Hamze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2025] ARTA 2191
•20 October 2025
Hamze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 2191 (20 October 2025)
Applicant:Mahieddine Hamze
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2025/0792
Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:20 October 2025
Decision:The Tribunal affirms the decision under review.
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Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – refusal of a Partner (Provisional) (Class UF) visa under section 501(1) – whether the Applicant passes the character test – the visa Applicant has a criminal record – consideration of s 501(6)(d)(i) and s 501(6)(c) – whether the discretion to refuse to grant the visa under section 501(1) should be exercised – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 50Minister for Immigration and Border Protection v Sabharwal (2018) FCAFC 160
Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197
Re QKVH and Minister for Home Affairs (2018) AATA 1855
Re QQYJ and Minister for Home Affairs (2019) AATA 770Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
20 October 2025
STATEMENT OF REASONS
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (‘the Respondent’) made under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’) on 13 January 2025 [1] to refuse to grant him a Partner (Provisional) (Class UF) visa (‘the Visa’). The Visa application was refused, in an exercise of the discretion under s501(1), based on the Applicant’s failure to pass the character test.[2]
[1] Hearing Book (‘HB’) 97-110.
[2] HB 97-110.
Section 501(6)(d) (i) of the Act provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would… engage in criminal conduct in Australia.”
The Respondent formed the view that the Applicant did not pass the character test under s501(6)(d)(i) having regard to the Applicant’s criminal history in Lebanon, as set out in a copy of his penal record. This record states:
“Date of judgement: 26/07/2017 Court: Permanent Military Court in its criminal capacity kind of delinquency: bearing military gun, entering by force in breaking the night club door and making damages in the other's properties, beating the night club workers and humiliating them and transporting military weapon without license, in addition bearing axe.
kind of penalty: one month imprisonment and payment of fine the amount of 200.000 LBP.”[3]
[3] HB 114.
The accuracy of this record, in as much as it applies to him, is disputed by the Applicant. The fact of his conviction is not. This dispute is discussed further below.
The Respondent now also calls in aid s501(6)(c) of the Act which provides that a person does not pass the character test if, having regard to either or both of the person’s past and present criminal conduct, or the person’s past and present general conduct, the person is not of good character.[4]
[4] Exhibit 4: Respondent’s Written Closing Submissions at [9].
There are two issues before the Tribunal.
(a)Whether the Applicant passes the character test, and, if not,
(b)Whether the discretion to refuse to grant the Visa pursuant to s 501(1) of the Act, should be exercised.
In the exercise of the discretion under s501(1), the Tribunal must have regard to Direction 110.
The hearing was held on 22 September 2025. The Applicant was represented by Dr Jason Donnelly of Latham Chambers and the Respondent was represented by Mr Bora Kaplan of Nine Wentworth Chambers.
The final submissions in this matter were provided in writing, due to Mr Kaplan’s personal circumstances preventing the Tribunal from utilising the time set aside for oral submissions. These submissions were received over the following week. The Applicant’s closing submissions has been marked as Exhibit 3, and the Respondent’s as Exhibit 4.
I have considered these submissions.
The Applicant gave evidence by MS Teams Video from Lebanon. He gave evidence with the assistance of an Arabic interpreter. As is often the case, the mediation of the Applicant’s testimony through an interpreter, made the assessment of his evidence more difficult. It is hard to know whether the exact shades of meaning he intended, were accurately conveyed. That said, some important things were reasonably clear.
The Applicant was a poor historian. He gave lengthy and often irrelevant answers to questions. He repeated certain phrases, even when to do so was unresponsive. These phrases typically focused on his desire to be with his wife and his son, and his claim that he has “changed a lot” and that he has “paid the price”. Both latter comments were offered in response to questions about his criminal record. These comments are inconsistent, indeed incongruous with his evidence to the Tribunal, that he “didn’t do something wrong” in the first place.
The Applicant essentially claimed that he was an innocent man, out with friends, who was unfortunately and without any ill-intent, in the wrong place at the wrong time. This, if true, would be not only totally inconsistent with his conviction, but would also not require him to “change a lot”, or for him to have been obliged to pay a “price”, in any act of moral restitution.
The Applicant’s account of various important events has differed over time. Indeed, these inconsistencies continued to emerge and evolve, even during his evidence to the Tribunal. An example includes his inconsistent accounts of his involvement in the events of 3 March 2010,[5] which gave rise to his conviction in Lebanon. Another example concerns his failure to make disclosure of his then pending criminal charges, when making his Australian Tourist visa application, lodged on 6 August 2012.[6] Another example relates to his failure to disclose his past relationship and marriage in the Visa application, which is the subject of these proceedings.[7]
[5] HB 116.
[6] HB 488-498.
[7] HB 220-251.
The Applicant’s account of events, as given during the hearing, changed as it went along. This was most evident when he apparently realised that he had painted himself into an evidentiary corner. An example of this was when he told the Tribunal that he was, in effect, released on bail after his initial arrest in 2010. This was inconsistent with his claim that he had not knowingly made a false declaration in his 2012 Australian tourist visa application, by denying in that application, the existence of his then pending charges. When this was pointed out, he then claimed that by 2012, he thought that the charges against him back in 2010, had been dropped. He could offer no cogent reason for why he held this claimed belief.
Overall, the Applicant presented as an unimpressive and unreliable witness. To the extent that there are differing independent accounts and records available, I generally prefer those to the Applicant’s account.
I accept that the Applicant has an ongoing relationship with RA (his current wife) and his son, (Child B) in Australia. This is maintained electronically. They have never lived together in Australia. They both however, have lived with him in Lebanon for an extended period in 2021- 2022.
I accept that he also has an ongoing relationship with his sister (SH) and her family. They maintain contact electronically.
I accept that the Applicant has some connection to his wife’s family in Australia. This connection, in as much as it was formed in Australia, was brief and occurred when he was here illegally. Again, to the extent that such connections exist, they are maintained electronically. Some of his wife’s family have also visited him in Lebanon.
The Applicant called Professor Wong, a nephrologist, to give evidence regarding RA’s medical issues. Professor Wong’s evidence regarding RA’s serious kidney condition was not disputed. This was corroborated by RA in her evidence. I accept that RA suffers from a very serious, indeed life-threatening congenital kidney disease, which will require intensive treatment, probably involving daily dialysis and possibly even an organ transplant in the foreseeable future.
