Hamze and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Migration) - [2019] AATA 5312

Hamze and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Migration) [2019] AATA 5312 (12 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/6744
Re:Abdul Rahman Hamze
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:12 December 2019
Place:Sydney

The Tribunal affirms the decision under review.
...............[sgd].........................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Lebanon – Class BS Subclass 801 (Spouse) visa – multiple convictions between 2009 and 2018 – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) ss 4, 499, 500, 501, 501CA
Migration Regulations 1994 (Cth) r 2.52
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Umi and Minister for Home Affairs [2019] AATA 2316
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
ZNBG and Minister for Home Affairs [2019] AATA 1872
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
12 December 2019
INTRODUCTION

Mr Hamze seeks review of a decision, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class BS subclass 801 (Spouse) visa (“the visa”).[1]
[1] Exhibit R1, 1-6.
The hearing was held in Sydney on 9 December 2019. The Applicant was self-represented. The Minister was represented by Mr Kyranis of Sparke Helmore Lawyers.
For the reasons that follow the decision under review is affirmed.
BACKGROUND
Mr Hamze is a 36 year old citizen of Lebanon.[2] He arrived in Australia in January 2007 under the sponsorship of his Australian citizen spouse.[3] Their relationship involved incidents of violence and ended in mid-2010.[4]
[2] Ibid, 82.
[3] Ibid, 76.
[4] Ibid, 78-79.
Mr Hamze has multiple criminal convictions in Australia between March 2009 and May 2018.[5] His visa was mandatorily cancelled on 8 August 2018 by the Minister under s 501(3A) of the Act.[6] Mr Hamze was invited to make representations to have the cancellation decision revoked, and did so on 14 September 2018.[7]
[5] Ibid, 23-45.
[6] Ibid, 89-93.
[7] Ibid, 60-75.
On 2 February 2019 Mr Hamze was paroled and immediately taken into immigration detention.[8]
[8] Ibid 86; 95.
On 10 October 2019 Mr Hamze was notified that a delegate of the Minister had decided not to revoke the visa cancellation decision.[9] He acknowledged receipt of that decision on 18 October 2019.[10]
[9] Ibid, 9-10.
[10] Ibid, 12.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 2 January 2020.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[11]
[11] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at cl 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations must be taken into account, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
…
… Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR HAMZE PASS THE CHARACTER TEST?
Mr Hamze was sentenced to terms of imprisonment of twelve months or more on 3 May 2018 and 5 February 2018. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test.
ISSUE TO BE RESOLVED
It follows that what remains to be determined is if there is ‘another reason’ to revoke the mandatory cancellation of his visa pursuant to s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection:[12]
‘The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…’
[12] [2016] FCA 1166 at [38].
EVIDENCE
The following were taken into evidence:
(a)“G documents” filed by the Respondent numbering 139 pages;[13]
(b)Documents titled “Tender Bundle” filed by the Respondent and numbering 129 pages;[14] and
(c)Documents titled “Further Tender Bundle” filed by the Respondent and numbering 47 pages.[15]
[13] Exhibit R1.
[14] Exhibit R2.
[15] Exhibit R3.
Mr Hamze’s evidence
The Tribunal has considered Mr Hamze’s written evidence, including submissions dated 5 August 2019[16] and 9 August 2018.[17] In his oral evidence Mr Hamze said that prior to leaving Lebanon he worked for about three years with his father, who was a butcher. His father is now deceased, but his three brothers in Lebanon still work as butchers. Mr Hamze said he had returned to Lebanon twice for holidays since arriving in Australia, most recently in 2009.
[16] Exhibit R1, 104-106.
[17] Ibid, 60-75.
Mr Hamze said a former employer introduced him to poker machines in 2010. By 2012 it was a daily addiction. He claimed it was not unusual to lose his entire fortnightly pay, up to $1500, in a single sitting. He became ‘angry’ at times about losing so much money, which caused him to turn intermittently to methylamphetamine or ‘ice.’ Later in his evidence, Mr Hamze stated he had not used methamphetamine. When challenged about this inconsistency he equivocated, stating: ‘I don’t use much….’ Mr Hamze said he first smoked ice in 2015, but had only used it infrequently for ‘about one year,’ and had not required any treatment to stop. When asked if he had ever used any other drug, Mr Hamze said he had not. When referred to a record in evidence showing he had failed a drug test while imprisoned, Mr Hamze agreed he pleaded guilty to an internal disciplinary charge of using marijuana,[18] but that was the ‘first and last time’ he had tried it.
[18] Exhibit R3, 6-7.
