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

[2024] AATA 2409

KCKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2409 (5 July 2024)

Division:GENERAL DIVISION

File Number(s):      2024/2543

Re:KCKJ  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:5 July 2024

Date of written reasons:        12 July 2024

Place:Sydney

The reviewable decision dated 19 April 2024 is set aside; and in substitution, the cancellation of the Applicant’s Class BC Subclass 100 Partner visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Migration Act.

..................................[SGD]......................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

MIGRATION – Migration Act 1958 (Cth) – non-revocation of mandatory visa cancellation – Direction No. 110 – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – supply of large commercial quantity of methylamphetamine – low risk of reoffending – where applicant has strong familial ties to Australia – consideration of DFAT travel advice in light of ongoing Israel and Hamas conflict – decision under review set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

JXGQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3610

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, ‘Lebanon Travel Advice & Safety’, Smart Traveller (Web Page) No. 110 – Migration Act 1958 (Cth) – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Reuters, ‘Israeli drone kills deputy Hamas chief in Beirut’, Reuters (online, 3 January 2024) < FOR DECISION

Emeritus Professor P A Fairall, Senior Member

12 July 2024

1. KCKJ (the Applicant), was born in Lebanon in 1985 and is presently 39 years old.[1] His wife, TEZ, an Australian citizen, was born in 1984. They were married in Lebanon in 2016. In 2018, he came to Australia to take up permanent residence with TEZ. He found gainful employment. In 2019, he spent five months in Lebanon attending to family matters, including his father’s ill health. In 2020, the coronavirus pandemic struck and he lost his job.

   [1] G12, 196.

2. On 1 September 2020, he was arrested for being unlawfully involved with two others in the unlawful supply of MDMA[2] and cocaine. He was released on bail on 29 April 2021 after being on remand for four months. On 26 October 2022, he was convicted by the District Court of New South Wales and sentenced as a first offender to four years and two month’s imprisonment on three counts. There was some uncertainty as to his precise role in the offending, but he was sentenced on the basis that his was a subordinate role.[3] His co-offenders were sentenced to much longer sentences, being twelve and seven years respectively.[4]

   [2] Methylenedioxymethamphetamine: G9, 114; G13, 447.

   [3] G7, 99.

   [4] G7, 109.

3. On 21 March 2023, the Applicant’s Class BC Subclass 100 Partner visa (visa) was mandatorily cancelled, pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (Migration Act). On 19 April 2024, a delegate of the Respondent decided not to revoke the cancellation decision.

4. On 26 April 2024, the Applicant applied to the Tribunal for review of the non-revocation decision under subsection 501CA(4) of the reviewable decision.

   THE HEARING

5. The matter came before the Tribunal on 4 and 5 July 2024. The Applicant was represented by Mr D. Godwin, the Respondent by Ms N. Maddocks.

6. The Applicant gave evidence and was cross examined on his various statements dated 5 July 2023,[5] 18 March 2024,[6] and 30 May 2024.[7]  He was assisted by an Arabic interpreter. He did not deny his involvement in the criminal offending. He was contrite and expressed remorse for his offending. He did not deny that was aware that his offending involved drugs although he was very much a minor player, providing some support for a friend rather than seriously motivated to benefit financially. He said that he was paid in drugs for personal use and did not receive any money. He said that he had not been in trouble with the law before but was very depressed when the pandemic hit and he could not work or support his family. He started using drugs as an escape and became addicted. He had not used drugs since his arrest and had no intention of doing so again. The fear of deportation had caused much anxiety and depression to him and his family. He was very worried about his wife and not seeing his daughter and stepchildren children again if he was deported to Lebanon, a country which he did not consider to be safe. His mother and father lived there but his father was not well, and they could not support him financially. There were constant power interruptions and communication with his family would be very difficult.

   [5] G13, 460.

   [6] G13, 534.

   [7] Member’s file, item 4.

7. The Applicant’s wife (TEZ) gave evidence to the Tribunal. She provided four statutory declarations dated 4 July 2023,[8] 15 November 2023,[9] 18 March 2024,[10] and 28 May 2024.[11]

   [8] G13, 319.

   [9] G13, 500.

   [10] G13, 538.

   [11] Member’s file, item 5a.

8. In oral evidence she said that she and the Applicant had been married since 2016. She said that she had read all the documents and knew what happened. She understood that it involved drugs. She said that while she lived with him there were no signs of drinking or taking cocaine. She was aware that he suffered from schizophrenia. He told her before he came to Australia in 2018. She did not know that he was self-medicating or involved with drugs. He started taking his Seroquel tablets around August 2022 when he was released on bail, although his condition had been improving even before that.

9. She stood by her statement that her husband was reformed and was not and had never been a ‘hardened criminal’.[12] He was not a bad person.

   [12] G13, 324 [52].

10. She is a mother of four. She had a daughter of four with the Applicant and three children from a previous relationship with NMX, their father. She said that her children from a previous relationship were all very close to the Applicant. Her 21-year-old son QWD had moved in when he was arrested. Her 19-year-old daughter RTY was studying, and her teenage son HNJ was still at school. She also cared for her mother who had Huntington’s disease.[13]

    [13] See letter from Physiotherapist, dated 24 May 2024: Member’s file, item 9b(iii).

