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

El Masri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1165 (29 April 2022)
Division:GENERAL DIVISION
File Number:2022/1107
Re:El Masri
APPLICANT

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

Decision
Tribunal:Senior Member Theodore Tavoularis
Member Alexander Ward

Date:29 April 2022
Date of Written Reasons: 13 May 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 2 February 2022, to not revoke the mandatory cancellation of the Applicant’s visa.
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Senior Member Theodore Tavoularis        Member A Ward
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2022/1107
GENERAL DIVISION
Re: Mohamad El Masri
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION

TRIBUNAL:

Senior Member Theodore Tavoularis

Member A Ward

DATE:

29 April 2022

DECISION:

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 February 2022 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

...............................[SGD]...............................
Senior Member Theodore Tavoularis

...............................[SGD]...............................
Member A Ward

Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of a Class BC Subclass 100 Partner visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – domestic violence, other offences involving acts, or threats of violence – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Secondary Materials
COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans Appeals Division
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis and Member Alexander Ward
13 May 2022
introduction and background

Mohamad El Masri (“the Applicant”) is a 37-year-old citizen of Lebanon.[1] He seeks review of a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”, or “the Minister”) involving a refusal to revoke an earlier decision to mandatorily cancel his Class BC Subclass 100 Partner visa (“the visa”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). If this Tribunal sets aside the delegate’s aforementioned decision, the Applicant will be at liberty to return to the Australian community and to resume his life with his former spouse and the four children they co-parent.
[1] R2, page 2, para [5]. Date of birth: 15 May 1984.
The relevant timeline leading up to and including the instant hearing can be stated thus:
·On 25 August 2020, at the Bankstown Local Court, the Applicant was convicted and sentenced to a two-year custodial head-sentence consequent upon his offending in this country[2];
[2]    G3, page 41.
·In the following month, specifically on 17 September 2020, the Minister’s delegate decided, pursuant to s 501(3A) of the Act to cancel the Applicant’s visa[3];
[3] R2, page 2, para [7].
·In the month following this cancellation, specifically on 9 October 2020, the Applicant made the necessary representations in his bid to revoke the delegates mandatory cancellation decision[4];
[4]    G3, pages 67-70.
·On 2 February 2022, the Respondent decided, pursuant to s 501CA(4) of the Act, to not revoke the mandatory cancellation decision made in September 2020[5];
[5]    G2, page 8; G3, pages 9-31.
·Notification of the refusal to revoke the visa cancellation decision was duly communicated to the Applicant on 4 February 2022[6];
[6]    R2, page 2, para [9]; G4, page 308.
·Finally, on 11 February 2022, the Applicant lodged the present application with this Tribunal seeking to set aside the Respondent’s refusal to revoke the visa cancellation decision made on 2 February 2022.[7]
[7]    G1, pages 1-7.
The substantive hearing proceeded before us on 13 and 14 April 2022, respectively. There was a further hearing day, on 20 April 2022, for the delivery of oral closing submissions. The substantive hearing received evidence from: (1) the Applicant; (2) his former spouse, Ms Joanne Ali Ahmad; (3) the Applicant’s fifteen-year-old stepson (“Child AEH”); (4) the Applicant’s ten-year-old biological daughter (“Child MEM”); (5) the Applicant’s fourteen-year-old stepdaughter (“Child SEH"); (6) the Applicant’s eleven-year-old biological son (“Child SEM”); and (7) the Applicant’s sister-in-law, Ms Eman El Masri. The written material before the Tribunal was reduced to an agreed Exhibit List.[8] A true and correct copy of that Exhibit List is attached to these reasons and marked “Annexure A”. On 29 April 2022, the Tribunal affirmed the decision under review and now provides its written reasons.
[8] See Transcript (13 April 2022), page 2, lines 30-41.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[9]
[9] [2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10]
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337 at para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548 at para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…”
On 25 August 2020, the Applicant was sentenced to an aggregate custodial term of two years, commencing on 25 May 2020 and concluding on 24 May 2022. This sentence carried a non-parole period of eighteen months, commencing on 25 May 2020 and concluding on 24 November 2021. Upon activation of the parole period, the Applicant was immediately taken into immigration detention where he presently remains. There is no question that he does not pass the character test by virtue of his “substantial criminal record”,[11] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[12]
[11] Migration Act 1958 (Cth), s 501(6)(a).
[12] Ibid, s 501(7)(c).
We are therefore satisfied that the Applicant does not pass the character test.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
[13] Direction No. 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[14]
[14] Direction, para [6]. See also Direction, para [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, 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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable 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 non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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 8.4(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 measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Sections 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which we must be guided by in making our decision.
The Primary Considerations we must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[15]
[15] Direction, para [8].
The Other Considerations which, where relevant, we must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[16]
[16] Direction, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 we have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection,[17] Colvin J said of the former Direction 65 that:
[17] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[18]
[18] Ibid, para [23].
We will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Application of factors in paragraph 8.1.1(1) of the Direction to determine the nature and seriousness of the Applicant’s conduct
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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, 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).

