JZNV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

JZNV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3800 (30 June 2020)
Division:GENERAL DIVISION
File Number:2017/7186
Re:JZNV
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:30 June 2020
Place:Brisbane

The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s 501(1) of the Migration Act 1958 (Cth) to refuse to grant the subject visa to the Applicant.
........................[sgd]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – refusal of application for a Partner (Temporary) (Class UK) and a Partner (Residence) (Class BS) visa – applicant failed to pass the character test under section 501(6)(d)(i) – whether the discretion in section 501(1) should be exercised – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REAONS FOR DECISION
Senior Member Theodore Tavoularis
30 June 2020
INTRODUCTION

This matter relates to an application for review filed to the Administrative Appeals Tribunal (the “Tribunal”) by JZNV (“the Applicant”) on 4 December 2017.
The decision under review is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] (“the Minister” or “the Respondent”) dated 29 November 2017 and notified to the Applicant on 30 November 2017. The delegate’s decision pursuant to s 501(1) of the Migration Act 1958 (Cth) (“Act”) was to refuse the Applicant’s combined application for a Partner (Temporary) (Class UK) and a Partner (Residence) (Class BS) visa.[2]
[1] Then known as Minister for Immigration and Border Protection.
[2] Supplementary Documents filed on behalf of the Respondent, pages 349–384 (“Supplementary Documents”).
The Tribunal (differently constituted) affirmed the delegate’s decision on 22 February 2018. However, that decision was quashed by the Federal Court on 7 February 2019, and the matter was remitted back to the Tribunal for reconsideration.[3]
[3] Supplementary Documents, 387.
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(b) of the Act.
BACKGROUND
The Applicant is a 36 year old citizen of Lebanon. Movement records indicate that he was granted a Prospective Marriage (Temporary) (Class TO) visa on 31 August 2007 and subsequently arrived in Australia on 13 September 2007. He has remained in Australia since.[4]
[4] Paginated G Documents on Remittal filed on behalf of the Respondent, dated 30 April 2019 (“G Documents”), page 126.
The Applicant and his wife were married in Australia on 28 October 2007. The Applicant’s Prospective Marriage (Temporary) (Class TO) visa expired on 31 May 2008.[5] He subsequently applied for a Partner (Residence) (Class BS) visa on 7 May 2009 and was granted a Bridging Class (Class WC) visa.[6] On 9 February 2010, the Applicant was granted a Partner (Temporary) (Class UK) visa.[7] On 2 May 2012, the Applicant’s application for a Partner (Residence) (Class BS) was refused as he had not provided evidence to demonstrate that he and his sponsor were in a spousal relationship.[8]
[5] Ibid.
[6] Ibid, pages 247–250.
[7] Ibid.
[8] Ibid, pages 121–123.
He applied to the then Migration Review Tribunal (MRT) for review of the decision.[9] Their second child, a daughter, was born in 2012.[10] On 3 June 2013, the MRT set aside the decision and remitted the matter to the Department with the direction that the Applicant and his sponsor were in a spousal relationship.[11] Their third child, a daughter, was born in 2015.[12] The Applicant was arrested in October 2015.[13] On 17 February 2016, Applicant was released on bail.[14] On 8 March 2016, Applicant had a road accident and suffered an injury to his foot.[15] On 26 September 2016, a delegate of the Minister cancelled Applicant’s Bridging A (Class WA) visa under s 116 of the Migration Act on the basis of his convictions in 2014. On 11 October 2016, the Applicant was arraigned in the County Court and remanded in custody.[16] On 2 November 2016, the Applicant was granted a Bridging E (Class WE) visa until 13 December 2016 on the grounds of his being in criminal custody. On 14 December 2016, Applicant was granted a Bridging E (Class WE) visa until 19 April 2017 on the grounds of his being in criminal custody.
[9] Ibid, pages 116–120.
[10] Ibid, page 101.
[11] Ibid, pages 116–120.
[12] G Documents, page 102.
[13] Ibid, page 191.
[14] Ibid.
[15] Ibid, 96.
[16] Ibid, page 81.
The hearing of the instant application proceeded before me on 6 and 7 August 2019. The hearing had the benefit of both written and oral evidence provided before it. The Tribunal heard oral evidence from the following parties:
·The Applicant;
·The Applicant’s Wife, and the mother of his children;
·Mr Patrick Newton, a forensic psychologist;
·Mr MWEH, a former co-worker of the Applicant and who has made a standing offer of employment to the Applicant in the event that he is permitted to return to the community;
·Mr SE, a friend of the Applicant and his family; and
·Ms SK, a friend and cousin of the Applicant.
Criminal History
The Applicant’s offending spans the period of March 2011 to October 2015 and can be summarised within the below table.

Court Court Date Offence Court Result

Melbourne County Court

Feb 2017[17]

Traffic Drug of Dependence

8 months imprisonment and two years community corrections order commencing upon release

Traffic Drug of Dependence

8 months imprisonment (six months to be served concurrent) and two years community corrections order commencing upon release

Possess A Drug of Dependence

7 days imprisonment (Concurrent) and two years community corrections order commencing upon release

Broadmeadows Magistrates Court

May 2015[18]

Drive whilst authorisation suspended

Use unregistered motor vehicle – highway

State false name

Resist Police (two charges)

Without conviction, fined an aggregate of $3,500

Dec 2014[19]

Possess Cannabis

Possess a Schedule 4 Poison

On each charge: with Conviction, fined an aggregate of $1,500

Possess Prohibited Weapon without exemption/ approval (two charges)

With conviction, fined an aggregate of $1,500

Melbourne Magistrates Court

Feb 2014[20]

Behave in riotous manner in public place

With conviction, fined $1000

Broadmeadows Magistrates Court

Dec 2011[21]

Possess methylamphetamine

Possess amphetamine

Possess imitation general category handgun

Possess ammunition without a licence

On each charge: convicted, community based order to perform 150 hours of unpaid community work

[17] Supplementary Documents, 155; G Documents, 80–81.
[18] Supplementary Documents, 147–148.
[19] Ibid, 147–148
[20] Ibid, 143–146
[21] Ibid, 142.

