Ibrahim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3637
•12 October 2021
Ibrahim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3637 (12 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4873
Re:Rami Ibrahim
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:12 October 2021
Place:Perth
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 20 July 2021, not to revoke the cancellation of the Applicant’s Resident Return (subclass 155) visa is affirmed.
..........[Sgd]..............................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offences of criminal damage by fire, disorderly behaviour in public and obstructing public officers – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 39-year-old man who arrived in Australia as a 23-year-old – extent of impediments if returned to Lebanon – Non-Revocation Decision affirmed
LEGISLATION
Criminal Code 1913 (WA) ss 74A(2)(a), 172(2), 444(1)(a)
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6H), 500(6J), 500(6L), 501, 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 156 ALD 516
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021 FCAFC 153
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Omar v Minister for Home Affairs [2019] FCA 279
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Varley and Minister for Home Affairs [2019] AATA 376
VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1045
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1, 9.1(1), 9.1(2), 9.1(4), 9.1(5), 9.1(6), 9.2, 9.3, 9.4.1, 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Member S Burford
12 October 2021
INTRODUCTION
The Applicant is a 39-year-old citizen of Lebanon. He first arrived in Australia on 19 June 2006 as the holder of a partner visa, when he was 23 years old.[1] He was granted a Class BB Subclass 155 Five Year Resident Return visa on 10 September 2013 (the Applicant’s Visa).[2]
[1] R1, G15, page 115.
[2] R1, G14, page 108.
On 14 September 2020, the Applicant was convicted in the Kalgoorlie Registry of the District Court of Western Australia of one count of ‘Criminal damage by fire’ (Criminal Damage Offence)[3] in relation to an offence committed on 14 November 2019, and was sentenced to a term of two and a half years’ imprisonment.[4] The Applicant was paroled on 6 March 2021 and is currently in immigration detention on Christmas Island.[5]
[3] Criminal Code (WA), ss 444(1)(a).
[4] R1, G4, page 24; G5, page 29.
[5] R2, page 62.
On 29 October 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[6] The Applicant requested revocation of the Cancellation Decision on 18 November 2020.[7]
[6] Migration Act ss 501(6)(a) and 501(7)(c); R1, G14, page 108.
[7] R1, G7 (unsigned request); G9 (signed request).
On 20 July 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[8] The Applicant signed an acknowledgment of receipt of the Non-Revocation Decision on 20 July 2021.[9]
[8] R1, G3.
[9] R1, G21, page 151.
The Applicant lodged his application for review of the Non-Revocation Decision on 22 July 2021.[10] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act, and that the Tribunal has jurisdiction to review the Non-Revocation Decision.
[10] R1, G2.
The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[11] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s Visa should be revoked.[12]
[11] Migration Act s 501CA(4)(b)(i).
[12] Migration Act s 501CA(4)(b)(ii).
For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Non-Revocation Decision.
BACKGROUND
As noted above, the Applicant came to Australian in 2006 as the holder of a partner visa. He and his wife married in September 2005 in Lebanon.[13] The couple’s first son was born in 2006 (Mstr M). Their second child, also a son, was born in 2010 (Mstr O). The boys are now 15 and almost 11 years of age.[14]
[13] R1, G13, pages 106, 107.
[14] R1, G13, pages 106-107.
The Applicant’s parents, three brothers and a sister, as well as uncles, aunts and cousins remain living in Lebanon.[15] He indicated he is in contact with his family in Lebanon every week.[16]
[15] Transcript, 20/9/2021, page 18.
[16] Transcript, 20/9/2021, page 18.
The Applicant settled in Sydney with his family and was working there as a self-taught barber/hairdresser.[17] He and his family moved to Kalgoorlie in Western Australia in 2015. He had his own business in Kalgoorlie working as barber.[18]
[17] R1, G10, page 98.
[18] A2.
On 18 March 2019, a 72-hour restraining order was issued by police against the Applicant with his wife named as the protected person.[19] On the same day, the Applicant was charged with ‘Disorderly behaviour in public’ (Disorderly Behaviour Offence) and ‘Obstructing police officers’ (Obstruction Offence).[20] Spent convictions were recorded for those offences on 20 May 2019.[21] The charges followed police being called ‘in relation to a family violence matter’. The Applicant ‘began shouting verbal abuse at police and his wife’ and did not comply with police directions to keep his distance from her, resulting in the Disorderly Behaviour Offence charge. He attempted to push past police to get closer to his partner and ‘continued to flick his hands out’ as police attempted to secure him, resulting in the Obstruction Offence charge.[22]
[19] R2, page 156.
[20] Criminal Code (WA), ss 74A(2A) and 172(2); R2, pages 149-150.
[21] R2, page 145.
[22] R2, page 150.
In around September 2019 or October 2019, the Applicant’s wife and sons moved to stay with his wife’s family in Sydney.[23] On 12 November 2019, a termination notice was issued for non-payment of rent with respect to the residence he was renting in Kalgoorlie. He was advised to vacate by 22 November 2019. On 14 November 2019, the property was reported by neighbours to be engulfed in flames. Neighbours reported seeing the Applicant at the rear of the property while it was in flames, before he entered his vehicle and departed. Just after midnight on 15 November 2019, the Applicant was arrested in his vehicle in the carpark of McDonald’s Kalgoorlie. He was later charged with ‘Criminal damage by fire’ in relation to the fire at the rental property.[24]
[23] Transcript, 20/9/2021, page 23;
[24] Amended Statement of Material Facts, R2, page 6-7, incorporated by reference in Sentencing Remarks of MacLean DCJ, 14 September 2020, R1, G5, page 28.
As noted above, on 14 September 2020, the Applicant was convicted in the Kalgoorlie Registry of the District Court of Western Australia of the Criminal Damage Offence[25] and was sentenced to a term of two and a half years’ imprisonment.[26] The Applicant was paroled on 6 March 2021.[27]
[25] Criminal Code (WA), s 444(1)(a).
[26] R1, G4, page 24.
[27] R2, page 62.
The Cancellation Decision was made on 29 October 2020, and the Applicant’s visa was mandatorily cancelled.[28] The Applicant was notified of the decision by hand at Eastern Goldfields Regional Prison, and was advised that he could make representations to seek revocation of the Cancellation Decision.[29] Initially, the Applicant requested revocation of the Cancellation Decision under cover of a letter from Rothstein Lawyers and submission of an unsigned request for revocation from the Applicant together with supporting material.[30] A signed copy of the form was provided on 19 November 2020.[31] Further documents were provided on 23 November 2020 by Rothstein Lawyers.[32]
[28] R1, G14.
[29] R1, G14.
[30] R1, G7.
[31] R1, G9. For consistency the Tribunal has referenced the signed version of the form where relevant.
[32] R1, G11.
On 20 April 2021, the Department wrote to the Applicant noting that on 15 April 2021, Direction No 90 had replaced Direction No 79, and summarised some of the matters referenced in Direction No 90, including the ‘new standalone primary consideration, making particular reference to behaviour defined as family violence’.[33] The letter also referred to ‘other forms of unacceptable behaviours against vulnerable members of the community’, in addition to those in Direction No 79. The Applicant was invited to comment on Direction No 90, however, the letter noted that information already provided would be considered under the new Direction No 90. The Applicant was also invited to comment on further information relevant to the decision of whether or not to revoke the Cancellation Decision.[34]
[33] R1, G16, page 116.
[34] R1, G16, page 116.