Mr Hamze was taken through aspects of his offending, including:
(a)An assault against his ex-partner committed on 28 February 2009. After having the NSW Police Facts Sheet[19] read to him, Mr Hamze initially agreed it was an accurate description. He subsequently denied pulling his ex-partner’s hair, despite police claiming this was disclosed in CCTV footage. In response to questions as to why his version should be believed, Mr Hamze conceded he had pulled his former partner’s hair;
(b)Breach of a domestic Apprehended Violence Order (“AVO”) on 17 July 2009.[20] Mr Hamze agreed the summary read out to him was accurate, including that he dragged his ex-partner for about 10 metres out of public view, pulled some of her hair out of her head, pushed her on the shoulder, and also struck his sister-in-law with a closed right fist. When asked why he assaulted both women, Mr Hamze inexplicably claimed ‘I did not hit them.’ When asked to respond to the inconsistency, Mr Hamze responded: ‘I don’t remember’;
(c)Conviction for ‘Commit act of indecency’ in 2015, during which the victim reported bruising to her arms and thighs, bleeding from her vagina, and lower stomach pain.[21] In response to questions, Mr Hamze insisted he had done nothing wrong: ‘I take her to my place and she was sick and vomiting, I plead not guilty, I didn’t do nothing wrong, I didn’t do nothing to her.’ When it was put to Mr Hamze that he was convicted of a criminal offence relating to this incident, he insisted that all he had done was remove the woman’s clothing and put her to bed because she was so inebriated. The Tribunal reminded Mr Hamze it was not open to him to impugn this conviction; and
(d)A number of dishonesty offences that included stealing: a mobile phone from a disabled person; three BMX bikes; and a water heater. Mr Hamze did not dispute the circumstances of these and other thefts, which he said were to fund his gambling addiction.
[19] Exhibit R2, 2-5.
[20] Ibid, 126.
[21] Ibid, 118.
Mr Hamze stated he was remorseful for his conduct, characterising it as ‘a big mistake.’ He claimed to have been rehabilitated during his imprisonment, stating inter alia: ‘I’m a changed person, my problem was poker machines…I won’t do it again, that’s it, it’s finished.’
When asked about any contribution he had made to Australia during the last 12 years, Mr Hamze responded: ‘Nothing.’ When asked to comment on the proposition that his ties in Australia seemed to be limited to his brother, adult nephew, two biological children and ex-partner, Mr Hamze agreed. Mr Hamze said his brother, who was an Australian resident, had last visited him about three weeks ago. When asked why his brother had not submitted a statement or appeared at the hearing, Mr Hamze said he did not know. When pressed, he claimed to have told his brother about the hearing, but insisted he would help himself and told his brother not to ‘worry about it.’ Mr Hamze also referred to a nephew who is around 26 or 27 years of age, and who he had last seen two-and-a-half or three years ago. When asked by the Tribunal about the reference to ‘nephews’ in his August 2019 statement,[22] Mr Hamze confirmed he only has the one nephew in Australia.
[22] Exhibit R1, 104.
When asked about his biological children, Mr Hamze said he had not seen them for three years. He could not recall his children’s dates of birth and erroneously claimed his youngest child was eight years of age, when the child’s birth certificate showed he was now 11 years of age.[23] When asked about any telephone contact with his children, Mr Hamze said there had been none because he did not have a telephone in prison or immigration detention. Mr Hamze explained that after his relationship with the mother of the children broke down in 2010, he had not seen the children for about three years. He then saw them about every second weekend for a year, before a fight with his former partner resulted in him seeing them only ‘for a few hours every now and then.’ He said his former partner had married in 2016 and had a child with her new husband. When asked how he knew about his former partner’s current circumstances, Mr Hamze said his brother in Australia had previously visited her and told him about it. Mr Hamze submitted he did not talk to his former partner, claiming: ‘She’s always giving me a hard time.’ When asked if he thought she was a good mother, Mr Hamze responded: ‘I don’t know, I don’t have contact with her.’ When pressed, he agreed that he had no reason to believe his former partner did not take good care of the children.
[23] Ibid, 77.
Mr Hamze claimed to have paid child support of ‘about $50’ per month for his children between approximately 2012 and 2015, which he said had been the subject of a formal order rather than a voluntary payment. He later stated that the order required him to pay $40 every fortnight. When asked about the basis for his written claim about his two children suffering ‘separation anxiety’[24] Mr Hamze responded: ‘I don’t know.’ When asked about the basis of his written claim that his children’s psychological, emotional and school performance had been affected or risked being affected by his repatriation to Lebanon,[25] he responded: ‘I don’t know.’
[24] Ibid, 69.
[25] Ibid, 62; 69.