The Respondent spent some time in a forensic cross-examination of Professor Wong regarding the provenance of two of handwritten notes.[8] The upshot of that, in summary, was that she had written the notes and handed them to the Applicant’s wife at the end of consultations. She did not believe that the signature on those notes was, however, hers. This leads me to the conclusion that the notes were probably tampered with at some point after they were written by Professor Wong. It is unclear who would have done so, or why, but it was clearly someone associated with the Applicant, because that was the source of those notes. They were not included in summons material from Professor Wong. This issue was, however, something of a sideshow, in the context of the overall story. The substance of Professor Wong’s opinion was not challenged.
[8] HB 160-161.
The Applicant called his current wife, RA. She gave evidence by video. She did not require an interpreter. Her evidence was consistent with Professor Wong’s evidence regarding her medical condition. She also gave evidence about her personal circumstances and those of her son. She gave evidence concerning her family networks in Australia, including the Applicant’s sister and her family. I have no reason to doubt the truth of her evidence.
The Applicant did not call his sister, SH. The Respondent did not require her for cross-examination. It would, however, have assisted the Tribunal to hear from her about the Applicant’s history and his ongoing connections in Australia.
Background Facts
The Applicant was born in Lebanon on 1 February 1991. He is a Lebanese citizen, and he lives in Lebanon. He is 34 years old.[9]
[9] HB 165.
The Applicant’s current wife, RA, is an Australian citizen. She lives in Sydney. She is the Applicant’s Sponsor.
On 3 March 2010, the Applicant engaged in conduct including assault, breaking and entering, property damage and having a military weapon without a license.[10]
[10] HB 114-118.
The circumstances of offending set out in official records as follows:
“Type of crime: Entering by breaking to Caligola night club and causing damage to others' properties and to the night club staff by harming and humiliating them. Holding and transporting I arms without legal permit.
Judgement: One month jail after diminution of penalty, 200.000 LBP as fine. Obliging him to give a pistol and to pay one million LBP.”[11]
“Date of arrest/release: 14/03/2010- to 05/05/2010 and from 20/07/2017
Kind of crime: Entering the Caligola night club by breaking and making damages in others properties, assaulting the night club workers, discriminating them. Bearing non licensed. military weapons and bearing battle axe.
Place and date of the act: on the Lebanese: territories, on 03/03/2010
Legal article: 572-733-554-584-72-73 Weapons and 254 penalties
[11] HB 116.
Date of judgement: 26/7/2017
Judgment: one month imprisonment after relief and adjunction, payment of 200.000 LBP fine, charging him to deliver the arms under penally to pay one million Lebanese pounds the double of the price to be imprisoned one day against every ten thousands in case of default and declaring his innocence from article 636 penalties.
Judgment made: In due hearing.”[12]
[12] HB 118.
The English translation of the official court record was not challenged. It is however important to note the date of the judgement. There is a gap of over 7 years between the relevant criminal offending and the judgement. This gap was primarily due to the Applicant’s lengthy and largely unauthorised stay in Australia.
The Applicant said in a statement made on 29 October 2024.
“On 14.03.2010, I was staying up late at a party with my friends where one of their relatives called them and then told me to go from our place to another one 10 party alone. When we arrived, I was surprised that they had come to support their relative in a fight with other young people. After an argument between everyone, some insults and bad words were directed at me and a fight broke out between us, which prompted me to defend myself without intending to harm anyone or involve myself in unfortunate issues. Afterwards, I turned myself in to the security forces to find out the truth and was punished for a month and a half and paid a fine. Thus, my criminal record has been cleared.”[13]
[13] HB 123.
There is a material difference between the sentencing court’s version of events and the Applicant’s version above. In both accounts above however, he seems to have been involved to some degree in the fighting. He concedes as much himself in the 29 October 2024 statement.
This confusion was further compounded by the Applicant’s oral evidence to the Tribunal. In that evidence, he presented himself essentially as a victim of unfortunate circumstances, rather than as an instigator, or an active participant in the offending
The Applicant told the Tribunal that he was there on the day in question, with friends, but he did not have any idea that there would be trouble. He did not break into the club. He did not cause any damage. He did not have a weapon, and he did not humiliate or assault anyone. He said that when he realised that there was a problem developing involving his group of friends, he “stepped back”. He said that all of them were later individually charged with the same group of offences, but he had personally done nothing wrong. In as much as the official record refers to him doing these things, it is wrong.
In relation to the Lebanese Military Court records, I note the Full Federal Court’s decision in Minister for Immigration and Multicultural Affairs v SRT:
“ ………it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence
and upon which the sentence is based must be accepted by the Tribunal. The
most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed”.[14]
[14] [1999] FCA 1197 at [40]-[41].
Whatever view the Applicant may have as to the legitimacy or otherwise of the judicial processes in Lebanon, the Tribunal cannot look behind the Lebanese Military Court’s findings of material facts and the application of the law to those facts. The Applicant was convicted of serious offences.
It was not disputed by the Applicant’s representative that the same conduct, if committed in Australia, would also constitute serious criminal offending.
The Applicant’s expressions of remorse and claims of having changed, ring hollow in the context of his simultaneous denial of any wrongdoing, or criminal conduct.
On 14 March 2010, the Applicant was arrested. He was detained until 5 May 2010.[15]
[15] HB 118.
The Applicant told the Tribunal that he was released on a bond to appear at a later court date. He paid money to secure his release. In our terms, this looks very much like a release on bail, on his own recognisance. He was unable to recall the court date for the hearing, although he said that there was at least one court attendance, a month or so later.
He was then asked questions about the declaration on his tourist visa application form, dated 26 July 2012. In it, the Applicant stated that he had not been convicted of any crime or charged with any offence currently awaiting legal action.[16] I am satisfied that this statement was, at the time that it was made, untrue.
[16] HB 488-498.
At this point in his evidence, having now apparently appreciated that he had made an admission of being charged and released on bail, his story abruptly changed. He told the Tribunal that there was at that stage, “no comprehensive order because we had not been to the hearing.” This meant according to him, that he did not believe that he had been even charged with an offence.
The Applicant then segued into saying that by July 2012, he thought that the court case was “finished or over”. He was unable to explain how or why he had formed this view. We know for certain that the matter was not finally disposed of by the Lebanese court until 26 July 2017.[17]
[17] HB 118.
