Kheir and Minister for Home Affairs (Migration)
[2019] AATA 146
•13 February 2019
Kheir and Minister for Home Affairs (Migration) [2019] AATA 146 (13 February 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2018/6885
GENERAL DIVISION )
Re: Mahmoud Kheir
Applicant
And: Minister for Home Affairs
RespondentDIRECTION
TRIBUNAL: Bill Stefaniak AM RFD, Senior Member DATE OF CORRIGENDUM: 26 February 2019 PLACE: Sydney IT IS DIRECTED that, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the text of the decision in this application is to be altered such that:
1.the reference to “November 2011” in paragraph 71 of the decision is replaced with “November 2013”.
………………. [SGD]…………………..
Bill Stefaniak AM RFD, Senior MemberDivision:GENERAL DIVISION
File Number(s): 2018/6885
Re:Mahmoud Kheir
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:13 February 2019
Place:Sydney
The decision under review, being the decision of the Respondent dated 22 November 2018 to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth), is affirmed.
.........................[SGD].............................................
Bill Stefaniak AM RFD, Senior MemberCATCHWORDS
MIGRATION – Class BC Subclass 100 Spouse visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – extensive criminal record – real risk of reoffending – substance abuse – mental health – best interests of minor children – extent of impediments if removed – strength, nature and duration of ties – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
GCLV and Minister for Home Affairs (Migration) [2018] AATA 4460
Karan and Minister for Home Affairs (Migration) [2018] AATA4480
SECONDARY MATERIALS
Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Lebanon, 23 October 2017
Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, Part C
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
13 February 2019
INTRODUCTION
This is an application for review of the decision by a delegate of the Minister for Home Affairs (the “Minister” or “respondent”) not to revoke a decision to cancel Mr Kheir’s (the “applicant’s”) Class BC Subclass 100 Spouse visa (the “visa”).
The visa was cancelled under s 501(3A) of the Act on 30 October 2017 as the applicant did not pass the character test due to the operation of s 501(6)(a) of the Act on the basis of s 501(7)(c), as the applicant had served a term of imprisonment of 12 months or more (the “original decision”).
The delegate of the Minister was not satisfied that the discretion to revoke the decision to cancel the visa should be exercised under s 501CA(4) of the Migration Act 1958 (Cth) (the “Act”).
The sole issue for the tribunal’s determination is whether, having regard to the primary and other considerations of Direction No. 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (“Direction 65”), the discretion in s 501CA(4) of the Act should be exercised to revoke the original decision.
ISSUES
There is no issue that the applicant does not pass the character test due to his imprisonment for a term of 12 months or more.
The applicant was most recently (18 April 2018) sentenced to a term of 33 months imprisonment as can be seen from his record as listed below. Indeed the applicant has an extensive criminal record going back to 2002.
Section 501(3A) provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is defined in s 501(6) of the Act, which states as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Substantial criminal record is defined in s 501(7) of the Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
CRIMINAL RECORD
The applicant’s substantial criminal record is listed below, drawn in part from a table produced by the Respondent in this matter:
Date Offence 4 November 2002
The applicant was convicted in Sutherland Local Court of possessing a prohibited drug. He was sentenced to a 12 month good behaviour bond.
4 April 2006
The applicant was charged in Downing Centre Local Court with two counts of larceny. The applicant was discharged under section 32 of the Mental Health (Forensic Provisions) Act 1990 into the care of a responsible person with conditions.
15 December 2006
The applicant was convicted in the Bankstown Local Court of Class A m/v exceed speed > 15 km/h and < 30 km/h (fined $200); drive on road etc while licence suspended (fined $500 with 12 month disqualification). This penalty was appealed, with conviction confirmed on 28 August 2007.
16 May 2007
The applicant was convicted in the Parramatta Local Court of: receive property - theft = serious indictable offence <= $5000 (fined $300); seven counts of owner not disclose identity of driver/passenger (fined $300); owner not disclose identity of driver/passenger (fined $500).
