owner” for which he was sentenced to two years and six months imprisonment.
Consequently, the Applicant fails the character test, based on any of these sentences of imprisonment. I also note that the Applicant concedes that he does not pass the character test.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)

Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(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 (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(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 the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     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;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant conceded (Applicant’s SFIC, para [48]) that:
In totality, the Applicant has a very lengthy criminal history in Australia that includes multiple very serious crimes of violence, which are reflected in the lengthy prison sentences he has received. His crimes have resulted in significant harm to the Australian community and the Tribunal would regard them as very serious.
I agree with this assessment for reasons that I will now outline.
Some of the Applicant’s offences fall within one of the specific categories of offending that Direction No 99 states should be “viewed very seriously” because they are “violent crimes” (para 8.1.1(1)(a) of Direction No 99) and “seriously” because they are crimes against police in the performance of their duties (para 8.1.1(1)(b)(ii) of Direction No 99). These include, (with the listed dates being Court dates):
(a)three counts of “assault police” (8 March 1993);
(b)“assault” (29 October 1993); and
(c)two offences for “assault occasioning actual bodily harm” (21 February 1995 and 22 February 1996).
On 15 December 2020, the Applicant was convicted of four offences committed while he was in immigration detention. Paragraph 8.1.1(1)(b)(iv) of Direction No 99 lists crimes committed while a non-citizen is in immigration detention as a type of crime or conduct that the Australian government and the Australian community view as “serious”. The offences were two offences of “Deal with property proceeds of crime<$100000-T2 (Attempt)” (committed on 4 and 28 December 2019) and two offences of “Deal with property proceeds of crime<$100000-T2” (committed on 27 December 2019 and 8 January 2020). The offending involved the Applicant exchanging text messages with a co-offender to make arrangements to obtain cars from car dealers using fraudulent credit cards.
The categories of offences that can be regarded as “serious” or “very serious” are not limited to the categories of offences set out in in paragraphs 8.1.1(1)(a) and (b) of Direction No 99. Those categories are not, exhaustive and other offences can be serious or very serious. In my view, the offences that formed the basis of the Cancellation Decision can be regarded as being serious.
These offences were committed by the Applicant on the same day with co-offenders.
The sentencing Judge outlined the series of offences as follows. I have included the offence names in bold (R1/163-4):
After a four week trial, on 15 October 2012 a jury found the offenders, Hussein, Barghachoun, Manly and Riley, guilty of committing the following offences on 19 August 2011:
1.    Hussein, Barghachoun and Manly: Attempt to steal an airport shuttle bus, an offence against s 117 and 154A of the Crimes Act 1900. Maximum available penalty: five years. [larceny value >$15000-T1]
2.    Hussein, Barghachoun and Manly: Attempt to steal a BMW vehicle, an offence against s 117 and 154A of the Crimes Act 1900. Maximum available penalty: five years. [larceny value >$15000-T1]
3.    Hussein, Barghachoun and Manly: Robbery of a Mazda sedan and contents being armed with a dangerous weapon, an offence against s 97(2). Maximum available penalty: twenty-five years. [robbery while armed with dangerous weapon -SI]
4.    Hussein and Barghachoun: Steal number plates, an offence against s 117. Maximum available penalty: five years. [larceny value <$2000-T2]
5.    Riley: …
6.    All offenders: Robbery of truck and contents being armed with a dangerous weapon, an offence contrary to s 97(2). Maximum available penalty: twenty-five years. [in company rob while armed with dangerous weapon -SI]
…
10. Barghachoun and Riley: Steal Mazda bus, an offence against ss 117 and 154A. Maximum available penalty: five years. [take and drive conveyance without consent of owner-T2]
The sentencing Judge continued to outline the facts of the offences (R1/165-167).
The facts of the offences are that, at about 9pm on 19 August 2011, an unmarked Pantech truck left Bankstown with a valuable cargo including mobile telephone handset and foreign currency. The truck was to drive north along the Pacific Highway to Queensland.
Offences 1 and 2: At about 9:05pm on 19 August, Hussein and Barghachoun entered a service station at Silverwater for the purpose of stealing a vehicle for use in the intended robbery of the truck. They wore hoodie tops that partially concealed their faces. Hussein wore a black and white scarf across his face. He approached the driver of an airport shuttle bus that was located at the petrol pumps. He asked for the keys to the bus. The driver refused and ran to the office of the petrol station. Hussein and Barghachoun then approached the driver of a BMW. Barghachoun asked for the keys to that vehicle. The driver made an excuse and did not provide the keys. Hussein and Barghachoun ran from the service station. Manly had been waiting nearby in his dark blue Subaru WRX vehicle. Hussein and Barghachoun entered Manly’s vehicle.
Offence 3: Manly drove to the Vittoria Coffee Warehouse, which was about a block away. A security officer was seated in his silver Mazda vehicle at the warehouse entrance, waiting to be admitted to the premises. Manly stopped his vehicle behind that of the security officer. Hussein exited Manly’s vehicle armed with a Browning pistol. He opened the door of the Mazda and cocked the pistol. The security officer vacated the Mazda. Hussein drove the Mazda from the premises. The Mazda and Manly’s Subaru travelled north up the Pacific Highway. After the vehicles reached northern Sydney, Barghachoun and Manly called each other. Inferentially, by that stage Barghachoun was in the stolen Mazda. From about Ourimbah, the vehicles travelled in convoy until they reached Bulahdelah.
…
Offence 4: At a highway service station, Hussein and Barghachoun, the occupants of the stolen vehicle, stole number plates from a parked vehicle and attached them to the stolen Mazda for the purpose of disguising the vehicle.
Offence 6 and 7: pattern about 11:30pm, in an area of road works just north of Bulahdelah, the stolen Mazda overtook the Pantech truck, blocked its part, and forced the truck driver to stop the vehicle. Hussein, Barghachoun and Riley were in the stolen Mazda. Hussein exited the stolen Mazda armed with the Browning pistol. He fired a shot at the truck windscreen, striking the passenger side of the windscreen. Hussein walked to the driver’s door of the truck brandishing a firearm and indicated that the driver should leave the vehicle. The driver got out of the vehicle. When he began to walk towards the rear of the truck, Hussein fired a shot at the ground and directed the driver to the side of the road near the front of the truck. He indicated that the driver should kneel on the ground. Hussein pushed the firearm into the driver’s back and directed him to remain in a kneeling position. Barghachoun and Riley entered the rear cargo area of the truck. Manly was at least waiting in the vicinity for the purpose of assisting if required.
…
Offence 10: Barghachoun and Riley drove the Pantech truck north up the highway for a short distance. They then turned off the Pacific Highway and drove towards a waste depot. Inadvertently, they drove the truck into a roadside culvert. Forced to abandon the truck, they walked a considerable distance through bushland south towards Bulahdelah. On the northern side of Bulahdelah, they came to a sawmill. They stole the bus belonging to the sawmill, which they drove north east to the Forster area. At about 3am on 20 August, police arrested them. When he was taken into police custody, Barghachoun appeared to be withdrawing from heroin use.
