JXGQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3610

Division:GENERAL DIVISION

File Number(s):      2023/6076

Re:JXGQ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:31 October 2023

Date of written reasons:        7 November 2023

Place:Sydney

The Tribunal sets aside the decision under review and substitutes it with the decision to revoke the mandatory cancellation of the Applicant’s Removal Pending Bridging (Class WR) (Subclass 070) visa under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

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Deputy President B W Rayment OAM KC

CATCHWORDS

MIGRATION – refusal to revoke mandatory cancellation of Removal Pending Bridging (Class WR) (Subclass 070) visa – citizen of Lebanon – consideration of DFAT travel advice in light of ongoing Israel and Hamas conflict – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)

ORAL REASONS FOR DECISION DELIVERED ON 31 OCTOBER 2023

Deputy President B W Rayment OAM KC

7 November 2023

1. This proceeding has come before the Tribunal differently constituted from the Member who was intended to deal with them. It came to me as a matter of urgency the morning of the first day of the hearing. I have heard extensive cross-examination of the applicant by Mr Taverniti for the respondent. I have read the statement of the applicant included in the materials provided by Mr Godwin who appeared for the applicant, together with a series of other statements from members of the applicant’s family.

2. The question in the case is shortly described as whether there is another reason to revoke the mandatory cancellation of the applicant’s visa. That is significantly affected by a Direction made by the current Minister under s 499 of the Migration Act 1958 known as ‘Direction 99’, the terms of which are published and which I will not repeat.

3. The Direction contains a number of mandatory considerations, some described as ‘primary considerations’ and a non-exhaustive list of considerations described as ‘other considerations’. None of them apply unless relevant to the case. As is well-known in this field, generally (in accordance with cl 7 of the Direction) a primary consideration should be given greater weight than the other considerations. That will depend upon all of the circumstances of the case.

4. At the end of the day, the Direction requires a decision-maker to balance the various considerations before it in order to arrive at what is described in this Tribunal as the ‘correct or preferable decision’ of the case.

5. The Direction states principles within which decision-makers should approach the task of deciding, amongst other things, whether to revoke mandatory cancellation under s 501CA of the Migration Act1958. I note all of the terms of cl 5.2 of the Direction which sets out those principles in subparagraphs (1) to (6) inclusive.

6. The first primary consideration mentioned in cl 8 of the Direction is the protection of the Australian community. I note paragraph 8.1(1). By cl 8.1(2) of the Direction, decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the community should the non-citizen commit further offences or engage in other serious conduct. Those respective matters are dealt with in more detail in cl 8.1.1 and 8.1.2 of the Direction.

7. Some difficulties attend the papers before the Tribunal about the prior conduct of the applicant. One difficulty is that some of the early traffic offences of the applicant are only described in summary terms, whereas others are better described in remarks of magistrates included in the papers.

8. The applicant comes from Lebanon, arrived here in 2010, and married his present wife.

9. What may be said about the early traffic offences is clear enough. He arrived here with a Lebanese driver’s licence and never has obtained a local driver’s licence. He told the Tribunal on the first day of the hearing that he thought that his international driver’s licence from Lebanon would last for three years. However, the papers before the Tribunal indicate clearly enough that the international licence which he held at one point expired one year after its date rather than three years after its date.

10. He pled guilty on each occasion of not having the licence yet having driven a motor vehicle and there were a number of such offences. No person was injured in any driving that he did. The offending, until the final one, did not lead to any term of imprisonment but rather fines and the like. The final one did lead to a term of imprisonment, apparently because of a repeated breach of the requirement to hold a licence while driving. That led, in turn, to the cancellation of the applicant’s permanent visa, which was a partner visa arising from his marriage to an Australian citizen. That is, his present wife.

11. He was, for a relatively short time, imprisoned, and then taken into detention when his partner visa was cancelled.

12. The then Minister released him from detention and issued a visa which caused him to be released from detention and issued a further visa described as a bridging pending removal visa, the terms of which are apparent from the papers before the Tribunal. That visa was issued on conditions specified in Schedule 2 to the Migration Regulations 1994 at ‘Subclass 070—Bridging (Removal Pending)’, the terms of which are apparent from the papers before the Tribunal.