17 September 2007
The applicant was convicted in Burwood Local Court of driving whilst licence suspended. He was sentenced to a 12 month good behaviour bond.
8 November 2007 The applicant was convicted in the Parramatta Local Court of: break and enter building (steal) value <= $15,000 (offence committed on 18 August 2006); and break and enter building (steal) value <= $15,000 (offence committed on 6 January 2007).
He was sentenced to four months home detention in relation to the first offence, and 12 months home detention (with three months non-parole period) in relation to the second offence.
8 April 2008
The applicant was convicted in Burwood Local Court of breaking and entering with intent to steal. He was sentenced to a two year good behaviour bond.
21 August 2008
The applicant was convicted in the Parramatta Drug Court of: breaking and entering with intent (steal) (12 months imprisonment - suspended); possess housebreaking implements; goods in personal custody suspected being stolen; aggravated breaking and entering - commit serious indictable offence - in company (2 years 6 months imprisonment).
6 July 2010
The applicant was convicted in the Parramatta Drug Court of: breaking and entering with intent to steal (conviction recorded with no other penalty); and aggravated breaking and entering and commit serious indictable offence - in company (12 months comply with directions of prescribing GP).
3 February 2012
The applicant was convicted in Downing Centre Local Court of possessing a prohibited drug. He was fined $500.
1 June 2012
The applicant was convicted in the Downing Local Court of: possess prohibited drug; and drive motor vehicle not carry licence. He was fined $800 in relation to each offence.
12 June 2013 The applicant was convicted of the following offences at the Hornsby Local Court: possess prohibited drug (4 months imprisonment); two counts of possess prohibited drug (2 months imprisonment); goods in personal custody suspected being stolen (not m/v) (4 months imprisonment); possess identity information to commit etc indictable offence (4 months imprisonment); 2 counts of use false document to obtain property (5 months imprisonment); two counts of receive property - theft = serious indictable offence <=$5000 (9 months imprisonment with a 5 month non-parole period); seven counts of dishonestly obtain property by deception (9 months with non-parole period of 5 months); dishonestly obtaining financial advantage by deception (9 months imprisonment with non-parole period of 5 months); goods in personal custody suspected of being stolen (not m/v) (2 months imprisonment; deal with property suspected proceeds of crime (2 months imprisonment).
A severity appeal was lodged in relation to all the offences. Convictions were confirmed on 14 August 2013. The sentences were varied as follows: 2 counts of receive property - theft = serious indictable offence <=$5000 (6 months and 1 day imprisonment with 2 month non-parole period); 2 counts of receive property - theft = serious indictable offence <=$5000 (9 months imprisonment with 2 month and 11 days non-parole period); 2 counts of dishonestly obtain property by deception (6 months and 1 day imprisonment with non-parole period of 2 months); 5 counts of dishonestly obtain property by deception (9 months imprisonment with non-parole period of 2 months and 11 days); and dishonestly obtaining financial advantage by deception (9 months imprisonment with non-parole period of 2 months 11 days).
27 November 2013
The applicant was convicted in Bankstown Local Court of driving a motor vehicle whilst licence suspended - second + offence. He was sentenced to 8 months imprisonment (suspended on entering a bond) and 8 months licence disqualification.
28 August 2014
The applicant was convicted of the following offences in the Burwood Local Court: larceny (of value less than $2000) (10 months imprisonment with non-parole period of 6 months); and driving a motor vehicle whilst suspended (second + offence) (8 months imprisonment with non-parole period of 5 months).
8 June 2016
The applicant was convicted of the following offences in the Katoomba Local Court: using an uninsured motor vehicle (conviction recorded - no other penalty); removing/defacing vehicle defect label without authority (conviction recorded - no other penalty); 3 counts of goods in personal custody suspected being stolen (2 months, 5 days imprisonment); use vehicle on road or road related area m/v tax not paid (conviction recorded - no other penalty); using vehicle in breach of major defect notice (conviction recorded - no other penalty); class a vehicle displaying a misleading number plate (conviction recorded - no other penalty); using an unregistered registrable class motor vehicle on a road (conviction recorded(conviction recorded - no other penalty).
