FHXX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2383

FHXX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2383 (4 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3030
Re:FHXX
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:4 July 2022
Date of written reasons: 28 July 2022
Place:Sydney

The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant's Class AH Subclass 101 Child Visa
......................................[Sgd]..................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under s 501CA(4) – character test – substantial criminal record – exercise of discretion to revoke cancellation of visa – Ministerial Direction No. 90 – primary and other considerations – the strength, nature and duration of ties to Australia – impediments to removal – effect of mental illness – mandatory cancellation of visa revoked - decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Morales Alvarado and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 269
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
28 July 2022
BACKGROUND

FHXX (FHXX) is a twenty nine years old citizen of Lebanon.[1] He was granted a Class AH Subclass 101 Child Visa on 27 June 2003, and arrived in Australia at around that time.[2] He came from Lebanon to live with his father in Australia. He was accompanied by his older step-sister. He has lived in Australia ever since.
[1] G20/96.
[2] His immigration movement records have not been provided to the Tribunal. Various statements made by the applicant put his age between 9 and 11 years old at the time of his arrival:; G18/90.
He lived with his father for about six months after arriving but then went to live with his aunt. He was a troubled child, undoubtedly affected by his experiences in conflict-torn Lebanon. He spoke little or no English. He lived with various family members during his teenage years. He completed year 12, although by his own account he was not academically minded. His main interest was ‘barbering’. He showed creative talent as a young self-taught barber, being highly placed in so called ‘Barber Battles’ (hairdressing competitions) against more experienced barbers. For a period he ran his own business and when necessary supplemented his income working as a security guard. He moved to Melbourne for five months for work when his business in Wollongong closed due to high rents but returned to Sydney. He is justifiably proud of his achievements as a self-taught barber.[3]
[3] G18/92
In late 2015, the drug squad conducted an investigation resulting in the conviction of one AI for the supply of 1.4 kilograms of methylamphetamine, for which he was sentenced in November 2017 to six years’ imprisonment. AI is FHXX’s older cousin.
On 7 November 2016, FHXX was charged on multiple counts with the commercial supply of methylamphetamine relating to the same parcel of drugs.[4] He appeared in court in December 2016, a fact well publicised in the local media.[5] He was named, together with his occupation and suburb of residence. He was subsequently released under strict bail conditions.
[4] TB1/6-7.
[5] G54/216; G54/221.
Almost three years later, on 19 August 2019, a fresh indictment was drawn up containing two lesser charges relating to the same parcel of drugs. The lesser charges were being “knowingly concerned” in the commercial supply of prohibited drugs, and “failing to report” an indictable offence. His plea of guilty to these lesser charges was accepted in full satisfaction of the previous indictment.[6]
[6] TB1/ 7-9.
He came before the District Court of NSW for sentencing on 13 September 2019. The judge was clearly troubled by the case. There had been substantial delays, which had not been adequately explained. The Police Facts were “as vague as he had seen”. The offending fell “at the very lowest end of the range”. In view of the late plea of guilty, the defendant was entitled to a small 10% reduction. He was sentenced to 12 months’ imprisonment with a non-parole period of eight months.[7]
[7] Although the judge did not say so explicitly, arguably, the Police Facts went no further than establishing possession of 33 grams: G9/39.
The concealment offence was also assessed “as falling very much at the lowest end of the scale”. A sentence of one months’ imprisonment was imposed, to be served concurrently with the other sentence.[8]
[8] G6/30; G9/45.
The defendant was 22 years old when the offence was committed (in November 2015) and 26 years old when the matter was finalised on 13 September 2019. The non-parole period expired on 29 September 2019, some 16 days later.[9]
[9] G9/45.His release date reflected the time spent in custody. He was on strict bail conditions from when the original charges were laid in November 2015. He was returned to custody on 20 May 2019, after a volatile outburst at his father’s house, an incident dealt with below: see paragraph 52-56.
VISA CANCELLATION
Although FHXX was brought to this country at a very young age on a permanent basis, he was not naturalised, with the result that he remains a citizen of Lebanon. The importance of citizenship was perhaps not appreciated by those responsible for his welfare as a juvenile
On 25 September 2019, his visa was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Migration Act),[10] and when the non-parole period expired on 29 September 2019, he was transferred to immigration detention at the Villawood Detention Immigration Centre (VDIC).[11]
[10] G58, 232.
[11] TB1/18.
On 18 October 2019, he made representations, in accordance with an invitation to do so, seeking revocation of the mandatory cancellation.[12] Some eighteen months later, on 11 April 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) decided not to revoke the cancellation decision.[13]
[12] G13-14.
[13] G3/10.
On 13 April 2022, he applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.[14] Henceforth, I refer to him as ‘the applicant’.
[14] G1.
The hearing was set down for 20 June 2022, but the Tribunal was informed on 14 June 2022 that the applicant had been admitted to the Liverpool Hospital (TLH), and specifically, to the Mental Health Centre. The Tribunal therefore adjourned the hearing to 30 June 2022, to determine whether he was mentally fit to proceed, and to explore what possibilities there might be to obtain legal representation.
The Tribunal is established under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for the purpose of reviewing specified governmental decisions, which include decisions of a delegate of the Minister under subsection 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.[15] If an application is made to the Tribunal for review of such a decision, and the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review, then the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the AAT Act to affirm the decision under review.[16] In these proceedings, the 84^th day coincided with 5 July 2022.
[15] Migration Act, s 500(1)(b)(a).
[16] Migration Act, 500(6L)(c).
Under circumstances such as these, the Tribunal is faced with a stark choice - either to proceed in the absence of the applicant, or to set aside the decision under review and remit the matter to the Minister for reconsideration in accordance with such direction or recommendation as may be deemed appropriate by the Tribunal, as provided for under section 43(1)(c)(ii) of the AAT Act. The latter course will avoid the consequence that the Tribunal is ‘taken to have affirmed’ the decision not to revoke the mandatory cancellation. However, it will inevitably lead to considerable delay, with the possibility of prolonged detention. The applicant’s representations seeking revocation made on 18 October 2019 were not the subject of a decision until 11 April 2022, some eighteen months later, and he was in immigration detention throughout this period.
Under these circumstances, I issued a summons to TLH to produce the applicant’s medical records, and a summons to his treating psychiatrist to appear for the purpose of giving evidence to the Tribunal. I considered that information obtained pursuant to these summonses would be relevant to the procedural decision to be made, as outlined above, but also relevant to the substantive issues before the Tribunal. TLH returned a bundle of documents of over 300 pages in response to the summons to produce medical records. Dr MT (Dr T), the applicant’s treating psychiatrist, appeared and gave evidence.
In addition to the TLH records, the Tribunal was provided with the following materials:
(a) The Respondent’s documents:
· Documents (261 pages) provided pursuant to section 500G(2) of the Migration Act (the G docs);
·   Tender Bundle relating to the applicant’s criminal justice files (340 pages);
·   Bundle of IHMS Serco Records (46 pages), and
·   Statement of Facts, Issues and Contentions, dated 8 June 2022.
(b) Materials provided on behalf of the applicant:
·   Written statement from the applicant’s father, sent by email on 24 June 2022
·   Undated letter from the applicant’s step-sister addressed ‘To whom it may concern’
·   Second undated letter from applicant’s step-sister sent on 27 June 2022 (relating to non-refoulement obligations)
·   Letter signed by members of the applicant’s family sent of 23 June 2022, including his father and step-sister
·   Letter from HM, friend, dated 23 June 2022
·   Letter from ZH, friend, dated 23 June 2022
·   Letter from HH, President of the Islamic Club of Illawarra, dated 26 June 2022
·   Statement by SM (SM), friend, sent by email dated 24 June 2022
(c) Other materials
The following reports are of particular significance:
·Assessment report dated 4 December 2018 by MG, clinical psychologist, prepared for the Court.[17]
·TB, Clinical Psychologist, Psychological Assessment Report, NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (15 October 2021) [18]
·FR, Summary of Treatment, NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (28 November 2021).[19]
[17] G49/171; TB5/198.
[18] G48/159
[19] G47/155.