…
The following remarks from the sentencing Judge indicate the seriousness of the truck robbery (R1/169):
Offence 6 was an objectively serious armed robbery. It was planned. The Pantech truck was unmarked and carried a valuable cargo. The offenders must have been aware of the cargo and targeted the truck because of the cargo that it was carrying. The offenders were prepared to drive a considerable distance up the Pacific Highway to rob the particular truck. Some hours before the robbery, they attempted to steal a vehicle for use in the robbery. As a travelled up the highway, they maintained telephone contact. The offence was committed in company. The truck driver was aware that Hussein was accompanied by at least two other people.
The sentencing Judge also commented on the detrimental impact the offence had on the truck driver, which in my view is a further indication of the seriousness of the offending (R1/164-165):
At this point I should acknowledge that the injury suffered by the victim of the truck robbery was a very serious injury. He continues to experience a high level of emotional trauma associated with the offence. Prior to August 2011, he enjoyed his job. In June 2012, he terminated his employment because it placed him under too much stress. He continues to experience a high level of anxiety and has difficulty finding enjoyment in any aspect of his life. Among other things, he is unable to enjoy the former pleasures of spending time with his children and grandchildren. In the witness box, the victim appeared to be extremely anxious. He was visibly shaking.
The sentencing Judge later stated (R1/169):
I accept that the driver suffered very serious emotional harm. However, the offence was very serious.
Additionally, the sentencing Judge observed: “The victim was in a vulnerable position as a truck driver driving in the country late at night” (R1/170).
Further, the sentencing Judge remarked that other relevant aggravating features were that the Applicant was on bail all at the time that he committed the offences and that he had it record of previous convictions for offences of the same nature, namely “serious offences of dishonesty” (R1/169-170).
I find that the sentencing Judge’s comments, including that the offending was pre-meditated, serious, in company and against a victim in a vulnerable position who suffered considerable emotional harm as a result, supports a finding that the “in company rob while armed with dangerous weapon-SI” offence was very serious. The other offences in which the Applicant was a co-offender are also serious because they were part of a series of offences that led to and facilitated the robbery of the truck.
The Applicant also has driving offences in 1988 (unregistered vehicle, carry pillion passenger, uninsured vehicle, not wear helmet) and in 1991 (drive whilst disqualified, unregistered vehicle and uninsured vehicle). Whilst driving offences are sometimes regarded as being serious because of their potential to harm innocent road users, they are early in his record and are at the less serious end of the scale than other driving offences, for example those involving reckless or dangerous driving or driving under the influence of drugs.
The Applicant has committed numerous dishonesty offences of varying degrees of seriousness. They include “break, enter and steal”, “receiving”, “imposition” (social security fraud), “stealing”, “make false instrument” and “use false instrument”. Other dishonesty offences are of a more serious nature including “armed robbery”, “robbery being armed” and “attempt dispose property – theft = serious indictable offence >$5000-T1”, “deal with property suspected proceeds of crime” and “deal with property proceeds of crime < $100000-T2”.
Direction No 99 also contemplates that the decision-maker can consider a non-citizen’s conduct to date as well as his offending. There have been numerous incidents concerning the Applicant in immigration detention which I discuss in further detail in the next part of this section concerning the likelihood of engaging in further criminal or other serious conduct. However, these incidents, including an alleged assault of another detainee in April 2017, did not result in any criminal charges. Overall, I do not think these incidents in immigration detention affect, in a material or significant way, my overall finding about the nature and seriousness of the Applicant’s offending (or conduct) in this section.
The Applicant’s criminal history shows that he has received some fines, but that the Courts have also imposed numerous sentences of imprisonment. These include the following sentences:
(a)Two years imprisonment with a 12-month non-parole period on 22 March 1989 for “steal motor vehicle”;
(b)Imprisonment (for six months, four months, two months and a further two months each on three counts), reparation and a two-year good behaviour bond for “imposition” (social security fraud) offences on 1 June 1994;
(c)12 months imprisonment for three counts each of “stealing”, “make false instrument” and “use false instrument” on 11 May 1995;
(d)A four-year fixed term of imprisonment for “robbery being armed” and a minimum term of four years add term of two years and six months release subject to supervision for another offence of “robbery being armed” on 1 September 1995;
(e)A fixed term of four months imprisonment for “assault occasioning actual bodily harm” on 22 February 1996;
(f)16 months imprisonment, a non-parole period with conditions and release subject to supervision for “deal with property suspected proceeds of crime” on 8 October 2008;
(g)12 months imprisonment with a non-parole period of nine months and release subject to supervision for “attempt dispose property – theft = serious indictable offence >$5000-T1” on 18 September 2009; and
(h)As I have mentioned above in the sections on “background” and whether the Applicant passes the character test, after a partly successful appeal of the severity of his sentences on 13 December 2012, the Applicant’s sentences of imprisonment were reduced to six years imprisonment for “in company rob while armed with dangerous weapon” and four years imprisonment for “robbery while armed with dangerous weapon-SI”. The sentences for the other offences that were not disturbed by the appeal were: “larceny value >$15000-T1” (two offences) for which the Applicant was sentenced to two years imprisonment; “larceny value <=$2000-T2” for which he was sentenced to 12 months imprisonment; and “take and drive conveyance without consent of owner-T2” for which he was sentenced to two years and six months imprisonment.
These numerous and sometimes lengthy sentences reflect the seriousness with which the Courts regarded the Applicant’s offending (para 8.1.1(1)(c) of Direction No 99).
The Applicant’s adult history consists of approximately 44 criminal offences between 1988 and January 2020. His offending can therefore be regarded as frequent. There was a break in the Applicant’s offending between 2002 to 2007 which suggests that the Applicant is capable of living in the community and not offending.
Dishonesty offences appear throughout the Applicant’s criminal record, and his assault offences appear earlier in his record (1993, 1995, 1996), as do his driving offences. He has several serious offences throughout his history, as reflected by the nature of these offences (for example, offences involving violence and armed robbery). Overall, there is a slight trend of increasing seriousness which is reflected in his lengthy sentence for the offences concerning the armed robbery of the truck in company that formed the basis for the Cancellation Decision (para 8.1.1(1)(d) of Direction No 99).
There would be a cumulative effect of repeated offending due to the many court appearances, fines imposed, and numerous terms of imprisonment. This would have the effect of burdening the resources of police, corrective services and the Courts which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of any such conduct.

Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has received two prior warnings. At the hearing there was some confusion about the dates of the warnings. I think this was because he was not asked about the first warning in 2001, and because the Applicant recalled he received warnings in 2010 and 2016. There was some confusion here because the 2016 “warning” was in fact the current Cancellation Decision.