This Applicant has compiled a not-insignificant history of criminal offending in Australia. His criminal history runs from (in sentencing terms) March 2016 to October 2021, with convictions recorded for the commission of eighteen offences, dealt with at seven separate sentencing episodes. In its Statement of Facts, Issues and Contentions (“SFIC”), the Respondent has helpfully particularised the nature and extent of the Applicant’s criminal history and no further elaboration or recitation of that history is required.[19] We will now apply the relevant sub-paragraphs appearing at paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
[19] See R2, pages 2-3, para [11].
Paragraph 8.1.1(1)(a)(i)
This specific subparagraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. The Applicant has been convicted a number of violent crimes – namely, the “common assault” against his then domestic partner (for which he was convicted on 25 August 2020) and the offence of “affray-T1”, whereby the Applicant destroyed property on a worksite with a sledgehammer (convicted on 13 August 2019). Both incidents involved threats of, as well as actual physical violence. There is no evidence of sexual crimes being committed. However, there is another conviction for making threats to a hotel security officer. The Applicant’s offending should therefore be viewed, “very seriously”.
Paragraph 8.1.1(1)(a)(ii)
This paragraph refers to crimes of a violent nature against women and children and, if such offences have been committed by an Applicant, those offences are deemed to be viewed, “very seriously” by the Australian Government and the Australian community. Notably, this conduct can be taken into account regardless of whether or not a sentence was imposed for it. Despite the Applicant’s insistence that he has never committed domestic violence, there is strong evidence of physical violence perpetrated against the Applicant’s then partner, Ms El Ahmad, as well as verbal threats directed toward her.[20] The Applicant’s subsequent convictions for ‘Common Assault (DV)’ and ‘Stalk/Intimidate intend physical harm’ is clearly offending that should be viewed, “very seriously” by the Australian Government.
[20] G2, page 35; R1, pages 84-129.
Paragraph 8.1.1(1)(a)(iii)
This particular sub-paragraph looks for acts of family violence in an Applicant’s offending history and, if there has been such offending, provides that it is viewed, “very seriously” by the Australian Government and the Australian community. The assault of his then partner, Ms El Ahmad, for which he was convicted on 25 August 2020, can be safely found to constitute an act of domestic violence. As such, it is conduct that attracts the operative effect of this sub-paragraph 8.1.1(1)(a)(iii) which militates in favour of a finding that the nature of the Applicant’s conduct can be regarded as, “very serious”.
Paragraph 8.1.1(1)(b)(i)
To the best of our understanding of the material, there is nothing before us suggestive of the Applicant’s commission of any offences in the realm of causing a person to enter into or to otherwise become a party to a forced marriage. The Applicant’s criminal history has no conviction recorded in it about offending in this regard nor is there any suggestion of such offending in the summons material now before us. This sub-paragraph 8.1.1(1)(b)(i) is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph is concerned with the commission of any offence(s) against, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. We have again consulted the oral and written evidence and cannot glean any conviction or other reference to the Applicant’s commission of offences (nor any consequential convictions) of this type. Accordingly, this sub-paragraph 8.1.1(1)(b)(ii) is therefore not relevant to the assessment of the nature and the seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to serious conduct involving “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”. The Respondent has not propounded this component of the Direction in either its written or oral submissions. The transcript demonstrates that neither party raised this particular sub-paragraph at the hearing. We therefore find that this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph is concerned with (and renders “serious”) any crime committed by a non-citizen whilst in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. It was also not propounded by the Respondent in either its written or oral submissions. This sub-paragraph is thus not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, we are precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[21] (2) acts of family violence;[22] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[23]
[21]    Direction, para [8.1.1(1)(a)(ii)].
[22]    Ibid, para [8.1.1(1)(a)(iii)].
[23]    Ibid, para [8.1.1(1)(b)(i)].
The Applicant has also received numerous sentences for non-precluded offending, each of which attract the operative effect of this particular sub-paragraph. These include:
·Aggravated B&E dwelling in company intend steal <+$60K-T1 (Accessory before the fact to an offence) (convicted 29 October 2021) for which he received an eighteen-month Community Corrections Order;
·Destroy / damage property, Affray-T1 and Stalk/intimidate intend fear physical harm (convicted 13 August 2019) for which he received a nine-month Community Corrections Order;
·Three counts of possession of a prohibited drug (convicted 9 March 2016) for which he received a twelve-month bond;
·Possess/attempt to, prescribed restricted substance (convicted 13 February 2020) for which he was fined $400;
·Three counts of driving while licence cancelled and one count of driving while licence suspended for which he was issued multiple monetary fines and a three-year Community Corrections Order;
·Two counts of possession of an unauthorised firearm (convicted 25 August 2020) which was dealt with as part of the sentencing for the precluded DV assault; and
·Two further traffic offences.
The important point in regard to these non-precluded offences is that they show a general disregard for the law, notwithstanding the leniency afforded to him in earlier sentencing episodes through the imposition of bonds, fines and Community Corrections Orders. That said, the Applicant’s convictions for affray, stalk/intimidate and destroy/damage property referred to above are all offences involving an element of violence. The victim of the Applicant’s offending on the worksite describes the incident as, “pretty terrifying”.[24] In addition, the learned judge in sentencing the Applicant on 13 August 2019, stated that although the cumulative effect of his offending was, “below the mid-range of objective seriousness”, the offence of affray was still a, “serious offence.” This, in combination with the Applicant’s conviction for the break and enter (accessory) offence, in our view, militates in favour of a finding that the Applicant’s unlawful conduct is, at the very least, “serious”.
[24] G3, page 56, lines 3-4.
Paragraph 8.1.1(1)(d)
This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. First, the Applicant’s offending behaviour has been wide ranging and persistent since his first conviction for possession of a prohibited substance in 2016. As previously mentioned, the Applicant has committed some eighteen offences, over approximately five-and-a-half years, which equates to over three offences per annum. It is clear from his criminal history that the Applicant’s offending has demonstrated a trend toward increasing frequency, and an escalation in terms of both the seriousness and violence of his offending, notwithstanding his previous dealings with the courts.
Second, it is clear the Applicant’s criminal history commenced with lower-level drug and traffic offences and increased in seriousness over time, resulting in his later convictions for affray, common assault and stalk/intimidate. The latter offences are markedly more serious. They involved elements, or threats of violence toward a co-worker, as well as his ex-partner. The Applicant also demonstrated a disregard for the personal property rights of those in the wider community through his involvement (albeit a smaller role than his co-offenders) in the break and enter (accessory before the fact) offence (for which he was convicted in October 2021).
We are satisfied that this Applicant’s offending has been of a frequent nature. We are further satisfied that upon review of the nature of the offences and the sentences imposed during the Applicant’s offending history, a finding of a trend of increasing seriousness in the offending can be readily made. We therefore conclude that both elements of this particular sub-paragraph 8.1.1(1)(d) are strongly militative of a finding that the totality of the Applicant’s offending in this country has been, at the very least, of a serious nature.
Paragraph 8.1.1(1)(e)
This sub-paragraph requires analysis of any discernible cumulative effect of the Applicant’s repeated offending. We are of the view that the Applicant’s offending history is demonstrative of a number of cumulative effects. First, even a cursory review of the Applicant’s offending history is demonstrative of an undeniable reality that his offending has involved repeated commissions of acts of violent conduct, including against women.