In relation to the offences relating to the December 2011 sentencing episode, the police had executed a search warrant of the Applicant’s premises in March 2011.[22] Police found ammunition, two imitation firearms and illicit drugs throughout the premises. He subsequently pled guilty to two charges of possession of drugs (methylamphetamine and amphetamine), possess ammunition without a licence and possess imitation general category handgun. When asked under cross examination whether he knew what he had done was wrong he replied with:
“Look, when they came to my place I wasn’t aware that that was something wrong and because like it wasn’t a real firearm and that it may cause such a problem. And it was something that it wasn’t able to be used even, like I feel – I'm sorry for what had happened and I apologise for that but I didn’t know at that time. And I'm not the type of people who does such bad things.”[23]
[22] Ibid, page 142.
[23] Transcript, 6 August 2019, page 34.
In relation to the offences relating to the February 2014 sentencing episode, the Applicant and 3 of his friends have attended a restaurant in Melbourne in April 2013.[24] The Applicant and his friends had bought food and were subsequently not impressed with the food quality and the fact the restaurant did not serve alcohol. Glass tables were overturned which had smashed and left broken glass and other miscellaneous items along the floor. The Applicant was charged with behaving in a riotous manner in a public place. In response to whether the Applicant remembered the incident, he replied with:
“Yes, but I was at that time drunk and under the influence of drugs and I wasn’t aware that what had been done was something wrong. But later on I discovered that I shouldn’t have done these things and it was wrong to do such behaviour or do such an action. And I apologised for what had happened but, look, this is not my nature, I'm (indistinct) all the time keeps fighting and causing troubles and problems with others and so on. Look at my history and you could tell, I'm not that person like that. So that what had happened now.”[25]
[24] G Documents, 143–146.
[25] Transcript, 6 August 2019, page 35.
In relation to the offences relating to the December 2014 sentencing episode, the police executed a further search warrant of the Applicant’s premises (including property attached to the rear of the property which was rented by a tenant) in October 2014. Similarly to the first search warrant which was conducted in 2011, the police again found various drugs, ammunition, weapons (including a bayonet). He was convicted of ‘Possess cannabis’, ’Possess a Schedule 4 Poison’ (which was Viagra) and two counts of ‘possess prohibited weapon without exemption/approval’.
In relation to the offences relating to the May 2015 sentencing episode, the police had observed an unregistered car being driven on the road however they had lost the car in their attempt to intercept it. They subsequently found the vehicle parked nearby and the Applicant in the vicinity who matched the description of the driver. He threw his car keys into a nearby garden. Upon request for his name and other identifying information, he refused. The Applicant was arrested for the purposes of identifying him however he resisted the attempt to put handcuffs on him. He was convicted for ‘Drive whilst authorisation suspended’, ‘Use unregistered motor vehicle – highway’, ‘State false name’ and ‘Resist Police (two charges)’.[26]
[26] G Documents, 147–148.
The Applicant’s most recent sentencing episode in February 2017 were in relation to an operation headed up by the Drug Task Investigating which was investigating the Application for trafficking Methylamphetamine. In October 2015, the Applicant’s co-accused was arrested at the Melbourne airport having arrived from Sydney with 289 grams of Methamphetamine with the intention of delivering it to the Applicant. The Drug Task Force Investigations officers attended the Applicant’s premises and arrested him. The Task Force executed a search warrant under the Drugs Poisons and Controlled Substances Act 1981 (Vic) and found over 5kg of cannabis and 17 grams of crystal powder, together with various equipment and records of their drug business. He was subsequently convicted for ‘trafficking a drug of dependence’ (methylamphetamine and cannabis) (two counts) and one count of ‘Possess A Drug of Dependence’.
At the Applicant’s sentencing episode in February 2017, the sentencing remarks detailed the particulars of the offences.
“…
2In June 2015, the police commenced a covert operation concerned with the drug trafficking activities of you and your co-accused, [redacted]. Investigations revealed that you trafficked methylamphetamine from your home, which had been supplied to you by the Sydney based [redacted].
3Information obtained from Qantas concerning the travel of [redacted] between Sydney and Melbourne revealed that between 25 September 2015 and 24 October 2015, [redacted] travelled between those cities on eight occasions, and that he stayed for differing periods of time in Melbourne.
4On one of those occasions, on 12 October at approximately 1.26pm, he travelled to your home by taxi from the airport. He remained at your address for three minutes before returning to the airport at approximately 2 pm.
5On other occasions he attended your home from the airport in a chauffeur driven car. Those trips were for the purpose of arranging for the delivery of methylamphetamine to you, for you to sell.
6Investigators also monitored your mobile phone. You were in frequent contact with [redacted] over the relevant period, discussing or organising meetings and the details three times. There were calls on the 24 October 2015 between you, when you discussed the potential sale of methylamphetamine and cannabis.
7On 29 October 2015, [redacted] was intercepted by police at Tullamarine after he had arrived on a flight from Sydney. [redacted] was searched and a clear snap lock bag containing a white crystal substance was located wrapped inside a sock in his bag. This substance was methylamphetamine and weighed 276.5 grams, with a purity of 82 per cent. This amounted to 226.73 grams of pure methylamphetamine.
8I note that under Part of the relevant act, a commercial quantity of this drug is 100 grams. It is accepted by the prosecution that [redacted] was to bring you an undetermined amount of methylamphetamine, but an amount that was in at least in excess of the trafficable [sic] amount being 3 grams.
9Your counsel conceded this was serious offending, however, remarked that the prosecution was not in a position to prove that all the drugs found with [redacted] were intended to be provided to you. That is, not the whole amount of 226.73 grams of methylamphetamine.
10Later that day, police attended your home and conducted a search. You were arrested. As a result of the search, investigators located a bungalow at the house, set up like a home office. A desk in the office contained scales, deal bags and a book containing prices and weights relating to drug transactions.
11Investigators also located a black pouch, which had two snap lock bags, each containing a white crystal substance. The first bag contained 16.2 grams of methylamphetamine, with a purity of 84 per cent - amounting to 13.6 grams of pure methylamphetamine. The second bag contained .82 grams of methylamphetamine, with a purity of 39 per cent pure methylamphetamine. That is Charge 3 [Trafficking Methylamphetamine; Charge 1 was Possession of Methylamphetamine].
12Also, discovered in the bungalow were differing amounts of cannabis as follows: In the ensuite, 439.6 grams; in the oven, four plastic bags contained a total amount of 1.78 kilos; in the oven, another clear plastic bag was found, in which there was a further nine snap lock bags, in total weighing 243.5 grams and in the cupboard of the office area, a blue Irwin bag was found, that in turn, had within it six plastic bags that contained 2.68 kilos of cannabis.
13Thus, the total amount of cannabis found by police was 5.14 kilos. That is the amount on the subject of Charge 2 [Trafficking Cannabis].
14A trafficable [sic] amount under the Act is 250 grams and a commercial quantity is 25 kilograms.
15There were some aggravating features of your offending:
(1)A comprehensive surveillance system was operating at your house and the review of the footage revealed you frequently attending the bungalow and meeting drug customers.
(2)Additionally, a significant number of telephone intercepts had you speaking with unknown parties in relation to trafficking drugs.”[27]
[27] G Documents, 80-81
ISSUES
Section 501(1) of the Act provides that:
“(1) …The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
(b)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As mentioned earlier, the character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is, in turn, relevantly defined in s 501(7)(d) which provides the following:
“The person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;”
Section 501(7A) also provides for Concurrent sentences which provides:
“For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms”
The Applicant was sentenced to two terms of eight-months imprisonment in 2017, with six-months of the second term to be served concurrently, which would amount to a maximum period of 10 months imprisonment. Section 501(6)(d) and s 501(7A) state that for the purpose of the character test and in working out a substantial criminal record, the full term of each sentence is to be taken into account which consequently amounts to a period of 16 months imprisonment.
There is no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[28] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[29]
[28] Act, s 501(6)(a).
[29] Act, ss 501(7)(d), 501(7A).
Consequently, I am satisfied that the delegate correctly decided that the Applicant does not pass the character test.
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
Section 499(2A) of the Act provides that in determining an application seeking to set aside the refusal of a visa pursuant to s 501(1) of the Act, the Tribunal must have regard to Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancelation of a visa under s 501(CA) made pursuant to s 499 of the Act (the “Direction”).[30]
[30] The Tribunal notes that Direction 79 supersedes the former Direction 65 when considering visa cancellations and refusals under s 501 of the Act, effective 28 February 2019.
The Direction contains (1) guidance for decision makers, and (2) certain Principles that provide a framework within which decision makers should approach the task of deciding whether to exercise the discretion to refuse the grant of a visa to a non-citizen. Part B of the Direction identifies the considerations relevant to visa applicants in determining whether to exercise that discretion.

Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Primary Considerations relevant in the context of a visa refusal decision appear in Part B of the Direction. Paragraph 11 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non‑exhaustive list in paragraph 12 of the Direction. These considerations are:
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims;
(d) Impact on Australian business interests.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:
“Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.” [31]
[31] [2018] FCA 594, paragraph [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:
1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)    The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 11.1(1) of the Direction compels decision makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph further provides that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
In determining the weight applicable to this Primary Consideration A, paragraph 11.1(1) of the Direction requires decision makers to give consideration to:
“(a) The nature and seriousness of the non-citizen's conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
In determining the weight applicable to each of these two elements, it is necessary to have regard to the circumstantial totality of the Applicant’s criminal history. I have earlier summarised the totality of the Applicant’s offending history.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision makers must have regard to a number of factors. Those factors are:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d) Where the non-citizen is in Australia, that a crime committed while the non‑citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention but before the non-citizen was taken into immigration detention again, is serious, as is an offence against section 197A of the Act;
(e)The principle that any conduct that forms the basis for a finding that a non‑citizen does not pass a subjective limb of the character test is or is not of good character under s501(6)(c), is considered to be serious;
(f) Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h) The cumulative effect of repeated offending;
(i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Sub-paragraph (a) of paragraph 11.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are to be viewed very seriously. The Applicant’s criminal history as canvassed involved five sentencing events: three occasions related to predominately drug related offences where a search warrant was executed, one occasion where the Applicant was found to be driving an unregistered car and his subsequent behaviour towards the police, and one occasion involving a conviction of ‘riotous manner in a public place’. Via one of those executed search warrants, the police had found ammunition, as well as the weapons and imitation handguns. While these offences are at a significant level of seriousness, they are do not involve the necessary level of violence to attract application of this sub-paragraph (a).
As none of the Applicant’s offences involve actual violence and/or criminal offending of a sexual nature, this sub-paragraph (a) is of no relevance to this determination.
Sub-paragraph (b) of paragraph 11.1.1(1) of the Direction stipulates the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed. None of the Applicant’s offending involved violence against women or children. This sub-paragraph (b) is of no relevance to this determination.
Sub-paragraph (c) of Paragraph 9.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.
The Applicant was convicted of two charges of “resist police” in May 2015 in relation to the incident of July 2014. The Police records indicate that: “Police then attempted to handcuff the accused in which he refused. Police were required to engage with the accused and apprehend the accused after a short wrestle.”[32] The Applicant had given evidence that this refusal to be handcuffed did not result in any violence.[33]
[32] G Documents, page 148.
[33] Transcript, 6 August 2019, page 36.
There is no evidence that any of the Applicant’s offending was committed against vulnerable members of the community. His conduct towards the police officers seeking to deal with him does, to an extent, represent a challenge to lawful authority. Having regard to the totality of the evidence I am of the view this sub‑paragraph (c) attracts only a small amount of weight against the Applicant.
Sub-paragraph (d) of paragraph 11.1.1(1) of the Direction concerns itself with any crime committed by a non-citizen, inter alia, while in immigration detention. There is no evidence before the Tribunal that the Applicant has committed any crimes while in immigration detention. Accordingly, this sub‑paragraph (d) is of no relevance to this determination.
Sub-paragraph (e) of paragraph 11.1.1(1) of the Direction refers a decision maker to the principle that conduct forming the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious.
As amply ventilated earlier, the Applicant does not pass the character test. This is based on the sentence imposed upon him in February 2017 which amounts to the Applicant having “a substantial criminal record” as defined in s 501(7)(d), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
I am mindful of the reference to “…does not pass a subjective limb of the character test…” as contained in this sub-paragraph (e). Out of an abundance of caution, I have looked through the componentry of s 501(6) of the Act and have sought to glean any subsection thereof that may be referable to the Applicant’s offending for present purposes. I note:
·The Applicant has not been convicted of an offence committed while in immigration detention, during an escape from immigration detention or after an escape from immigration detention;[34]
·The Applicant has not been convicted of an offence against s 197A of the Act;[35]
·The Applicant is not the subject of a reasonable suspicion held by the Respondent that he has been or is a member of a group or organisation and that such group or organisation has been involved in criminal conduct;[36]
·The Applicant is not the subject of a reasonable suspicion held by the Respondent that the Applicant has committed offences in the realms of people-smuggling, trafficking in persons, a crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;[37]
·That if the Applicant were allowed to enter or remain in Australia, there is no discernible risk that he would (1) harass, molest, intimidate or stalk another person in Australia; or (2) vilify a segment of the Australian community; or (3) incite discord in the Australian community or in a segment of that community; or (4) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to becoming involved in activities that are disruptive to or in violence threatening harm to that community or segment of that community, or in any other way;[38]
·That no court in Australia or a foreign country has (1) convicted the Applicant of one or more sexually based offences involving a child, or (2) found him guilty of such an offence, or found a charge against the Applicant proved for such an offence, even if the Applicant had been discharged without a conviction;[39]
·That the Applicant has not, in Australia or a foreign country, been charged with or indicted for one or more of (1) the crime of genocide; (2) a crime against humanity; (3) a war crime; (4) a crime involving torture or slavery; or (5) a crime that is otherwise of serious international concern;[40]
·The Applicant has at no time been the subject of any assessment by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);[41]
·The Applicant has at no time been the subject of an Interpol notice from which it is reasonable to infer that he would present a risk to the Australian community or a segment of that community.[42]
[34] Act, s 501(6)(aa)(i), (ii) and (iii).
[35] Ibid, s 501(6)(ab).
[36] Ibid, 501(6)(b)(i) and (ii).
[37] Ibid, 501(6)(ba)(i), (ii) and (iii).
[38] Ibid, s 501(6)(d)(ii),(iii),(iv) and (v).
[39] Ibid, s501(6)(e)(i) and (ii).
[40] Ibid, s 501(6)(f)(i), (ii), (iii), (iv) and (v).
[41] Ibid, s 501(6)(g).
[42] Ibid, s 501(6)(h).
Based upon the above bullet point summary, I am not able to glean any subjective limb of the character test provision (s 501(6) of the Act) referable to the Applicant’s conduct such that it be considered serious pursuant to this sub-paragraph (e).
However, put at its highest, the balance, or remaining subjective limbs of s 501(6) of the Act may be taken into account in terms of characterising the Applicant’s conduct as serious. Those remaining subjective limb provisions of s 501(6) comprise:
· section 501(6)(c) provides:
“(c) having regard to either or both of the following:
(i)the person’s past or present criminal conduct;
(ii)the person’s past or present general conduct”;
· s 501(6)(d)(i) provides:
“(d) in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia…”
I have had regard to the circumstantial totality of the Applicant’s offending. First, I am of the view, pursuant to s 501(6)(c)(i) that the Applicant’s past criminal conduct may, to an extent, constitute “a subjective limb of the character test” and thus attract application of this sub‑paragraph (e) to ground a finding that his offending conduct in this country is to be regarded as serious. With further reference to s 501(6)(c)(i), the Applicant has not re‑offended since the sentencing episode in May 2017.
With specific reference to s 501(6)(c)(ii), I note the material contains references to the Applicant speaking of being under illicit drugs, particularly while operating a motor vehicle and while looking after his own children.
Second, I have had regard to s 501(6)(d)(i) of the Act relating to the Applicant’s risk of engaging in further criminal conduct in Australia were he allowed to remain in this country. Later in these reasons I will form a view about the Applicant’s risk of recidivism. Anticipating my findings on that specific issue, I will, for present purposes, conclude that s 501(6)(d)(i) of the Act should not be relied upon to activate the provisions of this sub‑paragraph (e) to characterise the Applicant’s past criminal offending in this country as serious.
I am of the view that s 501(6)(d)(i) of the Act invokes application of this sub‑paragraph (e) on the basis that, by virtue of his “past…criminal conduct…”, and my findings on the Applicant’s recidivism appearing later in these Reasons, engenders an allocation of moderate weight in favour of a finding that the nature of his criminal offending in this country has been “serious”.
Sub-paragraph (f) of paragraph 11.1.1(1) of the Direction directs a decision maker to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 11.1.1(1) of the Direction. It is well‑established that imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant.[43]
[43] See PNLB v Minister for Immigration and Border Protection [2018] AATA 162, paragraph [22]; Saleh v Minister for Immigration and Border Protection [2017] AATA 367, paragraph [50].
The Applicant has been sentenced to a custodial term of imprisonment only on his most recent sentencing event. In relation to his December 2011 sentencing event, which was in relation to possession of drugs, an imitation handgun and ammunition, he had received a community-based order to perform community service. For his following offence he had received a fine for behaving in a riotous manner in a public place at his February 2014 sentencing event. The sentencing event of December 2014 involved a search warrant being executed on his property once again and was subsequently convicted of possession of drugs and weapons. He received fines in the amount of $1500. Then for the offences involving “Drive whilst authorisation suspended”, “Use unregistered motor vehicle – highway”, “State false name” and “Resist Police” (two charges) he again received an aggregate fine of $3,500.
The Applicant was sentenced to a total effective custodial term of 10 months, however the learned sentencing Judge noted that each trafficking offence carried a maximum sentence of 15 years and the possession offence carried a maximum one-year sentence.[44] The learned sentencing Judge went onto say:
[44] G Documents, page 80.
“42.     I take into account your plea of guilty. … Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.
43.      Your counsel submitted that your rehabilitation prospects were good and relied on the following: Dr Cunningham’s view regarding your positive prospects with protective factors such as the family support and constellation, together with the expectation of you gaining full time employment; (2) your period of time in custody when you have been drug free and (3), that you were not involved with any offending when you were on bail and in the community.
44.      It was submitted that you had undergone a change in attitude since being incarcerated and also, given the threat to the security of your life in this country, which you have now established with your wife and children.
45.      I accept that you have good rehabilitation prospects, but I am somewhat cautious about your drug issues.
46.      You had a relatively sophisticated set up, running your business with video security and home office. There was a significant amount of activity detected and it related to two different types of drugs.
47.      On any scale, trafficking is a serious offence, given the societal problems that any drugs cause. Trafficking of any drugs affects the health and lives of many in the community, and the impact of the availability of illicit substances in the community cannot be underestimated.
48.      Principles of general deterrence are of importance to this kind of offending. Those who engage in the business of trafficking drugs should be aware that if caught, they will be punished. The community demands denunciation and just punishment for this kind of offending.
…
51.      I had you assessed by the Office of Corrections who reported you as being a medium risk of reoffending. …”[45]
[45] G Documents, 82–83

