Jbara and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2058
•14 July 2023
Jbara and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2058 (14 July 2023)
Division: GENERAL DIVISION
File Number: 2023/0958
Re:Nader Jbara
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:14 July 2023
Place:Sydney
The reviewable decision is set aside, and the decision is made that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – dishonestly obtaining property and financial advantage by deception – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – impact on victims – reviewable decision set aside
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Dau and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 472
FQD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 313
Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HVLC v Minister for Home Affairs [2019] FCAFC 204
JNMK v Minister for Home Affairs [2019] FCA 1758
Kalm v Administrative Appeals Tribunal [2013] FCA 890
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1000
Law v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1726
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRLY v Minister for Immigration and Citizenship [2012] FCA
Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
14 July 2023
Introduction
Mr Jbara, the Applicant, was born in Lebanon in 1988. He arrived in Australia in February 2008 as the holder of a student visa. On 5 April 2016 he was granted a Partner (Class BS) (subclass 801) visa (partner visa).
The mandatory cancellation decision dated 16 March 2021 was made under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because the Applicant had a substantial criminal record, that is, an aggregate sentence of 12 months or more imprisonment, and was serving a sentence of imprisonment on a full-time basis in a custodial institution.
The Applicant was taken into immigration detention on 11 November 2021 when his parole period began.
He is seeking to have set aside under section 501CA(4) of the Act, the decision made on 15 December 2022 not to revoke the mandatory cancellation of his partner visa on 16 March 2021.
The Applicant lodged an application for review with the Tribunal on 18 December 2022.
On 22 December 2022, the Full Court of the Federal Court of Australia decided that an aggregate sentence was not subject to mandatory cancellation under subsection 501(7) of the Act: Pearson v Minister for Home Affairs [2022] FCAFC 203 at [45]–[49] per Allsop CJ, Rangiah and Sarah C Derrington JJ.
The Applicant’s visa was reinstated and he was released from immigration detention on 27 December 2022. Consequently, on 4 January 2023, he withdrew his application for review.
On 17 February 2023, the Act was amended by the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the amending Act) with the effect that a decision to cancel a person’s visa by reference to an aggregate sentence of 12 months or more imprisonment is taken for all purposes to have always been valid: Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [50]–[54] per Perram, Burley and Downes JJ.
On the same day, the Applicant and his solicitor were notified of the validation of the visa cancellation, and he reapplied to the Tribunal.
The Applicant returned voluntarily to immigration detention on 16 March 2023.
Issues
The issues are:
(a)Whether the Applicant passes the character test which is defined in section 501(6) of the Act; and
(b)If he does not, whether there is another reason why the cancellation decision should be revoked under section 501(CA)(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
The Applicant’s criminal history
On 16 July 2018 at the Downing Centre Local Court, the Applicant was convicted of 30 substantive counts of credit card fraud and dishonestly obtain financial advantage which occurred between 14 January and 19 February 2018. He had made financial withdrawals totalling around $12,000 with multiple retail purchases.
The Magistrate considered:
(a)the offences were serious and even though the victim was a bank, the community would pay higher fees as a result;
(b)if not for the Applicant's lack of criminal history, a custodial sentence would have been considered; and
(c)the Applicant should be subject to 400 hours of community service, multiple section 9 bonds, and a compensation order.
The Applicant has a record of not complying with the requirements of the Community correction order issued on 16 July 2018, including that he could not be contacted. His response to the community service work component of the order was described as ‘borderline’ in an Application for condition variation dated 13 November 2019. Consequently, the work hours were reduced from 400 to 310 because he would be unable to complete 400 hours by the expiration of his order. He claimed that his car accident in 2019 caused him to have bed rest, he was probably unresponsive because he had changed his number, and he attended on weekends when officers were not present. These explanations are not persuasive. It was up to the Applicant to advise of any change in his circumstances. He agreed with the 310 hours recorded which is inconsistent with his claim about attending on weekends to suggest his hours were not recorded.
On 28 August 2020, the previous matters were brought back to the Local Court at Bankstown for breach of the section 9 bonds and new offences were also considered. The new offences of obtaining financial advantage by deception occurred between 21 October 2019 and 25 November 2019. The Applicant was arrested for those offences on 24 April 2020 but was apparently in custody for breach of the Community correction orders for the 2018 offences from 22 April 2020. The magistrate imposed a term of imprisonment of three years expiring on 21 April 2023 with a non-parole period of 18 months, concluding on 21 October 2021.
On appeal against sentence at the Parramatta District Court, on 26 February 2021, the sentencing judge found that:
(a)The offences for which section 9 bonds were imposed involved multiple cash withdrawals totalling approximately $12,000 and multiple retail purchases of goods including substantial quantities of cigarettes, clothing, and electronics. The offending was ‘brazen’.
(b)The further offending was committed over approximately a month while on conditional liberty and entailed offences properly identified as the outcome of identity theft, constituted primarily in credit card fraud, involving withdrawing of $3020 with further unsuccessful attempts to withdraw cash.
(c)The offences are inherently serious, increasingly common and a plague upon the community as more and more cashless transactions are desirable and particularly during the pandemic, convenient. There is no reason that the community and commercial operations should be put under the burden of this kind of predatory offending.
(d)The Applicant had breached the trust placed in him by the Court when he was given section 9 bonds.
(e)The Applicant was an intelligent man who was behaving in a deliberative fashion and that any mental illness did not bring about the offending. He was not delusional and not in an operative sense mentally ill in a way that brought about the offending which was extended and inexcusable. He knew what he was doing, that it was criminal and exploitative conduct.
(f)The Applicant had been extended a remarkable degree of leniency and although his judgment may have been impacted, his moral culpability was not lowered.
(g)His claim to have ceased all substance abuse and evidence of his background of hardship which was untested.
(h)He was effectively part of a criminal group which obtained financial advantage or property by deception.
(i)He had been assessed as being at medium to low risk of reoffending but had been rearrested, which the judge approached ‘with circumspection’ with respect to his entitlement to the presumption of innocence.