On 24 June 2021, the Applicant was invited to comment on further information relevant to the decision of whether or not to revoke the Cancellation Decision.[35] That information consisted of a Department of Home Affairs Incident Report which was provided to the Applicant.[36] The report detailed several incidents at the detention centre recorded as involving the Applicant. All are classified on the report as ‘Category 1 – Minor’. One incident recorded on 12 April 2021, describes the substance Suboxone/ Buprenorphine being found concealed in a jacket sent to the detention centre in mail addressed to the Applicant.[37] The report also refers to an incident recorded on 10 April 2021, when the Applicant was ‘abusive and aggressive’ towards a Detainee Service Officer. Another entry refers to the Applicant covering the camera in his room with wet tissue paper on 7 March 2021, and an incident where the Applicant was recorded as aggressively kicking the door of his room and becoming abusive with staff on 8 March 2021. The material included an unsigned document bearing the Applicant’s name, titled ‘In response to the alleged incident’.[38] While the document is unsigned, it appears to be the document described in the index of relevant material, attached to the notification of the Non-Revocation Decision, as ‘Written response to the letter from the Department to Mr Rami IBRAHIM dated 24 June 2021’.[39] The incidents and the Applicant’s response are considered further below.
[35] R1, G17.
[36] R1, G18.
[37] R1, G18, page 123.
[38] R1, G19, page 127.
[39] R1, G3, page 13.
On 20 July 2021, the delegate decided not to revoke the Cancellation Decision.[40] The Applicant was notified of the Non-Revocation Decision by letter dated 20 July 2021, by hand at North West point Immigration Detention Centre, Christmas Island.[41] He signed for receipt of the notification on the same day.[42]
[40] R1, G3.
[41] R1, G3.
[42] R1, G21, page 151.
Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ends on 12 October 2021.
THE HEARING
The hearing was held on 20 September 2021 and 24 September 2021 at the Tribunal Registry in Perth. The Applicant appeared by videoconference from Christmas Island Immigration Detention Centre and was self-represented before the Tribunal. The Respondent was represented by Mr Hillyard of Sparke Helmore Lawyers. Mr Hillyard appeared by videoconference from Sydney. Witnesses appeared by telephone from Sydney and Kalgoorlie. The Tribunal notes that in relation to his revocation request to the Department, the revocation request was submitted on his behalf by Rothstein Lawyers. However, they were not on record as his registered migration agent and directed further correspondence to the Applicant.[43] Several further letters were sent by Rothstein Lawyers on the Applicant’s behalf.
[43] R1, G7, page 44.
The hearing was conducted with the assistance of an accredited interpreter in the English and Arabic languages.
At the hearing, the Applicant made submissions, gave evidence, and was cross-examined.
The following documents were admitted into evidence:
·Section 501 G-Documents, labelled G1-G21, consisting of 151 pages (Exhibit R1);
·Summons Bundle, consisting of 180 pages (Exhibit R2);
·Respondent's Statement of Facts, Issues and Contentions, dated 19 August 2021 (Exhibit R3);
·Department of Foreign Affairs and Trade (DFAT) Country Information Report: Lebanon, dated 19 March 2019 (Exhibit R4);
·Applicant’s Statement, dated 5 September 2021 (Exhibit A1);
·Printout from auscompanies.com (Exhibit A2);
·Letter from Marc Lamond, Clinical Nurse Consultant, Croydon CORE Team, NSW Government, Department of Health, Sydney Local Health District, dated 16 August 2021 (Exhibit A3);
·Letter from Mohamed Adam, President, Kalgoorlie Islamic Centre Committee (undated and unsigned) (Exhibit A4);
·Letter from Mona Diab, the Applicant’s mother-in-law, dated 7 September 2021 (Exhibit A5); and
·Letter from Mstr M, the Applicant’s son, dated 8 September 2021 (Exhibit A6).
Additional statements and other supporting material were submitted to the delegate prior to the Non-Revocation Decision being made.[44] This material was admitted into evidence as part of Exhibit R1, and the Tribunal has also had regard to that material.
[44] R1, G7, 9, 10, 12, 13, 19.
At the commencement of the hearing the Applicant indicated that he wished to call the following witnesses to give evidence:
·Mr Adam, a friend of the Applicant and President of the Kalgoorlie Islamic Centre Committee;
·Mrs Mona Diab, the Applicant’s mother-in-law; and
·Mrs Basma Ibrahim, the Applicant’s wife.
The Tribunal notes that at this stage of the proceedings the Applicant had not provided any statement from Mrs Ibrahim or any summary of the evidence she intended to give in support of the application. The issue of Mrs Ibrahim’s evidence is considered further below.
In the end, the Tribunal heard oral evidence from:
·Mr Adam;
·Mrs Mona Diab;
·Mrs Basma Ibrahim; and
·Mstr M.
The Tribunal notes that it agreed to take brief evidence from Mstr M after he put himself on the telephone during Mrs Diab’s evidence and stated that he wanted to talk to his father. The Tribunal requested that Mrs Diab return to her evidence and when her evidence was concluded the Tribunal discussed with the parties whether Mstr M should be permitted to give evidence. The Tribunal notes the Applicant had no objection to his son giving evidence. The Respondent submitted such evidence was unlikely to have significant probative value and that he would not intend to cross-examine Mstr M.[45]
[45] Transcript, 24/9/2021, page 71.
Having considered all the circumstances, the Tribunal decided to allow Mstr M to give brief evidence. In doing so, the Tribunal had regard to the fact that Mstr M was a teenager and was likely to be able to have some comprehension of the nature of the proceedings. The Tribunal further considered Mstr M’s written statement and the fact he had expressed a desire to speak and was available. The Tribunal explained the proceedings and invited Mstr M to tell the Tribunal what he wanted to say if he wished to. The Tribunal asked several questions of Mstr M to establish he understood the nature of the proceedings and the responsibilities of giving evidence prior to him making an affirmation. The Tribunal then asked Mstr M what he wished to tell the Tribunal and after brief evidence, which was consistent with his written evidence, he was excused. The Respondent did not cross-examine Mstr M.
Mrs Ibrahim’s evidence
As noted earlier, no statement from Mrs Ibrahim was provided to the Tribunal or the Respondent prior to the commencement of the first hearing. At the commencement of that hearing, the Applicant indicated he wished to call Mrs Ibrahim to give evidence in support of the application.
The proposal to call Mrs Ibrahim raised issues regarding whether the Tribunal would be constrained by the operation of s 500(6H) of the Migration Act in relation to taking into account her oral evidence. Section 500(6H) and s 500(6J) of the Migration Act provide what is referred to as the ‘two-day rule’. The operation of these provisions was discussed at the hearing in the context of Mrs Ibrahim’s evidence. In dealing with the issue of Mrs Ibrahim’s evidence the Tribunal was mindful of its obligation to afford procedural fairness to the parties and to consider all relevant issues arising on the review including those matters raised in Direction No 90.
The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378, 389-390. The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
In applying the two-day rule, the Tribunal must be mindful not to fall into jurisdictional error by failing to consider a primary consideration. The two-day rule does not prevent the matter from being adjourned to ensure that the Tribunal’s ‘review is conducted thoroughly and fairly’.[46] The High Court has strongly indicated that adjourning a hearing provides an opportunity for the requirements of the two-day rule to be complied with.[47] Further, information which is elicited under cross-examination which may support an applicant’s case is not excluded.[48] Submissions in reply to issues raised by the Respondent are also not excluded.[49] The Full Court of the Federal Court in Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482 (Jagroop), at 502 [96] stated:
We conclude that the words “in support of the person’s case” in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.
[46] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 204.
[47] Ibid.