The first warning was in a letter dated 5 July 2001 given to the Applicant when he was in Long Bay prison which advised him of a decision not to cancel his visa and warned him that cancellation could be considered in the future (R1/210). He was also given a verbal warning (R1/211). The Applicant recalled receiving a warning when he was in Long Bay prison, which I infer was this warning (transcript/21). He was not asked about why he did not take this warning seriously, and so I draw no adverse inference from this warning.
On 21 May 2010 the Applicant was notified, in a letter sent to his representative, that his visa may be liable for cancellation under s 501 of the Migration Act on character grounds. In a subsequent undated letter (that appears to have been sent to the Applicant on or after 23 November 2010) advising him that the delegate had decided not to cancel his visa, the Applicant was given a warning (R1/213) that:
… visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
He was asked about this second warning at the hearing. The Applicant’s evidence was that he did not take the warning seriously and that he thought that after his lawyer dealt with the matter that the issue had gone away (transcript/22-23).
After receiving this warning, the Applicant committed the truck robbery offences which formed the basis of the Cancellation Decision. After his release from prison into immigration detention on 19 February 2017, the Applicant committed one offence whilst he was in prison and four offences in immigration detention. In prison, on 14 April 2016, he committed the offence of “inmate possess mobile phone/SIM card” for which he was sentenced to two weeks imprisonment. I have already discussed the four offences he committed in immigration detention above (for which he appeared in Court on 15 December 2020) which involved the Applicant and co-offenders trying to obtain cars from a car dealer by fraudulent means. It is concerning that the Applicant did not take the November 2010 warning seriously and that he committed numerous offences after receiving it. That, in my view, adds to the overall seriousness of his offending.
The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant has a lengthy criminal history of frequent offending, and his frequent offending would have had a cumulative effect. His offending includes some offences (such as dishonesty and driving offences) which can be considered less serious but also more serious offences including armed robberies and violent offences such as assault occasioning bodily harm. He has received several sentences of imprisonment including a lengthy sentence for the offences on which the Cancellation Decision was based. Sentences of imprisonment and release on bail have not, however, deterred him from further offending. The Applicant has reoffended after serving sentences of imprisonment, since being formally warned that further offending would affect his migration status, and whilst in prison and immigration detention.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
The harm that could result to members of the Australian community if the Applicant were to reoffend in a violent manner could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims. As I outlined above, that was certainly the case with the truck driver victim who suffered significant psychological distress and reduced enjoyment of life because of the offending.
Dishonesty offences such as “stealing”, “armed robbery”, “larceny”, “imposition” and offences involving dealing with the proceeds of crime can cause psychological distress to victims and financial harms in the form of increased costs to the community including increased insurance premiums.
These harms are applicable to this application if the Applicant was to reoffend in a violent manner or if he was to commit further dishonesty offences.
The Applicant has some driving offences early in his criminal record (1988, 1991 and 1993). Road traffic laws such as laws that require drivers to be licensed and that vehicles be registered and insured exist to ensure that persons driving cars are appropriately qualified and safe to do so. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users. However, given that the Applicant only has several offences of this nature committed over 30 years ago, it is unlikely that the Applicant will engage in that type of conduct in the future.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 99).
The Applicant is a 53-year-old man who has a lengthy criminal history spanning over 30 years. He has reoffended despite numerous prison sentences and opportunities for supervision in the community. He committed the offences associated with the armed robbery of the truck whilst on bail, and after receiving two warnings that further offending may result in his visa being cancelled. As I have detailed above, he has also committed one minor offence in the controlled environment of prison and four offences in immigration detention after the cancellation of his visa. This history suggests a likelihood of reoffending.
There was, however, a period between October 2002 and September 2007 where the Applicant did not commit any offences. On 19 January 2010, a sentencing Judge who decided an appeal against the severity of the Applicant’s sentence for “attempt dispose property – theft = serious indictable offence >$5000-T1”, confirmed the conviction but observed that he was released to parole in 2007 and lived a law-abiding life until September 2007 (R1/175-176). This suggests that the Applicant is capable of living in the community without committing any offences. The Judge also noted that at the time the Applicant committed this offence, and an earlier offence for which he had been in prison and served a sentence, “he was under enormous financial pressure”. The Judge observed that one of the Applicant’s brothers “took advantage of his ageing parents” and had taken out a mortgage over his parents’ home. The Judge explained that: “[i]n view of the obligations of trying to repay enormous debts he was working fifteen to sixteen hours a day six to seven days a week, trying to finance those repayments”; that he was using amphetamines to “stay awake to be able to do the work he was doing”; and that “I suspect that it was a crushing burden for him” (R1/176). The writer of a Violent Offender’s Therapeutic Program (VOTP) report for the Applicant dated 28 August 2017 stated that the Applicant had disclosed he was using heroin and methamphetamine (ice) at the time of the truck robbery offences and that he also had gambling issues with poker machines. He also stated that he intended to use the money from the truck robbery to prevent the bank repossessing the family home (R1/334). The Applicant’s parents are now deceased, and he is likely not to have to face this type of burdensome financial issue if he is released into the community because he no longer has to service this debt, will live with his wife and will have stable employment with his nephew.
The Applicant experienced childhood trauma. In a statutory declaration dated 30 October 2017, the Applicant described seeing legs and body parts in the street and seeing his next-door neighbour being raped (R1/376). He also described to clinical psychologist Yvette Aiello from STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors), who wrote a report dated 21 December 2017, that his only memories of Lebanon are of war and that “he was exposed to frequent horrific scenes as a result of the civil war in Lebanon” including “often seeing dismembered body parts and having to sleep in the ‘dungeons’ of the building they lived in because of bombing” (R1/739). Ms Aiello stated that the Applicant, “presented and reported symptoms of Depression, Anxiety and Post Traumatic Stress Disorder (PTSD) as a consequence of his experiences in Lebanon which have been re-triggered by the threat of a forced repatriation in the context of his detention in VIDC [Villawood Immigration Detention Centre]” (R1/744). These findings were consistent with those stated in an earlier report dated 14 July 2017 by registered psychologist Thea Gumbert-Jourjon who noted the Applicant reported symptoms of depression and anxiety and that he showed significant symptoms of post-traumatic stress disorder (PTSD) (R1/482). The Applicant has previously been prescribed anti-depressant and anti-psychotic medication from approximately 2012, but Ms Gumbert-Jourjon reported that at the time of her assessment (April 2017), he had stopped taking those medications approximately a year ago (R1/476). The Applicant has previously attempted suicide on at least two occasions in 1994 and 2014 (A3/4; see also R1/733). Ms Gumbert-Jourjon recommended that the Applicant would likely benefit from the maintenance program of the VOTP, from participation in Narcotics Anonymous to assist him to manage his addiction to heroin and ice and counselling, including trauma counselling (R1/745).