THE HEARING

The hearing took place by video conference on 30 June and 1 July 2022.
The applicant was discharged from TLH on 24 June 2022, and was able to appear by videoconference on 30 June. He was represented by his step-sister. The Respondent was represented by Mr K. Eskerie.
I explained at the outset that the applicant was not legally required to give evidence or submit to cross-examination. The applicant decided, after conferring with his step-sister, not to give evidence.
The Tribunal then heard from his treating psychiatrist, Dr T, who appeared in answer to the summons. He stated that he is a registered medical practitioner in New South Wales, and a consultant psychiatrist. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He works at TLH and has a dual-role there; as the clinical director of the mental health services and also as the consultant psychiatrist who runs the High-Dependency Unit.
In response to questions from the Tribunal, Dr T opined that the applicant was mentally fit to follow the proceedings. He was admitted to TLH on 2 June 2022 following a psychotic experience, had certain delusional beliefs, and behaviours consistent with bipolar disorder. The applicant’s mental state was stabilised with medication and he was discharged to Villawood Detention Centre on 24 June 2022.
The applicant’s step-sister interpolated that the applicant had been diagnosed previously with bipolar disorder. Dr T responded to this information as supporting a positive diagnosis of bipolar, saying that this would be the diagnosis going forward.[20]
[20] Transcript of proceedings 30 June 2022, 7.
Dr T also expressed the view that the removal of the applicant to Lebanon would be a significant stressor and would almost certainly result in a relapse. While disclaiming any expertise in respect of the quality of psychiatric services in Lebanon, his expectation was that the health services in Australia would be vastly better than the health services in Lebanon.[21]
[21] Transcript of proceedings 30 June 2022, 10.
I have reviewed the medical records which contain a convoluted history of hospital admissions.[22] A comprehensive report of his medical history may be found in the IHMS Report to Commonwealth Ombudsman dated 7 February 2022.[23]
[22] Recent admission include: 10 October 2018 Admission to The Sutherland Hospital (TSH) suffering from ‘pseudoseizures’: G46/135; 17 May 2019, admission to The Wollongong Hospital (TWH) for seizures, or complex tic disorder with involuntary movements, inability to control emotions and behaviours: TB8/242; 2 June 2022, admitted to Liverpool Hospital. His admission delayed the hearing of this matter.
[23] TB8/236.

The Tribunal also heard evidence from the applicant’s step-sister, and father who appeared with the assistance of an Arabic interpreter, and SM, who provided a statement.
DECISION
Under subsection 501CA(4) of the Migration Act 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 representations in accordance with the invitation, as required by paragraph 501CA(4)(a).
I am satisfied that, at the time of the decision to cancel his visa, he had been sentenced to a term of imprisonment of 12 months or more, and that he was then serving a custodial sentence. He therefore has a ‘substantial criminal record’, as defined by paragraph 501(7)(c) of the Migration Act, and therefore does not pass the character test as defined by paragraph 501(6)(a).
Therefore, the issue for the Tribunal is whether there is ‘another reason’ why the original decision should be revoked. The original decision was a decision not to revoke the cancellation of his visa under subsection 501(3A) of the Migration Act. Therefore, is there ‘another reason’ why the decision not to revoke the cancellation of his visa should itself be revoked? If so, then his visa remains in force.
In answering this question, the Tribunal is required to apply Direction No. 90 (the Direction) issued under section 499 of the Migration Act. Final submissions were heard from the Respondent on 1 July. On 4 July 2022, following a close examination of the factors the Tribunal is required to consider under the Direction, and especially the applicant’s offending record, I decided that there is such a reason. In the written reasons that follow, I set out the reasons for the Tribunal’s decision.
Therefore, the decision of the delegate is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa, with the consequence that his visa remains in force.
THE DISCRETION UNDER SUBSECTION 501CA(4)
In exercising the discretion under subsection 501CA(4) of the Migration Act, the Tribunal is bound by subsection 499(2A) to comply with the Direction, the purpose of which is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act. The Direction is prescriptive, but the weight to be assigned to the various considerations identified therein is entirely a matter for the Tribunal.
Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
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 measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction provides guidance in relation to exercising the discretion. Under paragraph 8, four primary considerations (paragraph 8) are identified. They are as follows:
·PC1: protection of the Australian community from criminal or other serious conduct;
·PC2: the presence of family violence;
·PC3: the best interests of minor children in Australia; and
·PC4: expectations of the Australian community.
Paragraph 9 stipulates that certain ‘other considerations’ must be considered, where relevant. In the present case, these considerations include: Australia’s non-refoulement obligations; the extent of impediments if removed; the impact on victims; and links to the Australian community, including the strength, nature and duration of ties to Australia.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1

Paragraph 8.1(1) provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Sub-paragraph 8.1.1 - The nature and seriousness of the conduct