The Judge re-sentenced the Applicant to a reduced aggregate term of imprisonment of two years and six months commencing 5 August 2020 and concluding on 4 February 2023 with a non-parole period with conditions of one year and three months commencing 5 August 2020 concluding 4 November 2021.
His Honour applied a reduction of 25%, principally because of the subjective case presented. The Applicant was 29 years old when he offended with no prior criminal record. He suffered a motor vehicle accident in July 2019 resulting in a spinal fracture and some hardship. Leading up to his offending, he had been receiving NewStart Allowance. He was single with no dependants. His sole support was his brother with whom he intended to reside after his release. Prior to the accident, the Applicant was working as a removalist. He held a diploma in business management and a degree in accountancy. He expressed remorse for his offending and some empathy for his victims. His explanation was that he had formed associations with people who used drugs and were gambling. The group was supportive of him. He developed addictions, particularly after the accident when he began abusing prescribed Endone, taking two or three tablets a day, and using a gram of cocaine a day, and using amphetamines. He drank heavily, a bottle of vodka every two days, during the period of offending. He was spending approximately 15 hours a week and $1,000 playing poker machines. This addiction pre-dated the spinal injury. He believed not being able to work after the accident caused him to become depressed and to self-medicate. He had not sought intervention, was ‘open to the idea’ but was not sure that he required it. He was otherwise willing to accept intervention if so directed.
On 23 September 2021 at Waverley Local Court, the Applicant was convicted of ‘supply prohibited drug, small quantity’ and ‘deal with property proceeds of crime’. The Magistrate considered that the Applicant’s reoffending on 13 February 2021 while awaiting resentencing in the District Court and in breach of his bail granted by that court about three months before, reflected very poorly on him and there were indicia of supply in his car which indicated some level of planning which aggravated the offending.
The Magistrate considered that the $2,000 cash found was reasonably serious in the context of the offence and would equate to potentially a number of bags, and that there was no alternative to imprisonment to deter further offending. She sentenced the Applicant to 10 months imprisonment backdated from 4 February 2021 when he was taken into custody, to 3 December 2021, with a non-parole period of five months concluding on 3 July 2021.
There was also evidence before the Tribunal that the Applicant has numerous outstanding charges for fraud and dishonesty in the Brisbane Magistrate’s Court. The offending was committed between 3 October 2018 and 4 December 2018, that is, a period between the offending in New South Wales dealt with by the courts on 16 July 2018 and 26 February 2021. The charges included being part of serious organised crime syndicate.
The evidence included the Check Results Report from the Australian Criminal Intelligence Commission and records produced under summons by the Queensland Police. It shows that the Applicant did not appear before the court on 14 July 2019, and as of 13 June 2022, arrest warrants were issued.
In summary, between 3 October 2018 and 4 December 2018, the ‘defendants’ attended a large number of retail stores and ATMs within the Gold Coast and Brisbane areas with identity information of bank customers written onto the magnetic strips of other cards in their possession. Police subsequently attended those locations and obtained CCTV showing the defendants conducting the transactions.
The Applicant was represented before the Tribunal by a solicitor and was advised during the hearing of his right to remain silent. He had provided a statement about these offences on 22 April 2023. He was unaware of the charges until the evidence was produced in this proceeding. He said during the hearing that he was guilty. He takes full responsibility for his actions. He will travel to Queensland with his lawyer to deal with the situation because he does not want anything from the past to haunt him. As with his other offending, he expressed shame and remorse for the offending and referred to the programs he has undertaken, counselling, and the benefits he has gained. He no longer associates with the group of people involved in the offending.
How this evidence should be considered is addressed in considering the primary consideration Protection of the Australian Community in Direction 99.
The Character test
The Applicant fails the character test because of the sentence of two years and six months imposed by a Judge of the District Court of New South Wales in 2021 for multiple counts of dishonestly obtaining property and financial advantage by deception. That is a sentence of two or more terms of imprisonment where the total of those terms is 12 months or more which constitutes a ‘substantial criminal record’ under subsection 501(6)(a) and 501(7)(d) of the Act.
The next question is whether there is another reason why the mandatory cancellation decision should be revoked under subsection 501CA(4)(b(ii) of the Act.
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act.
The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct the applicant has engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)the expectations of the Australian community.
The decision-maker must also take into account the “other considerations” set out in Direction 99 where they are relevant. Those considerations include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
There is no evidence in this case of family violence or impact on Australian business interests. Each of the other considerations will be addressed in turn.
The Tribunal must examine, assess, and evaluate factors for and against revoking the cancellation leading to the formation of a view as to whether the cancellation should be revoked: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [38] per North ACJ.
Preliminary matters
Applicant’s submissions
Before proceeding to consider the relevant considerations, it is necessary to refer to two submissions made by the Applicant:
·that despite the amendment of the Act, the decision in Pearson remains good authority and is another reason to revoke the mandatory cancellation decision; and
·about the need to consider the impact of the decision on an Applicant.
The Applicant submitted that the decision in Pearson has the same effect as before the enactment of the amending Act for the following reasons.
At [42], the court said that mandatory cancellation under section 501 of the Act is ‘reserved for the most serious offences – those attracting the death penalty, life imprisonment, a term of imprisonment of 12 months or more, and sexual offences involving children’.
As the Applicant’s offences did not attract a term of imprisonment of 12 months or more, they did not fall within ‘the most serious offences’. The Respondent reinstated the Applicant’s visa and released him back into the community in December 2022. For the purpose of this review and Primary Considerations 1 and 5, the Applicant was not an unacceptable risk to the Australian community.
The Applicant’s character has not changed since the decision in Pearson and the Applicant’s release into the community. Putting it another way, the Act only changes law, not the Applicant’s character.
Neither the amending Act nor the Parliament diminished the Applicant’s ‘enduring moral qualities’ so as to increase his risk to the Australian community as considered in Godley v Minister for Immigration and Multicultural Affairs.[1]
[1] (2004) 83 ALD 411, per Lee J at [34].
The Applicant submitted that the contrary proposition ‘raises a possible constitutional question of the competency of the parliament to enact ... the change of the applicant’s real character, as to his or her “enduring moral qualities”’.