As I have mentioned, the Applicant has a history of illicit drug use which he described to psychologist Ms Gumbert-Jourjon, and which she outlined in her report dated 14 July 2017 (R1/469). The Applicant was first introduced to heroin at age 27 by his cousin. He stopped using drugs in approximately 2003 or 2004, but then relapsed in 2006. He sought assistance and was prescribed buprenorphine which helped him to remain abstinent for six months until 2007 when he began using crystal methamphetamine, relapsing to heroin use shortly after. He used ice (methamphetamine) every day and heroin to sleep at night. When sentencing the Applicant on 13 December 2012 for the offences arising from the truck robbery, the sentencing Judge referred to the Applicant having “an apparently entrenched drug addiction that seemingly continued during periods of incarceration”. The sentencing Judge doubted the Applicant’s stated intention that he wanted to reform (R1/168). Ms Gumbert-Jourjon also stated that the Applicant used heroin, ice, and buprenorphine while in custody between 2012 and 2014 but made the decision to cease drug use on his birthday in 2014 (R1/475). At the hearing, he admitted having approximately five lapses to drug or alcohol use since 2014 in prison or immigration detention including getting drunk on home brewed alcohol and that he “had a joint” in immigration detention. His last lapse was approximately two years ago when he had a drink of home brewed alcohol (transcript/33-34, 48-49). His evidence was that although he had these lapses, he had not been an addict since 2014 (transcript/37). On the one hand, the Applicant’s lengthy and entrenched history of drug use is concerning and suggests that it may be difficult for him to abstain in the community. On the other, his period of abstinence, with his last lapse being approximately two years ago, may assist him to remain abstinent if he is released into the Australian community.
At the hearing the Applicant showed insight and remorse into his offending. He said he was “disgusted” by his offending and that his criminal behaviour was “pathetic”. He stated (transcript/2):
It’s not the way I was raised, you know what I mean. I was off the rails. I was off the rails for a long time. I done a lot of bad things that I can’t take back unfortunately, and looking back now I’m glad I didn’t kill someone or even worse, do you know what I mean. I’ve been getting in trouble a long time, a long time in the past.
The Applicant accepted that his offending would have caused harm to the community including physical and psychological harm (transcript/2-3). The Applicant also said that he has let down his family by his offending and detention, stating “this is killing the whole family” and that his offending “was embarrassing for the family” (transcript/3 and 17). He further said that his adult daughter, Mariam, “just wants this nightmare to be over” (transcript/17). I note here, for clarity, that the Applicant also has a nine-year-old stepdaughter who is also called Mariam whose interests are discussed below under the best interests of minor children primary consideration. The Applicant also stated that he is calmer and has matured (transcript/18). This insight and acceptance of responsibility for his offending and the impact on his family shows some maturity and may be a protective factor that may lower the likelihood of future reoffending.
The Applicant is now a 53-year-old man who has been in prison and immigration detention for approximately 12 years. He described that being in detention had “been the biggest wakeup call of all”, that he had matured, the impact of his parents passing away while he was in custody and his desire to have a “normal” life (transcript/6):
I won’t be committing any more crime. I’ve over that life, I’m over it. I’m over it. I’ve had enough. I’ve lost my mum and dad while I’m in custody, and I will never forgive myself for that, but unfortunately it’s just the way life is, we’re all going to die one day, you know what I mean, but I’m different, I’m a different man. I’ve over it. I want to be - I want to have a good life whatever is left, I want to have a good life. I want to enjoy life. I don’t want to look over my shoulder every day, I just want to live like normal human beings, like a normal Australian citizen, normal, normal people, man. That’s all I want.
The lengthy time the Applicant has spent in immigration detention, his fear of the prospect of deportation to an unfamiliar country (transcript/11) and permanent separation from his family is likely to deter the Applicant from future reoffending if he is released into the Australian community.
He described having matured and that his cousin who was a negative influence died in 2014, and another friend who was also a negative influence, died in 2018. He did not, however, seek to blame his negative peers, and said of his cousin (transcript/5):
He introduced me to armed robberies. He introduced me to violence in this country. I can’t blame him, like now that he’s passed away. I blame it in myself because that’s the choice I made, because (indistinct) I used to always blame everyone and anyone except myself. It’s called system bashing or - but I can only blame myself because at the end of the day it was my choice, and they’re the choices I made and that’s what got me in trouble and that’s why we’re here today, and I’m sorry for that, I really am.
During cross-examination, the Applicant described how he thought he had wasted his life and that he now took responsibility for his offending, instead of blaming others (transcript/35):
I’ve been wasting my life for the last 25 years. I’ve been just wasting it. I’ve been putting myself through trauma, giving myself a hard time for getting locked up instead of being out and enjoying life, going to a restaurant, going to a family outing, doing - going for a drive, you know what I mean, take your wife and the kids out, enjoying life to its fullest. Instead I chose - I chose the shit life, which landed me in jail for the most part of my life. That’s the honest truth and who can I blame for that except for myself. No one. True. It took me a long time to accept that it’s not them. It’s me because if I didn’t do this I wouldn’t be here. If I didn’t do that I would be there. It took a long time, man. I used to always blame the police and blame the corrective services, blame everyone else except myself. Everyone else except myself and that’s the truth. That’s what I used to do before, but I’ve got to look at myself. It’s my fault. They’re the choices I made and that’s what got me in here and I can only blame myself for me being here, right here, in front of you now. I can only blame myself. No one else. No one else. No one else
The Applicant’s insight about the role of negative peers whilst accepting his own responsibility for his choices, and the absence of these negative peers if he is released into the community, is likely to be a protective factor.
The Applicant also has a very supportive extended family in Australia. Many of his family members including his adult daughter Mariam, ex-wife Nasrien, siblings (Bill, Dib and Fouadi), nephews Abdul and Hiam and niece Randa and her husband Samer, have offered to support the Applicant (including to provide him with accommodation) if he is able to stay in Australia. The Applicant admitted at the hearing that he had the support of his family members in the past but that it was not protective (transcript/35). Nevertheless, the Applicant’s family have stood by him, even during the last 12 years he has been in prison and immigration detention. He appreciates the detrimental impact that his offending, incarceration, and detention have had on them, which is likely to offer some motivation for him not to reoffend.

Since 2020 (for approximately three years), the Applicant has been in a relationship with his wife Souraya and has formed a strong bond with her three minor children whom he regards as his stepchildren. The Applicant described how his outlook on life changed after he met Souraya (transcript/34-35):
I couldn’t give a fuck if I was dead or alive sometimes, most times - excuse the language, Miss - most times. I’m being honest with you, I don’t - I couldn’t care if I’m dead or alive, I swear to God, but when I met Souraya I’ve got a new lease on life with her and the kids. I’ve never looked at life the way I look at it now. That’s honest to God truth. I have never been so positive in my way till up to about say two and a half years ago. I’ve looked at the world in a total different way, whether it’s the age or it’s not, whether it’s her, her positive input on me. It’s mainly her and the kids and me looking at the world in a different perspective, you know what I mean.
He stated of the children (transcript/6-8):
I’ve got the best relationship with the children. I consider them my own.
…
I bring the best out of them and they bring the best out of me.