Sub-paragraph 8.1.1 of the Direction outlines various factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date.
CRIMINAL HISTORY
The highlights of his criminal record, considered in chronological sequence, are as follows.
(a) The jurisdictional offence - November 2015 (age 22)
On 24 November 2015, police searched an apartment frequented by the applicant and found a quantity of drugs. On 7 November 2016, he was charged on multiple counts of supplying a commercial quantity of a prohibited drug.[24] He was remanded and released on bail on 1 February 2017.[25] On 17 May 2017, he was committed for trial. On 6 November 2018,[26] the offences previously charged were ‘not included’ in the indictment.[27] On 13 September 2019, he pleaded guilty to two lesser offences, being knowingly concerned in a commercial supply, and concealment of a serious indictable offence in full satisfaction of all offences previously charged. He was sentenced and because his plea was entered late, he received a bare 10% sentencing discount.
[24] TB1/7.
[25] TB2/154.
[26] TB1/7.
[27] TB1/7.
I note the judge’s sentencing remarks referred to above about the vagueness of the police facts. It appears that the prosecution’s case was entirely circumstantial. The defendant was a frequent visitor at his cousin’s residence, around which the drugs were located. His phone contained images of him with his cousin, and in one selfie a small zip lock bag could be seen in the background. It was similar in appearance to the bag containing 33.1 grams of the drug, on which his DNA was found.[28]
[28] G9/38.
There is no scope in these proceedings for the Tribunal to engage in a forensic examination of the evidence underpinnings those convictions, and the convictions and the facts on which they are based must be accepted. The Tribunal is not at liberty in these administrative proceedings to impugn the sentence or those convictions: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
(b) The nightclub incident – 3 January 2016 (age 22)
On 3 January 2016, the applicant was involved in an incident at a nightclub.[29] He punched another patron, causing lacerations and bruising to that person’s face. He was charged with assault causing actual bodily harm. On 10 May 2016, he pleaded guilty to the assault charge. However, he did not agree with the police facts which stated that the assault was unprovoked. He said that that he was provoked and that he was defending his girlfriend. The magistrate decided to view CCTV footage of the incident, over objections from the applicant’s solicitor. The solicitor was concerned that the footage gave a distorted view, because it did not cover prior interactions between the applicant and the alleged victim - had he known the footage would be produced, he would have taken a different tack.
[29] TB1/5.
The magistrate viewed the footage and found as a sentencing fact that the applicant was neither provoked, nor acting in self-defence or defence of his girlfriend.[30] A sentence of 14 months imprisonment was imposed, wholly suspended.
[30] G11/59.
(c) Incident involving VAL on 9 - 10 November 2018 (age 25)
On 6 November 2018, the supply charges initially laid in November 2015 were brought up before the Wollongong District Court. The Criminal History Report states that the offences were not included in the indictment. [31] This was presumably a preliminary step to vacating the indictment and filing fresh charges.
[31] TB1/7.
According to the Police Fact Sheets tendered in these proceedings, the applicant was exceedingly frustrated by the extensive delays in dealing with these charges. He was then living at the home of VAL, the owner of the barbering business he was employed by. He began pacing up and down, angry about the delay.[32] He appeared to be on the verge of a manic episode. When VAL tried to phone for support, he lost his composure, grabbed her under the chin and pushed her against a wall. This occurred on 9 November 2018.
[32] G12/63.
On 10 November 2018, he was charged with assault and intimidation and breaching bail. The stalk/intimidate was based on various telephone message sent by him to VAL. The police took him to hospital. He was talking to himself and experiencing hallucinations and a seizure.[33] He was remanded in custody until 13 December 2018.[34] On 4 December 2018, he was interviewed in Long Bay Correctional Centre by MG, a clinical psychologist.[35]
[33] G12/63.
[34] TB2/154.
[35] TB5/198; G49/171.
On 11 November 2018, the court dismissed the charge of breaching bail.[36] On 8 April 2019, he was sentenced to 12 months Community Corrections Order (CCO) for the assault and 18 months CCO for the stalk/intimidate.[37] There are no sentencing comments before the Tribunal.[38]
[36] TB1/8
[37] TB1/9.
[38] TB5/190.
I note that the applicant was required to live at VAL’s address as part of his bail conditions.[39] He lived with her family until November 2018 when his bail conditions were varied to allow him to reside at a particular hotel.[40] He was subject to a curfew from 21:00 to 06:00 and was subject to regular bail compliance checks by police.
[39] G12/63.
[40] TB1/20.
(d) Incident involving his father – 19 May 2019 (age 25)
His medical records show that on 16 May 2019 he was admitted to the Wollongong Hospital (TWH) for seizures, a complex tic disorder with involuntary movements, and an inability to control his emotions and behaviours. He was discharged the following day. The discharge notes record:
FHXX has ongoing risks of misadventure or potential harm to others due to longstanding personality vulnerabilities and ongoing psychosocial stressors, none of which can be mitigated by further hospital admission. These risks are dynamic and unpredictable but currently he is at baseline and settled.
He would benefit from community follow up for a further longitudinal assessment by a psychiatrist to further validate and assess for ADHD, and for ongoing pervasive symptoms related to PTSD.
At this stage, there are no indications for the current prescription of medications without further assessment.[41]
[41] TB8/244
He went to his father’s house and an incident occurred on 19 May 2019. Some family members were leaving the home and he was apparently disturbed by the sounds of their departure. After a verbal altercation with his father, he picked up some plastic chairs and threw them around. He also smashed a glass table.
On 19 May 2019, the police were called (as his father told the Tribunal below, not by him) and the applicant was returned to custody. He was charged with property damage, as well as the offence of stalk/intimidate, the latter being withdrawn on 13 January 2020.
On 27 February 2020, he was sentenced to a two year CCO ending on 26 February 2022 for the property damage.[42] The sentencing magistrate made the following telling observations. She read the detailed psychiatric reports, and said that they ‘would certainly explain his outbursts. He has a very sad, very complex history going back to his early childhood. One can only imagine what sort of damage that childhood would do to a person’. The facts were ‘below the midrange of objective seriousness’.[43]
[42] TB1/10
[43] G7/32.
The applicant’s father gave evidence to the Tribunal. He stated that he neither called the police nor asked for an apprehended violence order for protection. He was not in fact aware of the existence of the Apprehended Domestic Violence Order (ADVO).[44] He was firmly of the view that his son’s behaviour was attributable to his illness. Until this incident he did not know that his son was suffering from a mental illness. Below is his response to questions put to him by Mr Eskerie.
MR ESKERIE: “And you then yelled at FHXX, ‘Why do you do like this? Are you normal? What’s wrong with you?’”
INTERPRETER: At that time I wasn’t aware that he suffers from this mental problems when that happened. I just thought that he’s a normal person, that he doesn’t suffer from any problems at all. And that’s why I just left the scene and someone else contacted the police to deal with it. Because, if he’s a normal person that acts normally, that he wouldn’t so. That’s why I was shocked and surprised when that happened. I wasn’t expecting a normal person to act this way and behave this way with his father. So, if I was aware of it, I would have treated him differently but it was a shock to me. When that happened, it’s either one of two things that he had shortage or he didn’t have the medication he had or, yes, he didn’t take it. So, he had these episodes that happened. But, unfortunately I wasn’t aware. So, the police came, reported him and he was in trouble so the police took him to hospital. He had an episode in there and received the medication. After that he settled down and from there the police took him to the centre he is in now.
