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

This matter concerned an application by Mr Barghachoun for review of the Minister's decision not to revoke the mandatory cancellation of his visa. The applicant, who arrived in Australia at age 13 and was now 53, had failed the character test due to a substantial criminal record, which included offences of armed robbery, dishonesty, assault, and property and traffic-related matters. The review was heard by M Evans-Bonner SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by s 501(6) of the *Migration Act 1958* (Cth), and if not, whether there was another reason to revoke the visa cancellation decision under s 501CA(4) of the Act. In determining these issues, the Tribunal was required to consider the considerations outlined in Ministerial Direction No 99, including the protection of the Australian community, the nature and seriousness of the applicant's conduct, any risk to the community, the strength, nature and duration of the applicant's ties to Australia, the best interests of any minor children, and community expectations. The applicant also raised potential impediments to his removal to Lebanon, including generalised violence and the perception of being a "westerner."

The Tribunal considered the evidence presented, including the applicant's testimony, evidence from a clinical and forensic psychologist, and statements from the applicant's wife and nephew. The Tribunal noted that the applicant had not committed family violence, which was a primary consideration under Direction No 99. It also considered the applicant's ties to Australia, including his family and social links, and the impact of a decision on his immediate family members who were Australian citizens or permanent residents. The Tribunal also addressed the applicant's non-refoulement claims, which were framed as impediments to his removal rather than direct protection claims.

The Tribunal set aside the original decision and substituted its own decision. This outcome followed a previous decision by the Federal Court which had remitted the matter to the Tribunal due to a jurisdictional error in failing to properly consider the impact of the decision on the applicant's immediate family members in Australia.