Mr Hamze said he had no diagnosed medical or psychological issues and wanted to return to work as a butcher and reconnect with his children. If returned to Lebanon he agreed that he had good relationships with his mother and siblings, and would re-establish close contact. He claimed that although he may be able to stay with one of his siblings for a short period, all of them were now married and he could not count on them for stable accommodation in the longer term. His mother now lived with one of his sisters, so he could not reside with her as he might have if she lived independently. When asked about any concerns he had about returning to Lebanon, Mr Hamze said ‘the life there is no good’ and prospects of employment were not as good as in Australia. When asked if there was any reason why he could not maintain contact with his two children via telephone calls or through other electronic means, Mr Hamze said there was not.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Mr Hamze’s offending comprises mostly dishonesty offences, but also includes two convictions for ‘Common assault,’ ‘Contravene prohibition/restriction in AVO (Domestic),’ and ‘Commit act of indecency with person 16 years or over’[26] – all against female victims. A New South Wales Police Fact Sheet refers to CCTV footage on 28 February 2009, showing Mr Hamze preventing his former partner from leaving a train station.[27] This included pushing her into the corner of a fence line, forcing her to sit down on a bench, pulling her hair and preventing her from leaving, during which she cried out for help on several occasions. An AVO was subsequently issued, which Mr Hamze breached.[28]
[26] Ibid, 23-45.
[27] Exhibit R2, 2-5.
[28] Ibid, 125-129.
In December 2014 Mr Hamze was involved in a sexual offence,[29] which led to his October 2015 conviction for ‘Commit act of indecency with person 16 years or over.’ During the hearing, Mr Hamze attempted to dispute this conviction, which the Tribunal rejected.
[29] Ibid, 118.
During the last three years, Mr Hamze has been convicted of:
(a)23 January 2017: Enter enclosed land not prescribed premises without lawful excuse, and Steal from the person, for which Mr Hamze received fines and a twelve month good behaviour bond. The stealing offence related to Mr Hamze taking a mobile phone from a wheelchair-bound person with spina bifida,[30] which the sentencing judge described as an ‘odious crime;’[31]
(b)5 February 2018: Mr Hamze was convicted of property and dishonesty offences committed between July and December 2017, specifically: Steal from the person; Larceny value less than $2000 (6 counts); Goods in personal custody suspected being stolen value less than $2000 (1 count); Receive/dispose stolen property (3 counts); Dishonestly obtain property by deception (18 counts). This offending breached the good behaviour bond imposed in January 2017. Mr Hamze was sentenced to 14 months imprisonment. He was also convicted of possess prohibited drug and enter enclosed land without lawful excuse, with no additional penalty. As Her Honour held on 5 February 2018:
‘…it makes you, unfortunately, a powerful danger to the community and to all of our possessions. You really do help yourself to anything that is not nailed down…which makes you a chronic, long-term problem for the community…Now we need to try and lock you away from other people’s possessions and see if some time in custody can assist you with getting well from your methamphetamine addiction.’[32]
(c)3 May 2018: Mr Hamze was convicted of property offences committed in January 2018, specifically: Break and enter house stealing value less than $60,000 (2 counts); Receive/dispose stolen property less than $5000; and Larceny value less than $2000. He was sentenced to 12 months imprisonment for these offences. He was also convicted of: Enter enclosed premises without lawful excuse; and Enter vehicle or boat without consent of owner/occupier, with no additional penalty.
[30] Ibid, 106-107.
[31] Exhibit R1, 55 [2].
[32] Ibid, 54 [24]; [32].
The Tribunal has had regard for the available sentencing remarks.[33] It is noteworthy that most of Mr Hamze’s offending has been dealt with through bonds, fines, supervision orders, court-ordered counselling and other non-custodial penalties. He served his first term of imprisonment in 2018.[34] Mr Hamze has been charged with breach of bail offences and providing false details to the court.[35]
[33] Ibid, 46-56.
[34] Ibid, 51.
[35] Exhibit R2, 63-84; 88.