13. In short, the applicant is required to present himself for removal if the Minister takes the view that it is then practicable to remove him to Lebanon. In the meantime, the applicant has some limited Centrelink and Medicare protection, the nature of which has not been made fully clear to me. However, he is entitled to work, and, for the time being, to remain in the community. That is a considerably less valuable visa than the one he had originally, and the proceedings leading to the grant of the visa enforced before it was mandatorily cancelled are not before this Tribunal directly.

14. The only question for the Tribunal relates to a decision of a delegate to refuse to revoke the cancellation of the ‘lesser’ visa granted by the Minister some years ago.

15. To pick up the chronology of the applicant’s offending, on 20 August 2021 he was fined for three offences relating to breaches of environmental protection legislation. He was fined three sums of $60,000 each, and particulars of the charges do not appear in any remarks on sentence before the Tribunal. However, there have been documents summonsed from the Court that are relevant to those fines and they include the prosecutor’s written statement of the offending. I accept that as relevant evidence of the charges of which the applicant was convicted and it has been set out in Schedule A to these reasons.

16. From the document, it appears that the applicant caused a very substantial volume of asbestos waste to be buried or stored on a farm he was leasing, and the quantity of asbestos appears to amount to 7,800 tonnes, which is a very large quantity of asbestos waste.

17. That conviction gives rise to very serious ecological concern in this country, because asbestos is a very dangerous product.

18. In the year 2022 he was then convicted in the NSW District Court of offences described by Judge Wilson in the remarks on sentence that are before the Tribunal. They are at G7 in the G-Documents and dated 27 September 2022.

19. After a hearing had taken place before the judge on 29 June 2022, he was convicted by the judge and the sentence for which he was convicted was backdated to the date of his arrest some two years before. The convictions described by the judge in his remarks on sentence are listed at paragraph [2] of His Honour’s remarks on sentence, then detail of those offences is given by the judge at paragraph [7] and following.

20. I respectfully adopt His Honour’s remarks describing each offence as part of these reasons.

21. I am bound by his findings about the criminality. I do not accept such evidence as may have been given by the applicant to the contrary of anything found by the judge about the offending.

22. As is apparent from the offending described by the learned judge, the offending was very serious and it was, while not within the categories mentioned in cl 8.1.1(1)(a) of the Direction, are within cl 8.1.1(1)(b). It led His Honour to retrospectively sentence the applicant to five years’ imprisonment, which is a further indication of the seriousness of the offending.

23. Nevertheless, His Honour specified a non-parole period of three years which expired on 12 August this year. That is, counting from the date of his arrest, about nine months after the remarks on sentence were made.

24. The offending was, as I say, very serious. The offending, like the offending prosecuted by the NSW Environment Protection Authority, related to a farm being leased at the time by the applicant, and as appears from His Honour’s judgement, involved his receipt of cars, many of which had been stolen, and it being the intention of those who delivered the cars to the applicant to participate in an insurance fraud because the cars were insured.

25. Secondly, as appears from the judge’s judgement, the applicant himself attempted to obtain possession of certain motor vehicles or the like. The judge comments in the judgement that the applicant ought to have been aware, or was aware, that insurance fraud was involved in the cars. He then wrecked them, as was the business conducted by him on that land, and sent the spare parts which were then produced apparently overseas, thus facilitating fraud by the owners of the vehicles who had insured them or others with insurance companies, and he did so for reward as the judge states.

26. Because I have adopted the reasons of the judge about the offending, I do not add further to these reasons on account of those matters.

27. If the applicant later engaged in similar conduct, it is clear that significant damage, would be done to the Australian community, and that it would constitute serious crimes within the meaning of 8.1.1(1)(b) of the Direction.

28. It is true to say that the events which occurred at the time of the grant of the bridging visa by the then Minister, in effect for removal in due course if the Minister took the view that it was reasonably practicable to return him to Lebanon, amounted in substance to a warning given to the applicant years before this offending of the kind mentioned in cl 8.1.1(1)(b).

29. For the purposes of cl 8.1.2 of the Direction, as I have said, if he should repeat those acts, they would cause significant risk to the Australian community. Clause 8.1.2 goes further and speaks of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct in a way that is non-specific, but the offending indicates a bent of mind which, if repeated, would itself cause a risk, a significant risk, to the Australian community.