[48] Ibid.
[49] Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482 at 500.
The High Court in Uelese v Minister for Immigration and Border Protection
(2015) 256 CLR 203 (Uelese) rejected the suggestion that the final part of the observation by the Full Court in Jagroop should be read as a qualification excluding information that could reasonably have been anticipated to be supportive of the applicant’s case, two days prior to the commencement of the hearing. The High Court noted the Federal Court’s comments in this regard were ‘tentative observations’ and not a qualification.[50] In Uelese the High Court observed:[51]Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal’s understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to “ensure that every party to a proceeding … is given a reasonable opportunity to present his or her case”; s 33(1)(c), which allows the Tribunal to “inform itself on any matter in such manner as it thinks appropriate”; and s 33(2A)(a), which allows the Tribunal to “require any person who is a party to the proceeding to provide further information in relation to the proceeding”.
[50] Uelese at 219-220.
[51] Uelese at 219-220.
In DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862 (DOM19), the Federal Court (Bromberg J) held that s 500(6H) did not require that the written statement mentioned in the section notify the Minister of the identity of the person presenting information orally, but rather must put the Minister (the Respondent) on notice of the information to be presented orally. In that case Bromberg J noted that [at 44 and 46]:
The purpose of the provision is to avoid manipulation of the system of review by an applicant for the purpose of delaying prospective deportation. A circumstance sought to be avoided is the need for a hearing to be adjourned because of the failure of the applicant to provide the Minister sufficient notice of information to be relied upon by an applicant.
……
The apparent purpose of s 500(6H) supports an implication that where prior notice of the source of the information to be presented orally is critical to the sufficiency of the notice necessary to be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing, that notice is required to be given. However, the apparent purpose of s 500(6H) does not support an implication that prior notice of the source of the information to be presented orally is always required.
A similar approach was taken in Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945 (Holloway) (Jackson J), though on the Tribunal’s reading, that case was less relevant to considerations regarding Mrs Ibrahim’s evidence. The Respondent noted that DOM19 has been appealed by the Minister.[52] Notwithstanding that appeal, the Tribunal regards itself to be bound to follow the decision in DOM19 to the extent it is relevant to matters before the Tribunal.
[52] Transcript, 20/9/2021, page 12.
The Tribunal noted at the hearing that the Applicant had been put on notice at the directions hearing as to the significance of the two-day rule, and the need to provide statements from witnesses to avoid a situation where the Tribunal was unable to take account of oral evidence or documents. The Applicant said he provided the statement from the mental health care provider,[53] to indicate the evidence Mrs Ibrahim wanted to give. The Tribunal notes that the letter from the Clinical Nurse Consultant did not indicate it was being given for this purpose, but rather to outline Mrs Ibrahim’s circumstances.
[53] A3.
The Respondent formally objected to Mrs Ibrahim giving evidence, and if she was called, to object to any evidence which was not reflected in any of the written material before the Tribunal. In this regard, the Respondent conceded that the effect of the Federal Court decisions in DOM19 and Holloway was that Mrs Ibrahim may be able to give evidence on matters raised in the material the Applicant had submitted in compliance of the two-day rule. The Tribunal noted that in this case there were a number of statements from other parties referring to Mrs Ibrahim’s circumstance, mental health problems, relationship with her children and history with the Applicant.[54] Further, the Tribunal noted that Mrs Ibrahim’s evidence may be relevant to matters the Tribunal was required to consider pursuant to Direction No 90, including the best interests of her children, which were identified as impacted by the decision.
[54] A1; A3; A5; A6; R1; G3, page 17; R1, G5, page 33.
The Tribunal foreshadowed that it was inclined to allow Mrs Ibrahim to testify, applying the approach in DOM19. However, as the Applicant had submitted Mrs Ibrahim suffered from severe mental health issues and there was no material before the Tribunal confirming Mrs Ibrahim wished to testify, the Tribunal indicated its preference was to adjourn the hearing to allow a written statement to be provided from Mrs Ibrahim in compliance with the two-day rule. The Tribunal explained this would clarify the issues and may lessen the amount of questioning Mrs Ibrahim needed to be subjected to and limit her time giving evidence which may be stressful for her. Accordingly, it was determined that the hearing would be adjourned following the Applicant’s evidence, and the matter would be listed for a further hearing three clear days hence (the Friday). The Applicant was asked to provide a statement from Mrs Ibrahim or an outline of the evidence she would give by close of business the following day, which was two clear days prior to the next hearing day.
In the end, the Applicant provided a brief statement from Mrs Ibrahim which was received by the Tribunal several minutes before midnight, on that day. There was no indication on the email to the Tribunal that this document was sent to the Respondent. The Tribunal notes that receipt by the Tribunal was delayed by an issue with the Tribunal’s server, meaning the document was not forwarded to the Respondent in a timely manner, though the document was ‘received’ on the day it was sent by the Applicant.
Unfortunately, at the commencement of the second hearing day, the Respondent confirmed the document had not been served on them by email or other means. Therefore, they had not ‘received’ it two-days prior to the hearing. The Tribunal formed the view that s 500(6J) prevented the Tribunal having regard to the contents of that document. However, the Tribunal determined that Mrs Ibrahim could be called to testify and have regard to the nature of the foreshadowed evidence. The Tribunal considered this course was preferable to a further adjournment, having regard to the time constraints for determining the matter and the other calls on the Tribunal’s time. The Tribunal determined it would ask several questions of Mrs Ibrahim to confirm her readiness to testify and would cover with her questions which were relevant to the matters it had a statutory obligation to consider and which were canvassed in the material submitted by the Applicant in compliance with the two-day rule.
When Mrs Ibrahim took the stand, she indicated she was willing and able to testify and proceeded to answer questions put to her by the Tribunal and the Respondent in a manner which suggested she understood the nature of the proceedings and the questions asked. The Respondent asked Mrs Ibrahim a number of questions. The Applicant declined to ask questions and indicated there was nothing further he wished the Tribunal to ask Mrs Ibrahim.[55]
[55] Transcript, 24/9/2021, pages 74-83.
The Tribunal notes that in the end the Applicant did not lead any evidence from Mrs Ibrahim in support of his application. In any event, the Tribunal was satisfied that the Minister was given notice of all the issues arising from her evidence in a manner consistent with the purposes of s 500(6H), having regard to the information contained in the request for revocation and other statements provided to the Tribunal. The Respondent did not object to any particular aspects of Mrs Ibrahim’s testimony as falling outside the constrains of s 500(6H).
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[56] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[57]
[56] Migration Act s 501CA(3).
[57] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 501CA of the Migration Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(d)would be the reason, or a part of the reason, for making the original decision; and
(e)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(f)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(g)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(h)the person makes representations in accordance with the invitation; and
(i)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) under s 499 of the Migration Act. Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79), which was revoked on the same date.[58]
[58] Direction No 90 paras 2-3.
The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[59] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[60]
[59] Direction No 90 para 5.1(4).
[60] Direction No 90 para 6.
Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Non-Revocation Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens 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.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[61]
[61] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[62]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[62] Direction No 90 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[63]
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[63] Direction No 90 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S OFFENCES
As noted above, the Applicant has been convicted of three offences:
(a)The Criminal Damage Offence for which he was sentenced to two and half years’ imprisonment;
(b)The Disorderly Behaviour Offence for which he received a fine and a spent conviction; and
(c)The Obstruction Offence from for which he received a fine and a spent conviction.