15 August 2016
The applicant was convicted of goods in personal custody suspected being stolen in the Katoomba Local Court. He was sentenced to 1 month imprisonment.
30 November 2016
The applicant was convicted of goods in personal custody suspected being stolen in the Downing Local Court. He was sentenced to 2 months imprisonment.
30 May 2017
The applicant was convicted of the following offences in the Wollongong Local Court: 5 counts of good in personal custody suspected being stolen (6 months imprisonment, suspended on entering bond); and two counts of failing to appear in accordance with Bail Grant acknowledgement (6 months imprisonment, suspended on entering bond).
28 September 2017
The applicant was convicted of the following offences in the Burwood Local Court: 5 counts of goods in personal custody suspected being stolen (6 months imprisonment); 2 counts of failure to appear in accordance with Bail Grant acknowledgment (6 months imprisonment); dishonestly obtain property by deception (2 months imprisonment); goods in personal custody suspected of being stolen (aggregate 12 months imprisonment, non-parole period of 6 months); and use a false document to influence exercise of public duty (12 months imprisonment, non-parole period of 6 months).
18 April 2018
The applicant was convicted of the following offences in the Downing Centre District Court: supplying a prohibited drug (27 months imprisonment with non-parole period of 16 months); possessing a loaded firearm in a public place (16 months imprisonment); possess unauthorised pistol (33 months imprisonment with non-parole period of 16 months); possess firearm or barrel with altered/defaced id etc (33 months imprisonment with non-parole period of 16 months); 2 counts of supply prohibited drug > indict, quantity (not cannabis) (conviction recorded - taken into account in sentencing).
APPLICANT’S BACKGROUND
The applicant came to Australia from Lebanon on 30 May 2000 at the age of 21. He married his wife Joanne on 14 January 2000.
He received his first conviction, for possessing a prohibited substance, on 4 November 2002. In September 2003 his daughter was born.
The applicant suffered a tragic injury as a result of a vicious assault in 2004. He suffered head injuries and the injury affects him to this day, especially with depression and anxiety. The assailants targeted him it seems because of his business success as a fruit seller at the Sydney Markets.
It seems he became a heroin user after this assault in an effort to ease the pain and his criminal activity accelerated as can be seen by his record.
In June 2006 the applicant’s son was born.
In 2008, as a result of orders made by the Parramatta Drug Court, the applicant underwent a substantial treatment program which it seems was effective in weaning him off heroin by 2011.
Unfortunately in his evidence to the tribunal, it seems that within six months of getting off heroin, he took up ice and continued to offend.
On 13 March 2009 the Minister sent the applicant a formal counselling letter warning him that any further criminal convictions may result in the cancellation of his visa (see pages 100 to 101, G-docs).
The Minister received back the acknowledgement of receipt soon thereafter. It was dated 6 April 2009 and was signed “Mahmoud Kheir”.
In his evidence the applicant insisted that he had not received that letter as he had moved and it was not his signature.
As can be seen from his record, he continued to commit further offences and has now been locked up for close to two years. He is currently on the methadone program to reduce his dependency on drugs.
DIRECTION 65
The tribunal will deal with the applicant’s evidence further in the context of Direction 65 shortly.
Part C of Direction 65 is the relevant part in this matter (as attached).
EVIDENCE
At the hearing on 31 January 2019 the applicant’s mother gave evidence on behalf of the family; his daughter (aged 15) gave evidence on behalf of herself and her brother (aged 12); and the applicant’s older brother also gave evidence. The applicant gave evidence as well and gave further evidence on the second day of hearing, 1 February 2019.
The applicant was granted leave to try, in conjunction with his daughter, to arrange for his ex-wife Mrs Joanne Kheir to give evidence by phone on 1 February 2019.
The tribunal was advised on the morning of 1 February 2019 that she had, it seems with some reluctance, agreed to give evidence by phone, but when the tribunal rang her on at least 10 occasions between 10:30 am and 11:30 am that day she did not answer.
