Kassem and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 2855

Kassem and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2855 (1 September 2022)

Division:GENERAL DIVISION

File Number(s):      2018/2773

Re:Hussein Kassem

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM QC

Date:1 September 2022

Place:Sydney

The decision under review is affirmed.

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Deputy President B W Rayment OAM QC

Catchwords

CITIZENSHIP – where approval of citizenship has been cancelled – where applicant’s visa has also been cancelled – relevant law and material considered – decision under review affirmed.

Legislation

Australian Citizenship Act 1948 (Cth)

Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

Cases

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123

Kassem v Minister for Home Affairs [2019] FCA 1196; (2019) 271 FCR 1

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

1 September 2022

1. This review relates to a decision made on 2 May 2018 to cancel the applicant’s deemed approval of his application for citizenship. The applicant would, but for the cancellation of his approval for citizenship, have been eligible to make a pledge of commitment and become an Australian citizen.

2. The history of the application for citizenship is that it was made under s.13 of the Australian Citizenship Act 1948 (Cth) (the former Act) on 15 June 2000, when the applicant was 32 years of age, having arrived in Australia some 23 years earlier. He then held a class BF transitional (permanent) visa. His application was approved under the former Act on 20 June 2020.

3. The Departmental records were out of date and the invitation to attend a citizenship ceremony was sent to an old address, and was not received by the applicant, who therefore did not attend the ceremony. In May 2001 a decision was made to revoke the grant of a certificate of citizenship because he had not attended the citizenship ceremony and his whereabouts were then unknown. The revocation was found to be invalid and as at the date of commencement of the current Act, the Australian Citizenship Act 2007 (Cth) (the Act) the approval was taken to have been given under s.24 of the Act.

4. The applicant was then convicted of a number of offences, and on 19 April 2017, pursuant to s.501(3A) of the Migration Act 1958 (Cth) (the Migration Act), the applicant’s visa was the subject of mandatory cancellation. The Minister invited the applicant to seek revocation of the cancellation of his visa, and to make representations as to whether he passed the character test and whether there was another reason why the cancellation should be revoked.  The applicant failed to seek revocation of the cancellation within the time specified for him to do so.

5. On 2 May 2018 the Minister’s delegate decided under s.25 of the Act to cancel the applicant’s (deemed) approval under s.24 of the Act, on the ground specified in s.25(2)(b) (i) that the applicant was not, (in the light of the mandatory cancellation of his visa), a permanent resident of Australia. That is the reviewable decision for the purposes of the present review.

6. The applicant sought review of the reviewable decision in the Tribunal. An earlier Tribunal decision which affirmed the reviewable decision was set aside by the Federal Court in Kassem v Minister for Home Affairs [2019] FCA 1196; (2019) 271 FCR 1 (Stewart J). Stewart J remitted the matter to the Tribunal for determination according to law.

7. Before the earlier Tribunal, before Stewart J, and also before me, the applicant urged that if he were returned to Lebanon, he would face harm for several reasons.  He submitted to the earlier Tribunal and to me that for those reasons the discretion to cancel his approval for citizenship should not be exercised. 

8. When the matter was before the earlier Tribunal and before Stewart J, the position was that if the applicant became a citizen he would no longer be subject to likely removal to Lebanon, and would no longer need a visa to remain in Australia. At that stage, since he had failed to apply to revoke the cancellation of his visa, it could not be restored by a delegate and could not be made the subject of an application for review in this Tribunal. His only other possible remedy to avoid return to Lebanon would have been to apply to the Minister for the Minister to exercise his personal, non-compellable power to grant another visa under s.195A of the Migration Act to allow him to remain in Australia. Assuming the decision-maker were persuaded that the applicant would suffer serious harm if he were returned to Lebanon, the case to set aside the cancellation of the applicant’s approval for citizenship would have been stronger than it now is, because of an intervening circumstance, which occurred after the earlier Tribunal decision and after the hearing before Stewart J. On 13 December 2021 the Department of Home Affairs informed the applicant that the prior notification and invitation to make representations seeking revocation of the mandatory cancellation of his visa was invalid in accordance with the Full Court decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174. Accordingly, the Minister reissued a notification to the applicant inviting him to make representations for the revocation of the cancellation of his visa. On 28 December 2021 the applicant made representations for that purpose under s.501(CA)(4) of the Migration Act, and the matter is currently the subject of consideration. No decision has been made at Departmental or Ministerial level. That is the state of affairs at the present time.