All the offences occurred in 2019. The record of the Applicant’s offences which was before the Tribunal did not list any other offences in Australia or Lebanon, though the Sentencing Judge made reference to driving offences commencing in 2008 in New South Wales, which are also mentioned in the parole material. However, these offences do not appear on the Applicant’s criminal history before the Tribunal and the references indicate they only involved fines.[64]
[64] R2, Parole Assessment Report, page 128.
As noted above, the Disorderly Behaviour Offence and the Obstruction Offence occurred on 18 March 2019, when the police attended the Applicant’s address in relation to a family violence report and the Applicant became aggressive and hostile towards police, and refused to comply with police directions. The Applicant was convicted of both offences on 20 May 2019. These offences are considered further below in relation to the primary consideration of family violence.
The Applicant pled guilty to the to the Criminal Damage Offence on 26 March 2020.[65] He was convicted and sentenced with respect to this offence on 14 September 2020.[66] As noted above, the offence was committed on 14 November 2019, in Piccadillly, a suburb of Kalgoorlie in Western Australia. The Applicant was remanded in custody from 15 November 2019 to 30 January 2020 and from 24 February 2020 until he was sentenced.[67]
[65] R2, page 7.
[66] R1, G4, page 24.
[67] R2, pages 2-3.
According to the Amended Statement of Material Facts, which were incorporated into his Honour’s sentencing remarks by reference:[68]
[68] R1, G5, page 28. Although the sentencing remarks refer to the ‘statement of material facts’ not the amended statement, the Tribunal infers the Court meant the amended statement which on the materials was filed in the prosecution brief in June 2020; R2, pages 6-7.
On 12 November 2019 the [Applicant] received a termination notice for non-payment of rent and was have advised he would need to vacate the property by 22 November 2019.
At approximately 10:30pm on Thursday, 14 November 2019, the interior of [the Applicant’s rented residential address] was seen to be engulfed in flames by the surrounding neighbours.
At the same time the flames were seen by neighbours, the [Applicant] was seen in the rear yard of the property before entering his vehicle, grey Toyota Hilux utility and departing.
The Department of Fire and Emergency Services (DFES) attended and were able to extinguish the fire.
At 12:30am on Friday, 15 November 2019, the [Applicant] was located in the driver seat of a grey Toyota Hilux utility … in the car park at McDonald’s Kalgoorlie.
The [Applicant] had visible injuries and scratches to his hands with black markings and his shorts were saturated with water.
The [Applicant] was arrested and conveyed to Kalgoorlie Police Station.
The [Applicant’s] vehicle was seized and searched. Two suitcases with personal belongings and clothing, along with paperwork for the property and vehicle were located.
The [Applicant] participated in an audio-visual record of interview and made full admissions to the offence detailing how he lit the fire at the address and how he spent two weeks damaging the property before he lit the fire.
The residence has since been deemed inhabitable [sic] and requires demolishing. The estimated damage to the property is $269,000 including demolition.
At sentencing, MacLean DCJ noted that the fire was the result of a ‘deliberate and persistent attempt’ to destroy the house.[69] His Honour noted that it was also significant that the Applicant was arrested in possession of two suitcases of his personal belongings along with paperwork for the property indicating that ‘notwithstanding the persistent and deliberate conduct on your part to destroy the house, that you are mindful enough to take from the house your own property’.[70]
[69] R1, G5, page 28.
[70] R1, G5, page 28.
His Honour also noted that the neighbours had heard banging within the house ‘as if someone was hitting a solid wall or concrete with a sledgehammer’ commencing in the evening and continuing into the early morning on the Sunday preceding the fire.[71] His Honour noted as significant, the fact that the fire was lit at night which meant that the potential consequences, should the fire escape, would have been far graver given that most of the neighbourhood would have been asleep at 10:30pm on weeknights. He further considered it significant that the fire was lit in November, which was a hot month, and thus the prospects of the fire spreading were graver. His Honour noted the seriousness of the offending was marked not only by deliberate intent in starting the fire with a view to doing as much damage as possible, but the fact that it was started at night in a summer month. He noted that the neighbours considered the fire was so grave or serious that a number of them packed up their animals and left their properties in case the fire spread.[72]
[71] R1, G5, page 29.
[72] R1, G5, pages 29-30.
His Honour noted that when a neighbour sought to engage the Applicant having notice of the fire, the Applicant did not respond and left in circumstances where his Honour noted ‘where not only was a fire raging, but you left, gathering your own property, and you left without making any attempt to turn to turn the power off and to perhaps quarantined the fire from reaching the electrical circuitry of the house, no doubt causing more damage ... Not to the house, because that was totally destroyed, but perhaps the neighbouring properties’.[73]
[73] R1, G5, page 31.
His Honour noted a victim impact statement from the owner of the home which indicated that they almost experienced a heart attack when they observed the damage to the property.[74]
[74] R1, G5, page 34; R2, page 5.
However, his Honour noted as a mitigating factor, that the Applicant cooperated with police when located, surrendering himself into custody and making admissions, ultimately pleading guilty. It was also noted that the Applicant told police he had been taking methamphetamine at the time leading up to the offence, and that there was no question that methamphetamine had ‘warped’ the Applicant’s thinking. His Honour noted that the Applicant’s earlier offences had arisen in the context of methylamphetamine use, and had led to him incurring ‘a criminal record as a mature man’.[75]
[75] R1, G5, pages 31-32.
The Sentencing Judge noted a change in the Applicant’s thinking, demonstrated by the plea of guilty, and by way of surrendering into custody, as indications that were consistent with insight as to the seriousness of the offence.[76] His Honour accepted that the Applicant was remorseful and noted that he had handed himself back into custody stating:[77]
you put yourself back into custody because you appreciated that you are struggling in the community and you thought it sensible that you had yourself into custody, not only so that you start serving the sentence, but that you remove yourself from the enduring temptation that drug use provided.
[76] R1, G5, page 32.
[77] R1, G5, page 36.
Before the Tribunal, the Applicant contended that before his wife flew to Sydney, she called the real estate agent to request an inspection of the house, but no one had come. He described the circumstances of the events as follows:[78]
I was so high on drugs and I was using a candle in the house to save the power bill. I do not know how the fire actually started but I did not intentionally start the fire. I was surprised myself when the whole house was smoking up and I got my bag and ran outside. My family have rented and lived in the house for 4 years and it broke my heart to see it destroyed my [sic] flame.
The Applicant went on to state that:[79]
Although the house was insured I’m very sorry for my actions that caused the house to burn down and I’m very remorseful. I have pleaded guilty straightaway at the district court. I know my action with a danger to the community and is not acceptable.
[78] A1.
[79] A1.
The Tribunal notes the victim impact statement referred to in his Honour’s sentencing remarks indicates the property was underinsured due to renovation works not being covered.[80]
[80] R2, page 5.
In evidence before the Tribunal, the Applicant maintained that he did not know how the fire started and that it was not intentional. He said he was using a lighter and he was not sober, and the fire started. He said that he made admissions because he was the only one in the house at the time.[81] He stated that:[82]
It was not my intention to destroy this house or to lit fire in this house, you know, I had been living in this house for four years. But the conditions I was in at that time, affected my decision. It was not my intention to do this.
[81] Transcript, 20/9/2021, pages 25-26.
[82] Transcript, 20/9/2021, page 30.
The Applicant’s contentions regarding his conduct are considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[83]
[83] Migration Act s 501(7)(c).
The Tribunal finds that the Applicant was sentenced to a term of imprisonment of two years and six months on 14 September 2020, for the Criminal Damage Offence and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[84]
[84] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.