The fact that he was later arrested immediately upon his return to Lebanon on 20 July 2017, is also conclusive evidence that the case was not in fact over in July 2012. It is consistent with him having absconded to Australia, when still on bail.
The Applicant’s claim to have thought in July 2012, that the criminal case against him was over, is in my view, a dishonest attempt to explain away, his knowingly false declaration on the Australian tourist visa application.
When further pressed on this topic, he said that it all happened back in 2012, and he did not now remember what happened, when the declaration was made.
I am satisfied that the Applicant knowingly made a false declaration in connection with the completion of the 26 July 2012 visa application form.
On 6 August 2012, the Applicant lodged the application form for a visa to visit Australia as a sponsored family visitor (the tourist visa).[18] The sponsor was his sister, SH.[19] She was living in Australia and the holder of an Australian permanent visa at the time.[20]
[18] Short Stay (Visitor) (Class UL) Sponsored Family Visitor (subclass 679) visa.
[19] HB 503, 508, 546.
[20] HB 28-29.
He stated in the tourist visa application form that the purpose of his proposed stay was “visit family and for tourism”.[21] There was no mention of any apprehension of harm, or threat to his personal safety.
[21] HB 501.
He said that he planned to visit between 30 September and 12 November 2012.[22]
[22] HB 501.
In the tourist visa application, the Applicant’s sister (SH) gave an undertaking in the following terms:
“Sponsorship undertaking for a sponsored family visitor
WARNING: Giving false or misleading information is a serious offence.
I agree to accept responsibility for:
•all financial obligations to the Commonwealth incurred by those I am sponsoring arising out of the applicant's stay in Australia; and
•unless the Minister decides otherwise, compliance by those I am sponsoring with the conditions under which they may be allowed to enter Australia.
I understand that the following visa conditions will be imposed on the visa:
• the visitor must not work in Australia:
•the visitor cannot apply for a further stay in Australia:
•the visitor must not remain in Australia after the expiry of the period of stay of the visa on which they enter Australia:
•the visitor must not engage, for more than 3 months, in any studies or training while in Australia.
I understand that any breach of the above visa conditions will prevent me from being approved as a sponsor for 5 years.”[23]
[23] HB 553.
On 26 March 2013, the tourist visa was granted. The approved stay period was 42 days from the time of arrival. The explicit conditions of the tourist visa included no work, no further stay and a requirement that the Applicant must leave before the tourist visa expired.[24]
[24] HB 555-558.
On 29 March 2013, the Applicant came to Australia on the tourist visa.[25] At that time, I am satisfied that he was on the equivalent of bail, in relation to the 2010 charges, still outstanding against him.
[25] HB 438.
Having regard to all the evidence, I am satisfied that the Applicant knowingly not only made a false declaration in the tourist visa application, denying that he was facing criminal charges, but that he left Lebanon, fully aware that he had pending criminal charges there.
There is insufficient evidence before the Tribunal for me to form a view as to whether he breached any of his Lebanese bail conditions, at that time. If Lebanese authorities checked his passport on departure, they would have been entitled to assume that he would be returning to Lebanon, within 42 days.
On 23 April 2013, 25 days after his arrival, the Applicant lodged an application for a Protection Visa (the protection Visa).[26] Again, in this application, he denied that he had been charged with any offence.[27]
[26] HB 559-585.
[27] HB 561.
I am also satisfied that it is reasonable, based his evidence to the Tribunal about wanting to come to Australia because it was a “safe country”, and on all of his conduct both up to that time and subsequently, that it was always his plan to find a way to get to Australia and then to somehow, contrive to remain here. I am satisfied that he was, from the outset, prepared to do whatever it took to achieve this outcome. His conduct from the time of his tourist visa application onwards, is consistent him having made a concerted effort to exploit any opportunities and weaknesses inherent in the Australian immigration system, to secure the right to remain here permanently. This included him knowingly making false statements.
The Applicant’s protection Visa application within weeks of his arrival as a tourist, is consistent with this view.
At the same time the Applicant’s sister (SH), who was already a permanent resident in Australia, also made an application for protection.[28]
[28] HB 587-593.
The Applicant’s protection application of course, meant that he was no longer required to depart Australia by 10 May 2013 as required by the conditions of the tourist visa, pending the determination of that protection application.
In the protection application, in answer to the question “Why did you leave that country?” (Lebanon), the Applicant stated:
“My father was a part of the Hezbollah before significant violence erupted within the party. Members of the Hezbollah are predominately of the Shia sect and my family belong to the Sunni sect. Because of this, my father has experienced persecution and aggression from these people since he left the party. His sons have been a target as well, including myself and my 3 brothers. We have experienced violent attacks as a family and are in constant fear for our safety and our lives. The Hezbollah are particularly persecuting my father and all of his family members because of the fact that he defected from the party and because he is a Sunni Muslim.”[29]
[29] HB 577.
It is notable that the stated reason for him leaving Lebanon, as recorded in the then recently completed tourist Visa application form was entirely different. It was “to visit my sister, her family and for tourism”.[30]
[30] HB 493.
I am satisfied that the Applicant made the tourist visa application with the intention of lodging a protection application within the 42 days, permitted for his visit.
In the protection application, in answer to the question “Have you experienced harm in that country?” (Lebanon), the Applicant stated:
“There are many incidents where I have experienced harm in my country. Examples of these are as follows:
-My family and I were violently attacked at the beach, particularly myself and my father. We both needed medical attention but feared further attacks so could not go to the hospital.
-Drive by shootings at my home at least once a month. We have been lucky up to this point that no-one in my family has been killed.
-Captured and held at gunpoint on several occasions while on my way to work. During these incidents, I have been robbed and physically assaulted.
My family and I live in constant fear but cannot turn to the authorities because both the police and military are corrupt. What I have mentioned above are only a few isolated incidents as there are too many to name. It has come to a point where none of my family members want to leave our house, but must in order to provide for the family. Our home is no longer considered safe either.”[31]
[31] HB 578.
In the protection application, in answer to the question “What do you fear may happen to you if you go back to that country?” (Lebanon), the Applicant stated:
“I fear that I will eventually be captured and killed by Hezbollah. I have no faith in the authorities for protection so it is a very real possibility that my life will end in violent circumstances.”[32]
[32] HB 578.