There can be surely no cavilling with our finding that his violent conduct towards a female victim on 7 September 2019 (for which he was convicted on 25 August 2020) does indeed constitute very serious conduct of a violent nature. The sentencing remarks are undeniably clear. The learned sentencing Magistrate noted that the victim, “…was frightened of [the Applicant]”[25] and that the Applicant’s conduct gave rise to “…very serious charges and she [the victim] had every reason to be terrified of the man who she thought had a gun in his hand and who threatened to kill her.”[26]
[25] Ibid, page 53.
[26] Ibid.
Second, this Applicant seems to have experienced little or no deterrent effect from the progressive sentencing regime that has been imposed on him. The formative parts of his criminal history confirm that judicial sentencing officers sought to deal with him by the imposition of predominately non-custodial sentences. There are, for example, non-custodial sentences for his earlier offending comprising:
·the imposition of a bond (x3);
·the recording of a conviction with no further penalty;
·the imposition of numerous community corrections orders (including intensive correction orders) (x12); and
·the imposition of fines (x11), cumulatively totalling $8,300.
None of these non-custodial punishments resonated with the Applicant in terms of his experiencing any sort of deterrent effect, such as to preclude him from the commission of further offences. On the contrary, in a more recent stage of his offending history, the Applicant was sentenced to an initial custodial term of two years imprisonment, reduced to an eighteen-month custodial term to be served by way of community correction order. The relevant sentencing remarks make it clear that this revised sentence was intended to facilitate the Applicant’s rehabilitation rather than necessarily representing any definitive position the judicial sentencing officer may have had about the seriousness of the Applicant’s offending.[27]
[27] Ibid, page 49.
Third, it is difficult to glean any convincing level of respect for lawful authority attributable to this Applicant. He has not developed an understanding and respect for the laws and regulations governing, for example (1) the possession of a firearm and ammunition for that firearm; (2) the ownership and operation of a motor vehicle on Australian carriageways; and (3) a lawfully made order compelling him to do, or refrain from doing, a given thing. Of the first category, he has convictions for possession of unauthorised/prohibited firearms (x2) and possession of ammunition without holding licence/permit/authority (x1).
Of the second category, he has convictions for multiple offences involving the ownership and/or control of a motor vehicle. Of those, something in the order of five to six offences resulted in a conviction for driving while unlicenced, or driving whilst his licence was suspended. Of the third category, perhaps his most significant failure to comply with a lawfully made order can be found in the sentencing remarks involving the very serious domestically violent conduct that occurred on 7 September 2019. As noted in the relevant sentencing remarks:
“Those offences take place on 7 September 2019, only a couple of weeks after he got a community corrections order. That aggravates the circumstances that he finds himself…”[28]
[28] Ibid, page 54.
[Our emphasis]
Fourth, there can be little cavilling with the proposition (and finding) that the Applicant’s past difficulties with alcohol and illicit substance abuse have been at the heart of factors predisposing him to compile the extent of his offending history to date. His difficulties with those substances have repeatedly caused him to fail to regulate his own conduct and to otherwise understand and appreciate the point of lawful demarcation between respecting and offending against the personal and property rights of others.
Finally, although his offending history may be said to be relatively short (in terms of its length) it has nevertheless been intensely committed. It is offending that has consumed a disproportionate share of the community’s law enforcement and judicial sentencing resources. Perhaps, more to the point, it should be said that the judicial and law enforcement process has practically bent itself over backwards in its attempts to remediate the Applicant’s unlawful conduct. In particular, this can be seen in the number and extent of community/intensive correction orders that have been imposed on him. The extent of administrative infrastructure around the operation of such non-custodial orders is not inconsiderable and does not simply involve the Applicant unilaterally complying with them.
We are therefore satisfied that the above-described cumulative effects of the Applicant’s repeated offending necessarily militate in favour of a finding that the totality of his offending in this country has been of (at least) a serious nature.
Paragraph 8.1.1(1)(f)
This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. The Applicant’s movement details appear in the material.[29] Those records indicate the following movement history in and out of Australia:
[29] Ibid, page 284.
·Arrive Australia: 17 November 2008;
·Depart Australia: 15 February 2009;
·Arrive Australia: 11 July 2011;
·Depart Australia: 6 June 2012;
·Arrive Australia: 4 July 2012;
·Depart Australia: 13 December 2014;
·Arrive Australia: 13 January 2015;
·Depart Australia: 7 July 2016; and
·Arrive Australia: 22 July 2016.
The material also contains a singular incoming passenger card relating to the Applicant’s final arrival date in Australia on 22 July 2016.[30] The front page of this incoming passenger card asked the Applicant “If you are NOT an Australian citizen…do you have any criminal conviction/s”. The Applicant ticked the “No” box. This response was patently false. In a previous communication with the Respondent, the Applicant sought to explain this incorrect answer thus:
[30] Ibid, page 277.
“I have always had the support of someone assisting me with paperwork and documentation in the English language. As I write this letter my sister-in-law Eman El Masri (who I have authorized to receive immigration documentation and enquire on my behalf) is writing and helping me translate into English what I would like to say. Therefore, please understand that with the completion of my Australian passenger entry card dated 22/7/2016 I would have been unable to complete also without having had someone beside me translating the questions. Due to the fact that this has now been almost 6 years ago I cannot recall who had assisted me in completing the card however, believe it may have been a passenger nearby just like myself. Looking at the question now the word “conviction” in Arabic can be translated into the word “jailed” and if that is the case, I would have been inclined to answer no as I was not incarcerated as a result of my charge in 2016. It would have depended on the question and how it was translated to be at the time of travel. I understand now that the department of immigration is looking into this card and may have some belief that I was hiding something on my card. My apologies if this is the case however, the charges occurred in Australia and there is a record on my name. I cannot hide the fact and would not want to for that matter. I can clearly see now and have had it translated clearly to me by my sister-in-law. I can understand now what the question truly means and this will not happen again. I will be sure to mark yes in future”.[31]
[31] Ibid, page 96.
As best we understand this explanation, it comes down to (1) the Applicant apparently needing someone to assist him with, “paperwork and documentation in the English language” and (2) an apparent misconception or mistranslation (by him) of the word “conviction” because, to the Applicant’s mind, an absence of incarceration means there has necessarily been no conviction. Both explanations can be safely rejected. The Applicant gave lengthy oral evidence, predominantly in English, and with minimal, if any, assistance, from an interpreter. While his English may not be said to be exemplary, it is undeniable that his English was, and has been, more than sufficient for him to successfully conduct various businesses in Australia.
There is no evidence that he needed any assistance with, “paperwork and documentation in the English language” from his sister-in-law, or anyone else whilst conducting those businesses. While we profess no expertise in the Arabic language, we nevertheless note (1) the Applicant worked as a policeman in Lebanon for at least two years before arriving in Australia; and (2) we have grave difficulty in accepting that, with his satisfactory level of English, that he did not comprehend that being personally dealt with in an Australian court involved the incurring of a conviction against his name. This is especially the case when, for example, one has regard to (1) the plain words of the learned sentencing judicial officers’ remarks when sentencing the Applicant on 25 August 2020[32]; and (2) the reality that the Applicant was legally represented at this sentencing hearing (and was presumably advised of the legal consequences of this sentence).
[32] Ibid, pages 52-54.

