FGHG and Minister for Home Affairs (Migration)
[2019] AATA 329
•6 March 2019
FGHG and Minister for Home Affairs (Migration) [2019] AATA 329 (6 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7482
Re:FGHG
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:6 March 2019
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that the mandatory cancellation of the Applicant’s class UK Subclass 820 Partner (Temporary) visa be revoked under s 501CA of the Migration Act 1958.
[sgd]........................................................................
Mr A. Maryniak QC, Member
Catchwords
MIGRATION – mandatory cancellation of a Class UK Subclass 820 Partner (Temporary) visa – applicant concedes he does not pass the character test – serious and violent criminal offence – Ministerial Direction no. 79 – primary and other considerations – whether mandatory cancellation should be revoked – protection of the Australian community – low risk of violent recidivism – best interests of minor children – expectations of the Australian community – weight to be given to the primary and other considerations – decision under review revoked
Legislation
Migration Act 1958 (Cth)
Secondary Materials
G Documents
Migration Act 1958 – Direction No 79 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA (dated 28 February 2019)REASONS FOR DECISION
Mr A. Maryniak QC, Member
6 March 2019
The Applicant seeks a review of a decision of a delegate (Delegate) of the Respondent (Minister) made on 10 December 2018 not to revoke the mandatory cancellation of his Class UK Subclass 820 Partner (Temporary) visa, which was cancelled in accordance with s 501(3A) of the Migration Act 1958 (Cth) (Act).
This matter was heard on 25 and 26 February 2019. The Applicant, the Applicant’s wife, the Applicant’s psychologist Ms Sabella, expert forensic psychologist Mr Newton and various other witnesses gave oral evidence and were cross-examined and questioned by the Tribunal. Various other witness statements were admitted into evidence without cross-examination.
BACKGROUND
The Applicant’s solicitors have provided the Tribunal with a helpful outline of the Applicant’s childhood and life prior to his offending incident. The Respondent essentially took no issue with such facts. In the circumstances, the Tribunal finds such facts established, as set out in paragraphs 4 to 8 below.
The Applicant is a citizen of Lebanon, and was born in Tripoli in June 1984. His childhood and youth were marked by acute trauma and violence. He was born during the Lebanese Civil War, and lived through ongoing conflict between Lebanon and Israel, including the ‘Seven Day War’ in 1993 and the 1996 Israeli offensive in Lebanon.[1] The Applicant vividly described watching missiles from his rooftop and being rushed to bomb shelters; hearing his grandmother’s fearful screams; and seeing injured and dying soldiers, some missing limbs, being transported through his village. As a result of the conflict, the Applicant’s community was affected by widespread poverty and limited access to services. As a child, he witnessed the suicide of a boy in his neighbourhood, and later, the immolation of another in an accident.[2]
[1] G428-430 [5]-[8]. For a summary of the civil conflict in Lebanon, see BBC News, ‘Lebanon Profile
[2] See, e.g., G428-429.
The Applicant’s mother was affected by a degenerative neurological illness, which rendered her wheelchair-bound and later confined to her bed. The family survived on the Applicant’s father’s modest income as a sign-writer. The Applicant describes his father as a ‘deeply angry and violent man’[3] who was regularly physically abusive towards the Applicant and other members of his family.[4]
[3] G430 [12].
[4] G430-1 [12]-[13].
The Applicant was an excellent student. He finished school by working to pay his tuition fees, and was admitted to the Lebanese University in Tripoli. However, he could not afford his tertiary studies and was forced to withdraw after one year. From 2005 until his arrival in Australia, he worked as a tiler.[5]
[5] G431 [14]-[16].
The Applicant met his wife, who is an Australian citizen, when she was visiting Lebanon in 2009. They were engaged there in 2010, and the Applicant came to Australia as the holder of a Prospective marriage visa in March 2011.[6] They married in May 2011.[7] The Applicant adapted well to life in Australia; he and his wife moved into a home near her parents, and he started his own profitable tiling business.[8] He also became an active and well-regarded member of the Lebanese community.
[6] See, e.g., G431 [17]; 433 [25].
[7] G433 [28].
[8] G433 [28].
The Applicant and his wife have a six-year-old daughter, who was born in Australia in December 2012.
The Tribunal finds that the Applicant had a very unfortunate, violent and traumatic childhood in Lebanon.