11. The Tribunal also received oral evidence from Mr Watson-Munro, a forensic psychologist who frequently appears in this jurisdiction. His evidence is referred to more fully below.

    FINDING ON CHARACTER TEST

12. A person sentenced to a term of imprisonment of 12 months or more does not pass the character test, by reason of the combined operation of paragraphs 501(6)(a) and 501(7)(c) of the Migration Act.

13. The Applicant was convicted of two counts of ‘supply prohibited drug>=large commercial quantity-SI’ and one count of ‘supply prohibited drug>indictable & commercial quantity-T1’.[14] He was sentenced to an aggregate term of imprisonment of four years and six months, with a non-parole period of two years and three months. Clearly, the Applicant does not pass the character test as defined. The sole question for the Tribunal is whether, pursuant to subsection 501CA(4) of the Migration Act, there is ‘another reason’ why the decision to cancel his visa should be revoked.

    [14] G9, 114.

    EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)

14. Section 499 of the Migration Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers.

15. Direction No. 110 (the Direction) commenced on 21 June 2024. It modifies the previous direction (Direction No. 99) to emphasise that the safety of the Australian Community is the highest priority of the Australian Government. Like the previous directions, it identifies several considerations to which the Tribunal should have regard in deciding whether there is ‘another reason’ why the mandatory cancellation decision should be revoked, pursuant to subsection 501CA(4). The Direction states that ‘generally’ the protection of the Australian community) is to be given greater weight than other primary considerations and that primary considerations should generally be given greater weight than the other considerations.

16. Part 1 of the Direction provides a set of principles to which the Tribunal should have regard when applying these considerations. I note especially the following principles referred to in paragraph 5.2:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The safety of the Australian community is the highest priority of the Australian Government.

    (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.

    (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

17. Part 2 provides that the Tribunal must have regard to five primary considerations in section 8 and three other considerations in section 9. The considerations identified in the Direction are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes ‘another reason’ within the purview of subparagraph 501CA(4)(b)(ii).

18. The section 8 ‘primary’ considerations are as follows:

    ·Protection of the Australian Community (PC1)

    ·Family violence committed by the non-citizen (PC2)

    ·The strength, nature, and duration of ties to Australia (PC3)

    ·Best interests of minor children in Australia affected by the decision (PC4)

    ·Expectations of the Australian community (PC5)

19. The section 9 ‘other’ considerations are as follows:

    ·Legal consequences of decision under section 501 or 501CA (OC1)

    ·Extent of impediments if removed (OC2)

    ·Impact on Australian business interests (OC3)

    PC1: PROTECTION OF THE AUSTRALIAN COMMUNITY

20. The Direction states:

    8.1 Protection of the Australian community

    (1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

21. Under paragraph 8.1(2), the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

22. In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

23. The Applicant was sentenced on the basis that he was previously of good character. He had a clean criminal record. His role in the offending that led to his criminal offending is therefore important. The Applicant’s representative submits that the Applicant’s role was minor – a driver and lookout.[15]

    [15] ASFIC, 3 [21].

24. I refer to the description of the offending by the sentencing judge, Pickering J, who contrasted the Applicant’s role with that of his co-offenders.

    HIS HONOUR:

    [A]s pointed out by senior counsel on behalf of the offender, the facts are relatively oblique as to the involvement of this particular offender. On p 5 at para C of his written submissions, he submitted that:

    “The facts indicate that the offender’s conduct was largely limited to driving [his co-offender] to the 23 July and 1 September 2020 meetings. The facts also reveal the offender was to assist [his co-offender], however the precise nature and the extent of that assistance is not clear. It is not apparent that the offender provided assistance that was necessary to the commission of the offences. What is clear is the offender’s role was subordinate to that undertaken by [his co-offender].”

    I accept that submission and also the references to his role not being clear, however it does not appear as though he was completely naïve to what was occurring. The conversations that he was recorded having suggests some knowledge of what was occurring around him and his presence was not mere presence, it was clearly part of the enterprise that he had decided to join with his co-offenders. He was someone who clearly was prepared still to talk about aspects of the deal, as clearly articulated in the facts. Whether that was at times [his] exaggerating his role it is hard to know, or why he had to be involved at all in this enterprise is difficult to know.

    On an aggravating feature the Crown is really limited to the fact that he was part of a joint enterprise and his plea of guilty accepts his responsibility, but they cannot fully articulate his role beyond a reasonable doubt. On a mitigating basis there was no sworn evidence from the offender to establish on the balance of probabilities any mitigatory role by him. That is not to say that in the subjective material he did not outline aspects of his involvement and reasons for it. Whatever the situation it appears his friendship or relationship with [his co-offender] led to his involvement here, and whether that involvement was a mixture of moral support, support by having another person physically involved in the matter to assist, a person to discuss issues with, it is difficult to truly nail down his role.

    What is easier to say is what he did not do compared to his co-offenders. As correctly submitted by his counsel, this offender did not instigate the offending, it was [his co-offender] who clearly was the principal. As also correctly submitted by counsel, there is no evidence to suggest the offender sourced the drugs to be supplied. There is no evidence to suggest that he financed the acquisition of the drugs to be supplied. [His co-offender] told the witness that he received the delivery of the drugs. Counsel submitted for the offender that when regard is had to the controlling role of [his co-offender]and the offender’s good character and the offender’s personal circumstance at the relevant time, it is more probable than not that the offender did not perform either of these tasks. That submission is to be accepted.