MR ESKERIE: Okay… Is it true that he said those words that I just read out to you before? So, he shouted, “Can I just have some rest in this house?” and then swore…
INTERPRETER: I know what you’re trying to ask and what you’re trying to achieve out of your questions and I got it. But, there is no point going back and talking about this one and comment about it because he wasn’t acting normally. He was mentally sick and, like, he didn’t have his medication regularly. So, for a person, if he had a better chance and he received rehab and the correct treatment, if he’s taking the medication regularly, maybe he would become normal again and he would be treated from his mental problems, he wouldn’t have these episodes. But, because he got his episodes, that’s why he’s acting like that and he’s not responsible for his acts because he’s ill. We’re not going to go back and comment on this because there’s no point. In return, we should help him out getting out of this confinement. Because, for him being detained, it’s just making him getting worse and putting more pressure on his mental state and psychological state and he’s getting more and more episodes. So, we should get him out of confinement, put him in a rehab centre, receive the right treatment and right medication and I know Australia is the best country to help its residents for these sort of issues and to solve it properly. So, I’m not going to get back to this point. We should move on and help him out.[45]
[44] Transcript of proceedings, dated 30 June 2022, 61.
[45] Transcript of proceedings, dated 30 June 2022, 57-58.
As with the previous offending involving VAL, I consider that the applicant’s culpability is significantly mitigated by his mental health condition.
For completeness, I note the other convictions on his criminal record.[46] Over the past 10 years, they include:
(a)two traffic offences;
(b)one property offences (custody of knife);
(c)four minor possession offences;
(d)four offences against the person (three assaults; one affray);
(e)three administration of justice offences, being breach of bail type offences;[47]
[46] TB1/1. The information has been extracted from the Criminal History report provided by the NSW Police in response to a Summons to produce.
[47] See TB1, on 27/9/2013; 12/3/16; 19/5/2019.
The last point is not insignificant. I note the Respondents submission
32. Third, a number of the applicant’s offences were committed while on some form of conditional liberty. As can be seen from the applicant’s criminal history (G6), a number of his offences have been called up for resentencing, such as in 2014 (G6/31) and 2020 (G6/29-30). In sentencing the applicant for the offence of destroy or damage property <=$2000-T2, Magistrate Kiely found that the seriousness of the offence was “aggravated by the fact that he was on bail, on parole, on bonds, and bonds for offences of violence” (G7/32). [48]
[48] Respondent’s Statement of Facts, Issues and Contentions, paragraph 32
I return to consider the various factors to which the Tribunal is required to give consideration under the Direction.
Paragraphs 8.1.1(1)(a) and (b) of the Direction contain examples of offending which is regarded by the Australian Government and Australian community as serious or very serious. I note that crimes of a violent nature against women should be regarded as very serious, regardless of the sentence imposed. I also note that family violence should be regarded as very serious, regardless of whether there is a conviction for an offence or a sentence imposed.
I therefore regard the assault on VAL as very serious. In terms of the weight to be assigned to this offending, I take the following into account. VAL did not suffer any physical harm on this occasion and continued to offer support to the applicant, as shown by her letters of 18 October 2019 provided to the Department.[49] At the time, he was subject to the ongoing uncertainty of protracted criminal proceedings and subject to strict bail conditions. The criminal proceedings against him for commercial supply had dragged on since November 2016. He was well aware that his cousin had been sentenced to six years imprisonment the previous year. He was under considerable stress. His mental health had deteriorated.
[49] Letters dated 18 October 2019: G31/119; G32/120.
Under paragraph 8.1.1(1)(c), the Tribunal is required to consider the sentences imposed. The two drug-related offences leading to the mandatory cancellation of his visa attracted an aggregate sentence of 12 months imprisonment, with an eight month non-parole period. For the assaults he received fines, a good behaviour bond and a community corrections order (CCO); the assault occasioning actual bodily harm resulted in a 14 month suspended sentence; the affray attracted a fine and a bond; the offence of stalk/intimidate attracted an 18 month community correction order (later increased to 24 months); he received fines for the two traffic offences and four minor possession offences; and he received fines and a community corrections order for the knife offence and the property damage.
Under paragraph 8.1.1(1)(d), the Tribunal is required to consider the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness. The Respondent contends that there is a trend of increasing frequency.
The Respondent’s Statement of Facts, Issues and Contentions (RSFIC) states:
[T]he applicant has offended with notable frequency and his offending has increased in seriousness over time. In the seven years between reaching adulthood in 2011 and being taken into custody in 2019, he has been convicted or otherwise been found guilty of 15 offences. His first offences in 2012 were dealt with by way of fines and good behaviour bonds, before progressing to significant periods of imprisonment in 2016 and 2019 (subparagraph 8.1.1(1)(d)).[50]
[50] RSFIC, paragraph 35
However, my analysis of his offending does not support a finding of increasing seriousness, other than the sense in which the heaviest penalty comes last. The criminal record contains only two examples of physical violence resulting in the infliction of bodily harm. The nightclub incident in 2016 has been described above. His ‘overreaction’ (as he described it) on this occasion was spontaneous and fuelled by alcohol in the overheated atmosphere of a nightclub. He apparently believed that the victim had jostled his girlfriend and responded aggressively. There is also the 9 September 2012 ‘petrol station incident’ where he was charged with assault causing actual bodily harm, and possession of cocaine.[51] His physical attack was in response to verbal provocation from a group of men.[52] In both cases, the applicant was in the company of a girlfriend. In the latter case, the sentencing magistrate reminded the applicant that women did not need his protection and did not need him to break the law.[53]
[51] The incident occurred on 9 September 2012: TB1/3.
[52] NSW Police Facts: TB3/159.
[53] G11/59.
In addition, there are some recent incidents in immigration detention, which led to his removal to TLH on 2 June 2022. I have reviewed the IHMS records provided by the Respondent relating to May and June 2022. There are some 15 incidents between 19 May and 2 June, when he was hospitalised.[54] The record shows a considerable deterioration of his mental health which led to his involuntary detention in TLH from 2 June to 24 June 2022.
[54] 2 June 2022 use of restraints, ambulance called; 1 June 2022, damage to Commonwealth property; 31 May 2022, damage to TV in gym, spilt coffee on photocopier; 30 May 2022, poured hot water on Serco officer; 30 May 2022, damaged the computer; 29 May 2022, deliberately blocking toilet; 28 May 2022, damaging sink; 26 May 2022, damaging sink; 25 May 2022, behaving erratically and causing disturbance; 25 May 2022, damaging sink and toilet; 25 May 2022, screaming pacing around his room, unplanned use of force on him’ 23 May 2022, spitting on wall and wiping the spit; 21 May 2022, removing clothes and making gestures towards nurse; 21 May 2022, hit staff member in face with elbow; 20 May 2022, assaultive behaviour; 19 May 2022, ambulance called.
The drug offences dealt with in September 2019 are qualitatively different and relate to offending that took place around November 2015.
Under paragraph 8.1.1(1)(e) of the Direction, the Tribunal is required to consider the ‘cumulative effect’ of repeated offending. The applicant’s offending record does not reveal a consistent pattern of offending.