In the protection application, in answer to the question “Why do you think this will happen to you if you go back?” (to Lebanon), the Applicant stated:
“My family has become a target of the Hezbollah since my fathers defection from that party. They are aware of my departure and threats against my life were made before I left Lebanon. As soon as I was granted my visa, I left the country within 24 hours fearing an attack on my life. I have been afraid to make this application for fear that if he party members hear of it, they will attack my family in Lebanon.”[33]
[33] HB 579.
In the protection application, in answer to the question “Do you think the authorities of that country can and will protect you if you go back?”, the Applicant stated:
“The police and military in Lebanon are extremely corrupt and are all individually affiliated with one party or another, depending on their own political views and the religious sect which they belong to. However, which individual police officer or soldier one can turn to for protection cannot be decided based on the above factors because bribery in rampant and one soldier who you think you can rely on can turn for the right amount of money.
Also, the police and soldiers who are there to protect the people are very often the ones perpetrating violent attacks on the people due to their clandestine affiliations with certain political parties and movements.”[34]
[34] HB 580.
I note that the Applicant did ultimately return to Lebanon on 20 July 2017. So far, none of his grave fears, as set out above, have apparently been realised.
On 23 April 2013, the Applicant was granted a temporary Bridging Visa (Bridging Visa 1).[35]
[35] HB 247, 628, 675.
On 21 May 2013, the Applicant completed a declaration to the Respondent, in connection with the protection application, which repeated his assertion in the tourist visa application, that he had been neither charged, nor convicted, of a criminal offence.[36]
[36] HB 654.
Again, I am satisfied that he made a knowingly false declaration at this time.
On 22 May 2013, the Applicant’s sister (SH) requested that her name be withdrawn from the protection application, as she was already a permanent resident in Australia.[37]
[37] HB 657-659.
The Applicant told the Tribunal that about 5 months after he arrived here, in about August 2013, he got news from Lebanon, for the first time, that he was expected to appear in court to face the 2010 charges.
So, even on his current version of the facts, he knew by then at least, that he was wanted in Lebanon, to face criminal charges. He elected not to return to face them.
On November 11, 2013, the Protection Visa was refused (the protection refusal).[38] The reasons for refusal relevantly stated:
[38] HB 669-692.
“I found the applicant’s testimony in relation to his father’s engagement with Hezbollah was confused, delayed and vague and strongly suggested that the testimony being provided was not candid or based on fact. Having interviewed the applicant and considering the written claims, I consider that it is highly unlikely that the applicant’s father was engaged as a bodyguard for Hezbollah and that finding seriously undermines the applicant’s overall claims for protection.
…
The claims for protection run contrary to the available country information and the applicant did not provide any testimony at interview that I would describe as compelling or persuasive that could convince me that his circumstances are unique and could defy the known country information. Having interviewed the applicant, it is my view that all of the applicant's claims for protection are fabricated. I appreciate that the applicant may not like to the current situation in Lebanon or the instability in the region and there may be more opportunities for him should he remain living in Australia. However, after considering all the evidence before me, I do not accept that the protection claims are credible. I do not accept that the applicant has any reason to fear Hezbollah on return to Lebanon and I do not accept that the applicant holds a subjective fear of being harmed or harassed by Hezbollah for any reason.
…
IS THE HARM FEARED FOR A CONVENTION REASON?
Evidence and Reasons
As the applicant’s material claims ere found to be not credible, which essentially means that the applicant does not fear harm for the reasons offered in the written application and the written claims do not represent the applicant's circumstances or the situation he will encounter on return to Lebanon, there is no need to assess if the protection claims have a nexus to a convention ground.
…
DOES THE CLAIMED HARM AMOUNT TO SIGNIFICANT HARM?
As outlined in the Credibility Findings at Part 9, I am not satisfied that the claims for protection are credible. There are serious deficiencies and inconsistencies in the applicant’s claims. Considered cumulatively, they are so serious that I cannot be satisfied a to the credibility of the applicant. These doubts in relation to the applicant’s claims are not marginal or irrelevant matters but lie at the heart of an assessment of whether the applicant has fears of being harmed in Lebanon.
As the applicant’s material claims were found to be false and misleading and do not represent the circumstances he may face on return to Lebanon, I am not required to make a finding as to whether the claimed harm amounts to significant harm. I appreciate that there is no requirement to prove a subjective fear of harm under the complimentary protection provisions, however it is my assessment that clause exists to address risks of harm that are unknown to applicants and is not in my place to enliven false claims of harm raised by applicants.
…
As noted numerous times in this decision, the claims advanced by the applicant are not credible and therefore are not being further assessed. I can see no evidence that the applicant would face significant harm on return to Lebanon for any other reason.”[39]
[39] HB 682-692.
The Applicant sought a review of the protection refusal.
On 8 December 2013, according to the Respondent’s records, Bridging Visa 1 ceased.[40]
[40] HB 675.
On 15 February 2014, the Applicant met SD.[41]
[41] HB 734.
On 23 April 2014, the Refugee Review Tribunal affirmed the protection refusal. The Applicant failed to appear before the Tribunal. No attempt was made by him or his representatives, to explain this, or to seek an adjournment.[42]
[42] HB 694-705.
The Applicant sought judicial review.
On 21 May 2014, a Second Bridging Visa (Bridging Visa 2) was issued to allow the Applicant to remain in Australia until “28 calendar days after the judicial review proceedings” relating to the protection refusal.[43]
[43] HB 708.
Those proceedings were unsuccessful.
On 31 July 2014 Bridging Visa ceased according to the Applicant.[44]
[44] HB 247.
The Applicant conceded that he then stayed here, even though he knew that he didn’t have a visa.
I am also satisfied that he knew that he was still wanted in Lebanon to face criminal charges.
From 2014 to 2017, the Applicant survived by working from time to time. Given that he was an illegal non-citizen without working rights, this work was unlawful. It is also implicit in this admission, that he did not have a tax file number and that he was not paying tax on his earnings. He said that he had a problem with transport. He was living by renting spare rooms in houses. His sister was not happy with him staying with her illegally. He moved around. He accepted in cross-examination that he put his interests in staying here, ahead of complying with Australian laws.
Again, this is entirely consistent with his pattern of conduct, from the time that he completed the tourist visa application in July 2012.
On 18 February 2015, the Applicant lawfully married SD (his first wife).[45] She is an Australian citizen.[46] He had been here illegally for about 7 months at that time.
[45] HB 726.
[46] HB 725.