Details of the Applicant’s violent offence were also largely unchallenged by the Minister. The Tribunal accepts and adopts the Applicant’s outline of this history as set out in paragraphs 11 to 15 below and finds such facts established, accordingly.
In April 2012, the Applicant and his wife were involved in a car accident on the way to his sister-in-law’s house. After the accident, the Applicant sought assistance from Mr B, an older family friend who owned a mechanic repair shop. As the Applicant was completing a job at the time, he asked his wife to deliver the car to Mr B at his shop on 13 April 2012.[9]
[9] See, e.g., G9 [7].
Later on the same day, the Applicant received a call from his brother-in-law, who asked the Applicant to come to his home. When he arrived, he found his wife visibly upset and crying. He recalls that his wife told him that during her visit to Mr B’s shop, Mr B had grabbed her, forced her to sit with him in the back of their car, kissed her on the shoulder and face and tried to touch her breast.[10] The Applicant called Mr B, who denied his wife’s account. He and his wife then drove to the police station and reported the incident. Later that day, the Applicant spoke with other members of the Lebanese community, who told him that Mr B had been released by police and questioned his wife’s allegations.[11]
[10] G435 [35].
[11] G435 [37].
The following day, the Applicant drove to Mr B’s shop. He confronted Mr B, armed with a knife and some diluted phosphoric acid, which he later told police were items associated with his tiling business. In the ensuing struggle, Mr B received lacerations to his right forearm, and a stab wound to the right lower abdomen and upper right chest, and a bystander received minor injuries when sprayed with phosphoric acid. The Applicant then ran from the scene. Shortly thereafter, he called 000 and gave the address of the workshop. When police arrived at his home just after midday on the same day, the Applicant gave his name and details, permitted a search of his house and told police: ‘I had fight, I had acid on me, I did bad thing – I worry other man hurt. I need lawyer’.[12]
[12] Ibid [28] (G11).
The Applicant was arrested and charged. He was bailed for 12 months, and pleaded guilty to charges of recklessly causing serious injury and injury. He was sentenced to four years and two months’ imprisonment, with a non-parole period of two years. On 6 February 2015, his visa was mandatorily cancelled. On 23 March 2015, he was granted parole, but placed in immigration detention, where he has since remained.
As a consequence of the prison sentence the Applicant has a “substantial criminal record” as within s 501(7) of the Act and does not pass the character test.[13]
[13] Act s 501(6)(a).
For completeness, the procedural background to this matter is as follows:
(a)On 6 February 2015, a delegate of the Minister decided to cancel the Applicant's Partner (Temporary) (Class UK) (Subclass 820) visa under s 501(3A) of the Act (mandatory cancellation).
(b)On 4 March 2015, the Applicant made representations seeking the revocation of the mandatory cancellation.
(c)On 23 March 2015, the Applicant was granted parole and transferred into immigration detention. He has remained in immigration detention since that date.
(d)On 7 September 2015, the Assistant Minister personally decided not to revoke the mandatory cancellation under s 501CA(4) of the Act.
(e)On 17 August 2016, the Federal Court of Australia (Moshinsky J) dismissed an application for judicial review of the Assistant Minister's decision.
(f)On 6 September 2016, the Applicant made an application for a Protection (Class XA) (Subclass 866) visa (protection visa).
(g)On 13 June 2017, the Full Court of the Federal Court of Australia allowed the Applicant's appeal from the decision of Moshinsky J, and quashed the Assistant Minister's decision.
(h)On 17 November 2017, the High Court of Australia refused the Minister's application for special leave to appeal from the decision of the Full Court.
(i)On 17 August 2017, a delegate of the Minister refused the Applicant's application for a protection visa on the basis that the applicant had been convicted of a serious crime and was a danger to the Australian community.[14]
(j)On 26 June 2018, the Tribunal set aside the decision to refuse the Applicant's application for a protection visa, and remitted the matter to the Department with a direction that the applicant satisfied the criterion in s 36(1C)(b) of the Act and is not a danger to the Australian community.
(k)On 24 August 2018, a delegate of the Minister made a protection visa assessment. The assessment concluded that, in light of the Tribunal's decision made on 26 June 2018, the Applicant was a person in respect of whom ·Australia owes protection obligations under s 36(2)(aa) of the Act.