Tribunal findings: The nature and seriousness of the conduct
The Tribunal makes the following findings in relation to cl 13.1.1(1) of the Direction:
(a)13.1.1(1)(a): Mr Hamze was convicted of violent offences in 2009 and 2010, and for a sexual crime in 2015, which are viewed very seriously;
(b)13.1.1(1)(b): Mr Hamze’s two Common assault convictions were against women, as was his 2009 contravention of an AVO taken out to protect his former partner. Such offending is viewed very seriously regardless of the sentence imposed;
(c)13.1.1(1)(c): Mr Hamze’s theft of a mobile phone from a wheelchair-bound person is a crime against a vulnerable member of the community and is serious;
(d)13.1.1(1)(d): Mr Hamze has received two sentences of imprisonment in 2018 of twelve months or more, which is the last resort in the Court’s sentencing options;
(e)13.1.1(1)(e): Although there are some periods in the chronology where no convictions were recorded against Mr Hamze, most notably from March 2010 until October 2015, he has consistently reoffended and has not been dissuaded by non-custodial penalties. The court’s decision to impose two sentences of imprisonment in 2018, reflects the increasing seriousness of his offending; and
(f)13.1.1(1)(f): The cumulative effect of Mr Hamze’s offending, particularly dishonesty offences, is serious and has imposed considerable costs on the community.
Mr Hamze’s offending is objectively serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Direction acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage at [111] related to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
Mr Hamze expressed remorse for his offending and attributed it in his written evidence to the ‘psychological and financial stress in being unable to support my minor children…[36] In other written evidence he attributed it to ‘satisfying his uncontrollable urge especially when gambling…[and]…substance abuse issues.’[37]
[36] Exhibit R1, 62.
[37] Ibid, 104-105.
Mr Hamze claimed he last used ice approximately three-and-a-half years ago, that he has been ‘completely rehabilitated’[38] while imprisoned, and that his risk of reoffending is ‘very low:’[39]
‘I believe the risk of me reoffending is very low, and one that should definitely not be regarded as serious.’
[38] Ibid, 62.
[39] Ibid, 62; 71; 74, oral submissions during hearing.
Mr Hamze submitted he has not completed any rehabilitation relating to his gambling addiction or drug use. When asked by the Tribunal what if any rehabilitation he intended to undertake if released, he replied: ‘Whatever you want.’ He made similar, general claims in his written evidence:
‘No, I have not completed any course. However, I am very eager to begin counselling sessions to improve my psychological health and rehab to combat my bad habits upon release from prison.’[40]
‘It is also important to re-emphasize…willingness to get…into mental health support programs…to help…with…recovery from gambling addiction and substances abuse problems.’[41]
‘Through an effective mental health program [Mr Hamze] should be able to…eliminate both of his major problems dealing with gambling addiction and substance abuse.’[42]
[40] Ibid, 71.
[41] Ibid, 105.
[42] Ibid, 106.
At his May 2018 trial, Mr Hamze had the following exchange with his lawyer:
Lawyer: ‘Since you went into gaol…so it’s been about two and a half or three months, what have you been doing? Have you done any courses or anything?
Mr Hamze: ‘No, nothing.’
Lawyer: ‘Nothing.’
Mr Hamze: ‘Nothing.’
Lawyer: ‘…is there some help in there you can get for your drug addiction?’
Mr Hamze: ‘Yeah.’
Lawyer: ‘have you made any attempt so far to do that? What have you done so far…counselling or courses, so that when you’re released you don’t go back to using ice?’
Mr Hamze: ‘Yeah, I do. I do counselling yeah. I do course as well. But I don’t want no more.’
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Mr Hamze has been convicted of multiple crimes over approximately a decade between the ages of 26 and 36. The Tribunal does not accept his submission that these crimes were to provide for his children, but were committed to fund his gambling and drug addictions.[43] The Tribunal does not accept his submission that his use of ice was of low consequence compared to his gambling addiction, or that he only used ice infrequently for about a year, or stopped using ice over three years ago. As the court held on 5 February 2018, a period of custody at that time was seen as assisting Mr Hamze with ‘getting well from your methamphetamine addiction.’[44] It was also submitted to the court by Mr Hamze’s lawyer on 3 May 2018, that Mr Hamze was ‘heavily addicted to ice’ before going into custody, and was ‘hoping to try and get rid of his drug problems when he is released.’[45] That evidence is at odds with Mr Hamze’s current claims about his drug use, which the Tribunal does not accept.
[43] Ibid, 54 [22]-[23]; 71.
[44] Ibid, 54 [24]; [35].
[45] Ibid, 48-49.
Mr Hamze has suffered instability in his personal circumstances as a consequence of his addictions and criminal offending, including periods of homelessness.[46] He has only worked intermittently.
[46] Ibid, 71.
If Mr Hamze was to commit further offences, the nature of harm includes victims feeling violated by the theft of their possessions, or by someone entering their property without permission. Victims could be subjected to the inconvenience of reporting these crimes to police, or completing insurance claims, or replacing stolen items. Although Mr Hamze’s assault convictions occurred a decade ago and are therefore considered less likely to reoccur than his dishonesty offences, a repeat of his violent crimes cannot be discounted. If these did reoccur, the nature of harm could include physical or psychological injury.