    It is submitted that despite police surveillance, the offender was not observed in possession of drugs or cash. There is no forensic or physical evidence connecting the offender to the relevant items. It was submitted on the inferences available that this offender was not trusted with the task of possessing those items. Whilst I do not accept the inference that he could not be trusted, after all he had to be trusted as part of this enterprise, that clearly just was not his role. It was clear that [his co-offender]decided the meetings, was involved in the negotiations, did whatever recruiting was required, gave the orders and that both co-offenders were subordinate to him. There was no evidence to establish the precise financial benefits this offender was going to obtain, but that is not to suggest that he was not going to receive a financial benefit. He was involved in the use of the Wickr app this offender, he obviously understood aspects of the code, and that the app was to be used by the organisation. He clearly was involved in communications with the other offenders at times and involved in communications with people outside the enterprise at times. It is accepted though that although he was part of the joint criminal enterprise with his co-offenders, that his role though was still substantially less.

    …

25. In summary, the Applicant had no prior criminal history, his offending was out of character, it occurred under circumstances of some duress brought about by the pandemic which undermined his ability to earn a lawful income, and interrupted a supply of medication which controlled his psychiatric condition. Although he was not ignorant of the nature of the unlawful activity, his role in the offending was confined to twice acting as a driver, and did not extend to planning, sourcing or being in possession of the drugs.

26. As found by the sentencing judge, his culpability for the offending was significantly lower than his co-offenders, but nevertheless he voluntarily participated in a joint criminal exercise to commit a very serious offence. Personal factors suggest that his culpability was of a much lower order.

27. The Respondent’s representative suggested that his failure to disclose to the Department in his visa application that he had been diagnosed with schizophrenia in Lebanon was relevant. I do not attach much significance to this, not least because of a lack of evidence as to the diagnosis made in Lebanon.

1. In terms of the risk posed by the Applicant to the Australian community, I note paragraph 8.1.2:

   (1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

   (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

   a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   i. information and evidence on the risk of the non-citizen reoffending; and

   ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

2. The sentencing judge found that the Applicant was ‘at low risk of reoffending’. His Honour stated:

   The offender has no prior criminal history. That is significant for someone who was born […in] 1985. He is a person clearly of prior good character and there is no reason that that good character should not be given significant weight on this sentencing exercise. He went into custody in this matter on 2 September 2020 to formal Corrective Services custody, before getting bail on 18 January 2021. Clearly as a man of good character that would have been a shock for him to go into custody. He then from that date onwards was placed on extremely strict bail conditions, including a residence condition, daily reporting and strict curfew conditions that applied between 5pm and 5am every day.

   So how does someone with no criminal history, with prior good character end up in this situation. The report of Mr Borenstein gives some good insight into this aspect. Mr Borenstein gives an insight into his collapse, for lack of a better word, into this offending at a low point in his life. COVID-19 had a big impact on the offender and his family. Not only did it have a strong financial impact on him and his family, but there were a number of other aspects going on in his family, including his father’s health, and he had become, perhaps unknown to him at the time, acutely depressed when COVID-19 hit. He was suffering significantly from that depression, impacting his everyday life, including his sleep, his motivations and this had been exacerbated because he was a long term sufferer of schizophrenia.

   Prior to COVID he had managed to get medication to treat his schizophrenia not through the Australian health system, but internationally. He had worried, I hope unnecessarily although I am not an expert in immigration law, that if he outlined aspects of his schizophrenia that it could impact his eligibility to be in Australia. Either way that is what he believed and when COVID-19 hit he was then not in a position to treat his schizophrenia through his normal medication. He was then in the position where he had that combination of schizophrenia, the hit that COVID-19 really had on everyone, and this not surprisingly had a very negative impact on the offender. He developed, as I said, a severe depressive illness. He was subject to significant financial stress, he was self-medicating with cocaine and alcohol, and he was vulnerable to make a poor decision.

   As Mr Borenstein said, the offender was suffering a mental health impairment leading up to and at the time of the subjective offences, which in my opinion led to a temporary and ongoing disturbance of thought, mood, volition, perception and memory regarded as significant for clinical diagnostic purposes, and impairment of his emotional wellbeing, judgment and behavioural choices. Mr Borenstein noted that the offender, who had been diagnosed with schizophrenia since the age of 21, being unable to access Seroquel during COVID-19, was self-medicating with cocaine and alcohol leading to a further impairment of his emotional wellbeing, judgment and behavioural choices.

   Mr Borenstein said the offender went along with what was required at the time when he was emotionally vulnerable and feared losing employment and the impact on his family unit and inability to send funds to his elderly parents, in particular his father who suffers from cardiac disease and a fractured shoulder. Importantly any doubt about Mr Borenstein’s diagnosis, which I do not have, has shown that since the offender has been able to get treatment again for his condition, his mental health has improved significantly. Clearly he has not been committing further offences and seemingly he has returned to his good character again.