At the time the Applicant completed this incoming passenger card, the Applicant had compiled three convictions for “Possess prohibited drug”. It is thus safe to find that the auspices of this sub-paragraph 8.1.1(1)(f) are engaged in favour of a finding that the nature and seriousness of the Applicant’s unlawful conduct in Australia has been (at least) of a serious nature.
Paragraph 8.1.1(1)(g)
This sub-paragraph involves the issue of whether or not the Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. We have not been able to find any reference to the Applicant “being formally warned or since otherwise being made aware, in writing about the consequences of further offending in terms of…” his visa status to remain here. Accordingly, this sub-paragraph 8.1.1(1)(g) is not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Conclusion about the nature and seriousness of the Applicant’s conduct
We have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs to which we have referred, we conclude that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, at the very least, “serious”, more likely, “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker 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 of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct (Sub-paragraph 8.1.1(2)(a))
Sub-paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to an individual or the Australian community in the event the Applicant were to engage in further criminal or other serious conduct. We are satisfied that, were this Applicant to re-commit any of the offences in any of the offending categories apparent from his criminal history thus far, individual victims and/or the Australian community at large could quite conceivably suffer physical, psychological, and other material damage (i.e., financial). Any such recommission of his violent offending, particularly against women, could quite conceivably have catastrophic consequences.
Further offending in the realm of the ownership, management and/or control of a motor vehicle could quite conceivably result in significant adverse consequences for other users of Australian carriageways. Further offending involving a direct and unlawful interference with the personal and property rights of others could result in physical, psychological, and materially quantifiable damage to victims (i.e., financial). A continued refusal to observe the conditions and requirements of lawfully made orders and similar instruments compelling him to refrain from doing or not doing something will again tax the communities law enforcement and judicial sentencing resources.
Perhaps most significantly and importantly, were the Applicant to recommit the very serious conduct of the type committed on 7 September 2019 (for which he was sentenced on 25 August 2020), such conduct could quite conceivably result in a catastrophic outcome for the victim at the receiving end of it. While perhaps not the longest criminal history, the Applicant’s criminal history to date is nevertheless multi-faceted and recommission of an offence attributable to any one of those facets will undoubtable have adverse consequences for the Australian community.
Our finding is this: were the Applicant to re-offend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
Evidence in the form of a Psychological Assessment Report, dated 16 March 2022, was put before the Tribunal from a psychologist, Mr Andrew Wong.[33] He assessed the Applicant in-person, over two days, for a total duration of two-and-a-half hours. He noted that the Applicant had a traumatic upbringing in Lebanon – a witness to warfare and violence. He noted that the Applicant displayed a lack of insight into his mental health issues and did not believe he needed psychological treatment.[34] Psychological testing was consistent with this, indicating that the Applicant was self-deceptive and minimised his existing mental health difficulties.[35] Despite this, the Applicant indicated he was agreeable to attending treatment in the future outside of the psychological testing regimes. The Tribunal views this as more of a concession made for forensic necessity for the purpose of this current appeal rather than a genuine desire to change his ways and treat his psychological issues.
[33] A2.
[34] Ibid, paras [24]-[26]; and para [41].
[35] Ibid, paras [32]-[36].
Mr Wong opined that the Applicant’s normalisation of aggression (arising from his childhood) drove the Applicant’s offending behaviour.[36] He concluded that the Applicant was a, “low risk of imminent violence and serious physical harm” and that with regards to specialised treatment, he had a, “moderate level of need”.[37] This is, to some extent, unhelpful because although Mr Wong’s finding is that it is unlikely the Applicant would engage in a violent offence, he states that the Applicant requires specialised medical health treatment to assess his insight and emotion-regulating issues in order to manage his future risk of violence. The report went on to class the Applicant’s general risk of future violence as falling within the moderate range.[38]
[36] Ibid, para 37; and para [42].
[37] Ibid.
[38] Ibid, para [37].
The Tribunal has a number of difficulties in accepting the evidence of Mr Wong. First, he came to the finding that, “overall, Mr El Masri’s criminal history was not extensive. He did not appear to have an offending career or pattern of violent behaviours.”[39] This statement, in the Tribunal’s view, is inconsistent with the Applicant’s criminal record and the respective incidents of violence which have been previously detailed in sentencing remarks and contemporaneous police records. A sentencing assessment report, dated 28 April 2021, was prepared for the stalk/intimidate, affray, common assault, and associated firearms offences in the NSW District Court.[40] It noted the Applicant denied the violent offences and claimed that the victim told lies about them. It went on to state that he had limited insight into the impact of his offending as a consequence of the denial. The Tribunal finds that that situation remains the case.
[39] Ibid, para [32].
[40] R1, page 1.
Second, Mr Wong also reports that the Applicant stated “I hate violence. I do not want to have problems, especially with the government.”[41] In the Tribunal’s view, this comment cannot be taken at face value and seems to be made fairly and squarely with this appeal process in mind. The Applicant’s asserted hatred of violence is not consistent with his multiple convictions for violent, or threatening behaviour.
[41] Ibid.
The Applicant has a relatively long history of criminal conduct which is broadly spread. It involves the commission of domestic violence (the accounts of which he continues to deny) and violence in his business dealings. His ex-wife has referred to verbal arguments they had during their relationship (both as a married couple and as co-carers of their children), one which required the police to attend.[42]
[42] Transcript (14 April 2022), page 112.
In our view, this premise of Mr Wong’s report, namely that the Applicant did not exhibit a pattern of violent behaviours, is fundamentally flawed and casts doubt on the reliability and accuracy of the report’s conclusions as to the Applicant’s specific and generalised recidivist risk. The Tribunal views the Applicant’s repeated failure to accept his conduct in the aforementioned domestic violence incident as demonstrating a marked lack of contrition and genuine remorse for his actions (i.e., resorting to violence when he considered that was an appropriate course of action). Whilst the Applicant has had some psychological consultations and has told the Tribunal that he will change his behaviour, there is no real evidence that he accepts he has done anything that was not, in his mind, justified at the time. This lack of insight and acceptance necessarily militates against a finding that the Applicant is only of a moderate risk of committing general acts of violence.
Violence and threats have been a feature of the Applicant’s offending, not an aberration. The Applicant’s violent offending, notably, has only been quelled when he was physically incarcerated. His violent behaviour has not just been limited to a domestic partner but has also extended to those in the wider community (i.e., security guard and employee).
In terms of recidivism, his offending becomes more serious as time goes on. The Applicant is surely alert to the existence of risk in numerous forms. He has run businesses, employed people in those businesses, and dealt with other business owners in a commercial context. He must surely have realised that continuing to offend would put him at increasing risk of incarceration. Yet, the growing risk of some form of custodial punishment did not stop him from further engaging in a wide range of criminal activities. The Applicant is clearly close to his two adopted and two biological children, yet the risk of being separated from them by a term of actual imprisonment did not act as a deterrent against his propensity to offend.
(ii) Evidence of rehabilitation
Expert material was before the Tribunal in the tendered evidence. Some of this material was produced for this hearing and other material was prepared for previous criminal matters concerning the Applicant. These have been referred to above, but for completeness, the Tribunal notes the following:
(1)Bridges Psychology Clinic Report (Mr Chafic Awit – Registered Psychologist) dated 11 November 2020.[43] This evidence does not deal with recidivist risk. Instead, its content details the effects of an adverse visa decision on the Applicant’s mental health, rather than the Applicant’s risk to community and is thus of little weight.
[43]    G3, pages 153-163.
(2)A Sentencing Assessment Report (Ms Alison Robb – Unit Leader – NSW Community Corrections), dated 28 April 2021.[44] This report was a specific sentencing assessment report for the District court relating to the offences the Applicant was charged with in relation to the domestic violence episode against his ex-partner. It noted the Applicant’s denial of his domestically violent conduct is couched in terms such as, “the victim had told lies”. It noted his limited insight into his offending. It also noted that the Applicant did not see the need for any type of psychological or other clinical intervention. He was assessed as a medium risk of re-offending.
[44]    R1, pages 1-5.
(3)A Psychological Assessment Report (Mr Andrew Wong – Psychologist) dated 16 March 2022. This report was obtained for the purposes of this hearing and its content has been discussed above.
(iii)   Conclusions about risk
None of the psychologists / clinicians whose reports were before the Tribunal were called to give oral evidence and, thus, neither the Respondent or the Tribunal had any opportunity to test that evidence.
It would be unsafe to find that the Applicant has genuine insight, remorse and acceptance of all of his unlawful conduct in Australia. The Applicant has sought to downplay, trivialise and otherwise minimise significant and important aspects of his offending. Very importantly, he has flatly denied commission of any domestically violent conduct whatsoever. We are not convinced, on the balance of the evidence before us, that he apprehends any genuine levels of remorse in circumstances where he irrationally and unsustainably denies commission of significant portions of it. In the absence of such convincing and demonstrable remorse and insight, it would be patently unsafe for us to find that he now represents an acceptable or otherwise unremarkable recidivist risk.
We have expressed our misgivings about the report and findings of Mr Wong, both as to recidivist risk for (1) imminent violence and serious physical harm; and (2) future violence. In short, given the unsustainable denials of this Applicant about his commission of specific portions of conduct for which he has been convicted and sentenced, we are of the view that his recidivist risk profile were he to be returned to the community is now little, or no different to what it was at the time of his most recent removal from that community.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
We address this specific sub-paragraph purely out of an abundance of caution and for the sake of completeness. This matter does not involve a, “refusal to grant a visa to a non-citizen”. It involves an application for the, “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)We have found that the nature and seriousness of the Applicant’s conduct to date has been, at the very least, “serious”, more likely, “very serious”;
(b)We have found that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level;
(c)We have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as being no different to what it was at the time of his most recent removal from the Australia community. In reaching this conclusion about risk, we have taken into account (1) available information and evidence before us informative of such risk and (2) the expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant.[45]
[45] This is especially though, in circumstances where, as we have said, none of the evidence of any of the clinician’s was the subject of testing in cross-examination.
Our analysis of the material before the Tribunal has led us to the finding that this Primary Consideration 1 carries a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
primary consideration 2: family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Before we can apply this paragraph 8.2 to the material before us, it necessary to determine two preliminary questions: (1) who was a member of the Applicant’s family; and (2) whether any of the Applicant’s conduct against those family members amounts to family violence. We will now address each question in turn.
Who are members of the Applicant’s family?
We again refer to the circumstances of the Applicant’s appalling conduct on 7 September 2019 committed in a domestic context against his then partner / spouse for which he was sentenced on 25 August 2020. To our minds, there is more than sufficient evidence to demonstrate the victim of this domestically violent offending was a member of the Applicant’s family at the relevant time. First, in evidence provided by the victim at the first instance sentencing hearing[46], the following exchange ensued between her and the Prosecutor:
[46] Before Mr Bugden SM Bankstown Local Court.
“PROSECUTOR
Q. [Name of victim redacted], I understand that you are in a relationship with Mohamed El Masri [the Applicant], is that correct?
A. Yeah.
Q. How long have you been in a relationship with him?
A. I think it was sometime last year in April we met.
Q. I understand that you're considered married under Islamic law, is that correct?
A. Yeah.
Q. I understand that you reside at [Address redacted], is that correct?
A. Yeah, I moved in with him.
Q. I understand that around 11.50am on 7 September 2019 an incident occurred, is that correct?
A. Correct.
Q. And as a result of that incident, later on that day you contacted police, is that correct?
A. Yeah.
Q. As a result of that contact you provided police with a recorded version of what occurred that day, is that correct?
A. Yes.”[47]
[47] R1, page 87.
[Our emphasis and redactions]