Consideration
The decision in Godley was about section 501(6)(c) of the Act, which requires consideration of two criteria to decide whether a person was ‘not of good character’. That is not the issue in this case.
The effect of the amending Act was considered in Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 (23 February 2023). The Court held at [6], that the amending Act ‘negated any impact of Pearson on the validity of the original cancellation decision’.
The remarks of the Full Court in Pearson relied upon by the Applicant were in the context of the court’s reasoning that section 501(7)(c) of the Act did not include aggregate sentences. The amending Act has the effect that aggregate sentences of 12-months or more are of a kind that warrant mandatory cancellation and therefore fall within the category of offending that is ‘serious’ as discussed in Pearson.
The Applicant was released into the community after Pearson was handed down because the cancellation of his visa had been unlawful according to that decision. There was no assessment of the risk he would pose before he was released. In any event, the risk the Applicant poses to the Australian community should he commit further offences falls for consideration in this case according to Direction 99. I accept that his character has not changed because of the amendment Act, but the amending Act means that he does not pass the character test.
I am unable to discern any constitutional question that arises for consideration.
Pearson is not another reason why the cancellation of the Applicant’s visa should be revoked.
The Applicant referred to remarks made by Allsop CJ in Hands v Minister for Immigration and Border Protection at [3] and by Stewart J in Law v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs at [60] and [61].[2] The following extract from the remarks by Allsop CJ encapsulate the approach to be taken in cases arising under section 501(3A) of the Act:
… where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
Primary considerations
[2] [2018] FCAFC 225; [2020] FCA 1726.
Protection of the Australian community
There are two considerations in relation to the protection of the Australian community:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community, should the non-citizen commit further offences.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant’s criminal history in New South Wales began with his offending between 14 January and 19 February 2018, after he had been in Australia for about ten years. However, it is serious and weighs heavily against revocation of the cancellation of his visa. That conclusion follows from the nature of the particular offences he has committed, the periods, over which they were committed, the assessments of the sentencing magistrates and judge referred to above, and the sentences of imprisonment that have been imposed, a custodial sentence being the sentence of last resort in the sentencing hierarchy.
Of concern is the Applicant’s repeated disregard of the law reflected in his breaches of the section 9 parole orders and his offending while on bail 13 days before the District Court appeal was heard in February 2021.
The Applicant has multiple fines for traffic offences from August 2010, including speeding, ignoring a red arrow, and use mobile when not permitted, which further reflect his disregard for the law. His behaviour had the potential to injure other road users.
The Applicant accepted that the Queensland charges are relevant, referring to what was said in Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22 by Robertson J at [26] to [33] and by Nicholas J in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1000 at [30].
However, he submitted that the charges should be given no weight because they are like those for which he has been convicted in New South Wales and happened at the same time and in the same circumstances. He was not aware of the court date or that warrants have been issued for his arrest. He was residing in New South Wales. The Queensland authorities had made no attempt to inform him. Had he been informed, he would have appeared and pleaded guilty as he did in New South Wales. He intends to appear before the court in Queensland and deal with those charges. The charges have not been dealt with. The Tribunal should not draw any prejudicial inference beyond their existence, as held in Taulahi and Katoa.
I do not understand either Robertson J or Nicholas J to have held that regard can only be had to the existence of charges. As I understand their Honours’ reasons, the evaluation of the weight to be given to charges is a matter for the decision-maker, based on the evidence. In this case, the Applicant has admitted to the Tribunal that he is guilty, that is, he has committed the conduct constituting the offences charged. He has not been found guilty by a court and has not been sentenced but proposes to appear before the court and plead guilty. The offences are ‘like’ those he committed in New South Wales and within the time frame of those offences. This conduct reinforces the conclusion that the Applicant’s conduct has been serious.
The Respondent acknowledged that the Applicant had not been formally warned of the consequences of further offending on his migration status but noted that he had reoffended after being denied citizenship on character grounds. I give this submission no weight because the Applicant’s evidence was that he really was not concerned that his citizenship had been denied. He was very concerned that he may be deported. The citizenship decision did not cause him to think that his offending may result in deportation.
The nature and seriousness of the Applicant’s conduct weighs heavily against revocation of the visa cancellation decision.
The risk to the Australian community, should the Applicant commit further offences
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I do not consider that the Applicant’s conduct is so serious that any risk that it may be repeated is unacceptable.
Should the Applicant engage in further criminal conduct, the victims will be the holders of the credit cards or credit card information used to withdraw funds or purchase goods, or the banks, if they meet the costs, and the community. The sentencing magistrate in 2018 noted that the bank does not just wear the costs but fees are put up and higher rates of interest are charged which goes back to the whole community. The sentencing judge in the District Court described the offences as ‘inherently serous’, predatory offending’ and a plague upon the community’.
Turning to the likelihood that the Applicant will engage in further criminal or other serious conduct, I consider the information and evidence on the risk of him reoffending, and evidence of rehabilitation achieved at the time of decision.
The sentencing judge in the District Court said that the Applicant had been assessed as being at medium to low risk of reoffending but had been rearrested, which the judge approached ‘with circumspection’ with respect to his entitlement to the presumption of innocence. However, the Applicant pleaded guilty to the offences of 13 February 2021 and was sentenced to imprisonment, as set out above.
The Applicant has repeatedly expressed remorse and regret and taken full responsibility for his offending, after each period of offending and when and since he applied for the revocation of the cancellation of his visa. Of some significance to assessing the reliability of the Applicant’s evidence is his email dated 24 November 2019 responding to a letter giving him the opportunity to comment and provide an explanation in relation to his citizenship application. This was during the second period of offending between 21 October 2019 and 25 November 2019. He expressed regret for his 2018 offences, he had made mistakes ‘but I am not that person. I work towards a better life for me and my family every day and I will continue to do so’. His oldest brother had cared for him after his spinal injury, his wife had come back into his life and they were expecting a child in late June 2020. He had built a strong family base around him. His protestations of regret and not being that person cannot be accepted.