He has not, since his most recent offending in October 2015, committed any further crimes while in the Australian community while on bail for 8 months pending sentencing or, subsequently, in immigration detention. I accept that he has experienced a deterrent effect from the custodial term of imprisonment imposed on him on February 2017.
For present purposes, it should be accepted that the nature of the sentence on the Applicant in February 2017 does, to a certain extent, militate in favour of a finding that his fifth offending episode was of a serious nature. However, that observation must be counterbalanced by the obvious deterrent effect he has experienced as a result of the cumulative custodial term imposed upon him in February 2017. Accordingly, I allocate only a very moderate measure of weight to this sub-paragraph (f) of paragraph 11.1.1(1) of the Direction in favour of a finding that the singular custodial sentence imposed by the Melbourne County Court in February 2017 is demonstrative of the serious nature of his offending.
Sub-paragraph (g) of paragraph 11.1.1(1) of the Direction points a decision maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (g) largely parallels the preceding exercise involving an application of sub-paragraph (f). Obviously, any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it. For present purposes, it can be fairly noted that the Applicant has an offending period of less than five years – that is, running from March 2011 to October 2015. It can also be fairly noted that, relatively brief though his offending history may be, it does carry an indication of a trend (of sorts) of increasing seriousness.
As mentioned, there are five sentencing episodes appearing the Applicants criminal history. Of the first four episodes, two cannot be said to be serious. The other two involving, inter alia, possession of illicit drugs and offences relating to weapons are of moderate seriousness. However, his fifth and final offending episode involved the imposition of some 16 months of cumulatively custodial time. There is thus a clear delineation between the level of seriousness between his earlier offending compared to his later offending – specifically, that which came before the Melbourne County Court in February 2017.
Thus, an application of this sub-paragraph (g) of paragraph 11.1.1(1) of the Direction points to a finding that, while the Applicant’s offending history runs for approximately for just under five years, his offending during that period was relatively frequent. He found himself before lawful authority for sentencing on five occasions.
I am of the view that this sub-paragraph (g) militates in favour of exercising the power to refuse the visa, it should be tempered against the nature of his offending across the offending period. Only his final sentencing episode involved him being dealt with for offending which could be said to be objectively serious. Accordingly, I allocate a slight level of weight to this sub-paragraph (g) in favour of a finding that the Applicant’s conduct has been serious.
Sub-paragraph (h) of paragraph 11.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant first came to this country in September 2007. He had been here for less than four years before he committed his first offence.
When he was remanded in custody in October 2016, the Applicant had been in Australia for almost 10 years. The sentence he received required him to be removed from the Australian community for a period of ten months.
To my mind, the cumulative effect of the Applicant’s offending derives from three elements. First, his offending history comprises five sentencing episodes spanning less than five years. Of those five sentencing episodes, only his most recent one can be said to be objectively serious. Second, his offending has seen him physically removed from the Australian community since October 2016 (when he was in remanded in custody following his arraignment, when his bail was revoked).[46] The amount he was sentenced to serve (i.e. in February 2017) in actual criminal custody - relative to the total amount of his time in Australia at that time - amounted to less than 10% of his total time here. Third, while the Applicant may have experienced a deterrent effect from the sentence imposed upon him in February 2017, it is clear that he failed to experience any deterrent effect from the preceding four sentencing episodes. Those earlier episodes saw him receive the benefit of non-custodial terms in community-base orders and fines. This did not deter him from committing the objectively serious offences for which he was convicted of in February 2017.
[46] See G Documents, page 191.
Accordingly, the application of this sub-paragraph (h) to the instant facts operates to cause the allocation of a moderate measure of weight in favour of a finding that his past offending is of a serious nature.
Sub-paragraph (i) of Paragraph 11.1.1(1) of the Direction directs a decision maker to consider whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending. There is no evidence in the material (written or oral) pointing to conduct by the Applicant in this regard. Accordingly, this sub-paragraph (i) is of no relevance to this determination.
Sub-paragraph (j) of Paragraph 11.1.1(1) of the Direction directs a decision maker to consider any offending committed overseas, and whether those offences are classified as an offence in Australia. There is no evidence before the Tribunal that the Applicant has committed any offences while overseas. Accordingly, this sub-paragraph (j) is of no relevance to this determination.
Having regard to the totality of the evidence to which the abovementioned sub‑paragraphs (c), (e), (f), (g) and (h) of paragraph 11.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct can be characterised as “serious”. Upon application of the respective weights I have attributed to the relevant sub-paragraphs of paragraph 11.1.1(1) of the Direction I find that the nature and seriousness of the Applicant’s conduct to date is of a serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) tells a decision maker that in considering whether a non-citizen represents an unacceptable risk of harm to the Australian community, regard should be had to the principle that the Australian community’s tolerance for any risk of harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, were it to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 11.1.2(2) directs a decision maker to have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa. This principle is intended to point out that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
In considering and assessing the risk a non-citizen poses to the Australian community, paragraph 11.1.2(3) provides that a decision maker should have regard to the two following factors on a cumulative basis:
·Paragraph 11.1.2(3)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·Paragraph 11.1.2(3)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account:
o   Information and evidence on the risk of the Applicant re-offending;
o   Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence; and
o   The duration of the Applicant’s intended stay in Australia.
Paragraph 11.1.2(4) also directs decision makers to consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent has submitted:
“The Minister submits that the nature of the harm to the community should the applicant re-offend is serious, given the health and societal issues caused by distribution of illicit drugs. Even a low risk of re-offending should be considered unacceptable.”[47]
[47] Respondent’s SFIC, paragraph [35].
The sentencing judge had made the following comments:
“46. You had a relatively sophisticated set up, running your business with video security and home office. There was a significant amount of activity detected and it related to two different types of drugs.
47. On any scale, trafficking is a serious offence, given the societal problems that any drugs cause. Trafficking of any drugs affects the health and lives of many in the community, and the impact of the availability of illicit substances on the community cannot be underestimated.
48. Principles of general deterrence are of importance to this kind of offending. Those who engage in the business of trafficking drugs should be aware that if caught, they will be punished. The community demands denunciation and just punishment for this kind of offending.” [48]
[48] G Documents, page 83.
In response to a question as to what the nature of the Applicant’s offending would be if he was to reoffend again, Mr Newton gave the following evidence:
“The most likely offending would be drug related of some sort, and it would flow out of his own drug use and his connections into that drug using environment. The most common offending for drug users is that they sell some in order to use some. In Mr Applicant’s case that is the way he started, as I understand it, and then it escalated from there; his final offending to be quite a sophisticated trafficking enterprise with interstate couriers and a whole range of things going on, as recorded in the police documentation in the supporting materials. If he went back to it, it would most likely recapitulate that, that offence process, but one has to factor in, I think, the deterrent impact of having been in gaol, or in custody at least, for the best part of three years, the separation from his family, the manifest awareness of the hurt, damage and pain he’s caused the people he loves most, and I think that specific deterrence, which is what the sentence was designed to allow for, has been genuine. Yes, there’s certainly a number of ways in which there is a pathway back to offending, through the drug use is the main one, and there are pathways back to that, obviously. There’s also significant deterrence and significant things that are providing a momentum against that offence path.”[49]
[49] Transcript, 6 August 2019, pages 71–72.
Having regard to the nature and level of seriousness of the Applicant’s offences in relation to the first four sentencing episodes, were such pattern of conduct to be repeated, it would be unsafe to find that there would be absolutely no chance of a third party being harmed. This offending related to possession of drugs, imitation handguns, possessing ammunition without a license, driving whilst authorisation suspended and car unregistered, stating a false name to police, resisting police and possession of a weapon. As against these observations none of these offences involved the infliction of actual violence against others. Accordingly, I am of the view that any harm resulting from such offending would most likely not involve violence, and, to the extent it did, the violent offending would be minimal.
However, in relation to the Applicant’s most recent offending in February 2017, were the Applicant to re-engage in similar criminal conduct, it is quite likely that harm would be caused to members of the Australian community through the trafficking of drugs of dependence. The nature of that risk to the Australian community is reflected in severity of sentencing regimes parliament has inserted into legislation governing punishment of such crimes. The Applicant’s saw him playing a significant role in what was found to be a “relatively sophisticated set up”. There can be no other finding that were he to re-commit similar offences, there would be resulting significant harm on the Australian community. That harm could manifest in a number ways;
·Directly – by increasing the number of consumers of these substances;
·Indirectly – by the often untold suffering of friends, relatives and dependence of those who become addicted to those substances; and
·Indirectly – by consuming the resources of the community in the treatment of victims, policing apprehension of suspects and the sentencing of those convicted with a commission of crimes for drug offending.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Her Honour Judge Quin,[50] who sentenced the Applicant at his most recent offending in February 2017 noted the following about his prospects of rehabilitation:
[50] Judge of the Melbourne County Court.
“I was provided with a report from forensic psychologist, Dr Aaron Cunningham, dated 7 October 2016, Exhibit 1.
You reported to Dr Cunningham that you commenced using methylamphetamine approximately four years ago. In combination with this drug, you were also using alcohol. You told Dr Cunningham that your usage was the means for you to cope with financial pressures and problems regarding your limited employment.
This history is consistent with your prior matters relating to drug use and possession. Dr Cunningham is of the opinion that you have no indication of mental illness or intellectual disability. Your drug abuse is seen as the main contributor to this offending.
You have a number of relevant prior convictions in 2011 and 2014 relating to drugs, but have also some prior driving offences.
You have previously successfully completed a community based order in 2011. However, these matters are a step up in seriousness in your offending. Specific deterrence is a relevant sentencing consideration in your circumstances.
…
I take into account your plea of guilty. You have pleaded at the earliest opportunity and there is a significant utilitarian benefit in the pleas, saving the community the cost and inconvenience of a trial and avoiding the need for witnesses to give evidence. Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.
Your counsel submitted that your rehabilitation prospects were good and relied on the following: Dr Cunningham’s view regarding your positive prospects with protective factors such as the family support and constellation, together with the expectation of you gaining full time employment; (2) your period of time in custody when you have been drug free and (3), that you were not involved with any offending when you were on bail and in the community.
It was submitted that you had undergone a change in attitude since being incarcerated and also, given the threat to the security of your life in this country, which you have now established with your wife and children.
I accept that you have good rehabilitation prospects, but I am somewhat cautious about your drug issues.
You had a relatively sophisticated set up, running your business with video security and home office. There was a significant amount of activity detected and it related to two different types of drugs.
On any scale, trafficking is a serious offence, given the societal problems that any drugs cause. Trafficking of any drugs affects the health and lives of many in the community, and the impact of the availability of illicit substances in the community cannot be underestimated.
Principles of general deterrence are of importance to this kind of offending. Those who engage in the business of trafficking drugs should be aware that if caught, they will be punished. The community demands denunciation and just punishment for this kind of offending.
…
I had you assessed by the Office of Corrections who reported you as being a medium risk of reoffending. …”[51]
[51] G Documents, pages 82–83, paragraphs [27]–[31], [42]–[48], [51].
As mentioned within Judge Quin’s sentencing remarks, an assessment was conducted prior to the Applicant’s most recent sentencing episode and was provided for the purposes of sentencing. Dr Aaron Cunningham had assessed the Applicant in person on 29 September 2016 and subsequently provided a psychological assessment dated 7 October 2016.[52]
[52] G Documents, page 194.
Dr Cunningham did not give evidence in the Hearing before me. Be that as it may, I will precis his evidence for referential purposes only:
Background
[The Applicant] is a thirty-three year old male born in Lebanon. His mother and father raised him with three younger sisters and one younger brother. His father worked as a taxi driver whilst his mother was a stay-at-home caregiver. He stated that his father was too strict with discipline. He described his mother as all right.
[The Applicant] took on the role of supporting his family financially from the age of thirteen. He stated that his father became ill and could no longer work. He worked in excavation and demolition before relocating to Australia. He relocated to Australia to marry his wife, [the Applicant’s]. He initially lived with [the Applicant’s Wife]’s family in Campbellfield before obtaining a mortgage on a property in Meadow Heights. He stated that [the Applicant’s Wife] assists him in the community. He described her family as supportive. He has three children with [his Wife]; [name of child redacted] aged nine, [name of child redacted] aged four and [name of child redacted] aged two. His mother, father and siblings remain living in Lebanon.
Education and Vocational History
[The Applicant] attended two years of primary school. He worked from ·a young age in demolition and excavation. He has struggled to gain employment in Australia due to his lack of English. He has worked part-time for First Class Demolition for three to four years. He stated that his manager has agreed to allow him full-time hours.
Medical History
[The Applicant] suffered a motorcycle accident in 2016. He attended the Northern Hospital. He stated that he requires further surgery.
Drug and Alcohol History
[The Applicant] began use of methylamphetamine approximately four years ago. He was stressed amidst financial problems and the lack of employment. He used the drug with friends. He used 1 to 0.5 gram of methylamphetamine per day. He continues this level of drug abuse. He drinks half a bottle of Whiskey every two days. He stated that alcohol and methylamphetamine take his troubles away.
Mental State Assessment
[The Applicant] reported difficulty sleeping in Australia. He stated that he had difficulty sleeping due to stress. He stated that he was supported by a large 'extended family in Lebanon. He does not perceive the same level of support in Australia. He reported an unstable appetite. He was stressed and worried about incarceration. He worried about his wife's ability to pay the mortgage should he be incarcerated. He sometimes suffers auditory. hallucinations and becomes paranoid. He was not suicidal.
In my opinion, [The Applicant] does not present with a mental illness. He presented as anxious at the prospect of incarceration. He is experiencing mood disturbance and paranoia in the context of his methylamphetamine abuse.
Psychometric Assessment
To assess for the presence of intellectual impairment, [the Applicant] was administered the SPM. The. SPM is comprised of five sets of diagrammatic puzzles, each with a part missing. The individual undertaking the test has to identify the part missing amongst multiple choice options provided. The SPM consists of sixty problems divided into. five sets. Each set progresses through problems of increasing difficulty. The SPM is a widely used intelligence test within psychology. The test has received validation studies since its inception in 1938. Due to the ability of the test to be administered to individuals from different cultural backgrounds and ages, norms and research have been established for individuals in the United Kingdom, United States of America, Australia, New Zealand, China, Germany, Slovakia, Brazil, Ireland, Puerto Rico, Peru and South Africa. [The Applicant]'s performance on the SPM placed him in the Average range of non-verbal fluid intelligence. There was no indication of intellectual disability.
Summary and Opinion
[The Applicant] is a thirty-three year old male charged with Drug Trafficking. Results of the Mental State Assessment were not consistent with a mental illness. He presents with symptoms of anxiety, mood disturbance and paranoia consistent with his reported level of methylamphetamine abuse. Psychometric testing indicated cognitive functioning in the average range.
[The Applicant] reported a stable family unit in Lebanon. He had to leave school at an early age to support his family financially. He stated that he managed this responsibility due to being connected to a larger family support network. He has had difficulty adjusting to Australia. He stated that his English problems have led to difficulty sourcing employment. This has led to financial stress in the· context of supporting his wife and children. He did not cope well with this stress and used methylamphetamine with friends. He has since maintained a daily dependence to methylamphetamine. This has aggravated his stress and anxiety as well as caused significant paranoia. His drug abuse presents as the main contributor to his offence behaviour.[53]
[53] Ibid, pages 194–196.