…
They bring happiness to my life. They bring happiness to my life. They help - I could be having the worst day and just - you get on the video call and, bang, they put a big smile on my face, and (indistinct) too, you know what I mean. We play roles and we play games on the phone. I never had the opportunity with my daughter, because I’ve got a daughter as well. I never had the opportunity with my daughter, because we never had phones in jail. Obviously you can’t have phones in jail, but in detention you can have phones and video calls and that. Yes, because I wasn’t there when my daughter was growing up, I was in jail. So I missed out on this best part of her life as well, so I’m getting it back, that experience through Souraya’s kids, and it’s beautiful, man, it is. It is.
…
They’re my stepchildren, they’re like my kids. I love them just as much as my kids. I love them with all my heart.
Souraya is a pro-social person who cares deeply for the Applicant. His desire to be a family with her, and the children, is likely to provide motivation not to relapse to drug use or to reoffend.
The Applicant was also able to demonstrate some consequential thinking at the hearing and described the impact that future offending may have on his stepchildren (transcript/41).
… it took long long time for me to think of the consequences if I was to do this or if I was to do that. There’s couple of times come close where I was going to, like do something that’s illegal and then you think of the consequences and then just step back for a second. Just chill out. Think. Now if I do this this can happen, that can happen, that can happen, this can happen. You eliminate it - is it worth it and then you just go backwards, “Is it worth it losing the kids? Is it worth it, this? Is it worth it, that?” Making better choices - I’m making better choices, and I am happy by the choices I’m making, lately, in the last couple of years. I am very happy. I am.
The Applicant also has a plan for when he is released into the community. He will live with Souraya and the children in Sydney. He will continue his mental health treatment including seeing a general practitioner to obtain a mental health plan and will see a psychologist on a regular basis (transcript/10). He will obtain full-time employment with his nephew at a concrete pumping business which has already been arranged and which will involve regular drug testing before he is permitted onsite (transcript/42-43). He wants to marry Souraya under Australian law (because they have only had a religious ceremony via Zoom), to sustain and develop his relationship with her and to be a family with Souraya and the children. He wants to provide emotional, financial, and practical support to Souraya and the children and to be a father to them (R1/1294-1295). Having a mental health plan, participating in family life and employment are positive factors that are likely to be protective and may assist the Applicant not to resume drug use and not to reoffend.
The Applicant also gave evidence that he had learnt a lot from completing the VOTP. He said that he started the program in 2015 but did not finish it until 2017 because he had to stop the program due to disciplinary issues. He was honest in admitting that when he first started the course, he found it difficult and that when he first attempted to do it in 2001, he was not motivated (R1/376). His evidence was that the program taught him a lot about himself, about peer pressure and acting on impulse. He said that it was the best thing that ever happened to him (transcript/3-4). I note that the report from the VOTP stated that he was “currently assessed as within the high risk category for violent reoffending” (R1/349). The report continued to detail the context in which he may reoffend violently which, in summary, was “if he were to return to a similar way of life as he had during his previous community living” including if he continued to use illicit substances, engaged in gambling, associated with anti-social peers, lacked community supports and felt overwhelmed or stressed by community life (such as having family issues or financial issues) (R1/349-351). On the one hand, it is of concern that the Applicant apparently remained a high risk at the time of completing the program. On the other, I find that he is unlikely to “return to a similar way of life”. He now has a plan for mental health treatment in the community, to abstain from drugs, his anti-social peers are deceased, and he has substantial support from his wife Souraya, and his family members. I also note that in her report dated 14 July 2017, Ms Gumbert-Jourjon reported that the Applicant had engaged well with the VOTP, that facilitators had reported that he had demonstrated treatment gains and positive emotional changes, developed insight, and taken responsibility for his offences. She noted his commitment to maintaining a drug free lifestyle and to engaging in treatment in the future (R1/482-483). This suggests that the Applicant did make some positive treatment gains after completing the program.
The Applicant described being treated by a “psych” during the times he was “on and off in jail” (R1/376). He has previously completed other programs between October 2013 and January 2016 but described the VOTP as being “more intense and more helpful than the other courses” (R1/377). These included the Best Bet Program, Getting Smart Program (12 sessions), Smart Recovery (four sessions), Equips Foundation Program (20 sessions), “RUSH” Program: Real Understanding of Self-Help and Health Survival tips program (R1/422; 476; and 218-223). Ms Aiello also stated in her report of 21 December 2017 that the Applicant had connected with Narcotics Anonymous while he was at Villawood Detention Centre and that he had contacted his previous counsellor in Long Bay Correctional Facility for support after a recent lapse (R1/742-743). In a report dated 17 July 2020 (R1/775), consultant psychologist Mr Tim Watson-Munro noted that the Applicant:
… has now started with the STARTTS program (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) and has evidently had two sessions with a Psychologist. He intends to continue treatment whilst in detention and if he is permitted to return to the community, there will be additional follow-up sessions.
Mr Watson-Munro opined that the Applicant “would benefit from ongoing supportive and motivational psychotherapy, in addition to Dialectical Behaviour Therapy”. He further stated that: “It is clear that there are a range of protective factors in place for him should he be released to the community, including strong family ties, the offer of employment, an absence of substance use, expressions of remorse and a desire for treatment” (R1/1074).
The Applicant also told Dr Kwok, who wrote a report dated 9 December 2022, that prior to his release from custody into immigration detention in February 2017, he attended six sessions of Narcotics Anonymous and Crystal Meth Anonymous. He also told Dr Kwok that he attended “two or three” STARTTS counselling sessions and about 10 individual counselling sessions at the detention centre (A3/5).
Dr Kwok, who gave evidence at the hearing, thought that the Applicant met the diagnostic criteria for PTSD. She assessed the Applicant as being a moderate risk of reoffending, at the lower end of moderate. She recommended treatment by an interdisciplinary team consisting of a general practitioner, psychiatrist, and psychologist with training in PTSD, including cognitive behavioural therapy and drug counselling to prevent relapse to substance abuse. Even though she had been engaged by the Applicant’s wife (R4) who had not specifically asked about the risk of recidivism to assess him, I was satisfied that Dr Kwok had included that assessment in her report because she understood her role and how the report would be used. Dr Kwok was appropriately qualified and experienced and the detail in her report shows that she undertook a thorough assessment of the Applicant. Importantly, it was clear to me that she understood her duty to provide impartial assistance to the Tribunal. I therefore accept her opinion that the Applicant is a moderate risk of reoffending, at the lower end of moderate. Dr Kwok stated in her report that the Applicant (A3/14):
… has a low moderate risk of re-offending and risk/threat/danger to the Australian community. This can be further reduced if he refrains from leaving his supportive home environment, remains abstinent from illicit drug use, establishes connections with prosocial peers and complies with the treatment plan as outlined in this report.