There is no independent professional evidence to corroborate Mr Hamze’s claim that he is ‘completely rehabilitated.’ That submission is at odds with other submissions he has made about wanting to ‘begin counselling’ upon release and that he ‘should be able to…eliminate both of his major problems dealing with gambling addiction and substance abuse.’[47] Mr Hamze’s efforts to minimise the impact of his methylamphetamine use shows he is yet to come to terms with his drug problems.
[47] Ibid, 106.
The evidence discloses that Mr Hamze’s past motivation for rehabilitation has been poor and his current eagerness ‘to begin counselling’[48] is aspirational at best. The force of that aspiration is diminished by a previous failure to complete any rehabilitative courses while in the controlled environments of prison and immigration detention. That raises doubts about whether he will follow through with his claimed rehabilitative intent when free in the community. This is of significant concern given the persistent link between Mr Hamze’s addictions and recidivism over a decade. The Tribunal also notes that he failed a drug test for marijuana while in custody, which he also tried to minimise as a single occurrence of little consequence.
[48] Ibid, 71.
Any rehabilitative progress Mr Hamze may have made is untested in the community. There is also no reliable evidence about protective factors that might mitigate his future risk of recidivism. That includes things like stable accommodation, reliable employment prospects, practical support from family or friends, or dependable plans to progress his rehabilitation. Mr Hamze’s submissions about potentially reconciling with his former partner are implausible given his evidence that she remarried in 2016 and has since had another child. There is no evidence before the Tribunal from Mr Hamze’s former partner.
The Tribunal does not accept that Mr Hamze has addressed the underlying causes of his offending through rehabilitation. He has not been law-abiding and has shown a persistent lack of respect for Australia’s law enforcement framework. He has caused harm to members of the community and the Tribunal considers there is a very real risk he will continue to re-offend, particularly in the category of dishonesty offences. His crimes of actual violence against women and of a sexual nature, means that offending in these categories, while less likely, cannot be discounted.
Despite Mr Hamze’s current good intentions, the risk he poses to the Australian community is unacceptable. Coupled with the objective seriousness of his offending, this is a significant consideration weighing substantially against revoking the decision to cancel his visa.
Tribunal consideration: Best interests of minor children in Australia affected by the decision
Clause 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 13.2(4) to be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Mr Hamze is the biological father of two minor children aged 11 and 13 who are Australian citizens.[49] He could not recall the children’s dates of birth and erroneously thought the youngest was eight years old instead of eleven. The children live with their mother, whose location Mr Hamze is unaware of. During interviews with NSW Department of Corrective Services, Mr Hamze ‘reported a lack of contact with his ex-partner and two sons, advising they are not aware that he is in custody’[50] and had ‘lost contact with them…does not know where they reside.’[51]
[49] Exhibit R1, 76-77.
[50] Exhibit R3, 27.
[51] Exhibit R3, 34.
Mr Hamze stated that he did not see his children for about three years after the relationship with his former partner broke down in 2010. He then saw them about every second weekend for a year, before a fight with his former partner resulted in him seeing the children only ‘for a few hours every now and then.’ His oral evidence at the hearing was that he has not seen his children for the last three years.
There is a reference in Mr Hamze’s 5 August 2019 submissions to ‘nephews.’[52] When asked about this during the hearing, he said the reference was erroneous and he only has a single adult nephew in Australia who is 26 or 27 years of age.
[52] Ibid, 104 (third bottom bullet point under ‘Bankstown Local Court’ heading).
In written submissions Mr Hamze stated that he plays ‘a particularly dominant role’ in the lives of his children, who are ‘heavily reliant’ on him to provide for their ‘basic needs, emotional support and shelter.’[53] He further stated: ‘I support them both financially through support payments where I am able, and by providing them all their necessities and more when they came every alternate weekend.’[54]
[53] Ibid, 69.
[54] Ibid.
Mr Hamze claimed that his offences were driven by ‘financial stress in being unable to support’ his children.[55] In sentencing remarks, however, the Magistrate stated Mr Hamze’s offending was to fund his addictions.[56]
[55] Ibid, 62.
[56] Ibid, 50 [49]; 54 [23]; [35].
Mr Hamze expressed concerns that his children will suffer ‘separation anxiety’ and be ‘severely impacted’ by his repatriation to Lebanon, which would affect their ‘psychological and emotional stability…school attendance and performance.’[57] He also expressed concerns about missing milestones in his children’s lives and claims ‘lifelong stress and upset’[58] would result from his repatriation. He claimed that he does not wish to impose on his former partner the cost of sending their two children to visit him in Lebanon.[59]
[57] Ibid, 69.