9. If the matter were now decided at departmental level or by this Tribunal on review, the current direction made under s.499 of the Migration Act (Direction 90) would require the decision-maker to take into account a non-exhaustive list of mandatory considerations together with any relevant matter. The harm representations urged by the applicant could, on any view, be taken into account by the decision-maker (including the Minister, if he made the decision personally) in deciding whether or not to revoke the cancellation of the applicant’s visa, whether or not the harm representations attract protection obligations: See Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 (Robertson J).

10. I turn to the particular facts and circumstances of the applicant’s case, which may bear on the proper exercise of discretion under s.25 of the Act, including the harm representations, found by Stewart J to be considerations necessary to be taken into account when exercising discretion under s.25.

11. Today the applicant is 55 years old.  When he arrived in Australia he was accompanied by his mother and father and two of his siblings. They came from Lebanon on 25 May 1977, when the applicant was aged 9, and he has spent all of his life here since 1977. When he arrived here, Lebanon was a war-torn country, and in a civil war. It also had political strife, as it does again at this time. The country was under constant attack, and when the applicant was 6 years old he was shot in the hip during a raid, he experienced prolonged pain.

12. On arrival, he spoke only Arabic, and here he learned English and lost his Arabic through disuse. He now only speaks it in a broken fashion. When he was 19, his father, on whom he relied greatly for mental and emotional support, unexpectedly died. Eighteen months later, his elder brother was crushed by a motor vehicle and became disabled. The applicant shared in his care at home.

13. The applicant began taking drugs recreationally when his father died.

14. In 2000 the applicant married and he and his wife had a daughter in 2006. The marriage broke down and the wife took their infant daughter away. The applicant immediately descended into daily use of drugs, including cocaine and crystal methamphetamine (ice).

15. Drug addiction and mental health issues from both of which the applicant still suffers led the applicant into a long criminal history, involving many convictions including terms of imprisonment of varying lengths, which led to the mandatory cancellation of his visa, and a long period of detention under the Migration Act, which still continues at present. Prior to the first hearing before the Tribunal, steps had been taken by the department with a view to deportation of the applicant to Lebanon. Those steps are not being taken at present, in view of the current review, and the steps taken by the department in recognition of the invalidity of the earlier invitation to the applicant to make representations with a view to the revocation of the mandatory cancellation of his visa.

16. His criminal record (which had consisted mainly then of motor vehicle offences punished in 2000 and 2005 by fines) multiplied from 2006 to include offences relating to possession of housebreaking implements, custody of an offensive implement in a public place, larceny as a bailee, breach of an apprehended domestic violence order, multiple motor vehicle offences including a police pursuit at speed in 2015. The motive for some of those offences may well have been to feed his drug habit. From 2009 there were convictions for drug offences. The punishments until 2010 were non-custodial, consisting of fines and good behaviour bonds, although he had spent some time imprisoned on remand awaiting trial. In 2011 he was sentenced to a term of imprisonment. After 2011 his record included several periods of incarceration and the mandatory cancellation of his visa, following which he was taken into detention in 2017.  He remains in detention. A 2014 incident led to his longest period of incarceration after a jury trial. He there faced, with others, an indictable offence of which he was acquitted by the jury, and another crime which appears to have involved an assault, in company on a person who had stolen his prescription medicine of Xanax. While he was on bail for that offence he was involved in another motor vehicle offence which involved a high speed pursuit by police. That was, I think, his offence most dangerous to others, which did not in fact cause injury to any other person.

17. Most, perhaps all, of his offending stems from a drug addiction and long-standing mental health issues. In his earlier years, there was no criminal conduct. His criminal life, together with daily drug-taking began in earnest when his daughter was removed from him by his wife in 2006. He was then aged 39.

18. He very clearly needs intensive rehabilitation, for both his drug addiction and his mental health problems. He has not been given rehabilitative treatment despite attempts made to bring about that result in 2011, when for a short time he was admitted to Odyssey House. While in detention, he has not only not been rehabilitated, but his drug addiction has been kept alive, because drugs are available in detention. and the absence of rehabilitation means he is not yet ready for reconnection with the community, which setting aside the cancellation of his citizenship approval would entail.

