Hamze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 2191

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 50
Minister 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 770
Suleiman 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 1466
SECONDARY 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Hamze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 2191
Case: [2025] ARTA 2191
Decision Date: 20 October 2025

CaseChat Overview and Summary

The case involved the Applicant, a Lebanese citizen, who applied for a Partner (Provisional) (Class UF) visa. The Minister for Immigration, Citizenship and Multicultural Affairs refused the application, citing concerns about the Applicant's character under section 501(1) of the Migration Act. The primary legal issue was whether the Applicant passed the character test, considering his criminal record and other conduct. The Applicant had a history of criminal activity in Lebanon, including assault, breaking and entering, property damage, and possession of a military weapon without a license. These offences led to his imprisonment and fines. The Tribunal needed to determine if these past actions warranted the refusal of the visa under section 501(1) and if the discretion should be exercised in light of the Ministerial Direction No. 110.

The Tribunal examined the Applicant's criminal history and his subsequent conduct, including his unauthorized stay in Australia and his applications for visas. It considered whether the Applicant's criminal record and conduct demonstrated that he was not of good character, and thus, unsuitable for the visa. The Tribunal also took into account the Ministerial Direction No. 110, which provides guidance on the character test. The Tribunal concluded that the Applicant's past criminal activities and his ongoing efforts to remain in Australia despite visa conditions supported the Minister's decision to refuse the visa. The Tribunal found that the Applicant's history of criminal conduct and his attempts to exploit the Australian immigration system indicated that he did not meet the character requirements for the visa.

In light of the above considerations, the Tribunal affirmed the Minister's decision to refuse the visa. The Tribunal held that the Applicant did not pass the character test and that the discretion to refuse the visa under section 501(1) should be exercised. The Tribunal's decision was based on the Applicant's criminal history, his unauthorized stay in Australia, and his conduct in attempting to remain in the country. The decision was consistent with the principles outlined in Ministerial Direction No. 110.

Orders

Orders of the court

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Background

Background to the litigation

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 20/07/2017Kind 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 03/03/2010Legal article: 572-733-554-584-72-73 Weapons and 254 penalties[11] HB 116.Date of judgement: 26/7/2017Judgment: 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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