The next day, on 19 February 2015, the Applicant made an application for a partner visa (the first Partner visa).[47]
[47] HB 711.
The Applicant’s marriage to SD and his immediate application for a partner visa, are again entirely consistent with the Applicant’s demonstrated determination to remain in Australia, by whatever means.
On 23 February 2015, the first Partner visa application was deemed to be invalid (the invalidity determination) because it breached a condition of the tourist visa, namely “no further stay”. The Applicant was explicitly warned that:
“Leaving Australia
You currently hold a Bridging visa D which ceases on 23 February 2015. If you stay in Australia after the date your bridging visa ceases (and you do not hold another visa) you will be here unlawfully. This has serious consequences including possible detention and removal from Australia.
If there are reasons why you cannot depart Australia by the time your visa ceases, you should contact us for advice and assistance as soon as possible. You can call 131 881 between 8.30 am and 4.30 pm Monday to Friday or you can visit any one of the department’s offices.
Details of our office locations and opening hours are available at
Lodging another application
You cannot make a valid application for a visa while you are in Australia unless you apply for a class of visa permitted by the condition listed above, or the Minister waives the condition.
Otherwise, to make a valid application you will need to depart and apply for a visa outside Australia.”[48]
[48] HB 711- 713.
The Applicant did not leave Australia.
A medical report from Dr Abu-Arab, a clinical psychologist, dated 9 March 2015, in support of the first Partner visa application states:
“History Obtained: Mrs [redacted] reported she first met her husband, Mr Mehieddine Hamze, on the 15th February 2014. A relationship developed, and the couple decided to marry a year later. They had their wedding on the 18th February 2015, and they live together at [redacted].
Mrs [redacted] reported her husband was told by the Department of Immigration and Border Protection that he needs to travel overseas and apply for a spouse visa from overseas.
Psychological Issues: Mrs [redacted] reported that since she learned about the requirement for her husband to leave Australia, she became anxious and depressed. She disclosed that her family were against her marriage as her husband is of a different nationality, (Lebanese national), and she is of Iranian-Persian background. She acknowledged however, that her mother and siblings eventually came to accept her marriage, but her father continues to object to the marriage. She reported her husband provides her with significant support. Even though she has a driver's license, she is not confident with driving to unfamiliar places. Her husband drives her when she needs to leave the home, he cooks her meals, and he does the grocery shopping. He prepares optimal conditions for her to attend to her university studies. He supports her emotionally and financially.
Mrs [redacted] reported that if her husband had to leave Australia, she would not be able to afford the rent, and on the other hand she would not be able to return to her family home as they were against her marriage.
Another source of frustration described by the patient revolves around the fact that if her husband has to leave Australia, he would go to his country of origin, Lebanon, where the political and military situation is volatile. She sadly reported that in North Lebanon there is a serious attempt to establish an area which is ruled by ISIS. She reported her husband's life would be in danger if he returned to Lebanon, especially as he holds Liberal views and because he married a woman from a different nationality.
At the same time, she would not be able to travel to Lebanon to live with her husband. Not only because of the volatile situation, but also because it would mean she would terminate her university studies.
As a result, Mrs [redacted] became depressed and anxious. She is unable to sleep, and when she falls asleep she wakes up several times during the night. She is unable to concentrate on her studies. She described her mood as sad every day for most of the day, and she lost interest in pleasant activities. Her memory and concentration have been affected.
Diagnosis: From a psychological perspective, I believe Mrs [redacted] qualifies for the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, according to the Diagnostic and Statistical Manual of Mental Disorders, DSM-V.
I support Mrs [redacted]'s application to allow her husband to remain in Australia, and apply for Permanent Residency Status from within Australia without the need to travel overseas. I believe her husband. Mr Hamze, provides significant support for her, and such support would allow her to successfully complete her university studies. There is no doubt in my mind that the young couple will be able to establish a successful family, and will be able to contribute to their community.
Please feel free to contact me if you need further information.”[49]
[49] HB 734-736.
On 10 June 2015, nearly 4 months after the invalidity determination, lawyers acting on the Applicant’s behalf, made a “No further stay waiver” (the first waiver application) request to the Respondent.[50]
[50] HB 716-720.
On 15 June 2015, a physiotherapist, Max Sallam, prepared a report stating that the Applicant suffers from various physical restrictions.[51]
[51] HB 739-740.
On 21 July 2015, SD swore a statutory Declaration in the following terms:
“I [SD] of [redacted], customer service officer make the following declaration under the Statutory Declarations Act 1959:
1. I am 22 years old and I am completing a Bachelor of Business at the University of Western Sydney.
2. I am currently working as a Customer Service Officer at McDonalds Rosehill.
3. I married Meheiddine Hamze on 18 February 2015. After I got married to Meheiddine, my father disowned me due to my father's opposition to our marriage. This is because Mehieddine is from Lebanon, and I am from Iran. I am also Shia and he is Sunni.
4. On 9 March, I was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood.
5. If Meheiddine were to leave, the following difficult circumstances would occur:
A. No-one to support me
i. I do not have any family in Australia other than my immediate family. My father has disowned me due to his opposition to our marriage and I cannot return home.
ii. I do not have any friends who can support me.
iii. I have spoken to the Australian Iranian Community Organisation, United Muslim Women Association and Auburn Islamic Centre and they have said that they are unable and/or have limited capacity to meet my needs.
B. Financial difficulty: I do not make enough income to support myself financially including through renting a place and buying groceries. I am a student at the University and will have to leave and find full time work. The stress associated with these difficulties will further aggravate my situation.
C. My mental health: I am continuing to see my psychologist for treatment and he has indicated that it is important that I continue to do so. As my psychologist has noted, I need constant support as a result of my mental health status, and this is likely to be aggravated if I do not have support from others, which due to the aforementioned reasons will be lacking if my husband were to depart Australia.
6. In light of the above circumstances, I kindly request that you grant Meheiddine a favourable outcome for his request for a waiver in relation to the No Further Stay Condition.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
[signed].”[52]
[52] HB 737-738.
In a letter dated 22 July 2015, the Applicant’s lawyers stated:
“…
3. On 19 February 2015, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820/Partner (Residence)(Class BS)(Subclass 801) Visa that was declared invalid on 23 February 2015, due to restrictions imposed by Section 46 (1A) of the Migration Act 1958 (Cth) (“the Act”).