If an Applicant has been involved in incidents in the controlled environments of prison and immigration detention, it may raise concerns about their ability to regulate their behaviour in the community. I noted above that there have been numerous incidents involving the Applicant in immigration detention. The Applicant could not recall everything put to him but was candid in accepting that if he had been charged with something then the incident had occurred. He admitted to some minor incidents such as being in possession of a box containing straws, wires, a razor, foil, and broken nail clippers left by a roommate. He admitted possessing lighters “a couple of times”. He could not recall being in possession of a pen sharpened to be a shiv but accepted that over the years he may have been charged with possession of a pen with nail clippers at the front of it that he used as a tool to fix things.
He also recalled being sent a parcel in 2020 in his name without his consent, but he did not see the parcel before it was intercepted. He was told that it contained buprenorphine. He did not realise that it also contained methylamphetamine. His evidence was that another detainee had used his name on the parcel and that the other detainee had taken responsibility for it. I found this explanation to be plausible. There were two more recent incidents where small packages containing contraband were thrown over the fence. The Applicant was in the vicinity on one occasion in January 2023, and on the other occasion in February 2023. The Applicant and other detainees picked up several packages that had been thrown over the fence. The Applicant was not asked about these incidents at the hearing and there is no evidence that the parcels were intended for him or that he knew about their contents (transcript/29, 32-33, 47-48; R3/8 and 12).
I also note that there was an alleged assault of another detainee in April 2017 and other behavioural incidents noted in immigration detention records between February 2017 and August 2020, but these were not put to the Applicant at the hearing. There is reference to the Applicant in an incident report which stated that he and another detainee refused to relocate to another compound after being identified as being involved in an alleged assault on another detainee on approximately 6 March 2023. However, there is no incident report concerning the alleged assault and this was not put to the Applicant at the hearing. I find that the appropriate inference is that, since as late as April 2017, there is insufficient evidence of any recent incidents involving aggression or violence on the part of the Applicant.
On the one hand, the numerous incident reports concerning the Applicant in immigration detention raise some concerns that if the Applicant cannot conform to the rules in a controlled environment, that he may struggle to do so in the community which may lead to reoffending. Of particular concern is that some of the incidents involved the possession of contraband and drugs such as suboxone, and the Applicant has a history of drug use. He was, however, candid in admitting that he had lapsed by reusing drugs or alcohol approximately five times whilst he was in immigration detention, although he claimed not to have used drugs for approximately 22 months (transcript/49). He also accepted responsibility for the conduct in immigration detention that was put to him at the hearing. Given that he has been in immigration detention since February 2017, it is plausible that he would not be able to recall some of the incidents put to him, however when he could not recall, he accepted that if he had been charged that the incident most likely occurred.
There is a file note dated 14 September 2020 on Department of Home Affairs letterhead stating that the Department received information from the NSW Police regarding the Applicant’s involvement in organised crime. The note states that: “There is no recent solid information that he is a member of OMCG [outlaw motorcycle gang] however he has very close associations with many high profile MEOC [Middle Eastern organised crime] and Organised Crime Targets” (R1/866). On 19 January 2010, the Judge who confirmed the Applicant’s conviction for “attempt dispose property – theft = serious indictable >$5000-T1” stated that the Applicant “does not appear to have been the prime motivator behind what seems to have been a fairly well organised racket of stealing from freight forwarders and the freighting companies. He seems to have been caught in the middle of it” (R1/177). That judicial comment is not sufficient to suggest that the Applicant has links to outlaw motorcycle or organised crime syndicates, and there is otherwise insufficient evidence to support such a finding. Further, the information from the NSW Police is untested and highly prejudicial. I accept that the Applicant offended with co-offenders who were negative peers, but I reject any submission that the Applicant has links to outlaw motorcycle or organised crime syndicates.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
(a)His lengthy criminal history and the lack of deterrence provided by community supervision, lengthy prison sentences and prior warnings. He has reoffended whilst in prison and immigration detention.
(b)He has longstanding mental health issues, including depression, anxiety and PTSD, which are at least in part attributable to childhood trauma, and he still requires significant treatment intervention in the community for PTSD and drug addiction.
(c)His significant drug addiction for heroin and methamphetamine and several lapses and incidents where he has been caught with drugs and contraband in prison and immigration detention.
(d)There have been numerous incidents involving the Applicant in immigration detention which raises some concerns about his ability to regulate his behaviour outside of a controlled environment in the community.
(e)He was assessed as a high risk of reoffending at the time he completed the VOTP.
(f)Dr Kwok assessed the Applicant as being a moderate risk of reoffending, at the lower end of moderate.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)The period between October 2002 and September 2007 where the Applicant did not commit any offences suggests that he is capable of living offence-free in the community.
(b)His insight and remorse into his offending, including taking responsibility for his offending, and his appreciation of the impact of his offending on his family.
(c)The “wake up call” he has received from spending a lengthy period in prison and then in immigration detention with no fixed chronological end point and in circumstances where he faces the prospect of permanent separation from his family to a country he fears returning to.
(d)His circumstances have changed. He is now more mature, feels that he has wasted his life, has a pro-social wife and has formed a relationship with her children whom the Applicant regards as his own. He no longer associates with negative peers and no longer has financial pressures.
(e)He has support from pro-social family members including his siblings, nieces and nephews, 18-year-old daughter, former wife and his current wife, Souraya, who are willing to offer social, emotional and practical support. He wants to be a family with Souraya and the children and to support them.
(f)He has stable accommodation with Souraya (as well as offers of accommodation from family members) and an offer of employment.
(g)He has a plan for his release into the community, including continuing his mental health treatment.
(h)He has completed the VOTP where he made treatment gains, as well as other programs and counselling.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a moderate risk of reoffending, at the lower end of moderate.
I therefore find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 weighed strongly, and paragraph 8.1.2 weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any family violence and so this primary consideration is not applicable.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

I will now consider the non-refoulement claims that the Applicant has made (para 9.1(1) of Direction No 99).
The First Tribunal Decision noted that the initial submission from the Applicant’s lawyer in support of revocation of the Cancellation Decision was that: “Our client does not advance any protection claims”.
However, before the previous Tribunal, the Applicant advanced the claim that “he will face harm if returned to Lebanon due to his religion, nationality, or membership of a particular social group, being those with extensive ties to the West”. He also made submissions regarding harm based on religious observance, specifically, to the effect that he may face harm because “although born into the Sunni Muslim faith, he is not a practising or committed member of that faith” and that “these attitudes [not praying, fasting or abstaining from alcohol or non-halal food] and practices will draw the adverse attention of the religiously conservative and fanatical elements of the Sunni Muslim community in Lebanon” (R1/2647-2648, paras [205]-[206]).
At the hearing of this application that I presided over, the Applicant did not make submissions that he would face harm due to religious observance. He did, however, submit that his indifference to the Islamic faith would cause isolation from society. This was because members of the Sunni Muslim faith would not want to associate with an individual who was perceived to have abandoned his religion or a westerner. The submission was characterised as this being an impediment to his removal (under that other consideration) (Applicant’s SFIC, para [232]). At the rehearing, his submissions regarding non-refoulement were, in summary, that he faced harm due to generalised violence and because he would be perceived to be a westerner.