Neither sub-paragraph 8.1.1(1)(f) nor (g) are relevant to these proceedings.
The Tribunal’s overall assessment is that the applicant’s offending, taken as a whole, stands objectively at a lower level of criminality. The offences of possession and the traffic offences were punished by fines. The incidents involving VAL and his father are at the lower end of culpability and significantly mitigated by his mental health condition. The offending which led to the mandatory cancellation was, according to the sentencing judge, at the very lowest level of criminality. However, the 2012 ‘petrol station incident’ and the 2016 ‘nightclub incident’ are a matter of real concern. The 2012 conviction for assault occasion actual bodily harm attracted a fine, but the latter attracted a suspended sentence of 14 months imprisonment.
Sub-paragraph 8.1.2 - The risk to the Australian community
I turn to consider paragraph 8.1.2 which directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
8.1.2. The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the noncitizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
The need to protect the Australian community – sub-paragraph 8.1.2(1)

I note the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
The risk that may be posed – the nature of harm to individuals or the community – sub-para 8.1.2(2)(a)
There is abundant evidence before the Tribunal that the applicant is a long term user of marijuana and cocaine and methylamphetamine. As noted by the Respondent:
The applicant appears to have been using cocaine and MDMA as early as his late teens (G49/175) and methylamphetamine since his early 20s (G49/175-176). He reported using methylamphetamine on a daily basis as of 2018 (G48/165). This represents an entrenched, long-standing drug addiction. As of 2019, he indicated that he had never undertaken any formal drug and alcohol rehabilitative programs, but he had “healed himself” (G9/42). This demonstrates that the applicant does not recognise the seriousness of his drug abuse, and the Tribunal should not accept that the applicant’s claims that his drug use has now satisfactorily resolved. [55]
[55] RSFIC, paragraph 42
The applicant claims that that he has not used drugs since 2016, and there is no evidence that he has used drugs since his detention in May 2019.
Nevertheless, there is a danger that if released to the community the applicant may succumb to the temptations associated with the commercial supply of prohibited drugs.
A qualitatively different type of harm is that the applicant may act violently if provoked, given what appears to be a relatively low degree of impulse control, at least in an un-medicated state.
The risk that may be posed - the likelihood of the applicant engaging in further criminal or serious conduct – sub-paragraph 8.1.2(2)(b)
The Tribunal is required to take into account information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision.

There is some risk that the applicant may act violently under circumstances of stress. The Respondent has pointed to incidents whilst in detention including fighting with another inmate and making threats to corrective services staff.[56] These include, making lewd gestures to a female nurse, pouring hot water over a SERCO officer[57], property damage, and various bizarre and non-compliant behaviours.
[56] TB2/131, 132, 150, 155.
[57] Bundle of IHMS Serco Records, 25
With respect to the issue of likely reoffending, the Respondent contends that he remains at an unresolved risk of reoffending. I agree that the risk of reoffending cannot be discounted, and that any expressions of remorse made by the applicant can only go so far. However, I reject the Respondent’s assertion that he has engaged in ‘victim blaming’ and harm ‘minimisation’.[58] I do not accept that this is so.

[58] See RSFIC, paragraph 40.

With regard to the relevance of his mental health, the Respondent contends that any psychological treatment that he has received has not prevented further offending, observing:
43. In a report commissioned to assist the Court in sentencing the applicant for his violent offences in 2018, MG, forensic psychologist, recommended long-term, individualised treatment before he would be able to demonstrate sustainable treatment gains (G49/183). While there is evidence that the applicant has recently begun engaging with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (RTB 235), the applicant appears to have been receiving psychological treatment in some form since 2016, which has not proved successful in preventing his offending (G49/172). [59]
[59] RSFIC, paragraph 43.
This is true, but somewhat exaggerated. In the three years between his arrest for hooning (motor vehicle non traction) in March 2016, and his arrest more than three years later in May 2019, he offended twice: with VAL in November 2018, and at his father’s house in May 2019. In each of these cases his mental condition was pivotal. These offences have been dealt with in some detail above. The drug offending occurred not in 2018 when the fresh indictment was laid, but according to the prosecution case, in November 2015.
The medical evidence given by Dr T suggests that his behaviour in the week leading up to his admission to TLH is consistent with emergent bipolar disorder. However, as a result of that admission the applicant is subject to a community treatment order (CTO) approved by the NSW Mental Health Review Tribunal dated 24 June 2022 requiring regular injections of mood stabilising medication.[60]
[60] The CTO was provided to the Tribunal by the Respondent at the commencement of proceedings, Hearing Exhibit A tendered 1 July 2022.
In response to a question from the Tribunal as to whether the applicant requires ongoing treatment, Dr T said:
Yes, he definitely needs ongoing medication. The medications are generally of higher doses and sometimes greater in number during an episode and sometimes when people are between episodes they can have some of those medicines weaned off or the doses titrated down, but someone who has a presumptive diagnosis of a bipolar disorder should at least have some ongoing medication as a way of preventing further relapses. Most of the people - mostly people with bipolar disorder live in the community, they don’t need to be - they may need to be in hospital during an episode if they are particularly unwell and unable to look after themselves or posing some kind of risk but generally they would lead lives - sometimes quite productive lives, in the community.[61](emphasis added)
[61] Transcript of proceedings, dated 30 June 2022, 9.
From 2016 until September 2019, the applicant was involved in protracted criminal proceedings of a serious nature; with strict bail conditions, culminating in the cancellation of his visa. He has been in continuous custody from 20 May 2019, first on remand and then subsequently in immigration detention, which he has endured since September 2019. It is likely that this has contributed to the deterioration of his mental health.
I find that PC1 weighs against revoking the cancellation decision. The weight I would assign to this consideration, following this detailed analysis, is that it weighs only lightly against revoking the cancellation.
Family violence: PC2
There is evidence of family violence. I refer especially to the incident in November 2018 involving VAL.
In a Personal Circumstances Form dated 18 October 2019, made as part of his revocation request, the applicant stated that he and VAL had been in a relationship since 2018. He stated: ‘I have known her for four years and have been in the relationship since 2018 and plan on getting married and starting a family’.[62]
[62] G14/71.
VAL is the director of a hair salon business. According to her statement of 18 October 2019, she employed the applicant as lead barber for a number of years. He apparently did exemplary work.[63]
[63] G31/119.
In a separate letter (also dated 18 October 2019), she states that she had known the applicant ‘in many capacities’ and that when he was released on bail for a crime ‘he did not commit’, she offered him accommodation. He then resided at her place of residence with her husband and three children. During these years a close personal relationship developed between the applicant and VAL, whose marriage appears to have broken down.[64]
[64] G32/120.
I find that the applicant engaged in family violence on this occasion, but given my previous analysis (see paragraph 61) I consider that the weight to be accorded this consideration is minimal.
I make a similar assessment with respect to his offending in May 2019 at his father’s house.
Overall, my assessment is that PC2 weighs neither for nor against revoking the cancellation and is neutral.
Best interests of minor children in Australia affected by the decision: PC3
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of a child affected by the decision. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made pursuant to paragraph 8.3(2). As noted in paragraph 8.3(3), if there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ.
Paragraph 8.3(4) provides that in considering the best interests of the child, certain factors must be considered where relevant.
In his revocation request, the applicant identified five children who may be affected by a decision to remove him from Australia, his step-sister’s two daughters, and his father’s three children.
The applicant’s step-sister said that the applicant lived with them for a period of less than a year about five or six years ago.[65] She has two daughters, born in 2007 and 2009. They are now 12 and 15 years of age. They appear to have had virtually no contact with the applicant, and did not visit him in prison or immigration detention.[66]
[65] Transcript of proceedings, dated 30 June 2022, 27.
[66] Transcript of proceedings, dated 30 June 2022, 40.
The applicant’s father has three children (the applicant’s step-siblings), being 15, 14 and 7 years of age.[67] His father did visit him in prison but was unable to do so when COVID restrictions were introduced.
[67] Transcript of proceedings, dated 30 June 2022, 54. See also G4/15
The Tribunal is required to consider the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18.
In view of the applicant’s history of drug use, it is not possible to find that this is a factor strongly in his favour. Moreover, while his nieces and step-siblings may be disturbed by his removal, there is no evidence before the Tribunal of a deep bond between them.
I find that PC3 is neutral.
Expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia).
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
…
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
…
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Paragraph 5.2(4) of the Direction states:
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
To some extent the ‘norm’ referred to in paragraph 8.4(1) and the principle articulated in paragraph 5.2(4) pull in opposite directions. The principle of higher tolerance applies to the applicant. He has spent most of his life in Australia.
It is not for the Tribunal to seek to identify the expectations of the Australian community, for these have been identified by the Australian Government and conveyed to the Tribunal in the Direction. It is however a matter for the Tribunal to assign the weight to be given to this factor in the particular circumstances of the case.[68]
[68] FYBR v Minister for Home Affairs [2019] FCAFC 185.
My analysis of his criminal offending is that it is significantly mitigated by not only the circumstances of his early childhood, but by a developing and serious mental health condition. In any event, it is overall a modest criminal record, and while PC4 weighs against the applicant, it does not weigh heavily against him.
PC4 presses lightly in favour of not revoking the cancellation decision.
OTHER CONSIDERATIONS
Paragraph 9(1) of the Direction states that in making a decision under subsection 501CA(4) of the Migration Act, a number of other considerations must also be taken into account, where relevant, in accordance with the following provisions.
OC1: International non-refoulement obligations
Paragraph 9.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
….
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