Protection of the Australian Community
The first primary consideration focuses on the protection of the Australian community. Paragraph 8.1(1) of Direction No 90 provides that:[85]
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
[85] See also Direction No 90 para 8(1).
Paragraph 8.1(2) of Direction No 90 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant submitted, in summary, that:[86]
(a)His wife had long standing depression, since their first child was born in 2006, which has meant he has been supporting his family emotionally and financially, and was caring for his wife and sons, including all home duties. After their second son was born, she became non-social and bedridden;
(b)The pressure of working and caring for his family took a toll on him mentally, which lead to his friends introducing him to drugs. He later became addicted to drugs and started gambling;
(c)His offending in 2019 occurred in the context of his drug taking;
(d)The lease ran out on his barber shop in 2019 and he decided to move back to Sydney, so he sent his wife and sons to Sydney so he could sort things out before also leaving for Sydney;
(e)He was high on drugs at the time of the fire and was depressed as he was by himself and waiting for the house inspection. He was using a candle to save money on power bills. He does not know how the fire at the property started and did not intentionally start the fire, but he regretted the consequences of the fire; and
(f)He is ‘completing a Drug and Alcohol course in immigration’ which is helping him to understand his behaviours, and he has also been attending psychologist appointments as he wanted to address his previous behaviours.
[86] A1.
The Respondent contended that the protection of the Australian community weighs heavily against revocation having regard to:[87]
[87] R3, paras [24]-[31].
(a)The nature and seriousness of the Applicant’s offending having regard to:
(i)the circumstances of the Applicant’s offending, with respect to the Criminal Damage Offence, was very serious as reflected in the sentencing remarks;
(ii)the significant custodial sentence imposed; and
(iii)the Applicant’s other offences which added to the seriousness of his offending.
(b)The risk to the Australian community having regard to:
(i)the serious nature of the harm that may be caused, including significant physical, psychological and financial harm;
(ii)the likelihood of reoffending is ‘significant and unacceptable’ in circumstances where:
· there was no evidence to support the Applicant’s claims to have undertaken any treatment for the underlying causes of his offending, in particular his drug use; and
· there was evidence of illicit substances being sent to the Applicant in detention which suggested he had continued issues with substance use;
· his commitment to remaining drug free and law abiding has not been tested in the community;
· evidence regarding his proposed living and support arrangements in the community are unclear and his prosocial supports were not a protective factor against offending in the past; and
· the Parole Board’s assessment of the Applicant as presenting a low risk of reoffending must be considered in the context of the requirements imposed by the parole order.
Nature and seriousness of the conduct
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 90 provides that the Tribunal must have regard to:[88]
[88] See also Direction No 90 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
The Applicant’s offences are detailed above. In addition to the offences, the Respondent drew the Tribunal’s attention to reports of incidents in immigration detention and police records with respect to incidents of alleged family violence by the Applicant. The other ‘conduct’ with respect to family violence is considered further below under the second primary consideration.
The Tribunal notes it is required pursuant to Direction No 90 to take into account a range of factors including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[89] Particularly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[90] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they do not contribute to the assessment of the Applicant’s offending as very serious.
[89] Direction No 90 para 8.1.1(1)(a) and (b).
[90] Direction No 90 para 8.1.1(1)(a).
In determining the seriousness of the Applicant’s offending, the Tribunal must also consider whether the offences fall into other categories of serious offending, including: causing a person to enter into, or be a party to, a forced marriage;[91] crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties.[92] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they also do not contribute to an assessment of the Applicant’s offending as serious. The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing any prior criminal offending.[93] There is no evidence before the Tribunal that the Applicant has done so.
[91] Direction No 90 para 8.1.1(1)(b)(i).
[92] Direction No 90 para 8.1.1(1)(b)(ii).
[93] Direction No 90 para 8.1.1(1)(f).
The Tribunal must also consider any crime committed by the Applicant while in immigration detention.[94] While there was evidence of immigration detention reports of incidents at the detention centre involving the Applicant, there was no suggestion the Applicant had been charged with any crime in relation to those incidents which are described in the reports as ‘minor’ and recorded as having been resolved.[95] While the Tribunal regards that an illicit drug found concealed in mail addressed to the Applicant may be relevant in the context of assessing the likelihood of the Applicant reoffending, in circumstances where both he and the Sentencing Judge identified methylamphetamine use as a factor in his offending (considered further below), the Tribunal does not consider the evidence of his conduct in detention contributed to the overall assessment of the seriousness of his offending or other conduct.
[94] Direction No 90 para 8.1.1(1)(b)(iv).
[95] R1, G18.
While the Tribunal finds that the above-mentioned considerations do not contribute to an overall assessment of the seriousness of the Applicant’s offending, the Tribunal does not consider that the absence of these features in the Applicant’s conduct or offending lessens the seriousness of the offending. Paragraphs such as 8.1.1(1)(b) of Direction No 90 prescribe that certain crimes or conduct are considered to be serious. However, Direction No 90 is clear that the categories or offending specified in such paragraphs are not an exhaustive or exclusive list. Rather, the paragraphs have the effect of directing that certain types of offending shall be considered to be serious, or very serious, ‘without limiting the range of conduct that may be considered serious’.[96]
[96] Direction No 90 paras 8.1.1(1)(a) and 8.1.1(1)(b).
In the Tribunal’s view, it is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of the Direction. The Tribunal considers that such crimes would include ‘criminal damage by fire, or arson’,[97] having regard to the particular circumstances of the Applicant’s offence.
[97] R1, G5, page 27.
In the Tribunal’s view the Applicant’s offending with respect to the Criminal Damage Offence must be regarded as very serious. This is, in the Tribunal’s view, accurately reflected in the sentencing remarks of MacLean DCJ. His Honour noted a number of reasons why the offending was very serious both generally, and in the Applicant’s particular circumstances. His Honour observed that the very serious nature of ‘criminal damage by fire, or arson’ was reflected in the Parliament, which had set the potential penalty for such offending as life imprisonment.[98] His Honour also noted that:[99]
The circumstances of this offence are also very serious because it is quite clear that the conduct by you in destroying the house was a deliberate and persistent attempt to achieve what it was that was ultimately achieved, namely, the total destruction of the house.
[98] R1, G5, pages 27-28.
[99] R1, G5, page 28.
As noted by his Honour, the Applicant’s intent in lighting the fire was demonstrated by the fact he had packed his own belongings in suitcases and taken those items and paperwork relating to the house with him in his vehicle when he left the house. His Honour noted that it was ‘that issue of intent that really marks the seriousness of this conduct, because it’s quite clearly the case’ that the Applicant was ‘intent on doing as much damage as possible’.[100]
[100] R1, G5, pages 28-29.
The circumstances of the fire also pointed to a deliberate disregard to the danger posed to the surrounding neighbours, being lit on a hot weeknight evening when potential consequences should the fire have escalated would have been significant. Further, the Applicant left the scene without responding to his neighbour to provide information that might have assisted in containing the fire. As noted by his Honour, those circumstances contributed to the seriousness of the offence.[101] Further, the fact that neighbours had vacated their properties in fear of the blaze spreading pointed to the how serious the Applicant’s conduct was and the impact it had on them.[102]
[101] R1, G5, page 29.
[102] R1, G5, pages 29-30.
In the Tribunal’s view, the circumstances and nature of the Criminal Damage Offence as described in the Sentencing Judge’s remarks demonstrate the very serious nature of the Applicant’s offending.