30. I note for the purposes of cl 8.1.2(2) of the Direction that it does not seem, at the present time, that there has been any formal rehabilitation, except for the EQUIPS course, attempted to be conducted by the applicant. That is in part due to the fact that his English is not good. But while he has done the EQUIPS course in prison, there is no suggestion that he has refused available assistance and none else appears on the papers or on the evidence to have been offered to him.

31. It should be noted as to risk that correctional services, when granting him parole, assessed his risk of recidivism as medium/high, and I am prepared to accept that statement as evidence of that fact.

32. The applicant told me that his offending constituted the greatest mistake of his life, and I accept that to be his state of mind, which to some extent, shows a degree of remorse.

33. In part at least, the applicant in evidence (especially on the first day of the hearing) seemed to deny wrongdoing, as Mr Taverniti pointed out during his address. Nevertheless, I accept that, with that qualification, the applicant demonstrated significant remorse for his offending, not limited to the offending discussed by the judge but including the offending for which he was prosecuted by the Environment Protection Authority.

34. There is no question in this case of family violence committed by the applicant. Therefore, cl 8.2 of the Direction is not engaged.

35. There remain among the primary considerations three matters to be considered. The first is the strength, nature and duration of ties to Australia, the second is the best interests of minor children in Australia affected by the decision, and the third is described as the expectations of the Australian community. I will take each of those in turn.

36. The applicant has his only two siblings living in this country, a brother and a sister. Each of them is an Australian citizen. He also has numerous other relatives, including aunts and uncles and cousins, and his wife and three children aged 8, 11, and 12, to whom I shall return. Each of the brother and sister have six children, all of whom are close to the applicant.

37. The applicant told me, and I accept, that he loves his wife, that his wife loves him and is desperate for his return, that he loves his children who love him, that he loves all his nephews and nieces and he treats them almost as if they were members of his own family.

38. The applicant’s uncle has offered him employment having previously employed him for some two or three years, and the employment is likely to result in gross wages to the applicant, so his uncle informed him, of some $300 per day which ought to produce an after-tax payment per day of some $220-240.

39. The applicant will need to negotiate with creditors with respect to any income he receives. For example, those fines to the Environment Protection Agency referred to above. He appears never to have paid income tax in this country, and may be pursued by the Australian Taxation Office with respect to such a matter.

40. His future employer if he is released will, of course, deduct tax before making the payment of some $220 per day to him for five days each week. He is anxious to commence that employment. He hopes that, after his negotiations with any creditor, enough will remain to assist himself, his wife, and his children for their advancement in life. His three children all attend public schools in Sydney’s western suburbs, and the oldest of those children will attend a public high school. The applicant said that he has discussed, this year with his wife, which of two possible high schools is appropriate for his eldest child, their son.

41. The matters I have referred to indicate that it would be devastating to the applicant, to his wife, to his children, to his nephews, to his nieces, to his brother and sister, and to other relatives who are close to him if he should be exiled to Lebanon. And it would be devastating to him if he ceased to have contact with his children, his wife, and all of the persons I have mentioned in his family.

42. Clause 8.4 of the Direction refers to the best interests of minor children in Australia affected by the decision. That description well-describes each of the applicant’s three children and a stepchild. He has two stepchildren, that is, children by the wife’s first relationship. One of the stepchildren is not a minor and there is a 17-year-old who falls directly within cl 8.4 of the Direction.

43. The applicant is visited regularly by each of his own children in detention. Each of them has made a statement included in the papers describing a close relationship with the applicant. Similarly, a number of nephews and nieces have made such a statement.

44. I see no reason to distinguish between any of the minor children affected by the decision because, in my opinion, it is in the best interests of each of them for the applicant not to be returned to Lebanon. They clearly have an affectionate and close relationship with the applicant, and dealing directly with cl 8.4, such of them who are minors at the present time ought to be able to benefit from continued personal contact with the applicant.

45. As to cl 8.5 of the Direction, in effect, that provision deals with the deemed expectations of the Australian community. By the terms of the convictions, and not such as ought to be determined by this Tribunal, cl 8.5 typically would not favour an applicant for the kind of relief sought by the applicant in this review, and does not favour the present applicant.