   Any doubts about how genuine he has been on bail and his rehabilitation can be relieved by the Division of Toxicology reports, where he has voluntarily had himself tested right throughout this period of time on bail and demonstrated that he has not taken any of the illegal drugs that he was previously involved with. His own letter to the Court was highly consistent with Mr Borenstein’s report. He showed significantly good insight as to why he had fallen from his position of good character into committing this offence. He outlined both the physical and mental health deterioration at that time in his life, being depressed, and rather than turning to the help of family unfortunately took what he thought might be an easy way out with his co-offenders. He showed insight into the significance of his offending and I accept that there is genuine remorse on his behalf. I accept what he says that his experience in gaol was a great awakening for him and for someone with his mental health issues gaol is a difficult place to be. …

   …I acknowledge in your letter, consistent with what has also been tendered, that you have been back working since you have been on bail and otherwise back providing for your family. It seems to me that you have returned to the person who was not committing criminal offences for your entire life.

   In this way I reject what was said in the Court sentencing assessment report. In my view that report is unfair in saying you did not demonstrate insight into your offending simply because the author of that report could not have known as a matter of law what finding I would make about the level of your offending. Indeed that is one of the difficulties of those reports in drug matters and I give it no weight.

   More significantly though the Court assessment report still found you at a low or medium risk of reoffending and I think you are at a low risk of reoffending. You have already demonstrated strong rehabilitation through the documented evidence in this matter. There is also a large amount of referee material that confirms both what you have said in your letter and what Mr Borenstein has said in his report of the impact of COVID on you, but also your strong recovery since and your determination to make up for the error that you have done.

3. I also note the report dated 25 June 2024 by Mr Watson-Munro.[16]

   I note the Sentencing Remarks from His Honour Judge Pickering, who comments upon KCKJ’s psychological/psychiatric vulnerability at that time and of equal significance comments upon his positive prospects of rehabilitation, describing him as an individual with a Low risk of reoffending. I respectfully concur with that opinion and indeed, given that nearly two further years have lapsed since he was sentenced, with an absence of drug use, regular compliance with Seroquel and the support of his family, the risk of reoffending with those protective factors in my respectful view remains Low.

   KCKJ is well supported by his wife and by her account, his step-children. He is also the father of a 4 year old daughter. His partner stated that all family members would suffer significant psychological adversity if he were to be returned to Lebanon. She confirmed that it would be impossible for her to live there in the setting of her strong ties to the Australian community, inclusive of familial ties.

   She further confirmed his consistent expressions of remorse and her commitment to ensuring that he complies with treatment in the Australian community, if he is given the opportunity. KCKJ expressed a strong motivation to have treatment in the Australian community. Clearly, this should be overseen by a psychiatrist and in the interim, if there is a waiting list to see a specialist psychiatrist, his medication should be overseen by his General Practitioner. I believe in addition that he would benefit from continuing psychological treatment.

   His Substance Use Disorder can now be considered to be in Full Remission according to international guidelines. KCKJ has expressed positive aspirations for the future in terms of employment, supporting his family and significantly remaining drug and crime free. His expressions of remorse, his desire for work, the support of his family and his willingness for treatment will reinforce the low risk of him reoffending in the future.

   [16] Member’s file, item 13.

4. The overwhelming evidence is that the Applicant poses very little risk to the community. I consider that this conclusion is underpinned by the strong family and community support enjoyed by the Applicant, as discussed below.

5. The Respondent argues that despite familial support, there is still an unacceptable risk that the Applicant will engage in further offending, and refers to his previous use of alcohol and drugs.

   In particular, alcohol and drugs contributed to the applicant's offending at a period during which the applicant did not have access to his medication for schizophrenia, and the applicant chose to self-medicate with cocaine and alcohol. It is unclear how long it may take for the applicant to be formally diagnosed in Australia such that he can obtain access to his medication, which presents a period of risk to the Australian community.[17]

   [17] RSFIC, [50].

6. I do not accept this submission. There is no evidence that he has used drugs since his arrest in September 2020. This is borne out by the regular toxicology reports tendered to the Tribunal. The evidence before the Tribunal is that his psychiatric condition is in remission. His symptoms have abated. He has access to medication, and I am satisfied that his anxiety about using the Australian health care system, for fear of compromising his migration status, has receded. Moreover, this submission tends to overlook the very significant impact of imprisonment and immigration detention upon the Applicant. The judge recognised that imprisonment would carry an extra burden precisely because of his mental health condition. The uncertainties of immigration detention have also weighed heavily upon him and upon his family. To doubt the powerful deterrent effect of the loss of freedom involved and the removal from his family is to doubt the entire basis of deterrence as a sentencing purpose.

7. I consider that the nature of the offending weighs against the Applicant, but not so heavily as to exclude other countervailing considerations.

   PC2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN (PC2)

8. There is no evidence of family violence. Indeed, the evidence presented to the Tribunal is that the Applicant is a good father and husband. He is adored by his child and step-children and there is no evidence whatsoever of abusive behaviour on his part.

   PC3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA (PC3)

9. The Direction provides:

   (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

   (a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

   (b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

10. The Applicant has an extensive family in Australia. His wife TEZ is an Australian citizen, as is their daughter, MWK.[18] As noted, his wife has three children from a previous union (all Australian citizens).[19] They are his stepchildren. His stepson (QWD)[20] and stepdaughter (RTY),[21] provided statutory declarations, and his younger stepson (HNJ) provided a letter of support.[22]

    [18] G13, 64.