[58] Ibid.
[59] Ibid, 74.
Tribunal findings: Best interests of minor children affected by the decision
There is no independent evidence to corroborate Mr Hamze’s claim that he plays ‘a particularly dominant role’ in the lives of his children, or that they are ‘heavily reliant’ on him for their ‘basic needs, emotional support and shelter.’ Based on his oral evidence, the Tribunal does not accept he has played any role in their lives for the last three years and has only had about a year of intermittent weekend contact with them since 2010.
There is no corroboration for Mr Hamze’s claims about paying the relatively small amounts of child support he referred to during the hearing and the Tribunal is unable to make a finding on this issue. The Tribunal does not accept Mr Hamze’s contention that his offending was to financially support his children.
The Tribunal accepts Mr Hamze played a direct parental role in the lives of his two children following their birth in 2006 and 2008. It can also be accepted he aspires to play a more prominent parental role if allowed to remain in Australia. Since the breakdown of his relationship, when the children were four and one respectively, his contact with them has been intermittent and characterised by long periods of absence or limited meaningful contact. Contrary to his claims, Mr Hamze has been unable to play any regular parental role because of his offending, addictions, and periods of homelessness. Others have played the primary parental role and there is no evidence his children have been reliant on any financial or other contribution from Mr Hamze.
On the limited evidence before the Tribunal, the individual interests of Mr Hamze’s two children cannot be differentiated. The Tribunal’s unfavourable assessment of Mr Hamze’s risk of relapse into addiction and recidivism also makes it less likely he will play the positive parental role he aspires to. Moreover, there is no evidence from his former partner or the children about whether contact with Mr Hamze is desired.
There is no independent expert evidence to corroborate the psychological impacts Mr Hamze claims his children have experienced or may suffer if he is repatriated. Mr Hamze could not explain the basis for these claims, which are not accepted.
Based purely on the speculative basis that Mr Hamze’s children may want to have a closer relationship with him in the future, the Tribunal accepts it is in their best interests that the mandatory cancellation of his visa is revoked. While this primary consideration weighs in favour of his application, it does so only slightly.
Tribunal consideration: Expectations of the Australian community
Clause 13.3 of the Direction states:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to the previous Direction No. 65 and a visa refusal decision, cl 9.3 has identical wording to cl 13.3 of the current Direction relating to visa cancellation and mandatory visa cancellation / revocation decisions. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles. Charlesworth J stated:
[75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectations will arise in most if not all cases…having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion...
…
[79] I agree with that statement insofar as it recognises that the government’s assessment of the expectations of the Australian community is that a non-citizen who has committed a serious offence should not be granted a visa. Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do…
In agreeing with Charlesworth J, Stewart J summarised the community’s expectations within the meaning of the Direction as having three key aspects (at [101]-[103]):
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.’
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a Visa because they are of bad character.
The community’s expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum are refusal might be thought to be unlikely, but in neither case and in all the area in between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
The reasoning in FYBR establishes that the principles at cl 6.3 of the Direction can help inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion and require consideration of what specific weight to apply to findings emerging from the specific circumstances of each case (cl 6.1(3)). Decision-makers must also be mindful of cl 6.3(5), which states that a higher level of tolerance may be afforded to those who have ‘lived in the Australian community for most of their life, or from a very young age,’ and cl 6.3(7), which requires consideration of the length of time ‘a non-citizen has been making a positive contribution to the Australian community.’
The reasoning in FYBR reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations.’ (emphasis added).’ The Tribunal has previously concluded that informed of the specific circumstances of a case, the ‘broad middle ground of our society,’[60] may consider this primary consideration has neutral effect,[61] or in other cases weighs against an applicant.[62]
[60] LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].
[61] ZNBG and Minister for Home Affairs [2019] AATA 1872 at [125].
[62] Umi and Minister for Home Affairs [2019] AATA 2316.
Mr Hamze’s submissions about this primary consideration rest on his claims about being ‘completely rehabilitated,’ posing a ‘very low risk of reoffending,’ and aspiration to undertake support programs, which ‘should be able to help him eliminate’ his addictions.[63]
[63] Exhibit R1, 106.
Tribunal findings: Expectations of the Australian community
Mr Hamze’s persistent offending during the past decade, despite lenient treatment by the courts, weighs heavily against his application. He has repeatedly breached the trust of the community and abused the privilege of being permitted to remain in Australia. He has failed to complete any courses to assist him in living a law-abiding life, and for the reasons previously adduced, constitutes an unacceptable risk or reoffending.