His former wife swore a statutory declaration on 22 November 2019 providing a character reference for the Applicant. She wrote that they were legally married but had been separated for over three years. Her evidence is inconsistent with the Applicant’s evidence about their relationship and pregnancy.
The Applicant claims that imprisonment taught him a lot. I treat that claim somewhat cautiously. He committed his drug offence on 13 February 2021 while on bail under supervision after being released from prison on 11 November 2020, before the District Court proceeding on 26 February 2021. He had been in prison from 5 August 2020. He returned to custody on 14 February 2021.
The fact sheet relating to the 13 February 2021 offences states the Applicant was working as a removalist seven days a week, earning approximately $3,500 per week.
In his application for revocation dated 11 April 2021 he made the claims about the salutary effect of imprisonment and that as soon as he got out ‘on appeal’ that he took psychological sessions, gambling rehabilitation, and courses that will help him once he gets out. However, those measures and his previous imprisonment did not prevent him from reoffending less than two weeks before the District Court hearing.
He said during his oral evidence that being moved to a higher security part of prison affected him. He does not want to return to prison. He was moved to a higher security part of the gaol from a minimum security wing after being found to have a 10mm length strip of Suboxone (a drug) on 6 June 2021. He was seriously assaulted on 1 July 2021 and taken to hospital by ambulance. He claims that he has not used drugs since April 2022 when he was taken into immigration detention and had not smoked any substance since April to May 2021, before the assault in prison.
The Applicant claimed he returned to immigration voluntarily on 16 March 2023 because he wanted to do the right thing. He had to wait four hours for Australian Border Force officers to arrive to be admitted. He had a full-time job at the time.
I accept that the possibility of deportation may be an incentive to the Applicant not to reoffend.
The Applicant emphasised the circumstances in which his offending occurred, as summarised above from the comments of the sentencing judge in the District Court. The Applicant referred to the report dated 28 October 2020 by Mr Chafic Awit, registered psychologist, which was before the sentencing judge. Mr Awit diagnosed the Applicant with Major Depressive Disorder with Anxious Distress, Substance Use Disorder and Gambling Disorder.
Before setting out additional relevant information from that report relied upon by the Applicant, I emphasise the finding of the sentencing judge that the Applicant was not delusional and not in an operative sense mentally ill in a way that brought about the offending which was extended and inexcusable. He knew what he was doing, that it was criminal and exploitative conduct.
Central to the circumstances of the Applicant’s offending reported to Mr Awit, was the failure of the family business which by 2017 included a convenience store which he ran, and a café that his oldest brother, F, ran and where the Applicant sometimes helped out. He was handling the accounts and his family blamed him, the youngest son, for the failure of that business. He and his oldest brother gave evidence that the blame lay with their other brother, H, who gambled and is now living somewhere in the Middle East. His father had to sell land in Lebanon to help finance the family. His four siblings got a cut but he did not, which soured their relationship with one another. His family was financially well off.
The Applicant commenced gambling in 2017 to numb himself, after the business failure, his source of income. There were periods he gambled until February 2020. The Applicant claimed that gambling led him to agree to be involved in the first offences in 2018.
The Applicant married his long-term partner in 2014. There were no children of the marriage, which was not stable. He and his wife separated shortly after the business failed, which contributed to his gambling and depressive symptoms. They were together until the date of his arrest (August 2020). He commenced experiencing symptoms of anxiety and depression from 2015 due to the instability of his marriage. In addition, he was running the convenience store and working in the security industry. The pressure impacted him significantly.
After the first charges in 2018, he tried to get his life back on track and was heading in a stable direction, despite underlying symptoms of depression.
After his spinal injury in July 2019, he struggled to work and was residing with his brother and began abusing Endone to numb himself due to his depressive symptoms and pain. He became addicted to Endone and started abusing cocaine. He was heavily addicted. His gambling also increased. He commenced using alcohol after the accident and ceased abusing it in November 2019 and returned to his removal business from January 2020 until March 2020 when the COVID-19 Pandemic struck.
Mr Awit’s opinion was that the Applicant suffered severe depression during the lead up to the period of offending, consistent with DSM-V diagnostic criteria for Major Depressive Disorder with Anxious Distress and was suffering from moderate depression at the time of the report. The history is that from 2017 to 2020, the Applicant had been suffering significantly from depression symptoms due to various psycho-social factors which led to gambling disorder and later a pain medication/drug addiction. The offences were a desperate attempt to feed his addictions more than for financial gain. The conditions can lead to poorly evaluated and impulsive decisions.
In Mr Awit’s opinion, ongoing psychological intervention would reduce significantly, the Applicant’s risk of reoffending. He set out a treatment plan upon release from prison of ongoing individual psychological sessions, treatment by a general practitioner (GP), cognitive behaviour therapy, drug counselling, attending narcotics anonymous, receiving skills to cope with stress and problem solving.
The Applicant has given other accounts about his gambling, substance abuse, and family circumstances.
A clinical psychologist provided a report dated 24 February 2023 which recorded the following. The Applicant was a former client. He first consulted her on 27 May 2016 regarding management of his distress at his wife separating from him. He presented with severe symptoms of depression, anxiety, and stress. They met for 18 sessions, the last occurring on 13 April 2017. The report did not refer to any other causative factors or gambling or substance abuse.
The Pre-sentence report dated 16 July 2018 records the following. The Applicant was residing with his partner who was supportive. He had little contact with family members who were all in Lebanon. He attributed his offending mainly to his gambling addiction which had escalated over time. He had become involved in fraudulent activity to ameliorate his losses. He claimed to have ceased gambling after his apprehension and an ultimatum from his partner. He also used cocaine and alcohol in the context of gambling and claimed to have ceased that use since his apprehension. He identified negative peer influences formed in the context of gambling and substance abuse on his decision-making at the time of the offences but no longer mixed with them. He had changed his address and telephone number to avoid further contact. He took responsibility for his actions and was willing to pay compensation to the victim given time to do so. He did not mention his involvement in the family business or its failure.
The Sentencing assessment report prepared on 22 February 2021 stated that the Applicant had engaged in four sessions with his counsellor to address gambling and substance abuse while under supervision after his release in November.