There is also a mention that the Sentencing Judge had the Applicant assessed by the Office of Corrections who had reported the Applicant as being a medium risk of reoffending.[54] There is no information before the Tribunal as to how that assessment was conducted and I am therefore cautious about allocating any weight to this opinion. I note however that this opinion was before Judge Quin when sentencing the Applicant in February 2017.
[54] Ibid, page 207.
Clinical and Forensic Psychologist Mr Patrick Newton (Report dated 5 July 2019):
In the hearing before me, The Tribunal had an independent and expert witness who provided written and oral evidence informing the Tribunal about the Applicant’s risk of re-offending was the Clinical and Forensic Psychologist, Mr Patrick Newton. His report is dated 5 July 2019.[55] In addition to his oral evidence-in-chief at the hearing, Mr Newton was cross-examined by the Respondent’s representative.
[55] Report of Mr Patrick Newton dated 5 July 2019 (“Newton Report”).
Mr Newton is a registered psychologist with the Psychology Board of Australia and has more than twenty years’ experience in the fields of Forensic, Clinical and Counselling Psychology, specifically having conducted thousands of assessments of people who have faced criminal offences, with a focus on drug using offenders and their risk of recidivism.[56] He conducted an initial assessment of the Applicant via video-link on 17 June 2019. There followed a second video-link interview on 4 July 2019. Taken together, both appointments saw Mr Newton something in the order of two hours with the Applicant.[57]
[56] Patrick Newton – Statement of Qualifications and Experience, undated, received by the Tribunal 8 July 2019.
[57] Newton Report, pages 1–2, paragraphs [4]–[6].
Consequent upon those examinations, Mr Newton produced his above-mentioned report, dated 5 July 2019. During these interviews, Mr Newton’s stated purpose, speaking generally, was to assess the Applicant’s prospects of rehabilitation (including any evidence of rehabilitation already undertaken), his risk of recidivism, and any other matters of relevance.[58]
[58] Psychologist Brief prepared by Carina Ford Immigration Lawyers to Mr Newton dated 13 June 2018, page 2
For present purposes, Mr Newton’s report is predicated on two aspects. First, he provides a detailed opinion and analyse on the Applicant’s risk of further offending. Second, he provides an opinion and prognoses contained in 10 separate observations or findings. Those two aspects of Mr Newton’s observations should be detailed in full.
With specific reference to the Applicant’s further offending, Mr Newton delivered the following opinions:
“50. At your request, I conducted a detailed review of [the Applicant]’s risk for further offending. In order to do so, I have relied upon a review of variables that have demonstrated a high correlation with general criminal recidivism together with a consideration of additional factors which have demonstrated moderate predictive power in large-scale studies of offender recidivism. [the Applicant]’s results on these factors are summarised in the table below.

‘Strong’ Factors

Domain Past Present

Criminal History Yes Yes

Antisocial Personality No No

Pro-criminal Attitudes Yes No

Criminal Associates Yes ???

‘Moderate Factors’

Domain Past Present

Family/Marital Maladjustment No No

Employment Problems Yes Yes

Substance Abuse Yes ???

Leisure/Recreational Issues Yes ???

51. A review of this table identifies that [the Applicant] has previously manifested three out of four factors strongly associated with an elevated risk of criminal recidivism. That is, he has a significant criminal record, has endorsed pro-criminal attitudes and has committed offences in the company of other offenders as well as being integrated into a ‘network’ of criminal associates. His most recent offending in particular came about as a result of his contact with others within the drug-using and criminal sub-cultures and involved a sophisticated trafficking endeavour. It was reinforced by his endorsement of criminal attitudes which encouraged participation in the conduct in order to support his drug habit.
52. [The Applicant] has made some positive progress in addressing these factors. He now disavows the criminal attitudes that contributed to his offending and he states that he will take steps to distance himself from criminal associates.
53. A review of factors which have shown a moderate correlation with recidivism indicates that [the Applicant] has demonstrated three of them in the past. That is, he has a long history of substance misuse, he has had significant trouble finding stable employment of any sort and he has engaged in few positive recreational activities.
54. The support he reportedly enjoys from his wife and extended family is positive. In contrast, while progress has been made with regards to his addiction, issues remain to be addressed. Similarly, while he has an offer of work, the impact of his injury upon his employment prospect is potentially concerning, and he continues to manifest a poverty of recreational and community engagement.
55. This review indicates that [the Applicant]’s risk of recidivism will depend in large part upon his ability to manage the challenges of reintegrating into the community. His criminal history is clearly a matter of concern and this is magnified by his poor employment skills and the particular challenges which his foot injury is likely to pose to him maintaining the unskilled and manual work that has previously been his mainstay. In addition the concerns about his vulnerability to relapse elevate the risk posed by these issues. While several matters germane to [the Applicant]’s risk assessment remain subject to change, based on the information currently to hand I would assess his risk of recidivism as falling the Low-Moderate risk range.
56. The best way to reduce [the Applicant]’s risk of recidivism would be to ensure that his drug use remains contained. This could be achieved by the provision of appropriate objective monitoring and treatment. In addition, containment of the influence of negative associates through the imposition of appropriate conditions would also assist. These conditions could be imposed as part of his Community Correction Order.
57. Additional, but less significant, containment could be achieved through supporting [the Applicant]’s engagement in positive vocational endeavours and by facilitating involvement with pro-social recreational and community interests. Again, such conditions could be achieved through the imposition of appropriate conditions.”[59]
[59] Newton Report, pages 8–9.