(l)A final decision has not yet been made on the Applicant's application for a protection visa.
(m)On 12 December 2018, a delegate of the Minister decided not to revoke the mandatory cancellation (that is, the decision made on 6 February 2015) under s 501CA(4) of the Act.
[14] See Act, s 36(1C)(b), (2C)(b)(ii).
LEGISLATIVE BACKGROUND / ISSUES
Subject to the terms of the Act, the Minister may grant a non-citizen[15] permission to either travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[16] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[17] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Act. Regulations may specify the criteria that must be met for a visa of a specified class[18] as do specific provisions of the Act.[19]
[15] A non-citizen is a person who is not an Australian citizen: Migration Act 1958; s 5(1).
[16] Migration Act 1958; ss 5 and 29(1).
[17] Migration Act 1958; s 30.
[18] Migration Act 1958; s 31(3).
[19] See, for example, s 36 in relation to protection visas.
The Minister must cancel a visa if satisfied that the Applicant does not pass the character test because of a 'substantial criminal record': s 501 (3A) of the Act. In this matter, the Applicant has a 'substantial criminal record' as he has been sentenced to a term of imprisonment of more than 12 months: s 501(7)(c) of the Act. The Applicant concedes he does not pass the character test.
The Minister, and this Tribunal, may revoke the decision made under s 501(3A) if the Applicant makes representations and satisfies the Tribunal that there is 'another reason' why the original decision should be revoked: S 501CA(4).
Under s 499(1) of the Act, the Minister may give directions about the exercise of functions or powers under the Act and on 28 February 2019 Ministerial Direction 79 (The Direction) came into operation. The Tribunal is mandated by s 499(2A) to comply with the Direction in making its decision.
The Tribunal is required to apply the relevant considerations; the Direction including the Preamble (Objectives, General Guidance and Principles); the Primary and Other Considerations at Part C, and any other representations.
Clause 13 under Part C of the Direction sets out primary considerations to be taken into account when considering whether to revoke the mandatory cancellation of an Applicant's visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Clause 14 of Part C provides the other considerations which must be taken into account, where relevant. They include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
These considerations are given their raison d'etre by the principles set out in paragraph 6.3 of the Direction which are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen's visa should be cancelled, or their visa application refused.
PRIMARY CONSIDERATIONS
In the analysis below the Tribunal has taken into account all of the evidence given during the hearing and all the documentary evidence received.
As noted above, Direction 79 distinguishes between primary and other considerations and provides that decision-makers should generally give greater weight to primary considerations than to other considerations. It also provides that one or more primary considerations may outweigh other primary considerations.[20]
[20] Direction 79, para 8(4) and (5).
In this case, the Minister submits that two out of the three primary considerations (protection of the Australian community and expectations of the Australian community) weigh against revoking the mandatory cancellation. The Minister accepts that the third primary consideration (the best interests of the child) weighs in favour of revoking the mandatory cancellation, but submits that it is outweighed by the other two considerations.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Tribunal is to have regard to the nature, extent and seriousness of the Applicant’s conduct and the risk to the Australian community should he re-offend or commit other serious conduct.
The Tribunal considers that the Applicant’s offending is objectively serious and of a violent nature. It follows that if such offending were repeated it would pose a significant risk of harm to the Australian community and this risk must be assessed in detail.
It is important to note that the two charges proven against the Applicant for recklessly causing serious injury are absent of intention. In this regard Weinberg JA said in sentencing the Applicant:
“I accept that you did not intend to cause [Mr B] serious injury. Your plea to a lesser offence of recklessly causing serious injury entitles you to be sentenced upon the footing that you foresaw the probabilities that you would cause such injury, although you did not specifically intend to bring about that result. Had you been dealt with for the more serious offence, you would have received a significantly heavier penalty than that which I amount to impose.”
Such recklessness and violent conduct by the Applicant, is not part of a pattern of offending and occurred in extraordinary circumstances; involving an alleged sexual assault upon the Applicant’s then pregnant wife during the afternoon prior to a planned party that evening to celebrate her 23rd birthday.
The Australian community does not tolerate or excuse violence. It is not an acceptable way to behave or deal with disputes. The Applicant now appreciates that. He is extremely remorseful now and has been contrite ever since conducting the reckless violent offence.