Second, while the Applicant may have expressed some level of resistance to the suggestion that the abovementioned victim of his offending on 7 September 2019 was a member of his family, there is a concession in a NSW Police Case Note Report – as early as 8 October 2019, barely a month after the offending conduct – that he and the victim were, “dating” at the relevant time:
“Mohamad [the Applicant] denied any ongoing contact with the victim and claimed they were only dating for a month and she made up lies about him out of spite. He appeared to be confident that Police cannot produce any evidence and the charges would be dropped.”[48]
[48] Ibid, page 17.
Third, the Applicant’s purported minimisation of the state of the relationship between him and the victim does not, for all intents and purposes, go anywhere because the following concession is readily made in his SFIC:
“This consideration must be regarded and considered separately by the Tribunal. There is, in this case, one isolated incident of a relatively minor domestic violence assault which the Tribunal should conclude is within the relevant consideration in terms of definition and conduct by the Applicant.
The conduct involves a chocking (sic) of the Applicant’s victim, his partner at the time.”[49]
[49] A1, page 12, paras [87]-[88].
[Our emphasis]
Did any of the Applicant’s conduct constitute family violence?
“Family violence” is defined in the Direction. It is defined as, “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”[50] To our minds, therefore, the definition poses two separate questions:
[50] Direction, page 4.
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
There can be no question that the Applicant’s conduct, involving as it did, the victim being led to think he had a gun and that he was threatening to kill her, is indeed, threatening behaviour that sought to coerce or control that victim, whom we have found was a member of his family. Likewise, there is little to cavil with our finding that his conduct caused the subject victim (and family member) to be fearful. Therefore, the Applicant’s conduct towards the subject victim, is without question, family violence.
Thus, the auspices of Primary Consideration 2 are engaged for the purposes of determining this application because, as a result of his conviction for “Common assault (DV)” on 25 August 2020, it can safely be found, pursuant to paragraph 8.2(2)(a) of the Direction, that he has been found guilty and convicted of an offence involving family violence. We are therefore satisfied that the incident, which occurred on 7 September 2019 and which saw the Applicant convicted on 25 August 2020, constitutes family violence against the Applicant’s then domestic partner for the purposes of the Direction.
Assessment of the seriousness of the Applicant’s family violence
We will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purpose of assessing the seriousness of the Applicant’s family violence conduct.
Sub-paragraph 8.2(3)(a) refers to the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness to it. On a fair reading of his criminal history, it cannot be safely found that the Applicant has frequently committed such conduct. While he may be currently estranged from his former wife, there is little to suggest he perpetrated conduct that could be characterised as domestically violent behaviour during that relationship. Indeed, it appears there may very well be a re-kindling of that former matrimonial relationship. Given the relative dearth of convictions for domestically violent conduct in his history, it would not be safe to find or suggest that there is a trend of increasing seriousness to it.
This sub-paragraph (a), therefore, does not militate in favour of a finding that the Applicant’s family violence conduct has been serious.
Sub-paragraph 8.2(3)(b) requires a consideration of the cumulative effect of repeated acts of family violence. As noted above, there is a relative dearth of convictions for domestically violent conduct in the totality of the Applicant’s criminal history. It is thus unsafe to suggest (or find) that there can now be said to be a clear and obvious, “cumulative effect” as a result of his domestically violent conduct. That said, there can be little doubt that the victim of his domestically violent conduct on 7 September 2019 would have suffered significant trauma as a result of it. Overall, this sub-paragraph (b) is not relevant to the assessment of the seriousness of the Applicant’s domestically violent conduct.
Sub-paragraph 8.2(3)(c) requires a consideration about the level of rehabilitation achieved by the Applicant at the time of our decision since his last known act of family violence. In particular, we must consider: (1) the extent to which the Applicant accepts responsibility for his family violence related conduct; (2) the extent to which the Applicant understands the impact of his behaviour on the abused, and the witnesses of that abuse (particularly children); and (3) efforts to address factors which contributed to his conduct.
First, it is necessary to ascertain whether the Applicant accepts responsibility for his family violence related conduct. In the abovementioned report of Mr Andrew Wong (Psychologist), it is noted that the Applicant reported his domestically violent conduct to Mr Wong thus:
“Stalk/intimidate-domestic violence (2020): He stated that it happened over an argument with an ex-girlfriend after he ended the relationship with her. He stated that he was found guilty of the offence. Although he maintained his innocence, he stated "I accept the result".”[51]
[51] A2, page 5, para [29].
Notably, the Applicant did not express any level of responsibility for the conduct to Mr Wong because Mr Wong noted the Applicant, “maintained his innocence”. Likewise, in his oral evidence-in-chief, this refusal to accept responsibility or culpability for his domestically violent conduct was maintained:
“MR AL-FADHLI: What are your thoughts? Or how do you feel about domestic violence against woman in the family or in the relationship? Like, how do you feel about that?
APPLICANT: I never done any domestic violence against girl or family at all. That’s why I was asking if they can read that part of the transcript, they can see it’s made up from her answers orally. I’m not saying all the sentencing; only that part of the - her questioning in the court. The way she’s answering, it shows that - if we’re allowed to - it shows it’s all made up.
MR AL-FADHLI: Okay. How can the tribunal be sure that if you were to be given a chance, that you’re not going to reoffend?
APPLICANT: For domestic violence with girl or family, I never did offend, to reoffend. Because I’m not that type of person, you know. Maximum, if there is an argument I will block the girl, and I’ll leave the house. I’ll go. It’s happened before, a few times. And I will leave. Like, I don’t like to argue or start a fight with them. Either of us - my own wife, the mother of my kids, because I don’t like argument. We never had fight. We never had anything.”[52]
[52] Transcript (13 April 2022), page 7, lines 36-47; page 8, lines 1-7.
Second, we are required to ascertain the extent to which the Applicant understands the impact of his family violence towards the abovementioned victim. It is difficult to attribute any level of understanding that this Applicant may have about the impact of his domestically violent conduct against the abovementioned victim. This is because he continues to deny ever committing it. This is what transpired during his cross-examination:
“MR HUTTON: Yes, okay. Well, did you ever assault [Name of victim redacted]?
APPLICANT: Never.
MR HUTTON: Did you ever intimidate [Name of victim redacted]?
APPLICANT: Never.
MR HUTTON: Now, there was a further conviction for choking her which was quashed on appeal but the assault and the intimidation charges were not, is that right?
APPLICANT: And I think a gun too.
MR HUTTON: Why don’t we go to the actual court records because I think that might explain what went on. If you can go to page 145 of the G documents.
APPLICANT: What one?
MR HUTTON: 145.
APPLICANT: 45.
…
MR HUTTON: What’s at 145 is at the end of the transcript on 25 August 2020 and it sets out the findings of the judge in respect of the three charges that were laid against you concerning [Name of victim redacted]. And at the second bottom paragraph there, the judge there was satisfied of the intimidation charge involving you threatening to kill her and that is specifically threatening to pop her on that day which they book to mean you threatening to take her life. Did you threaten to kill [Name of victim redacted]?
APPLICANT: No, no.
MR HUTTON: No, okay. And you’re saying you didn’t otherwise assault her in the sense of either making contact with her or having her believe that you would make any contact with her?
APPLICANT: Sorry, can you say that again?
MR HUTTON: Yes, did you have any physical contact with her?
APPLICANT: No.
MR HUTTON: No and did you – would she have – did you threaten her with physical contact?