4. On behalf of the applicant, we request that Condition 8503 be waived so that he may validly reapply under Section 46 of the Act for the Substantive visa mentioned in paragraph 3, or alternatively for another class of visa for which he may be eligible.
…
a. Compelling and Compassionate Grounds
6. It is acknowledged that marriage does not constitute a compelling and compassionate circumstance likely to result in the grant of an 8503 waiver; Nguyen v MIMA (2001) 109 FCR 169.
7. However, according to Section 19 of Procedures Advice Manual 3, “The death, serious illness or serious medical condition of a member of the visa holder’s close family, in circumstances where the visa holder is required to remain temporarily to provide assistance or support might also satisfy requirements.”
8. The applicant has advised us that his wife is suffering from Adjustment Disorder with Mixed Anxiety and Depressed mood, which she was only recently diagnosed with. Please find annexed and marked “A” a copy of the report from Dr Mahmoud Abu-Arab.
9. The applicant’s wife has various needs resulting from her diagnosis. She requires support such as:
-Aid driving
-Financial support
-Assistance in basic duties such as grocery shopping
-Preparation of meals
-Emotional support
-Other medical support for her medical condition
10. The applicant has also advised us that due to Mrs [SD] father’s stark opposition to her marriage to a Lebanese national, she is unable to return home and would not be able to do so if the applicant departed Australia (she is Iranian). This would create an added burden on the applicant’s wife, since she would need to support herself financially, emotionally and from a medical point of view while she is seeking treatment for the above mentioned medical condition.
11. The applicant has advised us that there is no one else available to support her while she is suffering from this mental condition, and based on the medical report received it is likely to worsen if he were to depart Australia.
12. We therefore submit that the applicant’s wife, as a close family member, requires the applicant to remain in Australia to support her as a result of her current medical condition. We have also been instructed that she does not have any other individual or organization to assist her in her daily life (see Statutory Declaration attached and marked “B”). Emphasis is placed on the fact that she is unable to return to her family home, and that her medical condition means that she requires daily support which she would not be able to receive if she lives alone.
13. The applicant is also compelled to stay in Australia since the applicant’s wife cannot return to Lebanon with him. This is because she is of Iranian Shia Background and he is of Lebanese Sunni Background. It would be unreasonable to expect the wife to travel with her husband to Lebanon, since it has the potential to expose her to a highly dangerous situation due to the tensions between Shia and Sunni. There is a plethora of information available in the research directorate in relation to the tensions between Shia and Sunni in Lebanon. It should be noted that Lebanon is a majority Sunni country who largely oppose the Hezbollah allied agreement with Iran and Syria. Killings from both sides have resulted in a very tense situation whereby either sect is reluctant to live in Areas where there is a majority.
14. On the other hand, those who support Hezbollah are allied against other Sunni extremists groups in the Middle East such as ISIS who has been killing minority groups for being ‘infidels’.
15. In addition to the Sunni – Shia tensions, the applicant’s wife is of Iranian background which would further aggravate her situation. This is highly likely to cause a worsening of her condition.
16. We therefore submit that his wife’s medical condition and the circumstances arising from having a lack of carer available are compelling and compassionate grounds for the purpose of the grant of a waiver of “No Further Stay” condition.
b. Beyond the applicant’s control
17. It is acknowledged that the applicant’s decision to get married was not beyond his control.
18. However, it is submitted that the development of the medical condition that his wife has been diagnosed with was beyond his control.
c. Resulted in a Major change to the person’s circumstances
19. As a result of his wife’s medical condition, the applicant has advised us, that he is required to provide ongoing support to his wife in the form of financial, emotional and other support required to assist her while she is seeking treatment.
20. If the applicant were to return to Lebanon, he would not be able to assist his wife from overseas as she requires support that will not be available while he is overseas.
21. In addition, we refer to and emphasize paragraphs 13 to 15.
Car accident
a. Compelling and compassionate grounds
22. In addition, the applicant has instructed us that in December 2014, he was the victim of a car accident that resulted in him having to attend medical treatment sessions for his injuries. Please find enclosed and marked “C”, a letter from Dr Naim Islam in relation to the car accident and his current medical condition.
23. According to Dr Naim’s examination of the applicant, he is unfit for work or study from 15/06/2015 to 30/09/2015, as a direct result from this car accident.
24. The applicant has also provided a report from his Physio Rehab Centre (annexed and marked “D”)1 in relation to him receiving physio-therapy treatment associated with his neck, right shoulder, lower back and right ankle. While the whole report is relevant, emphasis is placed on the physiotherapist’s diagnosis of Mr Hamze having:
“Restricted cervical mobility with overlying muscular spasm – MRI scans indicated C5/6 posterior disc protrusion”
“Restricted lumbar mobility, bilateral weakness and paraesthesia and pain on prolonged sitting and standing-indication L4/5, 5/S1 broad based disc bulges impinging L5 Nerve Root”
25. It is therefore submitted that based on the Doctor’s report and the report from Physio Rehab Centre, the applicant will not be able to travel in the immediate future due to the limitations imposed by his medical condition arising from the car accident. He is therefore compelled to remain in Australia based on the above mentioned compassionate grounds.
b. Beyond the applicant’s control
26. It is submitted that the car accident was beyond the applicant’s control.
c. Resulted in a major change to the person’s circumstances
27. It is submitted that the car accident resulted in a major change to the person’s circumstances as a result of the injuries he sustained and which according to the reports, has limited his ability to travel.
Conclusion
28. In light of the above mentioned circumstances, we kindly request a favourable decision is made in relation to the request for an 8503 waiver.”[53]
[53] HB 727-732.
The Applicant was here arguing, amongst other things, that he was needed to support SD’s medical and financial needs. This is a strikingly similar argument to the one currently being advanced by him, in these proceedings.
On 30 July 2015, the Applicant’s lawyers withdrew the first waiver application.[54]
[54] HB 742.
On 26 August 2015, lawyers acting on the Applicant’s behalf, made another “No further stay waiver” (the second waiver application) request, to the Respondent.[55]
[55] HB 743-757.