The Sentencing assessment report – Bail supervision assessment dated 22 February 2021, stated that the Applicant had been residing with his brother while on bail and had engaged in four sessions with his counsellor to address his gambling and substance abuse. He had been abusing alcohol, cocaine, and prescription medication on a regular basis as a coping mechanism for his stressful circumstances. He claimed to have ceased all substance abuse ‘since being released’. He had a gambling addiction and was using the money obtained from offending on poker machines. The Applicant took responsibility for his actions which were unlawful. His offending was due to stressful circumstances, and he was not concerned with the consequences of his actions. He appeared to acknowledge the impacts of his offending on victims. He was assessed at a medium-low risk of reoffending. It was of concern that he had been charged with further offences on 14 February 2021 and was in custody.
The Applicant undertook one course relevant to a Certificate II in Hospitality in June 2021, a course about work safety in March 2021, a vocational indicator assessment for reading and numeracy in May 2020.
The NSW Department of Corrective Service records show that the Applicant had no significant engagement or willingness to engage in any programs relating to his addictions. He was planning to return to his removalist business on release. He did not complete an Intensive Drug and Alcohol Treatment Program (IDATP) program because he was released in November 2020. After being advised in March 2021 that he was an illegal immigrant and would be deported on release, he declined to do ‘HIPU’ because he had a lot going on and was settled and happy working in the kitchen and not in the right frame of mind to address his criminogenic needs. He had weekly counselling sessions for gambling while on bail in December 2020.
The sentencing judge in the District Court found the Applicant’s prospects of rehabilitation to be fair. That was before he was found guilty and sentenced for the 14 February 2021 offences.
The Applicant claims to have been rehabilitated during his most recent incarceration by doing the following. He took a drug and alcohol program, weekly counselling sessions with his gambling counsellor, and spent time with the psychologist talking about what led him to being there. He claims that his addiction to gambling improved significantly. It went from $200 down to $80 to $100 a week and he has not gambled ‘since he got out’ and tells friends not to gamble.
The evidence shows that he did not complete the drug and alcohol program because he was released from custody in November 2020. The weekly counselling sessions for gambling refers to the four one hour counselling sessions with Mission Australia during the period he was on bail from 11 November 2020 to 14 February 2021. The time spent with a psychologist seems to refer to speaking with Mr Awit. He completed on online Traffic Offenders Rehabilitation Program on 21 November 2020, which was while he was on bail.
I accept that he worked while he was in prison.
The Applicant said that he did not have an Australian licence when the speeding and parking fines started. He did not know Australian laws. He will not do it anymore. He had no fines while he was on bail from 11 November 2020 and when he was on release from immigration detention recently.
The evidence of the Applicant and his brother, F, that it was the gambling addiction of their other brother H that caused the failure of the family business is not reliable. The Applicant’s evidence is that his gambling addiction began as a consequence of the stress he was under from his marriage and his work in the business and in the security industry. It has certainly been serious and long-standing, resulting in criminal offending and reoffending and outstanding criminal charges. I am not persuaded that it was the third brother, H, who was responsible for the business failure. That the Applicant’s gambling addiction resulted in the failure of the family business is consistent with him being blamed for it, being cut off from the family afterwards, and his father not giving him a share of the proceeds of sale of land in Lebanon. On 26 February 2021, the sentencing judge commented that the Applicant had been dealing with the business accounts and the family blamed him for the failure. That is what the Applicant had told Mr Awit. During the hearing, the Applicant said that his brother, H, was dealing with the accounts.
The Applicant claimed to have had no contact with his brother H since the business failed in 2017. However, in his Personal Circumstances Form provided on 11 April 2021 he provided the name and telephone number of H as the person he authorised the Department to contact regarding his case, and a letter of support from him which included a date stamp of 25 March 2021. The letter referred to the Applicant’s severe depression due to family issues and work-related matters, including the loss of their business ‘which affected his personal life severly’, that he had made mistakes, but had learnt his lesson. H asked for another chance for the Applicant.
When asked during the hearing about being able to provide that letter, the Applicant said that he was desperate at the time. He was not asked about nominating this brother in the Personal Circumstances Form.
I find that the evidence establishes that the Applicant’s gambling addiction led to the failure of the family business. I am not satisfied this his gambling addiction and substance abuse have been addressed adequately. Records produced under summons from Mission Australia with a cover letter dated 23 March 2023 have no record of any engagement with the Applicant since the period he was on bail from 11 November 2020 to 14 February 2021.
The Applicant claims that he is currently having counselling sessions for gambling over the phone and will continue doing so ‘in case I got released’. Mr Osama Mater, for whom he worked as an offsider on a recycling truck after his release from detention, stated that he witnessed the Applicant attending counselling sessions sometimes over the phone on the way back from work. Mr Mater’s evidence was that he had also worked with the Applicant in a removalist business, which may refer to the work the Applicant did while on bail. The counselling sessions may have been while the Applicant was on bail. F’s wife also referred to hearing him engaged in counselling on the telephone. That may have been when he was on bail rather than after his release from detention. Both his step-nieces mentioned that he was having therapy/counselling every week in their April 2023 statements.
There is no evidence from a current counselling provider. I am not persuaded that he is currently having counselling for either his gambling addiction or his substance abuse.
The Applicant has not completed any significant rehabilitation programs for his gambling addiction or his substance abuse. His claims to have been rehabilitated have been untested. Similar claims he made in the past have not been realised. The Applicant has not embraced the treatment plan proposed by Mr Awit. He has not foreshadowed future engagement in psychological treatment. or counselling for gambling addiction or substance abuse beyond the counselling sessions by telephone with an unidentified provider.
He does have a new motivation to rehabilitate and not to reoffend. He and his current partner gave evidence that they began a relationship at the beginning of January 2023, shortly after he had been released from immigration detention. They found out that she was pregnant on 23 March 2023, after he had returned to immigration detention. A pathology report and an obstetric ultrasound report dated 4 April 2023 corroborate that evidence. The latter found that she was pregnant, the gestational age was six weeks and one day with an estimated date of delivery of 26 November 2023. The Applicant said that he has never been a father before and wants a new start. He wants to show his family and his partner that he is not the same person.