Next, in terms of a concluded opinion Mr Newton said the following:
“1) [The Applicant] presented with symptoms of elevated anxiety. This was principally evident in rumination, physical tension and sleep disturbance. He described persisting daytime fatigue which adds to his sense of challenge.
2) [The Applicant]’s symptoms are a reaction to a combination of several noteworthy stressors. These include his concerns for his family and their welfare; his worries about his ongoing migration matters (particularly the prospect of a return to Lebanon and the consequent separation from his wife and children); and the impacts of his foot injury and the difficulties he anticipates accessing treatment.
3) Diagnostically, [the Applicant]’s symptoms are sufficiently intense to meet DSM-5 criteria for an adjustment disorder with anxiety. That is, his symptoms are reactive to identifiable stressors and are likely to resolve when these stressors are addressed. There is no indication of an underlying anxiety-related disorder or of any other mental-health conditions of concern.
4) [The Applicant]’s thought processes are normal. He is not psychotic, and his capacity for reality testing is not impaired. His approach to moral reasoning is unsophisticated, but he is clearly aware of the wrongfulness of his conduct and its likely consequences. [the Applicant] has developed simple spoken English-language skills, but he remains easily confused by complexity in English. His limited formal education gives his discourse a ‘concrete’ and unsophisticated quality.
5) While it is difficult to estimate his intelligence without formal testing, there is no indication of intellectual impairment or other cognitive dysfunction.
6) [The Applicant] began to drink heavily and use cannabis soon after his arrival in Australia in a misguided effort to manage occupational and other pressures. He quickly became addicted to cannabis. Soon after he ‘graduated’ to methylamphetamine abuse. His drug addiction deteriorated sharply after that – coming to dominate his life to the detriment of almost all other activities. Criminal offending of increasing severity followed: either directly motivated by his drug habit or reflecting the general disinhibition that his addiction had caused. [The Applicant] received a sentence with treatment conditions in response to his first offending but continued to use drugs until he was taken into custody in 2015 or 2016. He asserts that he has participated in counselling and been abstinent throughout his period in prison and immigration detention.
7) [The Applicant]’s substance use was sufficiently intense to meet DSM-5 criteria for a severe methamphetamine-use disorder as well as a moderate cannabis-use disorder. Assuming that his abstinence has been objectively verified these conditions would currently be specified as in remission, in a controlled environment.
8) [The Applicant] has developed some insight into his drug addiction, but his ability to maintain abstinence in a community setting remains untested. Moreover, a review of his relapse-prevention skills suggests that he would benefit from further counselling and education in this area which should occur in a context of ongoing monitoring and oversight. He informs me that were he to be released he would be subject to the terms of a Community Correction Order. Assuming this were so, it would provide a context where appropriate supervision and support could be put in place.
9) A comprehensive review of risk factors which have demonstrated empirical utility in predicting criminal recidivism suggests that [The Applicant] would pose a Low-Moderate Risk for future recidivism. His past offending shows the operation of a comprehensive range of criminogenic factors. While he has addressed some of these, the indications are that his progress in important areas remains incomplete and/or untested.
10) There is potential for conditions imposed as part of a Community Correction Order (such as drug treatment and testing) to contain the risk of recidivism. Further rehabilitative input also has potential to reduce the risk of further offending in [The Applicant]’s case.”[60]
Oral evidence of Mr Newton
[60] Ibid, pages 9–11.
Evidence in Chief
Mr Newton was asked about the need to distinguish between the different factors which can be said to have been causative in his offending, to which he responded with:
“In determining the relevant interventions necessary it’s important to distinguish between the long term issues, the criminogenic 30 factors, the factors which were germane to each of those criminal events to the extent that’s possible. As well as to be clear about what the present issues are in the applicant’s life and the degree to which those require management, so that it’s, if you like, holistic in its approach encompassing both the current mental state and situation of the applicant as well as those factors that are 35 chronic or long term in nature such as personality disposition, long term behavioural trends, and other historical factors that are relevant to making evaluations about the future prospects that the applicant might have.”[61]
[61] Transcript, 6 August 2019, page 59, lines 28–37.
There followed a question about the period of the Applicant’s absence of drug and alcohol use. In particular, Mr Newton was asked and whether the Applicant’s period of abstinence from drug and alcohol use could be used as a reliable indicator that he had overcome a predisposition to abusing those substances:
“Mr Maloney: Now, in that case taking the date, the latest possible date, for the cessation of drugs based on your interviews with the applicant and your observations as being 2016 and obviously you’ve interviewed him earlier this year recently, is that a significant in terms of – in clinical terms is that period of abstention from drug and alcohol use a significant period in terms of determining somebody’s likelihood of relapse or the firmness of their abstention from substance misuse?
Mr Newton:Yes, typically it is. So the case that a person who has been able to maintain abstinence for an extended duration, in particular typically a period of two years, has significantly moved on from the addiction that had troubled them, so that the physical elements of addiction are typically well and truly put to rest after that two year period. And it would take a much more deliberate choice on the person’s part to return to that addiction rather than a simple re-energising of an addiction that’s (indistinct) rather than dealt with, if I can put it that way. 40 It’s also a significant thing to maintain abstinence in the face of significant stressors and so to have begun a process of treatment, to have begun a process of working through the emotional issues that led to the drug use and to be able notwithstanding the persistence of significant stressors to maintain abstinence is also typically a clinically significant feature. In the applicant’s case, of course, he’s been in custody for the bulk of that period. While would one would like to say that’s an impediment to relapse in my experience it’s not a substantial impediment to relapse. And so I think it is still a significant thing that he has maintained abstinence through that period.”[62]
[62] Transcript, 6 August 2019, page 60 lines 26–47; page 61, lines 1–2.
Mr Newton was then asked about the extent to which the Applicant’s family unit could be used as a protective factor could be used against him. This is what transpired:
“Mr Maloney:              And were the discussions that you had with him about his relationship with his wife and children an extensive part of your interview?
Mr Newton:It was a significant part of the interview, sir, yes.
Mr Maloney:               Was your impression that – well, let me put it this way, would you agree with the assessment of the psychologist on the plea, Dr Cunningham, that his family presented as a strong protective factor in his case?
Mr Newton:Yes, sir. It certainly is a key motivator for him to maintain his behavioural control and a key – it’s a key feature of stability in his life to have his family – would be a key feature in his stability to have his family with him.
Mr Maloney:               And why is that? How does family present itself as a protective factor?
Mr Newton:Well, it works in so many different ways, sir, it provides emotional support, it provides practical support, it provides social support. So the typical factors that lead to relapse are often best contained by a family that is supportive.”[63]
[63] Ibid, page 61, lines 15–30.
Counsel for the Applicant logically proceeded to a question about why the presence of the applicant’s family had not prevented his offending in the past:
“Mr Maloney: And clearly, well, clearly the presence of the applicant’s family hadn’t in the past stopped him from falling into drug misuse and offending. Was your impression that it presented a protective factor in a way that it perhaps may not have previously?
Mr Newton:Well, it’s one of the most disturbing aspects of the applicant’s offending that it took place in the context of his family environment and that’s I think as the County Court judge referred to in her sentencing remarks, one of the aggravating factors of his offending. But certainly his attitude towards his family, as he describes it to me and he described it with a degree of passion and fervour in both our interviews, would differ significantly from the attitude that his offending represents.”[64]
[64] Ibid, page 61, lines 39–46; page 62, lines 1–2.
Mr Newton was then asked about the level of the Applicant’s insight into his offending and extent to which it was reflective the Applicant’s risk of recidivism:
“Mr Maloney: Mr Newton, I just want to take you to a particular part of your report, which is under the heading opinion, so it’s subparagraph 8 of paragraph 58. You say this:
‘Mr Applicant developed some insight into his drug addiction but his ability to maintain abstinence in a community setting remains untested. Moreover a review of his relapse prevention skills suggest that he would benefit from further counselling and education in this area, which should occur in a context of ongoing monitoring and oversight. He informs me that were he to be released he would be subject to the terms of the Community Correction order. Assuming this were so it would provide a context where appropriate supervision and support could be put in place.’
And just adding to that you mention, in fact, above that at 56:
‘35 The best way to reduce Mr Applicant’s risk of recidivism would be to ensure that his drug use remains contained. This could be achieved by the provision of appropriate objective monitoring and treatment. In addition, containment of the influence of negative associates through the imposition of appropriate conditions would also assist. These conditions could be imposed as part of a Community Correction order. In your professional capacity have you been involved in the framing or administration of conditions for CCOs?
Mr Newton: So in my professional work over a number of years I've worked closely with correctional service providers, correctional officers, the Office of Corrections, and parole staff to frame the conditions under which offenders tend for their Community Corrections order or for parole and setting, if you like, the standards for supervision or for monitoring of them in consultation with those correctional staff and then implementing in a clinical context those standards that have been agreed.
Mr Maloney: And as a matter of your expert opinion in terms of preventing or managing a risk of recidivism is a CCO an effective sentencing disposition? Do you have confidence in it?
Mr Newton: Yes, sir. I think it’s been – the modifications that were made to the sentencing regime when CCO’s were introduced have had a very positive impact upon offenders more broadly. They’ve given the court 10 certainly a much broader range of sentencing options and discretion in terms of the programmatic focus they can apply, the duration of supervision, and the ways in which offenders can be monitored, supported, and mandated to participate in community activities and rehabilitative activities. It seems compared to the old regime, if I can put it that way, where there were 15 community based orders and intensive correction orders and intensive correction orders, that flexibility, and the capacity of the correctional system to respond to emergent needs, has resulted in much better outcomes in terms of reducing recidivism and reducing other problems associated with community release schemes in Victoria.”[65]
[65] Ibid, page 62, lines 18–47; page 63, lines 1–19.
Mr Newton was also asked about discussion which he has had with the Applicant regarding further counselling and treatment options and whether the Applicant was genuinely engaged in that process, both presently and for the future.
“Mr Maloney: In addition, it appears from your report that you had discussions with the applicant about other counselling and treatment options that he’d taken advantage of during his time in custody in prison and detention, is that 20 correct?
Mr Newton:Yes, sir, I spoke to him specifically about the counselling he was engaged with at that time. He said that he was meeting, I believe it was by phone, or perhaps by video conference with a counsellor on a weekly basis, that he was intent on continuing that for the foreseeable future, and that he hoped to be able to continue that in person in the event that he were to be 25 released from custody.
Mr Maloney: Did it seem to you that it was genuinely the case, or that he was sincere in saying that those treatment options that he’d taken advantage of, had had an effect on his mindset?
Mr Newton:He did seem sincere, sir, he did seem to be able 30 genuinely to discuss what he had talked about and the benefits he had derived from it, and he spoke with, again, some degree further about his intention to maintain that contact into the future. He spoke, for instance, in the context of discussing his first community correction order, which he had completed successfully, but which hadn’t resulted in him ceasing drug use entirely, and 35 saying how he wished he had had the benefit of treatment like that to which he is currently participating in, so that he would’ve known what he needed to do, and wouldn’t have made that mistake and continued on with a permissive attitude that he had at the end of this disposition, and so that it would’ve ceased after his first attendance rather than after the subsequent ones.”[66]
[66] Ibid, page 64, lines 17–39.
Evidence in cross-examination