Having given due regard to the deemed community expectations in the circumstances of this case, weighed against the factors positive to Mr Hamze, the Tribunal concludes the Australian community would expect he should not hold a visa. This primary consideration weighs substantially against revoking the decision to cancel Mr Hamze’s visa.
OTHER CONSIDERATIONS
Mr Hamze did not raise any claims, nor does the evidence disclose that International non-refoulement obligations ’or ‘Impact on Australian business interests’ are relevant considerations in this matter. Although there are undoubtedly victims of Mr Hamze’s offending, there is no evidence about the impact of a decision in this matter on any victims. The Tribunal finds this consideration has no effect.
Submissions have been made regarding ‘Strength, nature and duration of ties,’ and ‘Extent of impediments if removed,’ which must be applied to the specific circumstances of Mr Hamze’s case.
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
‘… Reflecting the principles at 6.3, decision-makers must have regard to:
a)     How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.     less weight should be given where the non-citizen began   offending soon after arriving in Australia; and
ii.     More weight should be given to time the non-citizen has   spent contributing positively to the Australian community.
b)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, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).’
With the exception of two visits to Lebanon totalling approximately four months,[64] Mr Hamze has resided in Australia for about 12 years. He was 24 years of age on arrival in Australia and committed his first offence within two years.
[64] Ibid, 88.
Mr Hamze stated in his oral evidence that he has not made any contribution to the Australian community since arriving here. In his written evidence, however, he claims a positive contribution through employment as a butcher and by paying taxes.[65] The sole evidence for this is a photocopied segment of a 2009 tax return, showing Mr Hamze worked for a kebab franchise and paid $144 in tax on earnings of $2278.[66]
[65] Ibid, 72.
[66] Ibid, 81.
Mr Hamze stated his relationship status is ‘Single’[67] and he has one brother and an adult nephew residing in Australia. His former partner is an Australian citizen, but he is ‘unsure of where she currently resides.’[68] He erroneously submitted there are prospects of reconciling with his former partner[69] and their children, who he claimed were reliant on him ‘returning home’ after completing his sentence and rehabilitation.[70] Mr Hamze claimed that being separated from his loved ones due to imprisonment was difficult enough, but repatriation to Lebanon would cause additional ‘stress, heartache and psychological issues,’ to all members of his family, ‘particularly those residing in Australia.’[71]
[67] Ibid, 66.
[68] Ibid, 68.
[69] Ibid,104.
[70] Ibid, 70.
[71] Ibid.
Tribunal findings: Strength, nature and duration of ties
Less weight is placed on this consideration by virtue of Mr Hamze’s offending having begun soon after he arrived in Australia, and which continued for a decade.
It is not possible to attribute more weight to the time Mr Hamze has spent contributing positively to the Australian community, because the evidence of any positive contribution is scant. The Tribunal accepts he worked for an indeterminate period as a butcher, including in 2009, when $144 in tax was withheld from his wages on earnings of $2278.
Unusually for these applications, there is no statement or other evidence from the people Mr Hamze says he is closest to, namely his brother, nephew, former partner, children, or any friends. The evidence does not persuasively point to close ties with his former partner or any prospect of reconciliation, which the Tribunal finds implausible. Mr Hamze’s ties to the Australian community are limited at best and there is no corroborating evidence that his repatriation would cause emotional or practical hardship to relevant persons within the meaning of the Direction.
Mr Hamze has spent approximately two thirds of his life in Lebanon and one third in Australia. The majority of his relatives live in Lebanon, including his mother, three sisters and three brothers. That being said, the Tribunal accepts he has limited family and other associations here that justify slight weight being placed on this consideration in favour of revoking the mandatory cancellation of his visa.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
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 Hamze is 36 years of age and in his August 2018 Personal Circumstances Form, stated he has no diagnosed medical or psychological conditions.[72] In his August 2019 statement, however, he claimed to suffer ‘severe clinical depression,’ for which he has ‘never been given any form of medication.’[73] During his oral evidence, Mr Hamze confirmed he did not have any medical or psychological conditions. He opines, however, that his mental health would be negatively affected by separation from his children and likely unemployment in Lebanon.[74]
[72] Ibid, 73.
[73] Ibid, 105.
[74] Ibid, 73-74.
Mr Hamze lived in Lebanon until the age of 24 and has returned there on two occasions in 2008 and 2009.[75] He is recorded as stating during an interview with NSW Department of Corrective Service officers in May 2018 that he had ‘an uneventful childhood’ and ‘comes from a great family.’[76] His mother, three sisters and three other brothers still live in Lebanon.[77] His brothers are butchers and work in the same industry as Mr Hamze and his father did in the past. He has five other brothers living in Germany and Saudi Arabia.