19. His visa cancellation proceedings are pending, and would continue if the cancellation of the approval of his citizenship were affirmed.

20. Returning him to Lebanon, where he has no relatives, where he is unlikely to obtain employment, where his Arabic is poor, where he has no accommodation, and where the currency is now at ten per cent of its recent value, where 80% of the population lives in poverty and with his mental health problems and drug addiction, where government services, no doubt including mental health services suffer from the poor economy, and where he would be separated from his immediate family, may be catastrophic for him, even leading to his early death. For a man in his fifties, who has lived here almost all his life, sending him back to Lebanon may actually be legally unreasonable in those circumstances, and the matters stressed in the reasons of Stewart J tend to support such a view. 

21. That is not to say that the applicant is bound to succeed in his pending application for revocation of the mandatory cancellation of his visa. If he is owed protection obligations under the Migration Act, the effect may be to make his detention extend indefinitely, constantly with the provisions of s.197C of the Migration Act. The case for the applicant does not depend on the existence of protection obligations, whether under the Migration Act or by internationally binding treaty obligations. The personal harm which the applicant will suffer if returned to Lebanon raises very serious humanitarian concerns.

22. Since detention has not and does not at the present time involve rehabilitation, leaving him in detention for a prolonged or indefinite period will be likely to further exacerbate his mental health issues, including his now longstanding drug addiction. 

23. The purpose of immigration detention is not to punish those who have already served their time in prison. A residential determination permitting and requiring him to undergo long-term intensive rehabilitation in an institution such as Cyrenian House in Western Australia or Odyssey House in Sydney would be worthy of consideration by the respondent Minister in my opinion. It cannot be compelled, but is within the Minister’s discretion. A residential determination, if made, has a coercive element that voluntary entry to such an institution does not have. The applicant’s entry to Odyssey House in 2011 would likely have been very beneficial if it were completed rather than terminated early. The fact that the applicant has spent most of his life here and has many siblings residing permanently in Australia could be taken into account by the Minister.

24. Nor does the history of the applicant suggest that he is without good qualities. He was the main support person for his disabled elder brother, and his elderly mother. The brother is now an NDIS participant and he lives with siblings of the applicant. The applicant would wish to help hm again.

25. Ultimately, if the applicant is rehabilitated, he has his whole immediate family living in this country with whom he could reconnect. He has, in all, 13 surviving siblings living here.

26. While in my opinion, the best result for the applicant would be for the Minister to make an appropriate residential determination, in the present circumstances the applicant’s pending proceedings under the Migration Act will ultimately depend on discretion exercised by decision-makers, and one possible result of those proceedings, apart from deportation, is prolonged, indefinite detention, which would achieve no beneficial result.

27. On the other hand, it does not seem to me that rather than allow the revocation proceedings to proceed, the applicant ought to be now accorded citizenship. If he made a fresh application for citizenship, even if he were then a permanent resident, it would likely be refused citizenship on character grounds. His life would need to be turned around, following rehabilitation, before a future application for citizenship could possibly succeed.

28. The applicant is no longer in the position that his deportation to Lebanon would follow from the refusal of his application to set aside the cancellation of his citizenship approval. At the present time, he is in a similar position to other detainees whose visas have been the subject of mandatory cancellation and who are attempting to have the cancellation revoked. The errors which have led to the present circumstances of the applicant in bringing the present application for review are very exceptional, but do not in my opinion justify a discretionary order setting aside the cancellation of his citizenship approval. The cancellation of his citizenship approval will be affirmed.

29. I express my appreciation to counsel on both sides in this review for their assistance in this difficult case. Mr Chatterjee and his instructing solicitors, Birchgrove Legal, have commendably conducted this review and the earlier Tribunal proceedings and the proceedings before Stewart J, pro bono.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 1 September 2022

Date(s) of hearing:	3 May 2022 & 5 August 2022
Counsel for the Applicant:	Mr I Chatterjee
Solicitor for the Applicant:	Ms F Alrubaie, Birchgrove Legal
Counsel for the Respondent:	Mr P Knowles
Solicitor for the Respondent:	Ms H Dejean, AGS