I will now outline these submissions in more detail.
In a statement dated 27 June 2022 (R1/1295-1296, paras [15]-[17]), the Applicant stated:
If I were forcefully removed to Lebanon, I believe that I would commit suicide and end everything. From what I understand, Lebanon is an absolute mess at the present time. There has been considerable migration of refugees into Lebanon from Syria. There is big corruption in government circles in Lebanon. The COVID-19 pandemic has impacted the economic, health and political outlook in Lebanon in a bad way.
Since leaving Lebanon as a child, I have never looked back. I have never returned to Lebanon nor kept ties in that country. I would have no support on the ground in Lebanon. My mental health would deteriorate. I fear that I would not be able to obtain sufficient mental health treatment for my health issues, inclusive of being able to afford prescription medication.
I also fear a risk of harm in Lebanon on account of being perceived as a foreigner. I have an Australian accent. I consider myself an Australian. I am not familiar with the local customs and culture in Lebanon. I consider myself a Muslim Australian with little real connection to the Islamic faith. I am scared that I could be kidnapped or otherwise targeted in Lebanon as a perceived westerner or foreigner. I believe my life could be at risk if removed to Lebanon.
In a subsequent statement dated 26 January 2023 (A1, para [17]), the Applicant stated:
I plea [sic] with the Tribunal to give me another chance. I cannot go back to Lebanon. I face the real prospect of either dying there or suffering serious harm in that country.
The Applicant then referred to travel advice concerning Lebanon (A1/Annexures A to F), and reports from Human Rights Watch on Lebanon (A1/Annexures G to I) which the Applicant stated, “describe a horrendous state of affairs in Lebanon” (A1, para [27]).
When asked by Dr Donnelly at the hearing about what concerns the Applicant had if he had to return to Lebanon, the Applicant replied (transcript/11-12):
My concerns? Mate, I’m Australian. I am Australian. I’m an Australian Lebanese. Yes, I was born in Lebanon. Yes, yes, but I’m Australian Lebanese. This is my country. If I go to Lebanon - well, it’s not an option for me. I’d rather kill myself, I’m just telling you right now. I’m saying it on record and I’ll say it again. Go to Lebanon I kill myself. Let’s just say I ended up in Lebanon what’s going to happen to me. I’m Australian. My accent is Australian. They’re going to think you come from Australia, you’re loaded, you got cashed up. They don’t - and with my criminal record going to Lebanon how do you think I’ll be treated in Lebanon. How do you think I’ll be treated in Lebanon. Lebanon is not an option for me. I didn’t stand (indistinct) all these (indistinct) fighting, fighting and fighting, right, to go back to Lebanon. I’m not going to Lebanon. There’s nothing - I don’t know anyone in Lebanon. I’ve never been back to Lebanon. Since I come here in 1983 I’ve never been back to Lebanon. Lebanon is not an option for me. This is where I grew up, and this is where I would love to stay if I was given a chance, but Lebanon is not an option for me.
The Applicant stated that his family brought him to Australia because of the civil war in Lebanon. He stated that, as a child in Lebanon, he had witnessed seeing dead and dismembered bodies and his best friend being killed in front of him by a sniper when he was eight years old (transcript/12).
He expressed concerns that he might be kidnapped in Lebanon for a ransom. He also stated that he would be “labelled” and “persecuted” due to his Australian accent, Australian criminal record and for being a returnee (transcript/13-14).
In the Applicant’s SFIC (para [200]), it was submitted that, “there is a real risk he [the Applicant] will be killed or otherwise subjected to significant physical harm if returned to Lebanon”. In support, information from the Department of Foreign Affairs and Trade (DFAT), the United Kingdom Home Office, and the United States Department of State was cited (Applicant’s SFIC, paras [200]-[202]). In summary, this information referred to:
·the volatile security situation in Lebanon due to civil unrest because of economic, political and religious tensions, as well as from conflict in Syria;
·terrorist attacks are likely, with terrorists and extremists attacking westerners;
·kidnappings have occurred, with targets including foreigners; and
·crime has increased due to the economic situation and there has been an increase in theft, robbery, sexual harassment, and assaults in public areas, unsolved killings, and weapons are common.
The submissions continued to state that (Applicant’s SFIC, para [203]):
The Tribunal would be satisfied that Australia has protection obligations because the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Lebanon, there is a real risk that the non-citizen will suffer significant harm.
From the totality of the evidence that I have outlined above, I understand the Applicant’s claims to be that he fears for his life, or fears violence if he is returned to Lebanon because Lebanon is a violent country due to economic, political, and religious unrest and tensions, including the threat of terrorism. He fears being targeted as a foreigner and being subjected to kidnapping or a terrorist attack as a result.
As is contemplated by the Direction, the Applicant can apply for a protection visa and so it is not necessary for me to determine whether non-refoulement obligations are engaged. In my view this is the more appropriate course if the Applicant is unsuccessful in this application. This is because his non-refoulement claims have changed over time, are somewhat general in nature and because he previously made claims about religious observance that were not pressed at this hearing. If the Applicant makes a protection visa application, he will have the opportunity to make more detailed and specific non-refoulement claims, that will be conclusively assessed prior to consideration being given to any character concerns (para 9.1.2(2) of Direction No 99). In other words, deferring consideration of the Applicant’s protection claims to a specific protection visa process would allow him to fully articulate all relevant claims and for those claims to be considered in detail by a specialised decision-maker. He will also not be removed from Australia while a valid protection visa application was being determined (para 9.1.2(3) of Direction No 99).
I therefore give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider 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 that country.
The Applicant is 53 years of age.
The Applicant has longstanding mental health issues.
A report dated 14 July 2017 by Ms Gumbert-Jourjon reported that the Applicant was “experiencing elevated symptoms of depression, anxiety and stress” and severe psychological distress (R1/477-478). Her opinion was that he “has a longstanding history of depressive symptomatology, which is likely to be exacerbated in custodial environments”. Further, Ms Gumbert-Jourjon opined that the Applicant “shows significant symptoms of posttraumatic stress disorder, which warrant further assessment and careful follow-up with regard to ongoing management”. Ms Gumbert-Jourjon also stated that the Applicant’s “deportation would foreseeably result in significant hardship and distress” and that the Applicant’s assertion that he would take his own life if deported “should be viewed with particular seriousness given his prior suicidal tendencies in custody” (R1/482). I note that the Applicant has maintained that he would take his own life if he is returned to Lebanon on several occasions, including at the Tribunal hearing on 18 April 2023 (transcript/11).
A psychological assessment report dated 21 December 2017 by clinical psychologist Yvette Aiello reported that the Applicant had attempted suicide on at least two occasions and was “experiencing heightened distress at the possibility of being returned to Lebanon”. She recommended “ongoing monitoring of his suicidality” (R1/733).