APPLICANT: No.”[53]
[53] Ibid, page 58, lines 41-47; page 59, lines 1-16; and lines 25-46; page 60, line 1.
[Our emphasis and redactions]
Third, we are required to identify the efforts made by the Applicant to address factors which contributed to his family violence conduct. There is little to cavil with the proposition (and finding) that the Applicant’s state of rehabilitation is incomplete and is otherwise a work in progress. This much is confirmed by the recent report of Mr Alex Wong (dated 16 March 2022) which says the following about the Applicant’s state of rehabilitation:
“OPINION REGARDING SPECIFIC QUESTIONS
What is Mr Mohamad El Masri’s risk of violent re-offending?
What is Mr Mohamad El Masri’s risk to the Australian community?
Both questions A and B are answered together.
…
Mr El Masri appeared to have a Low risk of imminent violence and serious physical harm. In terms of case prioritisation and need for specialised treatment, his profile fell in the Moderate level of need. This suggested that, although it was unlikely that he would engage in a violent offence again or cause serious harm, he required specialised mental health treatment to address his insight and emotion regulation issues to manage his future risk of violence (albeit low), which could fluctuate with various stressors or difficulties in life.
RECOMMENDATIONS
Mr El Masri would benefit from psychological intervention that employs motivational interviewing techniques to enhance insight and cognitive behavioural approaches to manage any underlying beliefs and normalised behaviours that clinically drive his risk to aggressive outbursts.”[54]
[54] A2, page 7, para [38] (and heading thereto); page 8, paras [42]-[43].
We are therefore of the view (and we find) that, taken in totality, and with particular reference to the third of the three components, this sub-paragraph 8.2(3)(c) militates strongly in favour of a finding that the Applicant’s family violence conduct has been of a serious, more likely very serious, nature.
Sub-paragraph 8.2(3)(d) requires us to look at whether the Applicant has “re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence”. One need look no further than the sentencing remarks made by the learned sentencing Magistrate on 25 August 2020 when dealing with the Applicant for his appalling domestically violent conduct committed on 7 September 2019:
“Those offences take place on 7 September 2019, only a couple of weeks after
he got a community corrections order. That aggravates the circumstances that
he finds himself. The offences concerning [Name of victim redacted], who gave
evidence in this matter that she was frightened of the defendant, are very
serious charges and she had every reason to be terrified of the man who she thought had a gun in his hand and who threatened to kill her.”[55]
[55] G3, page 53.
[Tribunal redactions]
92.We are satisfied that the abovementioned Community Corrections Order issued to the Applicant prior to his very serious domestically violent offending on 7 September 2019 constitutes either a, “formal warning” or, at the very least, sufficiently meets the requirement of the Applicant, “since otherwise being made aware by a court, law enforcement or other authority about the consequences of further acts of family violence”. Although it is not entirely clear from the records before the Tribunal, the “Stalk / intimidate intend fear physical etc harm (personal)” for which the abovementioned Community Correction Order was made on 13 August 2019 related to family violence, this sub-paragraph 8.2(3)(d) specifically provides that, “the absence of a warning [i.e., about further family violence offending] should not be considered to be in the non-citizen’s favour”. There can be no question, however, that the Applicant was on notice to not further offend prior to 7 September 2019.
Accordingly, a moderate level of weight can be allocated to this sub-paragraph (d) in support of a finding that the level of the Applicant’s domestically violent offending has been very serious.
Conclusion: Primary Consideration 2
94.Having regard to our findings pursuant to paragraph 8.2(2)(a) of the Direction and with regard to the respective weights we have allocated to sub-paragraphs 8.2(3)(a)-(d) about the seriousness of the family violence engaged in by this Applicant, we are of the view, and we find that this Primary Consideration 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
primary consideration 3: the best interests of minor children in australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
Identification of the relevant minor children
There is no contest between the parties that there are four relevant children for the purposes of this application. They comprise:
·“Child SEM” (born July 2010) – biological son of the Applicant and his former wife, Ms Joanne Ali Ahmad;
·“Child MEM” (born November 2011) – biological daughter of the Applicant and his former wife, Ms Joanne Ali Ahmad;
·“Child AE” (born April 2006) – step-son of the Applicant. Child AE is the biological son of the Applicant’s former wife, Ms Joanne Ali Ahmad, from a previous relationship; and
·“Child SE” (born March 2008) – step-daughter of the Applicant. Child SE is the biological daughter of the Applicant’s former wife, Ms Joanne Ali Ahmad, from a previous relationship.
The next enquiry is whether there are any other children falling within the auspices of this Primary Consideration 3. In his Personal Circumstance Form (‘PCF’), the Applicant has listed his abovementioned two biological and two step-children.[56] Under the heading ‘Family Details’ in the PCF the Applicant has listed five additional children who are variously described as ‘niece’ or ‘nephew’.[57] Of those five additional children, one is born in June 2001 and is thus not a minor. The date of birth of a further child (a nephew) is not recorded in the PCF so we do not know if that child is or is not a minor. Of the remaining three children (two nephews and one niece) they are respectively born in April 2010 (a nephew), January 2014 (a nephew) and April 2010 (a niece).
[56] Ibid, page 74; and page 76.
[57] Ibid, page 80.
Out of an abundance of caution, we will therefore presume (and find) that the relevant children falling within the auspices of this Primary Consideration 3 comprise:
·The Applicant’s abovementioned biological son;
·The Applicant’s abovementioned biological daughter;
·The Applicant’s abovementioned step-son;
·The Applicant’s abovementioned step-daughter;
·The Applicant’s abovementioned nephew (whose date of birth is not recorded in the PCF, but whom we will presume is a minor);
·The Applicant’s abovementioned nephew (born in April 2010);
·The Applicant’s abovementioned nephew (born in January 2014); and
·The Applicant’s abovementioned niece (born in April 2010).
The parties’ respective contentions
In the SFIC filed on behalf of the Applicant, the following submissions are made about how the abovementioned two biological and two step-children may be impacted by the Applicant’s removal:
“The Applicant has two children and two stepchildren. Two boys and two girls. They are all Australian citizens.
The Applicant has a meaningful relationship with those children, having enjoyed in the past a very close relationship with the children whom he used to see everyday when he was in the community.
There is no reason to suppose that the children would not be affected should the Applicant be required to leave Australia and furthermore, they would be deprived of having meaningful contact with their father should he be returned to Lebanon.”[58]
[58] A1, page 13, paras [94]- [96].
In the SFIC filed on behalf of the Respondent, a cautious concession is made to the extent that this Primary Consideration weighs in favour of revocation but that any such finding should be tempered by other factors prevailing in the Applicant’s relationship with the relevant children:
“The Minister accepts that the applicant has a close and supportive relationship with his children and step children, and there is evidence that he provides financial and emotional support to them. Accordingly, this factor weights in favour of revocation.
It is noted that the applicant is not the primary carer of his children, who live with their mother (Joanne Ali-Ahmed). In 2019, it was reported that the applicant’s 2 children were not living with him (GD 56). The applicant has indicated that on release he would only see his children on weekends and holidays (GD 76), and only has phone contact with his step-children and sees them for birthdays, religious celebrations and other events (GD 79). Further, the applicant appears to accept that his incarceration and detention has caused him to be absent from significant events in his children’s lives (GD 97). These matters should limit the weight to be afforded to this consideration.
The applicant also has a relationship with his nephews and nieces in Australia, but limited weigh should be placed on this given his non-parental role.”[59]
[59] R2, page 10, paras [43]-[45].
A unique feature of this Application