    [19] G13, 445.

    [20] Member’s file, item 5e

    [21] Member’s file, item 5d

    [22] Member’s file, item 7a.

11. The materials include statutory declarations from members of his immediate family including his brother,[23] mother-in-law,[24] nephew,[25] and aunt.[26]  There are statutory declarations from three sisters-in-law,[27] three brothers-in-law,[28] and various cousins and their spouses.[29]

    [23] Member’s file, item 6g.

    [24] Member’s file, item 6i.

    [25] Member’s file, item 6f.

    [26] Member’s file, item 6h.

    [27] Member’s file, items 5c, 6b, 6c.

    [28] Member’s file, items 6a, 6d, 5f.

    [29] Member’s file, items 6j, 6k, 6l.

12. One statutory declaration is of special significance. It is dated 19 May 2024 and sworn by TEZ’s previous partner, NMX.[30] He is a mental health counsellor in private practice and a practising Justice of the Peace.  He states:

    [KCKJ] is stepfather to my three children. I witnessed him treating them like his very own. He would take them to and from school and to and from work. They have a bond like no other, which I am happy to witness as their father. I witnessed the sadness and grief in them when he was incarcerated. I see the change of behaviour in all of them and see how much it affected them. He played a big role in my children's lives, and they love him dearly.

    He would always go out of his way to please them to help them he never treated my children any differently from his own daughter. He has formed a valuable and safe relationship with my three children. They adore him and always ask about him and his whereabouts. My children are worried that they will never see if he is forced to leave Australia. As a father, I can say that he was a great role model to my children. I was pleased for them to have another father in their lives... I have witnessed a safe secure and healthy relationship between [him] and TEZ. He treats her well has her best interests at heart and has provided unconditional love which improved her and my children's quality of life…

    I am fully aware of KCKJ’s offences, which were a complete shock to me as they were completely out of character for him. I understand that the offences were serious, but KCKJ has shown genuine remorse and has expressed deep regret for his actions. He has spoken to me about his desire to make amends and be a better husband and father. While detained, he has taken steps to improve himself by undertaking various courses. He frequently expresses his desire to rebuild his future and make up for lost time with his family, and he apologises sincerely for his past mistakes. I believe KCKJ deserves a second chance to prove himself and rebuild his life with his loved ones.

    KCKJ has always worked hard to support his family. He was also a frequent member of the Islamic community centre which I am the president of. He would volunteer his time in charity to help those less fortunate and help with his manpower in the centre organising events and general maintenance of the centre.

    If he is forced to return to Lebanon, he would not be there for his kids and wife, and it is not fair that they should have to move there to be with their step-father. My children’s mental health will be affected. They have already showed symptoms of separation trauma, anxiety, grief, depression, and anxious attachment. In addition, if TEZ were to consider relocating to Lebanon, I could not allow this for my children. It would be cruel to deprive them of their life in Australia where they were born and grew up and most importantly the situation in Lebanon is unsafe. If KCKJ was forced to leave or TEZ and any of the children relocated, they would all be at risk of harm. Either scenario would also separate the family unit from their Australian family and friends, their schooling and work.

    [30] Member’s file, items 5b.

13. This is a very powerful sworn statement by TEZ’s former partner.

14. I note he is also an active member of the Islamic community, volunteers with regular cleaning of the mosque. A religious leader from the local Islamic centre where the Applicant volunteered provided a reference.

    1. Family Unity: KCKJ has a wife and a daughter who are established residents of Australia. The prospect of separation could cause significant emotional distress and potential trauma, particularly for his young daughter. It is imperative to consider the psychological impact and the importance of family unity in this decision.

    2. Contributions to the Community: KCKJ has been an exemplary member of our community, contributing positively through participating in activities and helping during events at … the Islamic Centre. His efforts have been invaluable and have touched many lives.

    3. Integration and Adaptation: Demonstrating a profound commitment to becoming part of Australian society, KCKJ has made commendable efforts to assimilate, including learning the language and embracing local customs.

    4. Economic Contribution: As a gainfully employed individual, KCKJ has not only supported his family but also contributed to the Australian economy, showcasing his dedication to the nation's prosperity.

    5. Character and Integrity: Throughout his residence, KCKJ has displayed impeccable character and integrity, adhering to all legal requirements and proving himself to be a law-abiding citizen.

    6. Compassion and Empathy: KCKJ’s compassionate nature and empathy towards others have been evident, especially in times of need, making him a valued member of the community.

15. His neighbour also provided a statutory declaration.[31]

    [31] Member’s file, item 6e.

16. The Respondent accepts that the Applicant has family and social ties to Australia and that he has made some positive contributions to the Australian community, and that this should be given some weight in favour of revocation.[32]

    [32] RSFIC, [57].

17. The Applicant should be given full credit for his gainful employment up until his life was upended by the pandemic. Since arriving in Australia in May 2018, he has been employed in a range of jobs including pest control, construction, arborist and tree lopper. He readily secured employment while he was on bail.