The applicant’s step-sister stated in an email sent on 27 June 2022 to the Tribunal that the applicant’s life will be in danger because mental health services will be unavailable to him in Lebanon.[69]
[69] See statement dated 27 June 2022 from the applicant’s step-sister addressed to the Tribunal.
The Respondent drew my attention to certain passages in the DFAT Country Information Report relating to Lebanon (DFAT Report).[70]
2.20 Mental health care has been an increasing public concern, particularly given Lebanon’s long and traumatic civil war: individuals exposed to war-related events are at significantly higher risk of developing a mental disorder. A MoPH study in 2008 found that up to 70 per cent of the Lebanese population had been exposed to one or more war-related events, and up to 38 per cent had been displaced by conflict. The study found that 4.6 per cent of the population had experienced a severe mental disorder (including depression and anxiety) in the year before the study; around 25 per cent met the criteria for at least one of the classified mental disorders; and 10.5 per cent had experienced more than one disorder at some point in their lives. Very few individuals who had experienced any type of mental disorder had ever received any professional treatment. Those who did seek treatment tended to delay doing so for extended periods after the onset of the disorder. Many individuals had sought assistance from religious healers, spiritual advisors, or fortune-tellers rather than medical professionals. Significant stigma continues to attach to those seeking assistance for mental health-related issues. A number of societal groups are particularly vulnerable in relation to mental health issues, including persons with disabilities, children and adolescents, the elderly, prisoners, torture survivors, families of the disappeared, survivors of sexual and gender-based violence, LGBTI (lesbian, gay, bisexual, transgender, or intersex) individuals, and Palestinian and Syrian refugees. (emphasis added)
2.21 Similar to the general health system, mental health services are predominantly provided by the private sector as well as mostly skewed to specialised outpatient and inpatient care. Provision of mental health services in outpatient care comprises mainly private clinics involving psychiatrists and psychologists. In a few cases, multiple mental health specialists will work in a multidisciplinary team to provide services. There are currently eight psychiatric wards in general hospitals that provide inpatient mental health services, and five active mental health hospitals. In 2014, as part of the MoPH plan for integrating mental health into primary health care (PHC), doctors, nurses, and social workers of 50 PHC centres within the MoPH network received training on assessing, identifying, managing, and referring mental health cases.
2.22 The latest mental health decree law (72/1983) focuses on the organisation of the care, treatment, and rehabilitation of patients with mental health conditions, as well as protecting the rights of these patients and their families. It regulates guardianship issues for people with mental conditions and facilitates access to in-hospital care for the most vulnerable groups. The law stipulates the creation of a mental health body, under the governance of the MoPH, to oversee and implement mental health policies, and to monitor mental health services and treatment practices in health facilities. The decree law is currently under revision to address issues such as access to free community-based mental health care, standards and regulations for involuntary admissions, and the working modalities of the mental health body, in addition to accreditation of mental health professionals.
2.23 No reliable statistics or estimates exist of the total number of drug users in Lebanon. Most local studies point to an increase in substance abuse, particularly among youth. The substance abuse law (673/1998) and its amendments relate to narcotic drugs, psychotropic medications and their precursors. The law focuses on supply reduction, penal provisions, and governance bodies and international cooperation for drug control. The law classifies substance use as a crime with sanctions varying between three months and three years’ imprisonment, in addition to a fine. The judiciary system can refer a person arrested for substance use to a ministerial committee, which has the power to offer the person the option of rehabilitation instead of prison, particularly for a first offence. According to local sources, police drug units are very active but generally target low-income and lower class users rather than those at the high end.
2.24 Several non- government organisations (NGOs) are actively addressing issues related to substance use disorders through a variety of interventions such as prevention, rehabilitation, abstinence, and harm reduction. NGOs offer rehabilitation services in residential settings or in outpatient clinics. Few detoxification beds are available in public or private hospitals. Harm reduction services remain limited, varying from opioid substitution treatment, impaired driving awareness campaigns, drop-in centres, needle and syringe exchange programs, and outreach and educational services to minimise risky behaviours. In May 2015, the MoPH launched a Mental Health and Substance Abuse Prevention, Promotion and Treatment Strategy for Lebanon 2015-2020, which has been followed by an Inter-Ministerial Substance Use Response Strategy for Lebanon 2016-2020. The strategies aim to provide a road map for presenting a comprehensive, cohesive, evidence-based, and culturally appropriate response to Lebanon’s substance abuse problems.
[70] TB 257/267-268.