Having regard to our findings referable to each of the three sub-paragraph components of this Other Consideration (b), we are of the view that it, put at its highest, confers only a moderate amount of weight in favour of revocation.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 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.
No evidence has been called by the Respondent regarding any impact the Applicant’s continued presence in Australia would have on any of his victims. Without such evidence, we will not enter into the realm of mere conjecture and simply speculate about whatever extent the Applicant’s offending has had, or would have, on any of his victims.
Also, we cannot find any reference to a statement from a victim speaking favourably about the Applicant remaining in Australia. Such a statement could attract discussion (and possible weight) pursuant to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[144] However, no such statement exists and as such, no discussion is required for this present application.
[144] [2021] FCA 1235.
Accordingly, no weight is allocable to this Other Consideration (c) and it is neutral for the purposes of determination of this application.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which we must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. We will consider each in turn.
(1) Strength, nature, and duration of ties
With reference to the first part of this Other Consideration, we will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. We will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
This first exercise requires us to identify the Applicant’s immediate family in Australia. As mentioned above, his mother, father and two younger male siblings all reside in Lebanon. In his PCF, he refers to a female sibling resident in Australia. The Applicant says she, “is disabled and has a carer looking after her. She also suffers from depression.”[145] He also says he has a male sibling living in Australia whom he describes as “…disabled and also suffer [sic] from depression.”[146]
[145] G3, page 80.
[146] Ibid.
The Applicant adds that, “these two people are my only siblings living in Australia. They would be the immediate contacts for my children if I were deported. Unfortunately they cannot look after themselves, therefore would not be able to look after my children in my absence and my ex-wife works.”[147] The difficulty with this contention is that it has now been rendered redundant as a result of the evidence of both the Applicant and his ex-wife that he, she and the four relevant minor children will all relocate to Lebanon in the event the Applicant is not successful in this application and is removed from Australia.
[147] Ibid.
The Applicant’s Australian-based brother has provided a statutory declaration, dated 27 May 2021. In it he describes the Applicant as a good family man who, “…is a loving and caring brother. He has supported me through my illness, my ups and downs. He is a very important member of the family and treats my 2 children like his own…”.[148]
[148] Ibid, pages 250-251.
It would be unsafe to entirely discount the proximity, currency, and importance of the Applicant’s relationship with his two siblings in Australia. Although their asserted health difficulties preclude them from an active or, “hands-on” involvement in the Applicant’s life (and that of his family), it can be safely found that those two Australian-based siblings would be adversely affected in the event of his removal to Lebanon. We are therefore safely led to the finding that the strength, nature, and duration of the Applicant’s ties to those two particular immediate family members (siblings) in Australia carries a level of weight in favour of revocation. We reach this finding on the presumption that each of those two siblings are either Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2. Strength, nature and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia in July 2011. We have earlier detailed his movements in and out of Australia since his arrival. It is clear he has spent the first 27 years of his life in Lebanon and approximately the last ten years of his life in Australia. He did not come here as a young child and he has not spent the majority of his life in this country.
It is necessary to make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those requires us to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia in July 2011. His first conviction in an Australian court occurred in March 2016. A period of approximately five years post-arrival should not be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. We have already found the Applicant has a strong history of employment in Australia – both in terms of self-employment and in working for others. He will have paid taxation on the income he derived and would thus would have made a contribution towards this country’s coffers from which the Australian community is sustained. The material also contains little or no reference to any voluntary contributions by the Applicant to the Australian community.
Therefore, while the first of these two tempering sub-elements has been rendered neutral, the second one can – due to his employment history in Australia – be applied in the Applicant’s favour to attract some weight to this Other Consideration (d) for the purposes of revoking the decision to mandatorily cancel his visa.
3. Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant recorded the following other close family members, including in-laws, cousins, and uncles/aunts in Australia. Save and except for the evidence from the Applicant’s sister-in-law (Ms Eman El Masri), there is little or no evidence about how these “other ties” will be impacted by a non-revocation decision. Those “other ties” comprise:
“List other close family members including in-laws, cousins, grandparents, uncles / aunts