The Applicant submitted to the Tribunal that he was unaware how the fire had started and that it had been unintentional.[103] However, having regard to the evidence and circumstances of the offending, the Tribunal does not accept that the Applicant’s conduct with respect to the offence was unintentional. The Tribunal notes the Applicant’s claim is at odds with his guilty plea and the findings of the Court, both with respect to the facts of the offending and the Applicant’s criminality. As discussed with the Applicant at the hearing, the Tribunal considered that to accept his claim the fire was not intentionally lit would involving going behind the findings of the District Court, something the Tribunal did not consider it was permitted to do having regard to the authorities and the particular circumstances of the case.[104] In this regard, the Tribunal notes the Applicant did not offer any evidence to support his contention that he had not intended to cause the fire and destroy the house. Further, he did not offer any plausible explanation for why he would have plead guilty to the offence if he did not know how the fire started or to challenge any of the other findings with respect to the intentional nature of his actions with respect to the offence.
[103] A1, para 8.
[104] Transcript, 24/9/2021, page 91-92; see HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, as affirmed by the Full Court of the Federal Court in the case of HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.
Paragraph 8.1.1(1)(c) of Direction No 90 requires the Tribunal to have regard to the sentences imposed by the Courts. The Tribunal accepts the Respondent’s submission that sentences of imprisonment are a last resort in the sentencing hierarchy, which is reflected in the comments of the Sentencing Judge in the Applicant’s circumstances.[105] In the Tribunal’s view, the sentence imposed for the Applicant’s offending reflects the Court’s assessment of the very serious nature of the offending. While the sentence was well short of the maximum available, it was none the less a significant sentence, particularly having regard to the Applicant’s history of good conduct prior to 2019. The Tribunal therefore considers that in the Applicant’s case, the sentence imposed by the Court is an indication of the very serious nature of his offending.
[105] R3, page 7, para [25.2].
The Tribunal notes the Applicant had two prior offences, the Disorderly Behaviour Offence and the Obstruction Offence. The Tribunal notes the circumstances of those offences and the fact the Applicant received fines and spent convictions for those offences.[106] While the offences indicate a decline in the Applicant’s behaviour, in the context of his drug use in the period leading up to the Criminal Damage Offence, the Tribunal does not consider that those offences significantly contribute to the overall assessment of the Applicant’s offending as very serious.
[106] R2, page 177-179.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness.[107] The Respondent submitted that the Criminal Damage Offence represented ‘a sudden and stark increase in the seriousness’ of his offending.[108] However, the Criminal Damage Offence was arguably the Applicant’s only serious offence. On the evidence before the Tribunal, the Applicant’s offending could not be characterised as frequent and while there may be said to have been an escalation in his behaviour in 2019, the Tribunal does not consider that the trend of increasing seriousness adds to the overall assessment of the Applicant’s offending as very serious. The Tribunal acknowledges the Applicant’s lack of prior serious offending and considers this weighs in his favour.
[107] Direction No 90 para 8.1.1(1)(d).
[108] R1, page 7, para [25.3].
Further, with respect to the cumulative effect of repeated offending,[109] the Tribunal considers that this factor contributes less to the overall assessment of the seriousness of the Applicant’s offending, given the Applicant’s offending related to a relatively brief time period in 2019, and his serious offending occurred in a single incident.
[109] Direction No 90 para 8.1.1(1)(e).
The Tribunal has also had regard to the evidence of the Applicant’s conduct in prison and detention. As noted earlier, that information included a Department of Home Affairs Incident Report which was provided to the Applicant and put to him at the hearing.[110] The report detailed several incidents at the detention centre recorded as involving the Applicant. All are classified on the report as ‘Category 1 – Minor’. One incident recorded on 12 April 2021, describes the substance Suboxone/ Buprenorphine being found concealed in a jacket sent to the detention centre in mail addressed to the Applicant.[111] The report also refers to an incident recorded on 10 April 2021, when the Applicant was ‘abusive and aggressive’ towards a Detainee Service Officer. Another entry refers to the Applicant covering the camera in his room with wet tissue paper on 7 March 2021, and an incident where the Applicant was recorded as aggressively kicking the door of his room and becoming abusive with staff on 8 March 2021. The Applicant denied knowledge of the concealed drugs sent in mail addressed to him. As that matter was not taken any further by authorities the Tribunal does not place weight on that incident as adding to overall assessment of his offending and conduct as very serious.
[110] R1, G18.
[111] R1, G18, page 123.
The Applicant effectively admitted the other incidents occurred but explained he was frustrated by circumstances relating to his detention and responding to those frustrations. The Tribunal notes incidents were classified as minor and does not consider they add to the overall assessment of the seriousness of the Applicant’s conduct or offending.
Parole material indicates that the Applicant also accrued a number of negative offender notes in prison ‘displaying at times that he does not follow rules and is known to be verbally abuse towards staff’.[112] However, the notes also indicated he was for the most part ‘a polite, well-mannered prisoner’.[113] These notes were not put to the Applicant at the hearing. In any event, the Tribunal does not consider they add to the overall assessment of the seriousness of the Applicant’s conduct or offending.
[112] R2, page 130.
[113] R2, page 130
In the Tribunal’s view, having regard to the evidence and the comments and assessment of the offending by the Court, the Applicant’s offending should be considered to be very serious. This was clearly the assessment of the Sentencing Judge who made the relevant findings of fact with respect to the Applicant’s conduct and involvement in the offences. Those findings and the sentence imposed by the Court were not legally challenged by the Applicant. The Tribunal does not consider that any basis on the material before it, to go behind those findings.
Overall, and having regard to para 8.1.1(1) of Direction No 90, the Tribunal finds the nature and seriousness of the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 90 states, in part:[114]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[114] See also Direction No 90 para 8.1(2)(b).
The Tribunal is required to assess the risk of harm the Applicant presents to the Australian community. This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[115] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[116]
[115] Direction No 90 para 8.1.2(2)(a).
[116] Direction No 90 para 8.1.2(2)(b); see also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
The Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 444–5 [94]–[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at 124–5 [42]–[43]):
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.
(Footnotes omitted.)
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[117] While these cases were considering character ground visa cancellations in the context of precursors to Direction No 90, the same considerations and principles are relevant to the current Ministerial Direction.
[117] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[118]
[118] Direction No 90 para 8.1.2(2)(a).
The Applicant has been convicted of a very serious offence for ‘wilfully and unlawfully destroying a house’ by fire.[119] The Sentencing Judge’s remarks above reflected on the seriousness with which such offending is regarded, and the actual impacts the offence had on the community, and the impacts it could have had were the fire to have escaped into the surrounding properties.
[119] R1, G5, page 27.
The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to offend in a similar manner, through the intentional destruction of property though fire, would include financial loss and emotional harm to the owners of the property deliberately destroyed, but also those in the community whose properties may be consequentially damaged. The Tribunal also considers that such offending carries with it a significant risk of physical harm to members of the community generally and in particular, to first responders and others who attempt to put out the fire or prevent it spreading. Such offending also carries a financial cost to the community in terms of emergency response to a fire.
Overall, the Tribunal considers the nature of the harm to individuals or the Australian community should the Applicant reoffend, to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[120]
[120] Direction No 90 para 8.1.2(2)(b).
The Applicant says he is sorry for his actions which caused the house to burn down. He says he will not reoffend. In his written statement he said he has attended psychologist appointments and is completing a drug and alcohol course in detention which is helping him to understand his previous behaviours and ‘address my previous behaviours’. He stated he wants to understand how he developed those behaviours and ‘learn positive ways to manage and cope with my stress and when I am feeling pressures with life and issues and family stress’.[121] However, as noted earlier, he also insisted before the Tribunal that he did not know how the fire had started and had not intended to destroy the house.