The question whether the absence of appropriate psychiatric services may found a non-refoulement claim is a complex one, and it may be that in some circumstances such a claim could succeed, for example, if it were established that such services were not available to members of a particular ethnic group.
While the concerns expressed by his sister about the state of social and civil unrest in Lebanon and the state of medical services should be taken seriously, they do not of themselves support a non-refoulement claim.[71] There is nothing to suggest that the applicant has been or will be singled out in breach of any of the relevant Conventions simply because he is a person suffering from a treatable mental health condition. In any event, those matters are sufficiently covered under the heading impediments.
[71] See statement from the applicant’s step-sister dated 27 June 2022 addressed to the Tribunal.
I note also the claim made by the applicant’s family that the presence of extremist religious beliefs make it unsafe for a male to be seen with body tattoos as this is considered ‘haram’ (forbidden).[72] The family expressed concern that this would put him at risk of physical harm and discrimination.

[72] See letter dated 23 June 2022.

The Tribunal was not presented with evidence as to the social or political implications of body tattooing in Muslim culture generally or in Lebanon specifically. Because of the view that I take about the overall gravity of offending in this matter, it is not necessary to form a judgment about this issue.
Overall, I find that the non-refoulement issue should be assessed as of neutral weight.
OC2: Extent of impediments if removed
Paragraph 9.2 refers to the extent of impediments if removed.
Paragraph 9.2(1) provides:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Mr Eskerie, for the Minister, emphasises that both the applicant’s father and step-sister’s family have relatives in Lebanon, to whom he could turn if in need. The applicant’s father has a number of relatives, including six siblings living in Lebanon. The applicant’s step-sister has a mother and three siblings in Lebanon. Her husband also has siblings. Mr Eskerie argued that the applicant could turn to these relatives for help. However, the Tribunal does not have a clear picture of the value of these relationships. He left Lebanon as a child in or around 2003. He has lived in this country for almost two decades. It is highly uncertain whether any help would be forthcoming. It is certainly possible that his feelings of familial rejection may resurface were he to be returned to Lebanon.
According to various statements, it appears that the applicant lived with his mother or grandparents for the first nine years of his life and was sent to boarding school at the age of five. He has stated that his mother remarried and left the country and could not look after him, and agreed to him coming to Australia to be with his father, who had migrated from Lebanon some years previously. It appears that he has not seen his mother since he was nine years old. He does not know where his mother lives. These circumstances do not augur well for a close or supportive relationship should he be returned.
According to a report dated 5 December 2018 made by MG, BPsych (Hons), MAPS, Forensic Psychologist:
6.Background History: [The applicant] described growing up in Lebanon as the only child to his parents' union. He indicated that he had a younger brother who died at six weeks of age, and explained that this was due to the fact that his parents were cousins and his brother was "deformed". [The applicant] reported that his father left the family and moved to Australia when [he] was an infant, and he was temporarily placed in the care of his paternal grandparents as his mother did not want a child from her relationship with her ex-husband. He added that he returned to his mother's home a few months later, but was sent to a boarding school at age five, then taken into his grandparents' custody again. [The applicant] indicated that he met his biological father at age nine, and emigrated to Australia to reside with him at age 11. He said that he primarily lived with his paternal aunt before finding his own accommodation at age 18.
7.According to [the applicant], he did not feel loved or wanted by his mother. He said that he felt abandoned by her when she placed him in a boarding school so that she could get remarried. She reportedly promised [the applicant] that he would enjoy the school, but he struggled with seeing the non-boarding students return to their families each day. Although he had not had a close relationship with his mother, he indicated that he was scared to be apart from her, which resulted in him frequently wetting the bed at night. [The applicant] added that he was too embarrassed to tell any of the staff about his fears.
8.[The applicant] said that, a few years after this, his mother was unable to afford to send him to school and, at the age of seven, he was sent to work instead. He indicated that his employer, an adult male, sexually assaulted him on one occasion (including anal penetration), and attempted to do so on another occasion but was interrupted. [The applicant] described believing that the assault was his fault, and said that he did not tell anyone in case they thought he was homosexual and "bashed" for this. He reported a posttraumatic stress to these experiences (discussed below).
9. [The applicant] described a range of other traumas throughout his life. He said that he was physically abused by his maternal grandparents and aunt, his father, his paternal grandparents, aunt and uncle. He recalled one instance of being beaten with a branch to the extent that there was blood in his urine, one incident where he was beaten to the point of unconsciousness and a further incident when he was woken by his grandmother punching him in the back of the head for napping during the day. [The applicant] indicated that his posttraumatic symptoms also related to these incidents. He added that any family member he lived with made derogatory comments about his other family members, which was confusing and distressing for him.
10. According to [the applicant], he was exposed to the war in Lebanon during his childhood and this impacted his sense of safety. He reported that there were landmines in the street and he frequently heard the explosions. [The applicant] explained that there were also Israeli planes that flew overhead and fired at people or dropped bombs. He described a feeling of intense fear whenever he heard a plane flying past when he was in Lebanon.
11. Overall, [the applicant] stated that he did not feel loved, wanted or safe during his childhood. He described multiple instances when caregivers promised that they would remove him from an abusive household, but they never came. He reported that he has not seen his mother, or met his four half-sisters, since he left Lebanon and has not spoken to his mother or father in several years. [The applicant] said that his cousin has been involved in substance abuse, and has been convicted of the same drug offences for which [the applicant] is currently awaiting trial. He reported that he is not aware of any familial history of diagnosed mental health difficulties, explaining that his family believe that people should be strong enough to not seek help from medical or mental health professionals.[73]
[73] TB5, 198, 200-201; G49/171.
The situation is undoubtedly complicated by his psychological makeup. There is a necessary link between one’s capacity to engage in a positive way with distant relatives and one’s mental health. Lebanon may be accepted as a country with limited psychiatric services. The applicant has been diagnosed as suffering from a variety of conditions, including pseudo-seizures, psychosis, bipolar disorder, personality disorder and substance use disorder. None of this gives cause for optimism on the family reunion front.
His mental health is a major impediment facing the applicant in establishing himself in Lebanon, a country he left more than 20 years ago, and to which he has not returned since.
Dr T gave constructive assistance to the Tribunal with regard to the applicant’s most recent admission to TLH. His opinion was that a diagnosis of psychosis and incipient bipolar is appropriate.