46. It has not been submitted to me by Mr Godwin that protection obligations are owed to the applicant. That does not preclude his client from making an application for a protection visa if he should decide to do so, and it may be, either now or in the future, that such obligations will be owed to the applicant depending on the future state of peace or otherwise of Lebanon.

47. A legal consequence of the decision, if I should set aside the decision under review, is that he would be released into the community by the Minister, unless my decision is overruled or no other action is taken, having regard to the terms of the more limited visa granted to him in 2015.

48. There is no evidence of the impact on victims of any decision proposed to be made in this Tribunal, nor any impact on Australian business interests.

49. If the applicant should be removed to Lebanon, a question certainly arises about whether he would suffer impairments.

50. A cognate matter, arguably not expressly mentioned, in cl 9.2 which covers the extent of impediments if removed, are some startling matters appearing in a current government publication for which the Department of Foreign Affairs and Trade (DFAT) is responsible (as distinct from the present Minister).

51. DFAT is authorised to give advice to travellers. And just as with country information published by DFAT, this Tribunal is used to giving authoritative weight to DFAT’s publications, and I so treat the current smart traveller advice which is published by DFAT and which is noted on the papers before me as being still current as at 23 October 2023.

52. As is clear to the parties represented in the Tribunal, it owes much to the events of earlier this month, in Israel. As is well-known, Hamas attacked innocent Israelis numbering some 1,400 persons including women and children on 7 October. That led within Israel to bombing attacks apparently intended to banish members of Hamas, an organisation situated in Gaza, which organised the attack upon the Israeli citizens. In addition, some thousands of Israelis were apparently injured and a number of Israelis and non-Israelis were taken hostage by Hamas and presently are kept within Gaza, except for who have been released by Hamas.

53. Steps taken by Israel as a result of the attacks on its citizens have included the dropping of bombs by Israeli jets on the Gaza territory. That has led, as is well-known, to protests by people favouring Palestinian causes in a number of countries, including Turkey, England, Australia, and the United States of America. It has led to a degree of intervention by the USA, including the sending of two armed warships to the region.

54. There have been a lot of political statements against the Israelis, including an attack on the Israelis by the leader of Turkey and by the leadership of Iran, by Hezbollah, an organisation situated in Lebanon, and in turn that has led to Israeli attacks on Syria which joins the northern part of Lebanon.

55. All of these matters are referred to because they assist one’s understanding of the smart traveller direction published by DFAT. Under the heading of ‘safety’, that document tells Australians to “not travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.”

1. I will just pick up a few other items from under the heading of ‘overview’ and the subheading ‘safety’:

   Tensions are heightened due to recent events in Israel and Gaza. Daily military action is occurring in southern Lebanon and could escalate quickly. This could affect your ability to move to safety. Avoid areas where military activity is ongoing.

2. This appears to refer to shelling of Israeli territory by Hezbollah from Lebanon – southern Lebanon. The document goes on to state:

   Terrorist attacks could occur anytime and anywhere, including in Beirut. Suicide bombings and attacks involving improvised explosive devices (IEDs), air raids and kidnappings have occurred in Lebanon. Extremists may target foreigners. Take safety precautions. Always be alert to possible threats and avoid potential targets.

   Large protests happen and can turn violent. Tear gas, water cannons and live ammunition may be used. Avoid large public gatherings. Celebratory gunfire often occurs and has caused casualties. Stay inside during celebratory gunfire or if you're caught in civil unrest. Follow the advice of local authorities.

   Lebanon’s security situation is unpredictable due to the conflict in Syria, the threat of terrorism and political and religious tensions.

3. Under the subheading of travel, the document says (quoting a portion of it only):

   Flights to and from Lebanon may fly over Syria, where ongoing conflict may increase risks to civil aviation. Civil aviation authorities in a number of countries do not allow airlines from those countries to fly in Syrian airspace.

4. Under the heading of ‘full advice’ and the subheading ‘security situation’, the document says:

   We now advise do not travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.