In 2003, Deputy President Block of this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[100]
[100] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 11.3(1) of the Direction leads a decision maker to:
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”[101]
[My underlining]
[101] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”), Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.” [102]
[My underlining]
[102] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”), Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[103] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [104]
[My underlining]
[103] [2019] FCA 500. Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the visa cancellation decision. In those latter circumstances, the relevant paragraph is 9.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 9.3 for visa cancellation matters.
[104] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[105]
[105] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[106]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[107]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard to those statements, if made;[108]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[109]
[106] Afu at paragraph [85].
[107] FYBR at paragraph [42].
[108] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[109] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
I have noted the totality of the Applicant’s unlawful conduct spanning the period of 2011 to 2015. His offending culminating in the sentencing imposed upon him in February 2017 can, on one view, be found to have breached the expectations of the Australian community. As against that, the Applicant has decent prospects of re-establishing himself in the Australian community, both as member of that community and as part of his family unit. With specific reference to his family, I again refer to the significant psychological issues and challenges facing his eldest child, Child M. For present purposes, I accept the findings of Mr Newton that the Applicant is at a low-moderate risk of re-offending provided the ‘unknown variables’ motivating his past conduct can be the subject of sufficient remedial management and control.
The ultimate determinant of whether the Applicant has experienced a deterrent effect from the sentencing regime imposed upon him in February 2017 ultimately depends on how he re-integrates into the general community. Encouragingly, he had spent eight months on bail in the general community , during which that period passed without moment or trouble. It is not only the Applicant who seeks the benefit of him experiencing him a deterrent effect. Others – most notably his loyal, loving and devoted wife and their three biological children – desperately need him to return to their lives and for him to resume his fatherly and paternal duties. At a more basic level, if he fails again in discharging this duty and returns to a life of committing crimes to earn his livelihood, then the respondent would (and in my respectful view, should) take necessary steps to remove any future visa from him.
In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(a)the level of the Applicant’s positive contributions to the Australian community;[110]
(b)the Applicant lived in the Australia for approximately 10 years up until sentencing in February 2017;[111]
(c)the continued absence of the Applicant will have a very significant adverse impact on the relevant three minor children – particularly Child M - and his wife of 13 years, all of whom are in Australia and Australian Citizens;[112]
(d)the overall nature of the Applicant’s offending, including the serious offending for which he was sentenced to a custodial term in February 2017;
(e)the nature of the totality of his conduct in this country, involving, as it does, a period of less than five years from March 2011 to October 2015;
(f)The current, independent and expert evidence of Mr Newton, attesting to: (1) the Applicant’s level of insight into his offending, (2) his acceptance of culpability for his previous offending, (3) the support structure afforded to him via the stable and lengthy natures of both his marital relationship and strong parental relationship with his children;
(g)further to (vi), the low chance of re-offending with appropriate management and control of the circumstances which have tended to trigger the Applicant’s past offending;
(h)my assessment of the risk of harm to the Australian community is serious, were he to re-offend in a similar manner (i.e drug trafficking in drugs of dependence); and
(i)My finding of a low to moderate likelihood that he will engage in any further serious conduct if returned to the Australian community.
[110] The Direction, paragraph 6.3(7).
[111] The Direction, paragraph 6.3(5). I note that this period includes any period the Applicant was removed from the community while incarcerated or in immigration detention prior to 2017.
[112] Ibid, paragraph 6.3(7).
Having regard to the above factors, I am of the view that they militate in favour of a finding that there is an unacceptable risk that this Applicant will again breach the trust the Australian community placed in him to obey Australian laws. Further, I do not accept that the nature of this Applicant’s character concerns or offences are such that the Australian community would expect that he should continue to hold a visa.
I am mindful of the deemed community expectation contained in the observations of their Honours Charlesworth and Stewart in FYBR (Full Court)[113]:
“It is not for the decision-maker to make his or own assessment of the community expectations and to give that assessment weight as a ‘primary consideration.’...I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[114]
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[115] The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in order to reach an evaluative assessment of ‘appropriateness’.”[116]
[My underlining]
[113] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[114] Ibid, at paragraph [67] (per Charlesworth J) and paragraph [104] (per Stewart J).
[115] Ibid, at paragraph [101] (per Stewart J) and paragraph [76] (per Charlesworth J).
[116] Ibid, at paragraph [97] (per Stewart J).
I have had regard to principle 6.3(3) of the Direction and appreciate that non-citizens convicted of a serious crime should generally expect to be denied the privilege of staying in Australia. However, the factors I have identified at paragraph [152], which are, in my respectful view, properly supported by the evidence support a finding that this case falls within the category of cases giving rise to a “general expectation” that the subject visa should not be granted.
Conclusion: Primary Consideration C
I therefore find that while the Australian community might consider that this Applicant, via his offending, has breached the trust they have placed in him to obey Australian laws while in Australia, the Australian community would generally expect this Tribunal to exercise the power conferred by s 501(1) of the Act to refuse to grant the subject visa sought by the Applicant. I accordingly find that this Primary Consideration C is of moderate weight in favour of refusing to grant the subject visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 12 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c), and (d).
(a) International non-refoulement obligations
The contention from the Applicant that he derives some measurement of weight from this sub-paragraph (a) because of a possibility that he will, upon a return to Lebanon, be faced with significant economic hardship arising from a difficulty or denial of opportunities to earn a livelihood. He further contends that he will trouble in subsisting in Lebanon because he will experience a denial of basic services.
The Applicant further contends that he has fears of harm about returning to Lebanon due to (1) him being a returnee from Australia, and (2) apparent contentions between the resident Lebanese population and Syrian refugees.
I respectfully agree with the contentions of the Respondent that none of the Applicant’s contentions support any claim or engagement of Australia’s non-refoulment obligations. There is no evidence from the Applicant suggestive of or demonstrative of him experiencing any hardship or denial of the essentials of life in Lebanon as a result of his, religion, nationality, membership of a social group, or political opinion.
The evidence did not support his claimed fear of harm arising from the apparent proximity of his home village to the Syrian border. Indeed, the Applicant has previously told this Tribunal that experienced no such fear as a result of his home village being close to the Syrian border. This is what transpired during the previous Tribunal’s hearing of 9 February 2018:
“Mr Hughan:    You mentioned that you were close to the border with Syria; is that so?
JZNV:Yes, about half an hour you’d be in Syria.
Mr Hughan:     Sorry?
JZNV:             About half an hour or 40 minutes you’d be in Syria.
Mr Hughan:Does the proximity of being close to Syria have any impact on the area that your family live in?
JZNV:             No, no impact.”[117]
[117] Transcript of the previous Tribunal, 9 February 2018, pages 9 and 10.
The country information material before the Tribunal indicates that the Applicant has a right to settle in Beirut. As the major metropolitan area in Lebanon, Beirut would offer the Applicant significantly greater employment opportunities and access to services than would be available in his more remotely located village.
(b) Impact on family members
Paragraph 12.2 is specifically concerned with an assessment of the impact that refusal of the visa would have on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. For present purposes, those “immediate family members in Australia” comprise (1) the Applicant’s Wife and (2) his three biological children.
The Respondent made the following limited concessions:
(a)“The applicant’s wife and children reside in Australia, as do members of his extended family. The Minister accepts that there would be a negative impact on these Australian citizen family members, and that it would be difficult for them emotionally, if the visa was refused. This ‘other consideration’ should be given some weight against affirming the visa refusal decision.”[118]
(b)“It is also accepted that affirming the refusal of the visa would have a significant adverse effect on his wife”.[119]
[118] Respondent’s SFIC, paragraph 54.
[119] Respondent’s Closing Submissions, paragraph [20].
The Applicant made the following submissions:
“Turning finally to the impact on family members of a decision to refusal the Applicant’s visa application: the effect on the Applicant’s children has already been addressed. Those submissions are reiterated, and, with respect, must be given distinct weight in relation to this consideration. The impact of the Applicant’s departure on his wife [redacted] is made clear from her statutory declaration; as well as the report of Ms Mona Shafiq, [redacted] treating mental health professional, who reports that she is suffering from symptoms consistent with depression, anxiety and post-traumatic stress disorder, which are lined to her concerns about the possibility of the Applicant’s removal, and the consequences for him, for herself and for their children.[120] Clearly, each of the three children is a long way from adulthood and the potential burden faced by [Applicant’s Wife] of raising them single-handedly is immense – not least because of [Child M]’s disability and the specific needs, and potential costs, to which this gives rise. That burden will only further imperil [Applicant’s Wife]’s mental health, which in turn may have a negative impact on each of the three children.”[121]
[120] Report of Mona Shafiq, 28 June 2019.
[121] Applicants SFIC, paragraph 66.
Earlier in these Reasons, I have had regard to the evidence about the effect of the Applicant’s physical absence from the lives of the three infant children. It is clear from the evidence that the physical absence of the father from the lives of the three infant children, as they grow and develop, will result in adverse outcomes for these children.
To my mind, there is a strong level of weight attributable to this Other Consideration (b) in favour of the Applicant on the basis that refusal of the visa he seeks will significantly and adversely affect his loyal, loving and devoted wife in this country. It is clear and undeniable on the evidence that she, virtually on her own, carries the burden of being the sole and primary carer for her three children. While I have earlier spoken of the anticipated of the remedial role the Applicant could be expected to play in the life of Child M, it the Applicant’s Wife – on her own - who deals with Child M’s acute difficulties deriving from his intellectual disability of ADHD and associated difficulties with language, speech, motor skills and emotional regulation.
In her evidence, the Applicant’s Wife made it clear that the scale and complexity of Child M’s issues have been escalating as he becomes older. It is entirely understandable that the constant physical, emotional and financial pressures on the Applicant’s Wife in solely meeting the parenting and other home maker requirements are taking a toll on her. She spoke of assistance she did receive from her friends and relatives, in both a financial and practical sense. However, she also spoke of such benevolence not being never ending and that were something to happen to her primary support (her mother), she would be confronted with the sole responsibility of looking after the children and herself. She also carries the burden of uncertainty about the outcome of this matter for the Applicant
Unsurprisingly, this constant stricture, pressure and difficulty has taken an emotional toll on the Applicant’s Wife. She has been compelled to seek professional help and the clinical opinion is that she suffers from anxious distress, post traumatic stress and depressive disorder. There is a report from a Mental Health Clinician, dated 5 July 2019, noting the following:
Background
…
[The Applicant] appeared in court for his criminal case where the judge revoked his bail, further his Bridging visa was cancelled by Department of Immigration. Further he served his sentence and was transferred back in detention, [The Applicant’s Wife] expressed she doesn’t know how long it would take him to finish there as, she feels hopeless about the situation.
[The Applicant’s Wife] appeared upset about the ordeal she has been through regarding her husband. [the Applicant’s Wife] expressed she cannot express how she feels as the ambiguity about his husband’s situation has made her very anxious, in turn impacting on her 3 very young children. [The Applicant’s Wife] expressed mentally she feels she incapable of living her life the fullest, often she stays up whole night wondering and worrying about the family’s future and where it’s leading towards.
[The Applicant’s Wife] expressed worry that their children are showing signs of stress ever since their father was shifted out of Melbourne, to Perth detention centre. Reported 11 year Son is expressing anger behaviours and fear at home and school.
[The Applicant’s Wife] reported that her son had pre existing behaviour issues even before his father’s move to Perth, however his behaviour has significantly deteriorated after his move.
[The Applicant’s Wife] reported that her son usually is up all night, saying he feels scared as if someone is waiting for them outside their house, reported ‘hearing noises’. Currently, he is seen by a paediatrician to improve his mental health & emotional well being. [The Applicant’s Wife] said she feels as if her son is losing hope ‘if his father is ever going to come back to the family home’, sees him suffering from low modes often at home and school. He’s been behind in studies lately, lack of social interaction and certain detachment with his surroundings, possible indication of depression.
[The Applicant’s Wife] expressed that the situation makes her even more worried, like what would happen to my son if he doesn’t get to see his father for the next few years. [The Applicant’s Wife] further reported her young daughter suffers from similar fears, at times runs to strangers calling out ‘father’, to unknown men. She then falls very silent when told that its not her father.
[The Applicant’s Wife] expressed she feels she is getting punished along with her husband, as she is facing the consequences of financial and social hardships.
[The Applicant’s Wife] expressed she has to struggle calming her down by telling her that her father would be back soon, but getting harder to settle her with time.
Current Symptoms/Behaviors: (DX supported by DSM-IV diagnostic criteria):
Upon Mental Health assessment, [The Applicant’s Wife] expressed she has been anxious about her future in the marriage. Feels fearful and hopeless in life in general, [the Applicant’s Wife] expressed she feels doesnt know how things would happen if her husband was to be deported to Lebanon, as she cannot see her children living in war torn areas of the volatile region as the family house is close to Lebanon/Syrian border.
[The Applicant’s Wife] exhibited sad and anxious appearance, often in tears. [The Applicant’s Wife] said it was hard to find words to express herself, this could be due to unstable emotional state of mind. Clearly, [the Applicant’s Wife] is affected by post traumatic stress, unresolved grief and depressive mood.
Observation through all sessions so far include; slow in speech, lack of concentration, not being able to reply to the questions, fears and worries.
She denied hallucinations, delusions, obsessions or compulsions. Activity level, attention and concentration were observed to be in normal limits.
Further Observations
[The Applicant’s Wife] has exhibited symptoms like;
Affective symptoms
Depressed mood
Irritable mood
Low motivation
Lack of interest in usual activities
Loss of appetite in usual activities
Loss of appetite or increased appetite
Weight loss
Insomnia
Psychomotor agitation
Fatigue
Low energy
Cognitive Symptoms
Feelings of worthlessness
Excessive guilt
Rumination
Pessimism
Hopelessness
Impaired concentration
Difficulty making decisions
The [DSM], suggests that [The Applicant’s Wife] presents with symptoms and behaviours that are consistent with DSM-5 diagnosis of Depressive Disorder, Mild (296.21), with Anxious Distress, associated with Post Traumatic Stress.”[122]
[Errors, emphasis and underlining in original]
[122] Supporting Documents for the Applicant, Document 10, Barry Road Medical Centre Report, dated 5 July 2019.