Mr Mater has offered the Applicant employment when he is released from immigration detention. Mr Mater has known the Applicant for ten years and worked with him for a couple of years in the security industry, and the removalist and recycling businesses. Mr Mater is willing to assist the Applicant in any way he can, including allowing him time off to attend counselling.
On balance, given his longstanding gambling addiction and substance abuse and his failure to complete or embrace in the future the kind of program suggested by Mr Awit, and the lack of corroborative information about his recent counselling sessions, I find that there is an appreciable risk that the Applicant will reoffend. This weighs heavily against revocation of the visa cancellation.
The strength, nature and duration of ties to Australia
The Applicant did not spend his formative years in Australia. He has lived, studied, and worked in Australia for about 12 years from the age of 20 before he was incarcerated, and was released for periods from 12 November 2020 to 14 February 2021 when he worked as a removalist, and again from late December 2022 until 16 March 2023 when he was released from immigration detention and worked as an off-sider on a recycling truck. His employer has offered him a job if he is released into the community. The Applicant has a Diploma of Business and Bachelor of Accounting, has managed a convenience store and worked in the family café.
At the time of the hearing, the Applicant did not rely on his relationship with his former wife whom he married in 2014 and separated from sometime after 2017. She has a son who was born in June 2020. She was very supportive of him in her statutory declaration dated 24 October 2022. However, the prospects of a future life together have ended since the Applicant began a new relationship which has resulted in pregnancy. I give no weight to the Applicant’s links with his former wife or her son in relation or any claims arising from that relationship.
The Applicant’s relationship with his current partner has been short. She works as a dental assistant but has taken time off work because she has found the Applicant’s detention, these proceedings, and her pregnancy, very difficult to cope with. Her employer has been very understanding and supportive. The Applicant tries to support her over the telephone. She said that she would follow the Applicant to Lebanon.
The Respondent changed its position about the unborn child during oral submissions. It submitted that a child has to exist and that an unborn child can be considered in relation to the Applicant’s ties to Australia but not in relation to the consideration ‘best interests of minor children’. I infer that it was referring to the Federal Court authorities JNMK v Minister for Home Affairs [2019] FCA 1758, SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 and Kalm v Administrative Appeals Tribunal [2013] FCA 890 which have held that the reference to ‘child’ or ‘minor children’ in equivalent provisions of directions issued pursuant to section 499 of the Act, do not refer to an unborn child. I accept that is the relevant and binding law. The Respondent had included the ‘expected child’ in consideration of the ‘best interests of minor children’ in the Respondent’s Statement of Facts, Issues and Contentions.
I infer that the Respondent’s reference to considering the ‘unborn child’ under ’ties’ to Australia was a reference to paragraph 8.3(4) of Direction 99 which refers to ‘any other ties that the non-citizen has to the Australian community’. The Federal Court authorities referred to in the previous paragraphs lead me to conclude that an unborn child does not fall for consideration under paragraphs 8.3(1), (2) or (3) of Direction 99. Kalm at [8] held that an unborn child is not a ‘person’. The unborn child is not an Australian citizen, Australian permanent resident or have a right to remain Australia indefinitely.
There was no argument about whether the unborn child may be considered under paragraph 8.3(4) of Direction. I proceed to consider the unborn child pursuant to that paragraph. If that is wrong at law, I would consider the unborn child as an ‘Other consideration’ pursuant to paragraph 9 of Direction 99.
The Applicant’s partner said that she would consider relocating to Lebanon with the child if she had to and later that she will follow the Applicant to Lebanon. She has concerns about going to Lebanon. She knows Australia. It would be hard to raise a child over there and they would have a more beneficial life in Australia. She cannot imagine raising a child without the Applicant. Her own mother struggled doing it by herself. She does not want the child to be fatherless.
The Applicant submitted that the unborn child would be an Australian citizen who would not have access to first class health and education in Lebanon. I give this submission no weight because of the early stage of the pregnancy.
I do take into account the concerns of the Applicant’s partner about moving to Lebanon, although not elucidated. I infer that she would face substantial cultural and language difficulties and would not have her support group of friends.
The Applicant’s nephew, who is the son of his brother F, is aged eight. F’s wife has two daughters aged 16 and 18. She and F have been married for 11 years. The Applicant did not mention his step-nieces in his Personal Circumstances Form. The Applicant’s evidence was that he isolated himself from his family after the family business failed. While the family business was running, F and the Applicant were very busy and although they sometimes worked together, they did not spend a lot of time together. The evidence demonstrates that the most contact the Applicant has had with his sister-in-law, his nephew and step-nieces, and F’s mother-in-law, was while he was staying with F and his family after his release in November 2020 until he was rearrested in February 2021 and again after his release in December 2022, until he returned to immigration detention on 16 March 2023. During the latter period, he worked and also spent some time, including nights, with his partner. He also claimed to have ‘lived with her’. F and his wife, and I infer their son, went to Lebanon for six weeks in January-February this year.
During that period, the Applicant helped look after F’s mother-in-law. He respects her and does anything to help her, including household chores, and looks forward to being around her in the future.
It was not clear how long the two girls had been living with their mother and F. They had spent nine years living in Lebanon with their paternal grandparents. The evidence did not show whether they remained in Sydney or stayed with their father in Melbourne while their mother went to Lebanon earlier this year. Both the Applicant’s step-nieces provided written statements supporting him.
The Applicant claimed that he took his nephew and nieces to school in the morning and helped them with their homework. He took his nephew to football training and spent time with them if they did not have other activities. That has to be considered in the context of the period of time he had contact with them as discussed above.
F has been very supportive of the Applicant when he has been released from prison and immigration detention and after his serious car accident in June 2019. After the family business failed, F did not know what the Applicant was doing or where he lived. They communicated by telephone regularly and saw each other sometimes.
F’s wife and the Applicant claim to have a close relationship. That evidence has to be considered in the context of the time they have had been in contact discussed above.
The evidence of F and the Applicant was that their brother H resides in the Middle East. They claim to have no contact with him.