The following submissions were made on behalf of the Applicant and tested during the hearing. The Tribunal finds such matters established on the evidence, as set out in paragraphs 34 to 41 below.
The Applicant acknowledges the gravity of his offence. He has consistently and sincerely done so. On the day of his offending, the Applicant acknowledged that he had done a bad thing, and expressed concern for the wellbeing of the principal victim of his conduct. In sentencing, his Honour Weinberg JA acknowledged the Applicant’s remorse and the fact that he had pleaded guilty to the offences.[21] A report prepared by the Department of Justice on 18 April 2013, immediately after sentencing, notes the Applicant’s early acceptance of responsibility for his crime:[22]
“[The Applicant] reported that he is ‘devastated and ashamed’ that he is in gaol but advised that ‘I did something terrible and I deserve to be punished for it’…[The Applicant] reported that he thinks of the [redacted] often and expressed remorse for his offending and the effect it had on all involved.”
[21] G12 [44]; see also, the letter from Lewenberg & Lewenberg Solicitors dated 7 May 2015, emphasising the expeditious plea of guilty owing to the Applicant’s ‘desire to plead guilty to the offence, to express his regrets and his wish to co-operate with the administration of justice’.
[22] G466.
The Applicant himself, in his statement of 6 February 2018, says:[23]
“I want to say, first and foremost, that nobody is responsible for my offending but me. I can talk about what happened around that time, and what was happening inside my mind at the time, but in the end it was me. At the time, I was desperate to prove myself to [my wife], to her parents and in particular her mother so that she would not regret marrying her daughter to me, and in the end I was struggling to prove my worth, and the only language I had to do this was through anger. That is not who I ever want to be, and not who I am anymore.”
He describes the violence against Mr B and the bystander as ‘the mistake of [his] life’, and recalls:[24]
“What I can say is, the moment that I saw [Mr B] injured, when I looked into his eyes after the injuries I had caused him, the blood ran out of my body. The monster that I had seen when I drove up to the shop had dissipated into a fearful, small person. I immediately knew that I had done something wrong and unforgivable.”
[23] G434 [30].
[24] G435 [39]-[40].
An expert psychological report from Patrick Newton, dated 2 February 2018, notes:[25]
“[The Applicant] expressed intense and heartfelt remorse for his conduct. He repeatedly emphasised his shame and regret for his behaviour and said that he had dedicated himself since it occurred to dealing with the issues which he recognised underlay it. Thus, he participated in anger management training whilst awaiting sentence, sought out additional behavioural training whilst in prison and engaged in still further self-instruction to deepen his insight into these matters. [The Applicant] expressed repeatedly his empathy for the injured men’s suffering and said that he recognised the culpability and unacceptable nature of his behaviour. Finally, [the Applicant] accepted full responsibility for his conduct. He said that he sincerely believed that [Mr B] had assaulted his wife at the time of the offending, but he added that he now recognised that by taking the law into his own hands he had compounded the situation, intensified the problems for his family and undermined the very justice which he had wanted to obtain for his wife.”
[25] G453 [32].
The observations of Mr Newton are equally pertinent in assessing the risk that the Applicant poses to the Australian community. Mr Newton had the opportunity to assess and report on the Applicant in 2013 in connection with his sentencing, and again in 2018.
In his detailed expert report of February 2018, Mr Newton reached the view that the Applicant presents a ‘low risk’ of violent recidivism. He had reached a similar finding in 2013, though noted then that the Applicant may be apt to react strongly to circumstances where he perceived a loss of standing with people in his community whose opinions he valued. In reaching his more recent finding, Mr Newton was satisfied that these concerns had resolved, owing principally to the impact of psychological treatment, and personal reflection, which the Applicant had undergone since being sentenced. In explaining his reasons for reaching his conclusion, Mr Newton observed:[26]
“A review of relevant Historical risk factors in [the Applicant’s] case suggests that beyond the offences for which he was sentenced in 2013, he manifests none of the factors typically associated with an elevated risk of recidivism. These matters were his first and only offences; despite the problems he experienced he was well adjusted as a youth – completing education and pursuing vocational training; he manifested occupational and interpersonal stability as an adult; he does not abuse substances; and his personality adjustment is not problematic.