18. I agree that he has made some contribution to the community in the relatively short time he has spent in Australia.

19. The most outstanding feature of this case is the strength of love and support that he receives not only from his immediate family but from those he comes into contract with, such as his neighbours and more distant relatives. His offending is undoubtedly a black mark on his character, but the support of his family is a strong protective factor into the future.

20. I consider that this factor should carry significant weight in the overall evaluation.

    PC4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION (PC4)

1. The Direction provides:

   (1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

   (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

   (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

   (4) In considering the best interests of the child, the following factors must be considered where relevant:

   (a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   (b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   (c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   (d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

   (e) whether there are other persons who already fulfil a parental role in relation to the child;

   (f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   (g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

   (h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct

2. The delegate analysed this consideration as follows:

   63. The Direction requires me to determine whether non-revocation under s501CA in this case is, or is not, in the best interests of a child in Australia who will be affected by the decision.

   64. KCKJ has one minor biological child, an Australian citizen: MWK (four years) Attachments G and L.

   65. KCKJ also has one minor stepson, an Australian citizen: HNJ (15 years) Attachments G and L3.

   66. KCKJ states that he has been living with MWK and HNJ since he arrived in Australia and is involved in their day to day lives, also taking them to school, sporting events and shopping. He further states that if he is sent back to Lebanon, both his children will be traumatised and it will affect their mental well-being as they will not have the daily physical contact, emotional and financial support from him. This is particularly in light of HNJ’s biological father’s unwillingness for his son to leave Australia and relocate to Lebanon Attachment L4. KCKJ further states that since his imprisonment, HNJ’s studies have been impacted as he has started to see a child psychologist and MWK is unwell emotionally as she misses his physical presence Attachments G and I1.

   67. Regarding KCKJ being separated from his children, his legal representative has also provided statements surrounding a growing body of research into the causal effects of a father’s absence on children including negative mental health implications Attachment H4.

   68. KCKJ’s wife TEZ has detailed in her statutory declaration the immediate physical manifestation of their daughter’s distress when KCKJ was first incarcerated. She learned that the children could absorb and feel the same grief as their parents. TEZ also shares that since KCKJ’s arrest, HNJ has not been able to cope at school and is always feeling anxious. As a result of this, HNJ is enrolled in a program called ‘Youth Town’ and MWK is always crying and asking when her father will be coming home Attachment K.

   69. A weekly routine for TEZ has been provided which includes that she is required to wake MWK late at night in order to pick HNJ up after work. I accept that without KCKJ in the household the children are impacted in a number of ways Attachment J3.

   70. In his personal circumstance form, KCKJ has further declared two nephews and five nieces who are all minors and Australian citizen and confirms that he shares a close bond with all of them. KCKJ sees them regularly, plays and coaches football with them and states that they will all be sad if he did not return in their lives as they see him as their role model Attachments G and I1.

   71. I am mindful that the best interests of MWK and HNJ is a primary consideration in this context. Based on the information submitted, I accept that KCKJ plays a role in both MWK and HNJ’s life and wants to maintain that relationship in supporting them physically, emotionally and financially. I also accept that the physical distance between KCKJ and both the minor children will create hardship as his absence may be felt by both MWK and HNJ. This consideration however is tempered by the fact that HNJ has his own father who appears to be present in his life and that MWK has had little experience of KCKJ as he was incarcerated some 18 months after she was born. I have also considered that KCKJ’s untreated illness and his self-medication with alcohol and cocaine cannot have been conducive to providing a positive role model for either HNJ or the other children in his life. I have also considered that KCKJ only moved in with the family in 2018 and that he spent approximately eight months in Australia during that year. In 2019 KCKJ spent only five months in Australia. KCKJ’s offending commenced shortly after his return from Lebanon and I therefore question KCKJ’s ability to have established an influence in a relatively short period of time, noting that he was incarcerated in 2021. Nevertheless I have accorded some weight to this consideration in favour of KCKJ.

   72. While I have also considered the best interests of KCKJ’ nephews and nieces, my considerations have been tempered by the time that KCKJ has actually spent in Australia and his admission to using cocaine and alcohol on a regular basis. The concerns mentioned above are applicable also to KCKJ’s nieces and nephews and I also consider that the parental needs of these children are met by others.

3. During the Tribunal hearing, I had the opportunity to see interactions between the Applicant and his family, and specifically, his daughter MWK and his stepson HNJ. It is impossible to avoid the conclusion that there is a deep and loving bond between the Applicant and his children. I cannot find that electronic communications between them is anything like a substitute for the life they might leave in the same home and family.

4. The Respondent’s SFIC states:

   61. Having regard to the matters set out in paragraph 8.4(4) of Direction 110, the Minister accepts that there is evidence that revocation would be in the best interests of the applicant’s children and that this factor weighs in favour of revocation.

5. I also take into account the emotional impact of his deportation on his two nephews and five nieces, who are minors and Australian citizens. I am satisfied that this consideration as a whole weighs strongly in favour of revoking the mandatory cancellation.

   PC4 EXPECTATIONS OF THE AUSTRALIAN COMMUNITY (PC5)

6. The Direction provides:

   8.5. Expectations of the Australian Community

   (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

   (2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa...

7. The Respondent contends that the declared Expectations of the Australian community weigh heavily against revocation. I agree that this weighs against revocation but for the reasons given in relation to PC1, I do not think that it weighs so heavily as to exclude all other countervailing considerations.