[121] A1.
The Tribunal notes it has no medical or psychological evidence to confirm the underlying causes of the offending, though the Applicant claimed he was addicted to methylamphetamines and was ‘high’ at the time of the Criminal Damage Offence. He also states he was ‘stressed’ and ‘depressed’ due to circumstances arising from his wife’s depression and his familial responsibilities.[122] This is reflected in the Sentencing Judge’s comments which accepted that methylamphetamine use had given rise to the deterioration in the Applicant’s conduct and that the Criminal Damage Offence was ‘informed’ by his methamphetamine use.[123]
[122] A1; R1, G7, page 66.
[123] R1, G5, page 32.
His Honour also referred to a Pre-Sentence Report which was not before the Tribunal. His Honour indicated the Applicant presented ‘with treatment needs with regard to methamphetamine use and with regard to communication and self-regulation deficits’. The report apparently also recorded that the Applicant used methylamphetamine as a ‘treatment’ for the stress associated with caring for his family.[124] A Treatment Assessment Report undertaken in the prison context noted that the Applicant had been assessed to be a low risk of general offending (according to the Risk of Reoffending – Prison Version (RoR-PV) assessment screening tool) and would therefore not be further assessed for criminogenic programs:[125]
[The Applicant] may benefit from engagement in treatment that focuses on substance issues generally, due to the Psychological Report dated 8 June 2020 noting he admitted being under the influence of methylamphetamine during the commission of the index offence.
[124] R1, G5, pages 32-34.
[125] R2, page 142-143
As discussed with the Applicant at the hearing, there was no mention in the records from prison or detention which were before the Tribunal of the Applicant being treated for a heart attack or stroke. As expressed to the Applicant, were he to have suffered a significant health issue of that kind, the Tribunal would have expected to find a mention of it in records. There was mention in the material of medical treatment, however no mention of cardiac arrest or stroke. Prison intake records mention that on 24 February 2020, the Applicant indicated ‘yes’ to a question of whether he had any serious medical issues requiring immediate attention.[246] Records indicate he was taken to ‘Crisis Care Unit’, but no other details were provided.[247] From the intake record it appears the Applicant was taken to the Crisis Care Unit, because he was unresponsive and uncooperative, and health staff considered he required further assessment.[248] On 25 February 2020, he was assessed by medial staff and rated as having ‘no urgent medical problems’.[249] Parole records indicated that at interview, he reported to be ‘in good health and has no diagnosed physical or mental health conditions impacting on his overall wellbeing’.[250] There were records of the Applicant being given sleep medication and pain medication for a toothache.[251]
[246] R2, page 44.
[247] R2, page 46.
[248] R2, page 46.
[249] R2, page 116, 131.
[250] R2, page 123.
[251] R2 pages 62-64.
The Tribunal finds that the Applicant has no physical or mental health issues which would present an impediment to his removal.
The DFAT Country Information Report indicates that unemployment is a significant problem in Lebanon, particularly for young people.[252] Social protection, government support and access to employment is far more limited in mountainous rural areas than the costal belt.[253] Lebanese health outcomes compare favourably with other countries in the region and with middle-income countries elsewhere.[254] The Tribunal considers there was nothing in the information available to it to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in Lebanon, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances including mature age, generally good health, any lack of language or cultural barriers and a network of family support available to him in Lebanon.
[252] R4, DFAT Report, page 9.
[253] R4, DFAT Report, page 9.
[254] R4, DFAT Report, page 10.
The Tribunal finds that the Applicant has family support in Lebanon and has skills which would enable him to obtain an income in Lebanon once settled there. The Tribunal accepts that the Applicant is likely to face emotional hardship if he is returned to Lebanon. The Tribunal accepts the Applicant’s wife and children are likely to remain in Australia. The Tribunal accepts that the most likely outcome of non-revocation of the Cancellation Decision would result in the separation of the Applicant from his Australian citizen family members.
Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself if he were to return to Lebanon but, given his connections to and familiarity with the country, these difficulties are not insurmountable. The Tribunal also accepts that the Applicant would suffer emotionally as a result of separation from his Australian family members and finds that this would make his resettlement in Lebanon more difficult.
Overall, taking into account all of the evidence, the Tribunal finds that the extent of impediments if removed, weighs only slightly in favour of revocation of the Cancellation Decision.
Impact on victims
Paragraph 9.3 of Direction No 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations).
The Tribunal had before it the victim impact statement with respect to the owner of the home which was destroyed as a result of the Criminal Damage offence.[255] While the Tribunal notes that statement in terms of the significant impact the offence had on the home owner as a victim, there is no information before the Tribunal regarding the effect of a decision to revoke or not to revoke the Cancellation Decision would have on him or his wife (who is mentioned in the Victim Impact Statement).
[255] R2, page 5.
Consequently, the Tribunal does not give any weight to this consideration in the Applicant’s circumstances.
Links to the Australian community
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the Cancellation Decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction No 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen 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.
The Applicant submitted that his removal to Lebanon would have a significant impact on his family members including on his wife, from whom he is separated, and his in-laws. The decision would also impact his two Australian citizen children. The impact on the children has been discussed above in relation to the primary consideration of their best interests. The Applicant contended that his links to Australia weigh in favour of revocation of the Cancellation Decision.[256]
[256] A1.
The Respondent accepted that non-revocation of the Cancellation Decision may have an adverse effect on members of the Applicant’s immediate family in Australia. The Respondent also accepted the Applicant had made some positive contributions to the Australian community through operating a business and paying taxes here. However, the Respondent contended that the links to the Australian community should only be given marginal weight in favour of revocation of the Cancellation Decision.[257]
[257] Transcript, 24/9/2021, page 90.
The Tribunal finds that the Applicant has strong ties to Australia, principally through his Australian wife and two Australian children.
The Applicant came to Australia as an adult in 2006, when he was 23 years old, he has spent a significant period of time in Australia and has built his life here with his family. His first and only recorded offences were committed in 2019. His offending was limited to one period and the Tribunal accepts that prior to his offending he has contributed to the community through the operation of small businesses and raising and supporting his family members. Mr Adam also testified that he was an active member of the Kalgoorlie Muslim community,[258] and the Applicant submitted that he had made donations to a mosque in Sydney of which he was a member from 2006-2015. He also attended fundraisers at another Sydney mosque.[259] The parole material mentions he had support from a prospective employer and an offer of accommodation, and while no evidence was provided from those individuals this suggests a level of support in the local Kalgoorlie community.[260]
[258] A4.
[259] R1, G10, page 104.
[260] R2, page 132.
Mr Adam testified that he has known the Applicant since 2015. He said he had a good reputation business-wise and had been an active member of the Kalgoorlie community, hosting dinners and providing a crucial service through his hairdressing saloon.[261]
[261] Transcript, 24/9/2021, pages 50-51.
As noted in the discussion of the best interests of the Applicant’s sons, the Applicant’s wife suffers from depression. While the couple separated prior to his incarceration, the Applicant’s evidence suggested he hoped they would reconcile and live together in Sydney. While Mrs Ibrahim’s evidence was more circumspect on this point and indicated she regarded divorce as a possibility, she said they would work that out if the Applicant was released. In the meantime, she would remain living with her parents where she has the care and support of her parents and is currently being managed by a psychiatrist and mental health team.