A report dated 2 October 2020 by Mr Watson-Munro noted a diagnosis of PTSD and that the Applicant had attempted to self-harm (R1/1058-1059):
I note from your letter of instruction that Mr Barghachoun was approached by staff at the Villawood Immigration Detention Centre at around 4.30am on 29 September 2020 and was advised that he would be transferred to the Christmas Island Detention Centre at 9.30am that day.
As my primary report details, Mr Barghachoun is suffering a range of psychological problems and his psychological state is fragile. In particular, he has been diagnosed with Post Traumatic Stress Disorder (PTSD) and has previously attempted suicide.
Against the background of the advice that he was given on 29 September 2020, I note that Mr Barghachoun ingested a razor blade, in an attempt to self-harm.
In a more recent report dated 9 December 2022, Dr Kwok stated that the Applicant experienced “chronic stress from war-exposure” which led to chronic symptoms and depression as a comorbidity due to a lack of treatment. Dr Kwok opined that the Applicant meets the diagnostic criteria for PTSD. She recommended that the Applicant required targeted intervention by an interdisciplinary team consisting of a general practitioner, psychiatrist and psychologist with training in PTSD. Although Dr Kwok did not think the Applicant met the criteria for a substance use disorders, she recommended drug and alcohol counselling for the purpose of relapse prevention (A3, paras [54], [64]-[65], [73]). At the hearing the Applicant stated that he was on antidepressant medication (transcript/18).
At the hearing the Applicant also stated that medical staff thought he had prostate cancer and that he had recently had an ultrasound (transcript/18). I requested that updated medical reports be provided. The records produced on 27 April 2023 record that Applicant has had issues with his urinary tract (discomfort, pain, or burning when urinating and increased urinary frequency) which he first reported to a general practitioner in December 2017. He reported symptoms in 2018, 2020 and 2022 and was given medication in 2018 and 2022 (email from Detention Health dated 20 April 2023). There is no evidence that prostate cancer was suspected. A medical appointment note dated 25 October 2022 records that the Applicant reported some left knee pain, for which an x-ray was requested, blurring in his distance vision, for which he was referred to an optometrist and minor issues with chewing because he was missing a few front lower teeth, and that he had been referred to a dentist.
It is unclear whether the Applicant’s physical health issues would be impediments if he was removed to Lebanon because these medical records indicate that further tests were being undertaken.
However, what is consistently clear from numerous medical reports concerning the Applicant is that he has significant and longstanding mental health issues that require coordinated and specific treatment intervention. Those mental health issues are likely to detrimentally impact upon his ability to establish himself and maintain basic living standards if he was returned to Lebanon to the extent that I am concerned that the Applicant will not be able to subsist if returned there. The medical evidence also indicates that the Applicant’s statement that he will commit suicide if returned should be taken seriously.
The Applicant came to Australia when he was a 13-year-old child. He has therefore not lived in Lebanon for approximately 40 years. He stated that he speaks Arabic (transcript/14) but with an Australian accent, considers himself Australian, is not familiar with local customs, considers himself a Muslim Australian and has little real connection with the Muslim faith. As I have discussed in the section above concerning the legal consequences of the decision, he is concerned that he will be targeted as a westerner or foreigner if returned to Lebanon (R1/1295-1296). After such a long time in Australia, I find that there are likely to be significant language and cultural barriers if the Applicant was returned to Lebanon.
The Applicant has some extended family members in Lebanon but is not in contact with them. His immediate family members, including his wife, stepchildren, adult children, siblings, nieces and nephews and great nieces and nephews, all reside in Australia. He is therefore unlikely to have any social support if returned to Lebanon.
The DFAT Country Information Report Lebanon (26 June 2023), indicates a poor economic overview for Lebanon. It states that, “Lebanon is experiencing severe economic depression”, “there is little in the way of social welfare”, and that “high levels of unemployment stem from the wider economic crisis”. Additionally, the DFAT Report also indicates that the Lebanese health “system has been badly affected by the recent economic crisis” and that “mental health services are scarce” (page 9).
Although the Applicant is a qualified crane operator and mechanic and has employment experience, he is likely to struggle to find employment if returned to Lebanon, especially in Lebanon’s poor economic environment where there is a high unemployment rate. He has no work history in Lebanon, has significant mental health issues, and there are also likely to be cultural, and possibly language, barriers that will impede him from finding employment.
The Applicant’s separation from his wife, children, stepchildren, and family in Australia are also likely to cause him significant emotional hardship. This is likely to exacerbate his mental health issues, and the medical evidence that I have referred to above supports this finding. The scarce availability of mental health services in Lebanon will be a significant impediment, especially given the extent and duration of the Applicant’s mental health issues and his risk of suicide.
In summary, there are substantial cultural barriers, and the Applicant is likely to have limited or no access to social, medical, and economic supports if he is returned to Lebanon.
I find that there are significant and insurmountable impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to Lebanon. Consequently, this consideration weighs strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations). I do not have any information before me concerning the impact of my decision on the truck-driver victim or any other victims of the Applicant’s offending.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The best interests of the Applicant’s minor stepchildren, weighed strongly, and the best interests of the Applicant’s minor great nieces and nephews weighed slightly, in favour of the revocation of the Cancellation Decision.
(d)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)I gave neutral weight to the other consideration of the legal consequences of the decision.
(b)The extent of impediments if removed other consideration weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The impact on victims other consideration was also given neutral weight.

Overall, I find that the primary considerations of the best interests of minor children (which weighed strongly with respect to the Applicant’s stepchildren, and slightly with respect to the Applicant’s 18 minor great nieces and nephews in favour of revocation of the Cancellation Decision), together with the strength, nature, and duration of the Applicant’s ties to Australia (which weighed strongly in favour of revocation of the Cancellation Decision), and the extent of impediments if removed other consideration (which also weighed strongly in favour of revocation of the Cancellation Decision), outweigh the considerations that weighed against the revocation of the Cancellation Decision. These considerations were the protection of the Australian community which weighed moderately to strongly, and the expectations of the Australian community which weighed moderately, against the revocation of the Cancellation Decision.
I therefore find that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision and substitute a new decision that the Cancellation Decision is revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 12 May 2022, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 275 (two hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.............[Sgd]...................................................
Associate
Dated: 31 July 2023

Date of hearing: 18 and 19 April 2023

Representative for the Applicant: Dr J D Donnelly, Latham Chambers

Representative for the Respondent:

Ms C Taggart, Francis Burt Chambers, instructed by Ms C Mumford, The Australian Government Solicitor

[2023] AATA 2304

31 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Appeal

Statutory Construction

Natural Justice

Date of hearing:	18 and 19 April 2023
Representative for the Applicant:	Dr J D Donnelly, Latham Chambers
Representative for the Respondent:	Ms C Taggart, Francis Burt Chambers, instructed by Ms C Mumford, The Australian Government Solicitor