   OTHER CONSIDERATIONS

8. The section 9 ‘other’ relevant considerations are as follows:

   ·Legal consequences of decision under section 501 or 501CA (OC1)

   ·Extent of impediments if removed (OC2)

   OC1 LEGAL CONSEQUENCES OF DECISION UNDER SECTION 501 OR 501CA (OC1)

9. The Direction states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

10. The Direction goes on to describe the nature of a non-refoulement obligation, and then states that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

11. However, I note paragraph 9.1.2 which provides that claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in seeking revocation of the mandatory cancellation of their visa under section 501CA. Although the Mr Godwin, for the Applicant, did not explicitly assert a non-refoulement obligation such as to give rise to a protection claim, he did refer explicitly to the dangerous situation in Lebanon at the present time. Importantly, the Direction states that where such claims are raised, they must be considered.

12. The Respondent acknowledges the importance of this issue in its SFIC.

    66. The applicant contends that, while some areas of Lebanon may be safe, there is advice that people should not travel to the Dahiyeh region (which is where the applicant’s family reside) and that, were the applicant forced to return to Lebanon, he would no doubt return to his family and be at risk of harm by virtue of living in that region (applicant’s SFIC, [85]-[86]). To the extent that this may be construed as a claim which may give rise to international non-refoulement obligations, the Tribunal is required to consider it (D110, [9.1.2(1)]).

    67. The Minister notes that it is open to the applicant to apply for a protection visa and the existence or otherwise of non-refoulement obligations would be assessed in the course of determining such an application (D110, [9.1.2(2)]).

    68. If a protection finding is made, but the applicant is not granted a protection visa, he would face the prospect of immigration detention for a prolonged period. He would, as an unlawful non-citizen, remain in immigration detention unless and until he can be removed to a country other than Lebanon unless one of the exceptions in subsection 197C(3)(c) were to apply, or unless the Minister were to intervene to grant him a visa under section 195A or to make a residence determination under section 197AB in his favour which would bring his time in immigration detention to an end (D110, [9.1.2(3)]).

13. The suggested pathway for decision-making is that non-refoulement issues may be raised and considered in detail should the Applicant choose to apply for a protection visa.

14. The Applicant’s wife told the Tribunal that his family (his parents and siblings) live in Tripoli, and not in Beirut. Be this as it may, at the present time, removal to Lebanon is not without grave risk.

15. The situation in Lebanon has become incendiary, following the 7 October 2023 attack by Hamas militants upon Israel. Conflict between Israel and Hamas continues in Gaza and elsewhere. The Australian Government advice as of 9 July 2024 is as follows:

    Latest update: We continue to advise do not travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.

    Australians in Lebanon who wish to leave, should leave now while commercial flights remain available. If the security situation deteriorates and there is armed conflict, it’s likely that Beirut airport will close at short notice. You may be unable to leave for an extended period. Increased tensions in the Middle East may result in airspace closures, flight cancellations and diversions and other travel disruptions. The Australian Government may not be able to assist you to leave in such circumstances. See our advice on ‘Armed conflict’ in ‘Safety’.

    If you're an Australian citizen or permanent resident in Lebanon, you should register with the Department of Foreign Affairs and Trade's crisis registration portal. See the 'Safety' section for details on how to register. Keep your registration details up to date so we can contact you.

    There's a possibility of an increase in armed conflict that could affect wider areas of Lebanon. Daily military action has increased in southern Lebanon in recent weeks, including rocket and missile fire, as well as airstrikes. The conflict could continue to escalate quickly or spread to other areas in Lebanon, including Beirut, with little notice. This could affect your ability to move to safety. Avoid areas where military activity is ongoing.

    Terrorist attacks could occur anytime and anywhere, including in Beirut.

    If you need emergency consular assistance, contact the Australian Government's Consular Emergency Centre on [phone] (if you're overseas) or 1300 555 135 (in Australia).

    We now advise:

    Do not travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.[33]

    [33] Department of Foreign Affairs and Trade, ‘Lebanon Travel Advice & Safety’, Smart Traveller (Web Page) <>

    The warning is borne out by recent events. For example, on January 2024, Reuters reported:

    BEIRUT, Jan 2 (Reuters) - Deputy Hamas chief Saleh al-Arouri was killed on Tuesday night in an Israeli drone strike on Beirut's southern suburbs of Dahiyeh, a stronghold of the allied Lebanese militant group Hezbollah, signalling the conflict between Hamas and Israel could be expanding to engulf more of the region.

    In response to questions from Reuters, the Israeli military said it does not respond to reports in the foreign media.[34]

    [34] Reuters, ‘Israeli drone kills deputy Hamas chief in Beirut’, Reuters (online, 3 January 2024) <>

    The Applicant refers to the Tribunal to the remarks of Deputy President Rayment in JXGQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3610. Deputy President Rayment made the following observations:[35]

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

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

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

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

    [35] JXGQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3610 [53]. [65]-[66].