The tribunal can only assume that she had changed her mind about giving evidence. She did provide a statement, which the applicant wrote for her (apparently with her approval) but in his words and sent from his iPhone.
The tribunal therefore cannot give it a great deal of weight, but the tribunal does accept the applicant’s daughter’s evidence that her mother would, for the children’s sake, be prepared to have the applicant live with them and remain in Australia.
At any rate it is of little importance as the applicant’s mother, daughter and brother Hussein painted a glowing picture of a very close family who saw each other weekly, who helped each other and would continue to do so, and who regarded the applicant as a good father, son and brother despite his largely drug induced problems and significant criminal history.
The applicant’s mother gave evidence and it became clear the applicant had also written her statement for her. Nevertheless, she adopted it and said she would be devastated if he were to be sent back to Lebanon. She helps look after his two children and it seems that she only became aware of his drug problem about three years ago and his criminal issues about a year and a half ago.
The applicant’s daughter
The applicant’s daughter gave powerful evidence in support of her father.
She told the tribunal that she loved him very much and that he was a great dad who would always help her with her schooling and impress upon her how important it was to obey the law and be a good citizen. She said he just loved being in Australia.
She went on to say that whilst she was aware of him having issues with drugs, she had never seen him affected by drugs. It was only in recent times that she became aware of his criminal issues. She would go with family once a week to visit him in prison and more recently in detention and she and he brother would talk to him every night by phone.
She was in year 10 at school and had a part time job at a supermarket.
Her brother told the tribunal he agreed with everything his sister had said.
She impressed the tribunal as a fine young lady who clearly loved her father.
The applicant’s brother
Mr Hussein Kheir gave evidence on behalf of himself and the family. He was a taxi driver who came to Australia in 1989.
He was aware of the applicant’s problems and would see him about once a week in Villawood. He had been to court with him on three occasions and was aware the applicant’s lawyer suggested he plead not guilty to the possess firearm charges but his brother insisted on pleading guilty.
He told the tribunal the applicant would tell him (from about 2008 onwards) that he was helping the police or working for the police in some undercover type of role.
He further told the tribunal that the applicant would take drugs because of the pain he continued to suffer from the injuries sustained in his mugging in 2004.
He confirmed that the applicant was a good husband and father but that because of all of the issues his marriage had broken up and as a result he, Hussein, took on a larger role with the children.
He felt that this time around he was a lot more confident that the applicant would rehabilitate and stay off drugs because “he was older, more mature and his kids need him more now with things like their study.” He concluded by saying he would do whatever he could to help if his brother were allowed to remain in Australia.
The applicant tendered several letters of support from his niece and several cousins (all professional people) and several community groups and his prospective employer.
All of these people attested to the fact that he was a great family man who had a lot of support from his family and the community were he to remain in Australia. His cousin, solicitor Majed Kheir wrote (at page 137, G-docs) “I recall about 10 years ago Mahmoud had an accident in which he sustained head injuries. Since the injury Mahmoud struggled with anxiety and depression and his life spiralled out of control…Mahmoud is a decent individual with a strong sense of family and is extremely loyal. He is well liked by his family and friends and with the right guidance and assistance can make a useful contribution to Australian society.”
His niece Malake-Clarissa Kheir (at page 141, G-docs) put all his troubles down to his head injury. She said “I believe the acquired brain injury caused him to turn to drugs and crime, resulting in his prison sentence.” She felt his most recent prison sentence has facilitated his rehabilitation and believed his risk of reoffending to be “quite low”.
There was further evidence before the tribunal to the effect that he had a job available to him upon release as a probationary cleaner for six weeks and if that went well, it would become a permanent job.
The applicant’s evidence
The applicant gave evidence of a traumatic childhood in Lebanon, including having PTSD for years after his sister was shot dead whilst holding him as a toddler. His father died when the applicant was only seven and after doing his national service he became an undercover plain clothes police officer.