The second waiver application was supported by another letter from his lawyers, similar in some respects, but not identical to the letter of 22 July 2015 (supra). Relevant differences include:
“17. The applicant has also advised us that due to Mrs [SD] father’s stark opposition to her marriage to a Lebanese national, she is unable to return home and would not be able to do so if the applicant departed Australia (she is Iranian). This is confirmed in the Psychologist’s report. Particular stress is placed on:
“She disclosed that her family were against her marriage as her husband is of a different nationality (Lebanese national) and she is of Iranian-Persian background. She acknowledged however, that her mother and siblings eventually came to accept her marriage, her father continues to object to the marriage”
18. It is submitted that due to the patriarchal nature of Middle Eastern family households, the applicant’s wife would not be able to return home and she has advised us that there is no one else available to support her while she is suffering from this mental condition, and based on the medical report received it is likely to worsen if he were to depart Australia. Emphasis is therefore placed on the fact that she is unable to return to her family home, and that her medical condition means that she requires daily support which she would not be able to receive if she lives alone.
19. This would create an added burden on the applicant’s wife, since she would need to support herself financially, emotionally and from a medical point of view while she is seeking treatment for the above-mentioned medical condition.
20. We therefore submit that the applicant’s wife, as a close family member, requires the applicant to remain in Australia to support her as a result of her current medical condition.
21. We therefore submit that his wife’s medical condition and the circumstances arising from having a lack of carer available are compelling and compassionate grounds for the purpose of the grant of a waiver of “No Further Stay” condition.
Discrimination and likely harm if she were to depart to Lebanon
22. It is acknowledged that the applicant’s wife may depart Australia to Lebanon with the applicant. However, we submit that there is a reasonable likelihood that the applicant’s wife may likely suffer discrimination in Lebanon due to her cultural background, especially since she will be required to return to an area of Sunnis and she is of Iran-Shiite background.
23. Lebanon is a Sunni Majority country, with Shiites making a minority. In a 2009 report, Brandeis University cited the following statistics in relation to the growth of the Shiite population in Lebanon:
[graph]
24. However, it should be noted that the influx of Syrian refugees would have severely affected the statistics, given that one in every four people in Lebanon are now Syrian refugees.
25. In a 2015 report on the situation of Syrians in Lebanon, Reuters noted: “Politicians also fret about the mainly Sunni Muslim refugees' impact on Lebanon's delicate sectarian balance, in which power is carefully divided between Christians, Shi'ite Muslims, Sunnis, and other, smaller groups.”
26. The Council on Foreign Relations noted:
The intensification of the Syrian civil war is putting increased stress on Lebanon’s political system and security infrastructure. Lebanon has absorbed more than one million Syrian refugees since the start of the conflict in 2011—compromise nearly one-fourth of Lebanon’s population and more refugees than any other country bordering Syria. However, in October 2014, Lebanon announced that it would not accept any more Syrian refugees.”[56]
[56] HB 743-757.
On 9 September 2015, the second waiver application was refused by the Respondent.[57]
[57] HB 771-779.
It must have been apparent to the Applicant by this time, that the first Partner visa application would not succeed.
The Applicant says that it was at about this time, that he decided his marriage to SD had no future. He told her it was over. This was because SD was not ready to have a family. He stated that her refusal to have child at this time, was critical in his decision to leave her and to move on.
He claims that he asked her to withdraw the partner visa application. The Applicant was unable to provide any evidence of this request.
The Applicant’s evidence about when he split with SD, was vague. Given the documentation before the Tribunal, this may have been between July and September of 2015. Assuming this to be so, they had been married for only 5 to 7 months. He still had no visa and little obvious prospect of obtaining one.
Based on his evidence to the Tribunal, I am satisfied that his priority at that time, was fathering a child. SD’s refusal to do so, ended their relationship.
The Applicant was also unable to point to any evidence of having ever divorced SD.
The Applicant told the Tribunal that he didn’t know anything about a divorce. He left that up to her. He conceded that he has no idea whether they were ever divorced. As far as he was concerned, she didn’t want children, so he finished their relationship.
I am not satisfied, given the total absence of evidence, that the Applicant has ever been legally divorced from SD.
It follows that all his later representations about being “married” to RA are at least questionable, as a matter of law. This does not necessarily detract from the substance of their relationship, but it raises serious questions about the truth of his representations to the Respondent and to the Tribunal, about its legal form.
The Applicant knowingly continued to remain in Australia as an illegal non-citizen.
The Applicant conceded in his evidence, that was here without a valid visa from 1 August 2014 to 15 February 2015 and from 24 February 2015 to 19 July 2017.[58]
[58] HB 126.
It is also conceded that there is no evidence of “substantial positive community involvement”.[59]
[59] HB 11 at [66], HB 247-249.
The period of almost 3 years as an illegal non-citizen, is totally consistent with the Applicant’s past pattern of conduct, in this instance, ignoring the immigration laws of this country, to remain here.
It is totally inconsistent with the Applicant’s submission that he has, since 3 March 2010, demonstrated an “extended period of lawful and responsible behaviour (which) is a compelling indicator of the Applicant’s character and self-discipline.”[60]
[60] HB 11 at [14]-[16].
On 28 September 2016, the Applicant’s nephew, (Child A) was born. He is the son of his second wife’s sister, “HA”.[61] The Applicant had at the time however, not yet even met his second wife, RA.
[61] HB 818-820.
Child A has serious health issues.[62]
[62] HB 818-820.
On 20 December 2016, while he was still illegally in Australia, the Applicant met RA.[63] The Applicant’s father and RA’s father were friends. He met RA at her father’s (AA) home.[64] RA is an Australian citizen.
[63] HB 827-828, HB 442.
[64] HB 442.
On 4 February 2017, 46 days later, the Applicant and RA were engaged.[65]
[65] HB 243-244, HB 442.
This brief period of courtship is again consistent with the Applicant’s past conduct. It is consistent with his demonstrated persistence, in seeking an opportunity to achieve legal residency status in Australia.
On 20 March 2017, RA flew to Lebanon to meet the Applicant’s family.[66] At this stage she had known the Applicant for about 3 months. This 3-month period is the only time that they knew each other in Australia. They were not living together. During all this time, the Applicant was here illegally.
[66] HB 442.
On 25 March 2017, the Applicant was found driving without a valid visa. He was taken into immigration detention.[67]
[67] HB 249, HB 827 at [5].
On 26 March 2017, RA flew back to Australia.[68]
[68] HB 442.
On 19 July 2017, the Applicant departed Australia.[69]
[69] HB 438.
On 20 July 2017, the Applicant was arrested immediately upon his return to Lebanon, in relation to the still outstanding 2010 criminal charges.[70]
[70] HB 438.