Similarly, the factors explored in the Clinical domain are also positive. [The Applicant] has engaged well with treatment, gained good insight into his offending, does not endorse attitudes that condone his offending and is not impulsive. While he suffers clear symptoms of trauma and depression, these are not assessed as elevating his risk of violent recidivism. These positive clinical factors are considered likely to contain any risk of recidivism substantially.
A similarly positive picture emerges with regards to the Risk Management factors. Only [the Applicant’s] issues with stress management are identified as raising concerns – these are primarily situational in nature and would be effectively reduced if he were to be released from immigration detention. Beyond this [the Applicant] has positive future plans and significant personal support, he is not exposed to destabilising influences, and he is compliant with treatment and motivated to continue. That is, these factors are likely to confer significant further containment of any risk of violent recidivism that might be extant in [the Applicant’s] case.
Overall, these risk factors are considered to indicate a Low Risk of violent recidivism on [the Applicant’s] part. I note your advice that other assessors (within the criminal justice and parole system) have also concluded that [the Applicant’s] risk for violent recidivism falls in the Low Risk range.”
[26] G456 [45]-[48].
Mr Newton reaches a similar conclusion with respect to general recidivism. He explains:[27]
“[T]he only risk factor identified in [the Applicant’s] case is his criminal history. Beyond this, he is not antisocial in his personality orientation; he does not endorse pro-criminal attitudes – instead being conservative and conventional in his approach to social and interpersonal matters; and his social circle is not composed of criminal associates.
In addition, and notwithstanding the challenges it has faced, his marriage remains stable and committed. He has improved his work skills – adding another trade to the tiling skills that he already possessed and significantly improving his English facility. He has never drunk alcohol or used illicit drugs and he has a range of positive recreational activities (including cooking and soccer) which provide good outlets and have a low prospect of criminogenic risk.
The review indicates [the Applicant] is at Low Risk for general recidivism. I understand the other assessors (in both criminal justice and parole systems) have also reached the conclusion that [the Applicant] would pose a low risk of general recidivism.”
[27] G457 [52]-[54].
Of particular significance is Mr Newton’s discussion of the Applicant’s treatment. He observes:[28]
“[The Applicant] has engaged in several episodes of anger-management training since he was incarcerated and whilst in immigration detention. He has also discussed issues associated with conflict management and victim empathy in his personal counselling, and has sought spiritual guidance from mentors within his faith community to work through the issues associated with his offending. In his discussion with me he was able to demonstrate the benefits of these discussions.
[The Applicant] could use the insight he has gained through those activities to discuss alternative means by which he could have defused the conflict that led to his charges. Beyond this, he was able to discuss means of avoiding a repetition of such conflict in the future, and for managing his emotions in the event that he found himself in such a context despite his best efforts. In addition, [the Applicant] was able to discuss a range of strategies he had learnt through his participation in counselling and other activities to allow him to exercise better control over his anger. Not only was he able to show good insight into the processes surrounding his anger, but he was also able to reflect meaningfully upon the role which issues from his own background and personality had played in catalysing the conflict which led to the charges. His level of progress with such treatment is at the higher end of that which I have seen in such cases and suggests that he has effectively resolved the issues which concerned me when I assessed him in 2013.”
[28] G456 [49]-[50].
In view of his observations, Mr Newton considered that:[29]
“[The Applicant’s] assessed level of risk is the lowest level possible on any actuarial instrument and is commensurate with that of a normal community-dwelling adult.”
[29] G459 [55](8).
The knife and diluted acid used during the reckless violent act were part of the Applicant’s ‘tools of trade’. He took the acid, which he diluted beforehand in accordance with directions for use in his tiling business, as a ‘bluff’ to intimidate more than anything else.
The Applicant has properly paid the price for his intolerable violence by serving out his sentence and then being paroled into immigration detention. During that time he can only be described as a ‘model’ prisoner. A similar description is apt for his time in immigration detention. Such good behaviour extends to the avoidance of any illicit drug use both in prison and immigration detention.
All witnesses called on behalf of the Applicant, and the Applicant himself, were impressive in giving their evidence. The one evidentiary wrinkle being that the Applicant gave evidence that he may have one or two glasses of alcohol occasionally as opposed to the position that he ‘never drinks alcohol’ – the later position apparently being told to Mr Newton and Ms Sabelle as reflected in their evidence. The Tribunal finds that this ‘wrinkle’, on balance, does not detract from the apparent truthfulness overall of the Applicant and the array of witnesses, including professional and expert, giving evidence on his behalf.