The Tribunal accepts that the Applicant’s incarceration and detention has placed stress on the family. The Tribunal also accepts that non-revocation of the Cancelation Decision would mean that the family members would bear the stresses of separation and the burden of care and arrangement of Mrs Ibrahim’s mental health challenges into the future. However, on the current evidence, Mrs Ibrahim’s issues with depression predate the Applicant’s offending and incarceration and there is no evidence to suggest her condition would be worsened by the Applicant’s removal.
Also as noted above, while Mrs Diab suggested she and her husband have health issues and are getting older, there was no medical evidence to suggest they are significantly reliant on the Applicant’s care or support. Mrs Diab testified that they need the Applicant’s financial support and want him to take responsibility for the care of his wife and children. However, the Tribunal notes Mrs Diab’s evidence was that she had encouraged her daughter to separate from the Applicant and move to Sydney for her well-being. Further, Mrs Ibrahim’s evidence was that she would continue to live with her parents for the foreseeable future notwithstanding the Applicant’s release into the community. The Tribunal accepts that the Applicant’s removal from Australia may reduce the degree to which he is able to provide financial support to the family and may increase the physical and psychological strain on Mrs Diab and her husband caused by providing ongoing care for the family. However, this is somewhat tempered by Mrs Ibrahim’s current conviction not to live with her husband even if he were to remain and move to Sydney, as she would still be living with Mrs Diab and her family on a day-to-day basis.
Mrs Ibrahim and Mrs Diab indicated that the family will suffer financially and emotionally if the Applicant is removed from Australia. The Tribunal accepts that the family would suffer emotionally from separation with the Applicant and that Mrs Ibrahim would lose the Applicant’s support in actively co-parenting their sons. The Tribunal does not accept that the Applicant would be unable to provide financial support once he settles in Lebanon and obtains work there, although the Tribunal accepts that his capacity to do so may be more limited. The Tribunal notes that Mrs Ibrahim and the children live with her parents, as they have done since her separation from the Applicant in 2019. On this basis the Tribunal finds that Mrs Ibrahim would have ongoing financial and emotional support in caring for her sons and managing her mental health issues in the event that the Cancellation Decision is not revoked.
The Tribunal accepts that the Applicant is committed to maintaining a close relationship with both his children and that this will be much more difficult if he is removed to Lebanon, recognising that in person contact would be dependent on the children being able to travel outside Australia to meet him. The Tribunal accepts that this may not be financially possible and, if it is, it would not be frequent. The Tribunal considers that the children’s presence in Australia gives him strong ties to Australia. The Tribunal also accepts that the Applicant regards Australia as his home and strongly desires to remain here.
The Applicant submitted that his removal would further worsen the financial circumstances of his family members, whom he says he will be unable to support, if returned to Lebanon. The Tribunal accepts that he has been financially contributing to supporting his children when not in prison and that his capacity to do so may be more limited from Lebanon. However, as noted above, the Applicant has a significant amount of family in Lebanon with whom he maintains contact and who can support his resettlement in Lebanon.
In summary, the Applicant has close ties to the Australian community because his partner, children and other family members reside in the Australian community. Further, the Applicant has been in Australia for an extended period and has made some positive contributions to the Australian community, primarily through his work. The majority of the time he spent in Australia has been law-abiding and positive. Overall, the Tribunal finds that the Applicant’s ties to Australia weigh moderately in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2 of Direction No 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has owned and operated hairdressing businesses in Sydney and Kalgoorlie,[262] however, his statement indicated his lease had expired on the business and parole documents indicated someone else now owned his former business.[263] The parole documents indicate he had an offer to resume work at the salon on release on a self-employed basis.[264]
[262] A2.
[263] R2, page 124.
[264] R2, pages 124, 132.
While the Tribunal accepts that the Applicant has operated a business and intends to resume self-employment if he remains in Australia, either in Kalgoorlie or Sydney, there is no evidence that a decision under s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Therefore, the Tribunal gives this consideration neutral weight in the Applicant’s case.
Conclusion on links to the Australian community
Taking the strength, nature and duration of ties and impact on Australian business interests cumulatively, the Tribunal considers that the Applicant’s links to Australia weigh moderately in favour of revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the relevant primary and relevant other considerations in Direction No 90.
In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his family members in Australia. The Tribunal has considered all the relevant considerations and weighed them according to the Applicant’s personal circumstances and the guidance provided by Direction No 90.
The Tribunal has considered all the primary considerations, including protection of the Australian community. The Tribunal has found that the nature of the Applicant’s offending, in particular the Criminal Damage Offence, was very serious. The Tribunal had serious concerns about the Applicant’s insight into his offending and his commitment to rehabilitation. The Tribunal has had regard to the serious risk of harm to the community should he reoffend, albeit the likelihood of such reoffending is low. Considering these factors, the Tribunal has found that the protection of the Australian community weighs strongly against the revocation of the Cancellation Decision.
The Tribunal has also found that due to the serious nature of the Criminal Damage Offence, the expectations of the Australian community would be that the Applicant’s visa remains cancelled. Having regard to all principles articulated in Direction No 90 and the Applicant’s particular circumstances, the Tribunal has found this consideration weighs moderately against revocation of the Cancellation Decision.
The Tribunal has considered carefully the best interests of the Applicant’s minor children in Australia. The Tribunal accepts the Applicant has a close relationship with his children having supported and cared for them during their mother’s lengthy illness. The Tribunal places weight on the evidence of Mstr M as to the difficult situation the children find themselves in and is sympathetic to their desire for the care and protection of their father. The children and their mother wish for the Applicant to remain in Australia to maintain a close personal relationship with the children and assist with their care and support. The Tribunal accepts that it is in the best interests of the children that the Cancellation Decision be revoked. Having regard to all the circumstances, the Tribunal has found that this primary consideration weighs strongly in favour of revocation of the Cancellation Decision.
The Tribunal has had regard to the relevant other considerations, including his links to the Australian community and the impediments to the Applicant’s removal to Lebanon. These weigh in the Applicant’s favour. Having regard to the Applicant’s circumstances, the Tribunal found that the impediments the Applicant would face if he were to be returned to Lebanon, a country where he spent his formative years and has a significant family network, were not insurmountable and weigh only slightly in favour of revocation of the Cancellation Decision. With regard to his links to the community, the Tribunal found that Applicant has close ties to the Australian community, principally through his family members here. Further, the Applicant has been in Australia for a significant period during which time he has made some positive contributions to the Australian community through employment and involvement in his local religious community. Overall, the Tribunal found that the Applicant’s ties to Australia weigh moderately in favour of the revocation of the Cancellation Decision.
The Tribunal had regard to the impact that revocation of the Cancellation Decision would have on the victims of the Applicant’s offending, however, the Tribunal has found this consideration was not relevant in the Applicant’s circumstances, as there was no information regarding the impact of non-revocation on the victims of his offending.
The Tribunal has also found that the Cancellation Decision did not raise any issues of non-refoulement in the Applicant’s case and that the weight to be afforded to this consideration was neutral.
In weighing these considerations against one another, the Tribunal considers that although there are countervailing considerations which favour revocation of the Cancellation Decision, including the best interests of the Applicant’s children, the Applicant’s links to Australia and the extent of impediments if removed, the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those considerations.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 90, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the Non-Revocation Decision.
DECISION
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 20 July 2021, not to revoke the cancellation of the Applicant’s Resident Return (subclass 155) visa is affirmed.
I certify that the preceding 257 (two hundred and fifty seven) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
........[Sgd]................................................................
Associate
Dated: 12 October 2021
Dates of hearing: 20 September 2021 and 24 September 2021 Applicant: Self-represented Solicitors for the Respondent: Mr Hillyard, Sparke Helmore Lawyers
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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