On 26 July 2017, the Applicant was convicted in the Permanent Military Court in Lebanon of various offences related to assault, breaking and entering, property damage and having a military weapon without a license. He was sentenced to one month’s imprisonment and a fine.[71]
[71] HB 114, 116, 118.
On 27 August 2017, RA travelled to Lebanon.[72]
[72] HB 442.
On 30 September 2017, the Applicant married RA in Lebanon.[73]
[73] HB 165, HB 821 at [5].
As has previously been observed, the legal status of this marriage, at least according to domestic Australian law, is unclear.[74] I note that in Australia, it is a criminal offence for a person who is married to “go through a form or ceremony of marriage with any person”.[75]
[74] E.g. See Marriage Act 1961 (Cth) s 23(1) (a), s 23B (1) (a), s 60-64, s 88A-88G, s 94.
[75] See Marriage Act 1961 (Cth) s 94.
In 2018, HA and Child A visited the Applicant in Lebanon.[76]
[76] HB 818-820.
On 8 April 2019, the Applicant submitted the application for the Visa.[77]
[77] HB 220-251
The Applicant failed to disclose his previous marriage to his first wife, SD and the First Partner Visa application.[78]
[78] HB 246
On 29 September 2019, RA returned to Australia. She was pregnant with Child B at the time.[79] Child B was conceived in Lebanon.
[79] HB 821 at [6].
On 16 January 2020, the Respondent requested the Applicant to provide an AFP clearance.[80]
[80] HB 364-366.
On 24 January 2020, the Applicant’s son (Child B) was born.[81]
[81] HB 106.
On 4 March 2020, the Respondent wrote to the Applicant regarding the provision of false or misleading evidence. This related to the first partner Visa application, referred to above, lodged on 23 March 2015.[82]
[82] HB 386-389.
The Applicant responded saying:
“Thank you for the invitation to comment on information.
Firstly my sincere apologies providing any information or lack thereof that you deem to be misleading or false. It is only on receiving your letter that it came to my attention that it was indeed relevant to disclose that I had a past relationship with a different sponsor. The reason I did not disclose this is because my first application was deemed invalid and I then assumed it was closed and no longer valid.
To the best of my understanding I understood my first application was invalid and therefore I didn't think it was important and was not advised it was important to mention it. It was my view that the application was never lodged and my relationship at that time did not continue so I didn't know I had to state it and write it in my application. If I knew it was necessary I would have included it because I have nothing to hide and would not leave out any information on purpose. I did not tell my current agent [redacted] about my past situation because I didn't think it was relevant after it was " invalid" . I regret this now and it was not my intention to provide false or misleading information. It was a careless error in assumption since my first application was invalid.
I take remorse for not disclosing this information because before departing Australia my situation was critical and I did declare in my application that I did something wrong which I now regret.
In your letter you have invited me to provide any compelling circumstances to justify the waiver of PIC4020. I am the spouse of [RA] born [redacted DOB]. [RA] and I have lived together in Lebanon since we were legally married on 30 September 2017 and our engagement took place on 4 February 2017.
I am pleased to inform the embassy that I am no longer the person I was before and I regret that I was illegal while in Australia from 31 July 2014 until 25 March 2017 and since I left Australia on 19 July 2017 I changed completely and I regret the bad behaviour which I committed in Australia. I have had to reflect and feel that through reflection and time away I am in a much better place now.” [83]
[83] HB 126.
He told the Tribunal that he didn’t mention SD because he had left her and that there was no relationship anymore. He said that told his agent that he had a past relationship, but the agent didn’t change the form accordingly.
This is an entirely different excuse to the one that he gave to the Respondent in earlier correspondence, namely that he didn’t think it counted because the first Partner visa application was invalid.
Other Consideration (c) is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
I note that the status quo since July 2017, will remain undisturbed, if the subject decision is affirmed. The Applicant’s position for some years prior to that, was that he was here unlawfully.
Primary consideration 1 weighs heavily in favour of exercising the discretion to refuse grant the Visa.
Primary consideration 2 is neutral.
Primary consideration 3 weighs at best slightly against exercising the discretion to refuse to grant the Visa.
Primary consideration 4 weighs at best slightly against exercising the discretion to refuse to grant the Visa.
Primary consideration 5 weighs very heavily in favour of exercising the discretion to refuse to grant the Visa.
Other consideration (a) is neutral.
Other consideration (b) is neutral.
Other consideration (c) is neutral.[126]
[126] Find in the above paragraphs.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
The Applicant has been convicted of a serious violent crime involving firearms. The details are discussed above.
The Applicant has shown disregard for our laws by making false representations to the Respondent and having knowingly remained in this country unlawfully.
It was only a matter of chance, that his unlawful presence here was discovered by police. Primary Considerations 1 and 5 weigh very heavily in favour of refusing to grant the Visa.
The Applicant does have some connections to Australia as discussed above. This includes some minor children.
His most significant Australian anchors are RA and Child B. It would be in their interests for the Visa to be granted. However, Primary Considerations 3 and 4, at best each weigh only slightly against refusing to grant the Visa.
I am satisfied that the overwhelming weight of evidence conclusively favours refusing to grant the Visa.
I am satisfied that the discretion to refuse to grant the Visa under s501(1) should be exercised.
DECISION
The decision under review is affirmed.
I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.
............................[sgnd]....................................
Associate
Dated: 20 October 2025
Date of hearing: 22 September 2025 Advocate for the Applicant:
Dr J. Donnelly of Latham Chambers
Advocate for the Respondent: Mr B. Kaplan of Nine Wentworth Chambers
Mr T. Aviram of Clayton UtzANNEXURE A – LIST OF EXHIBITS
Exhibit no.
Lodged by
Document
1
Respondent
Hearing Book
2
Applicant
Applicant’s Family Ties to Australia
3
Applicant
Applicant’s Written Closing Submissions
4
Respondent
Respondent’s Written Closing Submissions
ANNEXURE B – APPLICANT’S OFFENDING HISTORY
Court
Court Date
Offence
Court Result
Military Court of Lebanon
26/07/2017
Entering by breaking to Caligola night club and causing damage to others' properties and to the night club staff by harming and humiliating them. Holding and transporting arms without legal permit.
Convicted – 1 month jail, surrender pistol and pay one million LBP.
0
2
0