The Tribunal finds that there is the lowest possible risk that the Applicant will re-offend in the future. After assessing all of the evidence it is unlikely in the extreme that the Applicant will resort to such violence in the future. He has matured emotionally in the years since the offence and learnt from the mistake. The Tribunal appreciates that the offending in 2012 was serious. However, considering, on balance, the Applicant’s very low risk of re-offending, his proactive and effective rehabilitation and his lack of intention during the offence, the Tribunal finds that this consideration weighs neither in favour nor against revocation.
BEST INTERESTS OF MINOR CHILDREN
The Applicant’s love for his wife and daughter is compelling. There is substantial evidence before the Tribunal supporting this and such evidence was not challenged by the Respondent.
The Applicant has a six-year-old daughter, with his wife. The evidence of Mr Newton, as well as the supporting statements of the Applicant’s family and friends, indicate that the Applicant is a deeply family-oriented person. He is committed to maintaining a loving, supportive relationship with his daughter, and their separation has been a source of great pain for him, his wife and their family.
The Applicant’s daughter is an Australian citizen. She has never known life outside Australia, and her extended family is here. There is no prospect of her going to Lebanon if her father is forced to return. Further, it has been established that the Applicant faces a real risk of significant harm on return to Lebanon, and his daughter would be subject to the same risk were she ever to attempt to visit her father. Such harm flows from threats received from associates and relatives of Mr B, who lives in Lebanon.
The expert evidence in this matter confirms the harm the Applicant’s daughter has suffered to date as a consequence of separation from her father, and the prospects of further harm should he be forced to return to Lebanon. A psychological report by Dr Karin Steinhoff dated 2 January 2018 notes, for example:[30]
“[The Applicant’s wife] states that it has been a very stressful process raising [the Applicant’s daughter] on her own and living in her parents’ home. Her parents are inconsistent in their discipline of [the Applicant’s daughter] and do not work as a team with [the Applicant’s wife] to try and address behavioural issues acted out by [the Applicant’s daughter]. Further, [the Applicant’s daughter] has been exposed to disputes between her uncles and grandparents. There is a lot of tension in the home. [The Applicant’s wife]’s dream of raising [The Applicant’s daughter] with her husband, in their own home, peacefully and with their own rules and style of loving / nurturing parenting approach has not come to fruition. [The Applicant’s wife] feels enormous guilt, shame and sadness for her daughter’s upbringing. She feels powerless and defeated. This has consumed her and had an adverse impact on her mental health.”
[30] G375.
The report goes on:[31]
“[The Applicant’s daughter] is an attractive 5-year-old young child who exhibits behavioural issues. She is always well dressed when she attends therapy with her mother. She is constantly moving around, fidgeting, interrupting her mother, making demands and often physically hitting out. [The Applicant’s daughter] is also known to swear regularly. [The Applicant’s daughter] struggles to self-soothe and self-regulate.
[The Applicant’s wife] acknowledges that much of this behaviour has been learnt and modelled by [The Applicant’s wife’s] parents and siblings. Further, she recognises that she herself has been a poor parent. [The Applicant’s wife] is tired, irritable and agitated always. She has no patience and is quick to react to [The Applicant’s daughter] rather than calmly sit her down and explore [her] behaviour and focus on positive rewards and praise [her].
[The Applicant’s wife] is riddled with guilt in the way she has raised [The Applicant’s daughter]. [The Applicant’s wife’s] life has not been normal since she fell pregnant with [the Applicant’s daughter]. [The Applicant’s wife] has been in an elevated, anxious state since her husband was imprisoned. She has been in survival mode and has been unable to find the emotional space to enjoy parenting and engage in normal, fun, rewarding activities that other young mothers simply take for granted such as going to a park, meeting up with other young mums to socialise and have play dates. [The Applicant’s wife] has needed to work extensive hours, has had severe financial restrictions and is severely depressed. [The Applicant’s wife] views her parenting style as being reactive and functioning on an automatic pilot rather than being proactive and focusing on [the Applicant’s daughter’s] positive attributes and rewarding all her good behaviours. She is mindful that much of this is overlooked as she is tired, without energy and disillusioned and frightened about her life and her future.”