The Applicant has other family members in Australia, including four uncles, two aunts and about 20 cousins. He claims seven are Australian citizens.
I do not consider that the Applicant’s relationships with his family members, as set out above, supports his assertion that his family will be ‘torn apart’ if he returns to Lebanon.
Statements from others show that the Applicant has formed social links with people in Australia who supported him despite his mistakes. Few indicated that they were Australian citizens, Australian residents and/or people who have a right to remain in Australia indefinitely.
This consideration weighs in favour of revocation.
The best interests of minor children in Australia
For the reasons given earlier in this decision, I do not consider the unborn child under this consideration.
The evidence shows that the Applicant’s nephew has the closest relationship with the Applicant. The best interests of this child weigh in favour of revoking the visa cancellation decision but not significantly, for the following reasons. The Applicant does not play and is unlikely to play a parental role in relation to the child, I am not persuaded that the Applicant has spent sufficient time with his nephew to be able to develop a meaningful relationship with him. He may have spent time at his home after his car accident in 2019, when he was on bail for about three months at the end of 2020 and beginning of 2021, and during a month while the Applicant was out of immigration detention, taking into account that the nephew and his parents were in Lebanon for six weeks and the Applicant was working and spending time with his partner. The Applicant claimed to speak to this nephew on the gaol phone ‘on his days off from school’. The nephew may miss the Applicant to an extent but they could maintain contact by telephone and digital means.
The Applicant’s 16 year old step-niece provided a statement. She expressed her deep concern for his future and wrote that ‘we will be emotionally saddened and heartbroken if he was to stay detained or sent overseas’.
She will shortly turn 18. The Applicant does not play and is not likely to play a parental role to her. She has a father, step-father and most importantly her mother, who play that role. He did not list his step nieces as ‘other minor children in his life’ in his Personal Circumstances Form dated 11 April 2021 but did mention that his ‘neices and nephews’ would not have him to look after them if his visa was revoked. They have been in telephone and personal contact over a limited period of time. They may maintain contact by telephone or digital means. The best interests of the Applicant’s step-niece weigh slightly in favour or revoking the visa cancellation decision.
This consideration weighs in favour of revocation of the visa cancellation.
The expectations of the Australian community
Paragraph 8.5 of Direction 99 ‘is about the expectations of the Australian community as a whole’. Paragraph 8.5(4) provides that ‘Decision-makers should proceed on the basis of the Government’s views as articulated’ in paragraphs 8.5(1), 8.5(2) and 8.5(3), ‘without independently assessing the community’s expectations in the particular case’.
Paragraph 8.5(1) of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. As a norm, where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community expects the Government not to allow that person to enter or remain in Australia.
The Applicant has repeatedly engaged in serious conduct in breach of this expectation. The Australian community would expect that he should not hold a visa.
This consideration weighs against revocation of the cancellation decision.
Other considerations
Legal consequences of the decision
The Applicant is not covered by a protection finding. Therefore, claims can be raised which may give rise to international non-refoulement obligations and they must be considered (paragraph 9.1.2(1) of Direction 99).
He may apply for a protection visa. His claims must be considered, however it is not necessary to consider non-refoulement issues in the same level of detail as those issues are considered in a protection visa application. Further, I am not required to determine whether non-refoulement obligations are engaged in respect of the Applicant. It is open to a decision-maker, having considered the Applicant’s claims, to choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims will be assessed, as required by section 36A of the Act before consideration is given to any character or security concerns associated with them. (Paragraph 9.1.2(2)).
While it is open to me to defer assessment of the non-refoulement obligations the Applicant has raised: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30], and Dau and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 472 at [59] and [60], I proceed to consider them. They were principally addressed by the Applicant in relation to the consideration ‘Extent of impediments if removed’.
The Applicant claimed that he will be harshly punished in his home village because he will be labelled an atheist because he married a member of the Russian Greek Orthodox church. As stated above, I did not understand the Applicant to press any claims based on relationship with his wife. However, the Respondent did address it and for certainty so will I.
The Applicant is no longer in a relationship with his former wife and there is no prospect of any reconciliation given that he has a new partner who is pregnant and proposes to return to Lebanon with him. He and his then wife returned to Lebanon in 2017. He did not claim to have suffered harm on that occasion. Country information states that the Report advises that mixed marriages are widespread in Lebanon and discrimination is isolated.[3] The Applicant did not provide country information to the contrary.
[3] Department of Foreign Affairs and Trade Country Information Report Lebanon, 19 March 2019 at [3.13] (the DFAT Report).
Secondly, the Applicant claimed that:
·The people in his village will see him as a mad man. He will face stigma and discrimination that will lead to ill-treatment in his village. He will be labelled a failure.
In October 2020 Mr Awit’s opinion was that the Applicant suffered severe depression during the lead up to the period of offending, consistent with DSM-V diagnostic criteria for Major Depressive Disorder with Anxious Distress and was suffering from moderate depression at the time of the report. The depression symptoms were due to various psycho-social factors which led to gambling disorder and later a pain medication/drug addiction There was no current psychological report in evidence. The expert evidence does not establish that his conditions would be apparent to third parties. While the Applicant has participated in counselling for gambling, the evidence does not suggest that he has sought treatment for his mental health since 2017. He has not embraced the treatment program Mr Awit recommended.
Country information supports the proposition that ‘significant stigma continues to attach to those seeking assistance for mental health-related issues’.[4] In FQD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 313 at [101], Katzmann J held that stigma attaching to people who seek treatment for mental illness, discouraging others from doing so:
By no stretch of the imagination can … rise to either “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”, as defined in subs 5(1).
[4] DFAT Report at [2.20].
The Respondent accepted that the Applicant may not have access to the same level of care in Lebanon as he might have in Australia. It referred to the DFAT report that records that mental health services are available through the private sector (at [2.21]). His capacity to access such care is in dispute. The Respondent claims that he has reasonable prospects of employment while the Applicant claims that he will not be able to subsist because of the ‘economic meltdown’ in Lebanon, the Lebanese pound having sunk to an historic low, and people cannot afford to live. They turn to crime. The government is corrupt. The Applicant also claimed that private health care is expensive and the nearest hospital to his parents’ home in north Lebanon is 25 to 40 minutes away, depending on whether the roads are open.