   […]

   Be extra cautious. The security situation is unpredictable, also caused by:

   ·     conflict in neighbouring Syria

   ·     clashes across the Lebanese/Israeli border

   ·     the threat of terrorist attacks

   ·     ongoing economic crisis, political and religious tensions

   […]

   The ongoing economic crisis has reduced Lebanese law enforcement’s capacity.

5. As is well-known, Lebanon is suffering both from unemployment and general economic disadvantage.

6. Under the subheading ‘civil unrest and political tension’, the document states:

   The security situation in the region remains unpredictable and could deteriorate with little or no warning. Political changes in the region and international events may prompt large demonstrations or violence. Planned and on-the-spot demonstrations can take place.

7. The document contains other particular advice about activities within Lebanon.

8. The prospect of events in Gaza leading to activity by neighbouring countries, possibly including Lebanon itself, cannot be ignored.

9. Mr Taverniti points out that none of this is directly relevant to whether the present Minister may or may not decide that the current situation in Lebanon renders it practicable or impracticable to return him to Lebanon. Nevertheless, Mr Taverniti, on instructions, informs me that there is no blanket rule preventing the return of persons presumably to be deported to Lebanon but rather, he said, decisions about that matter may be made on a case-by-case basis, apparently depending on where in Lebanon that person may go.

10. Whatever may be the position about policies within the department about the practicability of removal, it seems to me that the travel advice correctly identifies very serious matters of concern about sending or returning a person to Lebanon at the present time. And that fact, it appears to me, is to be taken into proper account by the Tribunal in dealing with this question of whether there is another reason to revoke the cancellation of the applicant’s visa.

11. No prediction can be made based upon what I have been told as to what decision may be taken, if any, by the Minister as to what is or is not practicable to be done. And the stress laid by Mr Taverniti on the difference between the matters stated in the travel direction and the question before the Minister of whether it is reasonably practicable to return a person in effect gives stress to what I have just said. The two questions are, as Mr Taverniti submitted, quite distinct.

12. It is  well-understood, in relation to the present Direction 99, that the other considerations stated in the Direction are not stated exhaustively. Rather, it is for the decision-maker to consider whether any other relevant matter should be taken into account in addition to matters expressly stated in the Direction.

13. It is the case, for example, that from time-to-time decision-makers (including the present decision-maker) are liable to take into account the considerations adverted by Chief Justice Allsop with the concurrence of other members of a Full Court in the decision of Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 in an appropriate case as another consideration not mentioned in the Direction. That consideration also appears to me to be relevant to the applicant himself, if the view should be taken by the Minister that it is practicable to cause him to be returned to Lebanon.

14. At the end of the day, as I have said, decision-makers in this Tribunal must balance each of the expressly mentioned and the non-expressly mentioned other considerations that I have referred to in these reasons.

15. Clearly enough, protection of the community as such points in one direction – against the applicant. The fact that risk of recidivism was assessed as medium/high makes that matter all the more serious. That is tempered by the fact, to some extent, that the applicant desperately wishes to be reunited with his family and would be devastated if he were sent back to Lebanon, quite apart from any risk to his own safety, simply because he would no longer be in contact with those members of his family, now Australian citizens who are here. That extends to his siblings, nephews, nieces, his wife, his children, and his other relatives who live in Australia, such as aunts, uncles, cousins and the like.

16. As I have mentioned, the expectations of the community as defined in the Direction cannot favour the applicant’s application for revocation. And against those matters must be set, the matters to which I have referred about ties to the community, best interests of minor children in Australia, as well as the risks of near-term or perhaps longer-term harm to a person stemming from the Israel-Gaza conflict, directly or indirectly.

17. News reports indicate that the Israelis have already bombed some Syrian airports and travel advice refers to difficulties with Syria for good reason. In reading a domestic or international newspaper you would be pardoned for thinking that, at the present time, the Middle East is a tinderbox liable to explode in the near-term or the longer-term.

18. In my opinion, balancing all those considerations, the correct or preferable decision is to revoke the cancellation of the applicant’s visa.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 7 November 2023

Date(s) of hearing:	30 & 31 October 2023
Counsel for the Applicant:	Mr D Godwin
Solicitors for the Respondent:	Mr A Taverniti, Sparke Helmore Lawyers

SCHEDULE A