[31] G375.
Dr Steinhoff concludes:[32]
“[The Applicant’s wife’s] mental health is poor. She identifies her husband as being her soul mate, her support and her strength. I would be extremely concerned about this woman’s wellbeing if [the Applicant] was deported and I would be worried about how this small family unit would stay intact. [The Applicant’s daughter] is at a very vulnerable age and requires continuity of care, nurturance, guidance and safety. [The Applicant’s wife] would struggle to be available to [the Applicant’s daughter] and provide good parenting let alone minimal parenting if her husband leaves the country due to her further decline in mental health.”
[32] G376.
This consideration weighs decisively in favour of revoking the cancellation decision.
EXPECTATONS OF THE AUSTRALIAN COMMUNITY
In light of all the evidence before the Tribunal, and consistent with the analysis above, the Tribunal finds that the Australian community would expect the Applicant be permitted to remain in Australia.
The evidence supports not only the view that he is remorseful and now aware that ‘violence is not the answer’ but also that he is ready to re-join the Australian community, work hard, help others and make a good life for his wife and daughter in Australia. The Tribunal is in little doubt that the Applicant will make a significant positive contribution to Australia, consistent with that which he was making, albeit for a short time, prior to his offending in 2012.
The Respondent properly raised the concern of how the Applicant may behave, if back in the Australian community and faced with a similar set of extraordinary circumstances—for example a sexual assault on his wife and/or daughter. Upon the evidence before the Tribunal, the Applicant’s most likely response would be to ‘call the police’; as was his evidence, which was tested during the hearing.
From all that has flowed for his reckless violent conduct in 2012 the evidence is that he not only realises that violence was not and is not the answer but that he has matured emotionally and deals with anger in a much healthier and appropriate way than in the past.
The Tribunal accepts that the Applicant’s violent reckless conduct occurred only a short time after he first arrived in Australia. However, there is no evidence of him displaying any violence since, in either prison or immigration detention. In fact, he has displayed no anti-social behaviour since his conduct in 2012.
The consideration weighs in favour of revocation of the mandatory cancellation.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Tribunal has considered Australia’s non refoulement obligations in this matter, in respect of the Applicant. The Tribunal finds that such consideration weighs in favour of revoking the cancellation decision, in light of the evidence before the Tribunal, as discussed above.
Strength, nature and duration of ties
The Applicant’s ties with his wife and daughter weigh in favour of revocation of the mandatory cancellation. However, as the Minister submits, this consideration should be given very limited weight because the Applicant committed his offence shortly after just one year in Australia.
The Tribunal finds, on balance, that this consideration does not represent ‘another reason’ for revoking the mandatory cancellation.
Extent of Impediments if removed
Whilst the Applicant may face some impediments if he were removed to Lebanon, as is clear from the evidence, the Tribunal accepts the Minister’s submission that such impediments are not insurmountable. However, the established threat to his physical safety in Lebanon, if carried out, would represent a substantial impediment to the Applicant’s life if removed from Australia.
The Tribunal finds that this consideration does represent ‘another reason’ for revoking the mandatory cancellation.
Impact on the Victim and Impact on Australian Business Interests
Neither party made any submission with respect to the impact on Australian business interests or the impact on victims. In these circumstances, the Tribunal does not consider either consideration to be relevant.
CONCLUSION
The primary considerations weigh in favour of revocation. To the extent that some of the other considerations weigh against revocation, they are outweighed by the Tribunal’s findings in respect of the primary considerations.
The Tribunal holds that, the primary considerations weigh in favour of the revocation of the mandatory cancellation.
The correct or preferable decision is to revoke the mandatory cancellation of the Applicant’s Class UK Subclass 820 Partner (Temporary) Visa.
I certify that the preceding 67 (sixty seven) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.
[sgd]..............................................
Associate
Dated: 6 March 2019
Date(s) of hearing: 25 – 26 February 2019 Counsel for the Applicant: Mr John Maloney Solicitor for the Applicant: Ms Sanmati Verma
Clothier Anderson Immigration LawyersCounsel for the Respondent: Mr Mark Hosking Solicitor for the Respondent: Mr Keith Sypott
Australian Government Solicitor
– Timeline’, available at
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Natural Justice
Procedural Fairness
Statutory Construction
Remedies
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