Unfortunately he left Lebanon in not ideal circumstances in that he came to Australia without formally quitting the police force and he also left his police issue 9mm automatic pistol with his nephew.
This was a serious offence, especially if it was subsequently used to kill someone. It appears it was not so used as his nephew subsequently confirmed when he came to Australia two years ago. Nevertheless a friend had told him he saw the applicant’s name on an airport list about five or more years ago.
Upon coming to Australia he proved to be a very hard worker and by 2004 he had established a flourishing fruit business. He owned his own house and a car. Upon being mugged by rivals he lost everything. He discharged himself from hospital too early so he could attend to his mangos, all of which had rotted and his business fell apart as a result. He took heroin to alleviate the pain and the rest was all downhill. He lost his house, his business and subsequently his marriage faltered too.
He told the tribunal that despite his issues he had always been employed after his head injury in 2004. Firstly as a courier from 2004 to 2007, then as a forklift driver from 2008 to 2012 and from 2012 to 2017 as a street sweeper.
He said he became addicted to heroin as a result of a neighbour giving him some to relieve his pain in 2004 and he became hooked. After going into a rehabilitation program in 2008 he was successful in weaning himself off it in 2011 only to start taking ice instead in 2012.
The best thing that happened to him was the recent lengthy jail sentence which has given him enough time to rehabilitate and reduce his drug dependency. He takes methadone and is currently taking the lowest dose possible. When asked by counsel for the respondent what was different this time, he said he was older, more mature and motivated and wanted to be a father to his children, especially as he had grown up without a father.
He would have nowhere to stay if he returned to Lebanon. Work is hard to get and he was fearful that he may still be on a wanted list. He loves Australia and wanted to prove himself a good citizen.
Under cross examination the applicant struggled at times to recall details of his offences. This may not be surprising given his issues with drugs and the quantity of his offences. He also maintained that he did not get and sign the warning letter of 2009 and said someone had stolen his passport and maybe they forged his signature, but could not really provide a convincing explanation as to why a thief would have signed it and sent it back.
It was also put to him that his wife seemed to know about the formal warning in October 2018 but he did not until November 2018 and I found his response to that question vague and confusing.
He did say that after getting off heroin he never broke and entered again, and that is backed up by his record; nor has he ever been convicted of violent offences.
That is true and I note with the possession of firearm offence, police easily located him and his colleagues and a sealed letter was handed up in court which led to a discount for those offences in terms of his non-parole period.
Indeed the applicant stated on a number of occasions that he was acting as a sort of undercover policemen, even prior to 2008. In answer to a question from the tribunal he said “my brain told me I was an undercover policeman like I was in Lebanon”.
He further told the tribunal that his 2004 injuries caused him great pain until recent times.
I note that whilst I can confidently say I am satisfied he helped the police with their enquiries and was polite and cooperative and probably tipped them off a day or so before his arrest on the firearm charges (hence the letter to the judge from the police in those matters) there is no evidence as to him being any sort of informal agent for the police.
Had he been it would not have been terribly difficult to get at least a letter from the police to that effect. I believe a lot of this was in his imagination.
I found the applicant to be a pleasant and cheerful man who clearly loved his children very much and who had a loving supportive family. Unfortunately he still had substance abuse issues and what I sensed to be significant mental health issues.
I was not convinced that his drug problems only started after the 2004 head injury, but started probably not long after he arrived in Australia as he had told a health professional that he started taking cannabis in 2002 and I preferred that statement by the professional to his denials that he told her that.
I also found his explanation as to the returned acknowledgement of warning letter of 6 April 2009 not convincing.
He also seemed to try to explain away some of his offences as not really his fault and it was not until well into his evidence before the tribunal that he conceded his belief he was helping the police was delusional.
On day two of the hearing (1 February 2019) he also volunteered that he did not want to tell everything in front of his children (who were present on day one of the hearing, 31 January 2019).
Whilst I found some of his evidence helpful, there were parts (as listed above) where he did not come across as a fully truthful and credible witness.