16. The legal consequence of a decision to affirm the non-revocation decisions is that the Applicant is liable to be removed from Australia as soon as reasonably practicable under section 198 of the Act. Subsection 197C(1) of the Act provides that, for the purposes of section 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

17. Irrespective of whether the Applicant has grounds for making a protection claim under any one of the Conventions providing for non-refoulement,[36] I am satisfied that under present circumstances any decision to repatriate him to Lebanon is likely to involve a lengthy process of consultation by the Australian Government as to the safety of doing so, and this will inevitably involve continued detention, perhaps for a very long time. Sadly, there is no sign of peace breaking out in the Middle East. It is virtually impossible to assess when it might be safe to return him to his home country. A decision about repatriation is likely to be delayed, pending some lessening of the tension. It is not possible to predict whether or when this might occur, and a lengthy period of immigration detention is likely to flow from an adverse decision in these proceedings.

    [36] See Direction paragraph 9.1(2). A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

18. I consider that this weighs in favour of setting aside the delegate’s decision.

    OC2 EXTENT OF IMPEDIMENTS IF REMOVED (OC2)

19. The Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the non-citizen's age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.

20. The Applicant has family in Lebanon, including his mother and father and siblings. This is a positive. He will not be alone. However, his father has very serious health problems and it is not clear that they have the means to provide accommodation for him. Moreover, the Applicant also has health problems, including schizophrenia and varicose veins.[37] I have no doubt that his access to medical treatment will be inferior to that available to him in Australia, but on the other hand, as noted by the Respondent, he will no doubt have the same access to health services and treatment as other citizens in Lebanon.

    [37] G13, 451.

1. The Minister accepts that it is open to the Tribunal to give this consideration some weight in favour of revocation.[38]

   [38] RSFIC, [72].

   OC3: IMPACT ON AUSTRALIAN BUSINESS INTERESTS (OC3)

2. This consideration is not relevant in these proceedings.

   EVALUATION

3. In carrying out the overall evaluation, I note that paragraph 7 provides:

   (2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

   (3) One or more primary considerations may outweigh other primary considerations.

4. I also note the principle under paragraph 5.2(2) which provides that:

   The safety of the Australian Community is the highest priority of the Australian Government.

5. The conceptual simplicity of this statement belies the challenge it presents in hard cases. The Tribunal is directed to ‘generally’ give greater weight to the safety of the Australian community than to other primary considerations, such as the best interests of minor children. The practical reality is that the adverse impact upon a child on their parent’s removal may be indisputable on the evidence, whereas the risk of recidivism very difficult to predict.

6. In deportation cases, the Tribunal is often exposed to the immediacy of the suffering inflicted on the subject’s family. The impact on children and spouses is especially heart-rending. Those suffering are often Australian citizens. Parents are often faced with the impossible choice of leaving Australia to keep the family together.

7. The uncomfortable implication is that the best interests of minor children of a non-citizen should be treated as less weighty than the protection of the community, even when those children are Australian citizens. So, in this case, the Minister contends:

   However, while the best interests of minor children may be served by the cancellation decision being revoked, the Minister contends that this factor should not outweigh the protection of the Australian community and the expectations of the Australian community. Further, the Minister contends that this factor is mitigated to some extent considering the applicant could maintain contact in other ways (D110, [8.4(4)(d)]).[39]

   [39] RSFIC, [61].

8. In the present case, I am satisfied that there is little danger to the Australian community. I have referred at length above to the views expressed by the sentencing judges and the two psychologists, Mr Borenstein and Mr Munro-Watson, in reaching this conclusion. I also place some weight on the deterrent effect of imprisonment and immigration detention of a parent such as the Applicant.

9. Like many members of the community, the Applicant was severely affected by the coronavirus pandemic. His supply of medication from Lebanon was interrupted. He lost his employment. He started self-medicating with drugs and alcohol, both of which were consumed away from the home. He slid into the world of illegal drug supply, seemingly as a favour to his friend, who had provided him with some employment. There is no evidence that he received a financial reward. It was hardly a solution to the problem of unemployment and but for his underlying mental health problem would be rightly regarded as a shameful response to the challenge thrown up by the virus.

10. My overall assessment is that while the protection and expectations of the Australian community weigh in favour of affirming the delegate’s decision, they do not press so heavily as to exclude countervailing considerations. This is so taking account of the Direction requiring the protection of the community ‘generally’ to be given greater weight than other primary considerations. The Applicant’s ties to Australia, the best interests of his minor children, the likely delay in ongoing processing, and the extent of impediments he will face if removed, all favour revoking the delegate’s decision.

11. This is a case where the combined weight to be accorded countervailing considerations prevail, so as to provide ‘another reason’ for revoking the non-revocation decision. Not least amongst these considerations is the enormous weight of love and support shown by his family, immediate and extended. This is without doubt a ‘second chance’ case, and one that comes with little risk to the community.

    DECISION

12. The reviewable decision dated 19 April 2024 is set aside; and in substitution, the cancellation of the Applicant’s Class BC Subclass 100 Partner visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Migration Act.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

....................................[SGD]....................................

Associate

Dated: 12 July 2024

Date(s) of hearing:	4, 5 July 2024
Counsel for the Applicant:	Mr D Godwin
Solicitors for the Applicant:	Ms E Trotter, Brett Slater Solicitors
Counsel for the Respondent:	Ms N Maddocks
Solicitors for the Respondent:	Ms N Chandra, Hunt and Hunt Lawyers