The Applicant told Mr Awit that his family in Lebanon was financially well off. During the hearing he claimed that their circumstances had deteriorated but they had a comfortable life compared to others. F said that he is providing some financial support to their parents. The Applicant’s relationship with his parents was strained, however, his former wife’s evidence was that he had ‘made a huge effort to reconnect’. When asked about his family in Lebanon and whether his parents would take him in, the Applicant said that he was more concerned about how he would help them.
Given that evidence and his evidence about the distance to the nearest hospital from his parent’s home and that it would take half an hour from his village to a mental health facility, I infer that the Applicant intends to stay with his parents if he returns to Lebanon.
Unemployment is a major problem in Lebanon. The overall unemployment rate has been estimated as 25 per cent, with unemployment among those under 25 years of age at 37 per cent.[5] However, given that his parent’s had a comfortable life compared to others, his concern about helping them rather than focusing on the difficulties he might face if he returns, and his experience and qualifications, I am not persuaded that he will be unable to subsist or will have to turn to crime if he returns to Lebanon. I have taken into account his reference to corruption in Lebanon and relevant country information which states that Lebanon’s sectarian system is:
based on rent-seeking, crony capitalism, and a corruptive nexus between the closely tied political and economic upper echelons of the society.[6]
[5] DFAT report at [2.11].
[6] BTI Country Report Lebanon; Gutersloh: Bertelsmann Stiftung 2022 at page 212; see also History and Characteristics of Transformation at page 213.
In context, that has been the case since at least the end of the civil war in 1990.
I am not persuaded that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Lebanon. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant returning to Lebanon, there would be a real risk that he will suffer significant harm in relation to that country.
As the Applicant raised non-refoulement obligations beyond domestic law, I am also not satisfied that there are substantial grounds for believing that there is a real risk of irreparable harm in the form of torture or cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of his life, if the Applicant returns to Lebanon.
I give no weight to the Applicant’s claims that non-refoulement obligations are owed to him.
If the Applicant applies for a protection visa, he will face ongoing detention while the application is considered, which would be likely to adversely impact his mental health. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[7]Kenny and Mortimer JJ considered the impact of ongoing detention at [132]:
…The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end…
[7] [2021] FCAFC 55.
This is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account three matters.[8] (Emphasis added.)
[8] Direction 99, [9.2(1)].
The Applicant is 34 years of age.
He claimed that removal to Lebanon will cause a lot of damage to his mental health because Lebanon is unstable and about to witness another civil war. Returning to Lebanon will retraumatise him because he witnessed the 2006 war between Lebanon and Israel. His parents wanted him to come to Australia and leave behind what he had witnessed.
I give little weight to the Applicant’s claims about being retraumatised. He did not mention trauma resulting from the civil war to either Mr Awit or to the clinical psychologist he saw in 2017.
The country information about the security situation acknowledges the range of security challenges Lebanon faces but does not support the claim that a civil war is imminent.[9] That the Applicant’s brother, F, his wife and son returned to Lebanon in January/February for six weeks does not support the claim.
[9] DFAT Report at [2.43] to [2.49]; BTI Country Report Lebanon 2022.
The country information referred to above supports a finding that the Applicant will have less capacity to access mental health care in Lebanon than he would in Australia. However, that is to be considered in the context that he has not embraced Mr Awit’s treatment plan and there is no current expert evidence about his mental health. I am also not convinced that he has been undertaking counselling for his gambling recently. Further, it has to be considered in the context of what is generally available to other citizens of that country.
The Applicant claimed in his application for revocation that sending him back to Lebanon ‘will tear my family, my wife will suffer and so is my circle in the community’. As explained earlier in this decision, his circumstances have substantially changed since then. His new partner is pregnant and proposes to return to Lebanon with him. He will have her emotional support and the prospect of being a father if he returns although he is likely to have the responsibility of assisting her to adjust to life in Lebanon which may include supporting her and potentially their child financially, which may strain their relationship.
His partner has a capacity to work, although her pregnancy, the birth of a child, language and cultural barriers are likely to limit that. As discussed above, the country information indicates that they may face some difficulty finding employment. However, his tertiary qualifications and his employment history stand him in good stead. His partner is an experienced dental nurse. As discussed above, I infer that his parents will provide accommodation for him and his partner and unborn child if they return to Lebanon.
This consideration is in the context of what is generally available to other citizens in Lebanon.
For the reasons given above, I give no weight to his claims about being harshly punished because of his marriage to his former wife.
The Applicant lived in Lebanon until he was about 20 years old. He has lived in Australia for about 15 years. He will face no substantial language or cultural barriers if he returns, although there may be an adjustment period for him to re-establish himself and his pregnant partner.
This consideration weighs in favour of revocation.
Impact on victims
The Applicant conceded that this consideration weighed against revocation of the visa cancellation because he had been ordered to repay the NAB $23,638. In my view, this consideration weighs in favour of revocation because he is more likely to be employed and earning an income that will enable him to repay the NAB, which he was willing to do, if he remains in Australia. While this consideration usually deals with adverse impacts on victims, as referred to by Kerr J in HVLC v Minister for Home Affairs [2019] FCAFC 204, I do not understand the language of the Direction to be so confined.
Conclusion
Considerations favouring revocation of the visa cancellation decision include the strength, nature and duration of ties to Australia, the best interests of minor children, the legal consequences of the decision, that is the possibility of ongoing detention, the extent of impediments if removed, and the impact on victims.
The considerations against revocation are protection of the Australian community and expectations of the Australian community.
The weighing of the considerations favouring and those against revocation of the Applicant’s visa is finely balanced in this case but I have concluded that the considerations favouring revocation slightly outweigh the considerations against revocation.
There is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The reviewable decision is set aside, and the decision is made that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
....................................[sgd]....................................
Associate
Dated: 14 July 2023
Dates of hearing:
9-10 May 2023
Solicitors for the Applicant:
Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:
Mr S Valliappan, Minter Ellison
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