Full name

Relationship to you

Date of Birth

Nationality

Country of Residence

Eman El Masri

S/inlaw

3.11.89

Australian

Australian

Ahmad El Masri

B/inlaw

4.11.74

Australian

Australian

State how many other relatives you have in Australia or overseas

In Australia

Other country – specify

Number of uncles / aunts

9

8

Number of nieces / nephews

Number of cousins

18

22

Number of grandparents

…..”[149]
[149] G3, page 80.

The material contains a number of statements from additional people who may or may not fall into the category of “other ties” for the purposes of this Other Consideration (d). Out of an abundance of caution, we will address each of these relevant statements and ascertain, to the extent possible, whether any other those “other ties” would be adversely impacted by the Applicant’s removal to Lebanon:
·Khoder Naaman is a work colleague of the Applicant’s ex-wife. They have provided as statutory declaration, dated 14 October 2020.[150] This statutory declaration is configured on the basis of whatever impact the Applicant’s removal would have on his ex-wife and the four relevant minor children. It does not refer to any impact on the deponent as result of the Applicant’s removal. This deponent was not called to give evidence at the hearing and their evidence was not subject of any testing in cross-examination;
·Ms Aicha Chamma has known the Applicant since 1998. She has provided a statutory declaration, dated 8 October 2020.[151] Ms Chamma’s statutory declaration is primarily configured on the basis of speaking about the adverse impact on the four relevant minor children in the event of the Applicant’s removal. That said, given the amount of time she has known the Applicant and the extent to which she speaks positively of him, there is, to our minds, scope for finding that she would be adversely impacted in the event of his removal. She was not called to give evidence at the hearing and her evidence was not tested at cross-examination;
·Ms Reem Khalil is employed as a counsellor and has spoken with the Applicant regarding financial counselling. In her statutory declaration, dated 8 October 2020, she regards him as a, “well spoken respectful individual who was a compassionate and honest person”.[152] It would not, to our minds, be safe to find that Ms Khalil would be adversely impacted by the Applicant’s removal. Her statutory declaration is silent about this issue and her connection with him which seems to have been limited to a “counsellor/client” consultation. She was not called to give oral evidence at the hearing and her evidence was not tested in cross-examination;
·Ms Eman El Masri is the Applicant’s sister-in-law. Her statutory declaration, dated 10 October 2020 appears in the material.[153] She also gave oral evidence at the hearing. In her oral evidence, she spoke of previously assisting the Applicant with his rehabilitation.[154] It is clear she believes in the Applicant’s capacity to reform himself and to become a productive member of the Australian community if allowed to remain here. It is, to our minds, safe to find that Ms Eman El Masri would be impacted by the Applicant’s removal to Lebanon;
·Ms Samira Abdul Aziz Chamma is, as best as we understand the evidence, the Applicant’s mother-in-law. She describes herself as an, “educator” in the childcare sector. In her statutory declaration, dated 13 October 2020, she describes the Applicant as, “…a good man and is always there for his children. He is a caring, supportive and loving father…”[155] It is, to our minds, safe to find that she would be adversely impacted by the Applicant’s removal to Lebanon. She was not, however, called to give oral evidence and her evidence was not tested in cross-examination;
·Mr Mohmed Chamma was an employee of the Applicant. In his statutory declaration, dated 13 October 2020, he describes the Applicant as, “…a hardworking business and family man. He was always professional and paid me on time. I was happy to be working for him and will like to work for him when he gets back on his feet and out of the terrible situation he is in now.”[156] Although he was not called to give oral evidence, thus not subjecting his evidence to cross-examination, we are satisfied Mr Chamma will be adversely impacted as a result of the Applicant’s removal to Lebanon;
·Mr Ahmed Hrouk worked for the Applicant as a form worker for approximately two years. He has met one of the Applicant’s four minor children (Child SEM). In his statutory declaration, dated 13 October 2020, he says the Applicant, “…has always treated me well. He would give me extra shifts if I ask for them and would pay me always on my payday. I never had any problems with him…”[157] Although he was not called to give oral evidence, thus not subjecting his evidence to cross-examination, we are satisfied Mr Hrouk will be adversely impacted as a result of the Applicant’s removal to Lebanon;
·Ms Rim El Masri is a niece of the Applicant. In her statutory declaration, dated 27 May 2021, she speaks of having resided in the same house as the Applicant, “…for many years…”.[158] She describes the Applicant as, “always [having] been [an] attentive and a loving brother towards my mum…he is very supportive and is always their [sic] for us…”[159] Although she was not called to give oral evidence, thus not subjecting her evidence to cross-examination, we are satisfied that Ms Rim El Masri will be adversely impacted as a result of the Applicant’s removal to Lebanon;
·Rahif Homsi has known the Applicant, “from my early school years”. They have provided a statutory declaration, dated 27 May 2021, which appears in the material. This deponent says, “…I am an asylum seeker and was homeless until I was reconnected with Mohamad [the Applicant] who opened his house to me and let me live with him. For all the years I’ve known him and for the short time we lived together, I’ve only seen good things from him. He spent money on me and provided me with food and groceries. He has been my main support when I came to Australia and still is, as currently am [sic] living in his house.”[160] Although this deponent was not called to give oral evidence, thus not subjecting this person’s evidence to cross-examination, we are satisfied Rahif Homsi will be adversely impacted as a result of the Applicant’s removal to Lebanon.
[150] Ibid, page 239.
[151] Ibid, pages 240-241.
[152] Ibid, page 242.
[153] Ibid, pages 243-244.
[154] See generally, Transcript (14 April 2022), page 126, lines 34-46; and page 127, lines 1-4.
[155] G3, page 245.
[156] Ibid, page 246.
[157] Ibid, page 247.
[158] Ibid, page 248.
[159] Ibid.
[160] Ibid, page 252.
Given the number of these “other ties” whom we have found would be adversely impacted by the Applicant’s removal, we arrive at a finding that this third component of Other Consideration (d) facilitates the allocation of weight in the Applicant’s favour towards the revocation of this decision to mandatorily cancel his visa.
(2) Impact on Australian business interests
We are mindful that paragraph 9.4.2(3) requires an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. We are of the view (and we find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), we are of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a certain, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a certain, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
We summarise the respective weights we have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: slight, if any, weight in favour of revocation;
(b)extent of impediments if removed: moderate weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: of a certain, but not determinative, weight in favour of revocation.
conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1: weighs heavily against revocation;
·Primary Consideration 2: weighs heavily against revocation;
·Primary Consideration 3: weighs moderately in favour of revocation;
·Primary Consideration 4: weighs heavily against revocation;
·We have outlined the weight attributable to the Other Considerations. We are of the view (and we find) that the combined weights we have allocated to Primary Consideration 3 and each of the Other Considerations (a), (b) and (d) (respectively) are not sufficient to outweigh the combined heavy weightings we have respectively allocated to each of Primary Considerations 1, 2 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to mandatorily cancel the Applicant’s visa.
Consequently, we cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 2 February 2022, to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 249 (two-hundred-and-forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Member A Ward

........................................................................
Associate
Dated: 13 May 2022

Dates of hearing: 13, 14 and 20 April 2022

Solicitor for the Applicant:

Mr Mohamed Al-Fadhli (Migration Agent)
On Track Migration

Solicitor for the Respondent Mr Jonathan Hutton (Senior Lawyer)
Australian Government Solicitor
Annexure A – List of Exhibits

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (314 pages)

R

Various

28/2/2022

R1

Respondent’s Tender Bundle (253 pages)

R

Various

1/4/2022

R2

Respondent’s SFIC (14 pages)

R

31/3/2022

31/3/2022

A1

Applicant’s SFIC (19 pages)
Annexures A-F (35 pages)

A

23/3/2022

23/3/2022

A2

Applicant’s Psychological Report
Mr A Wong (12 pages)

A

16/3/2022

25/3/2022

[2022] AATA 1165

29 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Standing

TRIBUNAL:	Senior Member Theodore Tavoularis
Member A Ward
DATE:	29 April 2022
DECISION:	Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 February 2022 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

Full name	Relationship to you	Date of Birth	Nationality	Country of Residence
Eman El Masri	S/inlaw	3.11.89	Australian	Australian
Ahmad El Masri	B/inlaw	4.11.74	Australian	Australian

In Australia	Other country – specify
Number of uncles / aunts	9	8
Number of nieces / nephews
Number of cousins	18	22
Number of grandparents

Dates of hearing:	13, 14 and 20 April 2022
Solicitor for the Applicant:	Mr Mohamed Al-Fadhli (Migration Agent) On Track Migration
Solicitor for the Respondent	Mr Jonathan Hutton (Senior Lawyer) Australian Government Solicitor

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (314 pages)	R	Various	28/2/2022
R1	Respondent’s Tender Bundle (253 pages)	R	Various	1/4/2022
R2	Respondent’s SFIC (14 pages)	R	31/3/2022	31/3/2022
A1	Applicant’s SFIC (19 pages) Annexures A-F (35 pages)	A	23/3/2022	23/3/2022
A2	Applicant’s Psychological Report Mr A Wong (12 pages)	A	16/3/2022	25/3/2022