[75] Ibid, 88.
[76] Exhibit R3, 27.
[77] Exhibit R1, 70.
Mr Hamze made no claims about any language or cultural barriers confronting him, just that staying with family members in Lebanon was not a long-term proposition. He submitted that Australia ‘provides more stability in terms of employment,’[78] and returning to Lebanon would be a ‘big shock’ to his ‘financial stability.’[79]
[78] Ibid, 73.
[79] Ibid, 74.
Tribunal findings: Extent of impediments if removed
Mr Hamze was born in Lebanon and lived there until the age of 24. He speaks Arabic, the official national language of Lebanon. There is no evidence to suggest he would be confronted by any substantial language or cultural impediments if repatriated.

Mr Hamze is relatively young at 36 and the Tribunal is satisfied he has no diagnosed medical or psychological conditions. His claims about suffering ‘psychological issues’ if separated from his children, or as a result of unemployment in Lebanon, are speculative and uncorroborated. He is yet to apply for any work in Lebanon and there is no evidence from his former partner about her willingness or otherwise to support future contact or visitation. There is no evidence that if Mr Hamze did experience any mental health issues, he would be unable to access medical treatment in Lebanon. He was reliant on the Lebanese healthcare system for the first 24 years of his life and there is no evidence he would be treated any differently to any other Lebanese citizen on return.
In relation to Mr Hamze’s prospects of employment in Lebanon, the Tribunal accepts these are unlikely to be as good as they are in Australia. He may experience difficulty in finding work, but with the English language skills and other work experience he has acquired during the last 12 years, the Tribunal considers he has employment claims and capacity to work as a butcher, which is what he aspires to do if released. His evidence is that he worked as a butcher in Lebanon for three years. All three of his brothers in Lebanon are butchers and they may be able to assist him to find work in that industry. If he is initially unable to find work, there is no evidence Mr Hamze would have any lesser entitlement to income support or other benefits available to any other Lebanese citizen.
Mr Hamze’s mother, six siblings and other relatives reside in Lebanon. His evidence is that he is close to his family and there is no evidence he would be unable to reside with them until finding other stable accommodation, or that he could not rely on practical and emotional support from his family to assist his resettlement.
While it can be accepted Mr Hamze may find aspects of his resettlement challenging after spending more than a decade in Australia, any impediments confronting him do not weigh more than slightly in favour of revoking the mandatory cancellation of his visa.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of the Applicant’s case as provided for at cl 14(1) of the Direction.
CONCLUSION
Mr Hamze fails the character test because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act. His offending is objectively serious and persistent. His past motivation to address his addictions has been poor and there is no independent evidence to corroborate his claim about being ‘completely rehabilitated.’ The force of that claim is diminished by Mr Hamze’s attempts to minimise his illicit drug use and failure to complete any rehabilitative courses. That raises doubts about whether he will follow through with his rehabilitative aspirations if released. Despite Mr Hamze’s current good intentions, the risk he poses to the Australian community is unacceptably high.
Mr Hamze’s claims about the extent of his involvement in the lives of his children do not ring true. He has only been an intermittent presence in their lives since 2010. The Tribunal found his claim about committing offences to support his children to be false and self-serving. The Tribunal is not satisfied that Mr Hamze’s relationship with his children or his former partner is close, or that there is any realistic prospect of reconciliation. Based on the purely speculative basis that Mr Hamze’s children may desire a closer relationship with him in the future, the Tribunal accepts it is in their best interests to revoke the cancellation of his visa, but this primary consideration only weighs slightly in his favour.
Mr Hamze has repeatedly breached the trust of the community and abused the privilege of being permitted to remain in Australia. The Australian community would expect he should not hold a visa.
Of the other considerations relevant in this matter, the Tribunal accepts Mr Hamze has a limited circle of family and friends in Australia that justifies slight weight in his favour. While it can also be accepted he would find aspects of his resettlement in Lebanon challenging, any impediments do not weigh more than slightly in his favour.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the mandatory cancellation of Mr Hamze’s visa. The two primary considerations weighing substantially against revocation, outweigh the other relevant primary and other considerations weighing slightly in favour of revocation.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC.

........................[sgd]................................................
Associate
Dated: 12 December 2019

Date(s) of hearing: 9 December 2019

Applicant: In person

Solicitors for the Respondent: Mr J Kyranis - Sparke Helmore Lawyers

Date(s) of hearing:	9 December 2019
Applicant:	In person
Solicitors for the Respondent:	Mr J Kyranis - Sparke Helmore Lawyers