It may be expected that the quality of psychiatric service available to Lebanese citizens has in fact declined since the devastating Container Port explosion in Beirut, which occurred after the publication of the DFAT Report.
I note that in the recent decision of Morales Alvarado and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 269 Deputy President Cowdroy AO QC observed, at paragraph 137:
There is no material before the Tribunal which indicates that mental health facilities in Nicaragua are available to treat illness such as that from which the applicant suffers. The evidence of Ms Costigan indicates that there are no equivalent facilities to those provided by the Public Guardian of NSW. In the circumstances, the Tribunal is left to speculate whether the applicant’s mental illness will be treated if he were returned to Nicaragua. The applicant has shown that he has been resistant to courses to rehabilitate himself or to address his alcohol addiction. If returned to Nicaragua, it is highly likely that such conduct will continue and that he will commit offences with the result of incarceration. Such a result would condemn the applicant to a hopeless future.
I consider that the present case falls into a similar category.
The Tribunal is required to consider the challenges the applicant will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health. The applicant may well be entitled to the same service as other Lebanese citizens, but the social, political and economic context of the Middle East in general and Lebanon in particular does not provide confidence that the applicant, as a newly arrived quasi-migrant, albeit as a citizen, will receive immediate and effective psychiatric help. As noted by DP Cowdroy, this is ‘highly likely’ to result in further contact with the local criminal justice system, with potentially catastrophic consequences.
I find that this consideration weighs heavily in favour of revoking the mandatory cancellation decision.
OC3: Impact on victims
Paragraph 9.3 refers to the impact on victims in the following terms
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
VAL is a victim of his offending, but there is no information available to the Tribunal as to the impact of his offending upon her. The applicant’s father may also be regarded as a victim of his offending, to the extent that an ADVO was issued for his protection. He pleaded with the Tribunal to allow his son to remain in Australia. The applicant’s removal from Australia would be a devastating blow to him.
I find that this consideration weighs lightly in favour of the applicant.
OC4.1: Links to the Australian community, including the strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal is also required to consider the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has lived in Australia since the age of 11. He is now 29 years of age. The depth of his relationship with his father and step-sister was clear from these proceedings. His father asserts Australian citizenship.[74] He has two nieces and three step-siblings. These are all important relationships.
[74] Transcript of Proceedings, dated 30 June 2022, 46
It appears that his relationship with VAL has ended. He claims to have a new girlfriend and will be able to live with her if his visa is restored.[75] She provided a letter confirming the relationship and stating that upon his release the best thing is for him to move directly to her home.[76] I attach little significance to this new relationship. However, his familial relationships in Australia are highly significant. I was very impressed by the strength of support he received from his step-sister, who represented him in these proceedings, and from his father, who showed every sign of frustration, anxiety and trepidation, but little sign of estrangement. He has strong relationships with his father and step-sister.
[75] G16/85.
[76] G33/121.
Paragraph 9.4.1(2)(a) of the Direction provides that the Tribunal must have regard to whether the non-citizen arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia; and more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
In this case the applicant arrived as a young child and his first offending occurred some ten years after his arrival. It does not engage the principle that less weight should be given to long residence where the non-citizen began offending soon after arriving in Australia. Ten years cannot be characterised as ‘soon’.
I consider that there is some evidence that he has contributing positively to the Australian community through his activities as a talented young barber.
He has strong ties to Australia given the duration of his residence in this country to which he was brought as a child, thus severing the links with his home country and culture.
I find that this consideration weighs heavily in favour of revoking the mandatory cancellation decision.
OC4.2: Impact on Australian business interests
The Tribunal is required to consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. This factor has no relevance.
FINDINGS ON THE DIRECTION
Considerations in favour of revoking the visa cancellation:
·Impediment to resettlement (OC2) (heavily)
·Links to the Australian community (OC4.1) (heavily)
·Impact on victims (OC3) (lightly)
Considerations in favour of not revoking the visa cancellation:
·Safety of the community (against revocation) (PC1); (moderately)
·Expectations of the community (against revocation) (PC4) (moderately)
Considerations that are neutral, not relevant or of minimal weight
·Family violence (PC2)
·The best interests of minor children (PC3)
·Non-refoulement (OC1)
·Impact on Australian business interests (OC4.2).
CONSIDERATION
Under section 43 of the AAT Act, the Tribunal is required to reconsider the decision under review on the merits, and determine whether to affirm the decision, or set it aside, and make either a substituted decision or remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. In such proceedings, the Tribunal stands in the shoes of the original decision-maker, and is not bound by any findings of fact previously made by the decision-maker. In these proceedings, the practical consequence of affirming the reviewable decision is that the applicant is liable to be removed from Australia to his ‘home country’, in this case Lebanon.
The applicant has lived in Australia since the age of 9 or 10 years old and is now 29 years old.
The applicant suffers from a serious mental condition and some of his more recent offending can be explained in terms of that condition. He is subject to a Mental Health Order which expires on 23 December 2022. This Order provides protective features for the applicant and the community.
Two of the primary considerations weigh against revoking the reviewable decision. Three of the other considerations weigh in favour of revoking the decision. Paragraph 7(2) of the Direction states that primary considerations should ‘generally’ be given greater weight than the other considerations. Taking this into account, I find that the primary considerations do not weigh so heavily as to outweigh the other countervailing considerations.
I am positively satisfied that the correct and preferable decision is that the decision not to revoke the mandatory cancellation decision should be set aside.
Finally, I note that the applicant complained that he was sexually assaulted by a SERCO officer on 10 April 2021 while in immigration detention.[77] The matter was investigated by SERCO and was found to be unsubstantiated.[78] The matter was referred to the police for further information and action if necessary. The matter was not raised during the course of the hearing before the Tribunal as relevant to the exercise of discretion. It is however referred to in MG’s report, which is before the Tribunal. I have not taken this matter into account in this decision.
[77] TB9/254.
[78] TB9/255
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the delegate is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa, with the consequence that his visa remains in force.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.......................................[Sgd].................................
Associate
Dated: 28 July 2022

Dates of hearing: 30 June, 1 July 2022

applicant’s representative: The applicant’s step-sister

Respondent’s legal
representative : Mr K Eskerie, Sparke Helmore

Dates of hearing:	30 June, 1 July 2022
applicant’s representative:	The applicant’s step-sister
Respondent’s legal representative :	Mr K Eskerie, Sparke Helmore