I found the evidence from the Applicant’s Wife to be both candid and compelling. I agree with the contention made on behalf of the Applicant about her evidence:
“…indeed, not withstanding the Applicant’s own candour, it may be that the Tribunal can give even greater credence to her evidence because of the unique position in which she finds herself. For her, the impact of the Applicant’s offending is real and immediate, as is the need to protect her children and herself in the future. He evidence made clear that she had not taken lightly the decision to give the applicant an opportunity to redeem himself by returning to the family; nor lightly reached the view he had made sincere and meaningful commitment to change.”[123]
[123] Applicant’s Closing Submissions, paragraph [36].
The further contention put on behalf of the Applicant is also correct:
“…this is a case where the Applicant’s difficulties have become the difficulties of his family. To send him back to Lebanon would be to catastrophically impact the lives of [Applicant’s Wife] and her children – one of whom is an exceptionally vulnerable child who must be given every opportunity to succeed.”[124]
[124] Applicant’s Closing Submissions, paragraph [37].
Having regard to the evidence of both the Applicant’s Wife and the Applicant himself about the very serious impact his absence will have on the family – in particular, for the purposes of Other Consideration (b), the Applicant’s Wife and Child M. The very serious adverse outcomes for the Applicant’s Wife and for Child M were the Applicant to be removed from Australia, are corroborated by independent medical/clinical opinion.
I am thus of the view that a heavy level of weight is attributable to this Other Consideration (b) in favour of the Applicant on the basis that refusal of the visa he seeks will significantly and adversely affect his wife and three biological children – especially Child M, all of whom are Australian citizens and residing in Australia.
(c) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant remaining in Australia would have on any victim(s). In the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s return to Australia would have on any victim(s). Accordingly, I cannot find that this Other Consideration (c) attracts any weight either in favour of, or against, the granting of the Applicant’s visa and is thus neutral.
(d) Impact on Australian business interests
There is no evidence before the Tribunal suggesting that refusal to exercise the power to grant the Applicant’s visa would significantly compromise the delivery of a major project or delivery of an important service in Australia. I thus allocate neutral weight to this Other Consideration (d).
Findings: Other Considerations
The application of the Other Considerations in the instant application can be summarised as follows:
·international non-refoulement obligations: not relevant;
·impact on family members: of very heavy weight in favour of granting the subject visa;
·impact on victims: not relevant; and
·impact on Australian business interests: not relevant.
CONCLUSION
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should not exercise the power conferred by s 501(1) to refuse to grant the subject visa to the Applicant.
In reaching this conclusion to not exercise the power, I have had regard to the considerations referred to in the Direction. With regard to the weight allocable to each of these Primary and Other Considerations, I find as follows:
·     Primary Consideration A weighs moderately, but not determinatively, in favour of exercising the discretion to refuse to the subject visa;
·     Primary Consideration B weighs heavily in favour, but not determinatively, against exercising the discretion to refuse to grant the subject visa;
·     Primary Consideration C weighs moderately, but not determinatively, in favour of exercising the discretion to refuse to the subject visa;
·     Other Considerations (a), (c) and (d) are of either neutral weight or not relevant to this consideration;
·     Other Consideration (b) weighs heavily in favour of not exercising the discretion to refuse to grant the subject visa;
·     To be clear, the combined heavy weight I have respectively allocated to Primary Consideration B and Other Consideration (b) is determinative and outweighs the weight attributable all other Primary and Other Considerations, alone or combined.
· A holistic application of the considerations in the Direction to the evidence therefore militates in favour of this Tribunal not exercising the discretion to refuse to grant the subject visa to the Applicant.
Consequently, I do not exercise the power conferred by s 501(1) of the Act to refuse to grant the subject visa to the Applicant.
DECISION
The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s 501(1) of the Migration Act 1958 (Cth) to refuse to grant the subject visa to the Applicant.

I certify that the preceding 189 (one hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.....................[sgd]...............................................
Associate
Dated: 30 June 2020

Date of hearing: 6 and 7 August 2019

Representative for the Applicant:

Solicitors for the Applicant:

Mr J. Maloney (Counsel)

Carina Ford Immigration Lawyers

Representative for the Respondent:

Solicitors for the Respondent:

Ms S. Nyabelly

Australian Government Solicitor

[2020] AATA 3800

30 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Court	Court Date	Offence	Court Result
Melbourne County Court	Feb 2017[17]	Traffic Drug of Dependence	8 months imprisonment and two years community corrections order commencing upon release
Traffic Drug of Dependence	8 months imprisonment (six months to be served concurrent) and two years community corrections order commencing upon release
Possess A Drug of Dependence	7 days imprisonment (Concurrent) and two years community corrections order commencing upon release
Broadmeadows Magistrates Court	May 2015[18]	Drive whilst authorisation suspended Use unregistered motor vehicle – highway State false name Resist Police (two charges)	Without conviction, fined an aggregate of $3,500
Dec 2014[19]	Possess Cannabis Possess a Schedule 4 Poison	On each charge: with Conviction, fined an aggregate of $1,500
Possess Prohibited Weapon without exemption/ approval (two charges)	With conviction, fined an aggregate of $1,500
Melbourne Magistrates Court	Feb 2014[20]	Behave in riotous manner in public place	With conviction, fined $1000
Broadmeadows Magistrates Court	Dec 2011[21]	Possess methylamphetamine Possess amphetamine Possess imitation general category handgun Possess ammunition without a licence	On each charge: convicted, community based order to perform 150 hours of unpaid community work