Medical evidence
Dr Richard Furst
Dr Richard Furst, forensic psychiatrist, prepared a report dated 15 November 2017 that indicated the applicant was fit to plead but had a significant psychiatric history and would need considerable follow up treatment upon release. Dr Furst diagnosed the applicant as suffering from schizophrenia, PTSD and substance abuse disorder (opioids and methyl-amphetamines).
The doctor also noted that “Mr Kheir has an extensive history of substance abuse, including the use of cannabis between 2002 and 2004, methyl-amphetamine and heroin.”
Ann-Marie De Santa Brigida
Ms Brigida was a counselling psychologist who assessed the applicant over five sessions from November 2011 until February 2014. Her report was dated 4 February 2014.
She said he told her that he initially started experimenting with cannabis around 2002 and that he continued to smoke until 2004, averaging between five and six joints per day. She then related his consistent account of how he took up heroin use.
The applicant was in the midst of awaiting treatment for his ice addiction when she saw him. She prepared her report for court. She said he had a significant drug problem.
PART C: CONSIDERATIONS UNDER DIRECTION 65
On the evidence before me I would decide the primary considerations as follows.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The applicant’s record speaks for itself. It is lengthy, committed over a long period of time and, especially since 2004, no doubt to feed a drug habit.
Whilst there are no crimes of actual violence or of a sexual nature involved, or crimes involving minors, the elderly or disabled, the crimes are numerous and despite increasingly higher penalties being imposed the applicant did not desist in his offending.
Further, he was warned by the respondent in 2009 and I do not accept his explanation that he did not receive that warning. At any rate his brother Hussein also warned him about the likely effect on his visa of continued offending as well it seems.
To his credit, he appears to have been well behaved in detention and since 2008 did not commit any more break and enters but turned instead to such crimes of dishonesty as credit card crimes and possessing stolen goods.
I consider there is a very real risk of him reoffending if released back into the community, despite his good intentions at present and the fact that he has been away from whatever undesirable influences he had previously associated with.
However, he was clean of heroin before and reoffended soon thereafter. He has significant mental health issues as well which do not help. He has a loving and supportive family, but there is a clear risk to the Australian community that he will reoffend if released, almost certainly by way of crimes again property and crimes of dishonesty.
Whilst I am confident he would not engage in physical harm, there is a real risk of substantial crimes of dishonesty and property crimes being committed.
Taking all the evidence into account I would find that there is at least a moderate risk of him reoffending, and as such this would pose an unacceptable risk to the Australian community.
This consideration weighs strongly against the applicant.
BEST INTERESTS OF MINOR CHILDREN
After hearing from his daughter and through her, his son, it is quite clear, and I so find, that this criteria weighs heavily in favour of revocation of the decision to cancel Mr Kheir’s visa. Clearly he is a loving father who has regular contact with his children and the best interests of his children would be for him to remain in Australia.
It is not like Lebanon is similar to New Zealand and families can easily and cheaply travel across the Tasman to see their loved ones. Telephone calls and Facebook, whilst useful, are no substitute for personal contact.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Australians are a fair people who are prepared to give a person a go and who are willing to tolerate and forgive a person who makes a mistake or commits a crime/crimes but clearly has shown remorse and rehabilitation (unless the crime/s is/are so serious that they cannot be forgiven as such).
The Australian community however takes a dim view of people who continue to commit crimes for a lengthy period of time, even if the crimes are not of a violent or sexual nature.
To continue to commit crimes, despite warnings from the authorities and failed attempts at rehabilitation, leads to the Australian people losing their patience and tolerance. It is a breach of trust at the end of the day.
I do not think the Australian people would have much confidence that the applicant will not commit further crimes if released and would feel that there is an unacceptable risk that if released he will breach that trust.
He has, between 2002 and 2017 been convicted of over 80 offences and has been sentenced to lengthy terms of imprisonment for some of those offences.
This consideration weighs strongly against the applicant and I conclude that the Australian people would say “enough is enough” and would expect that the cancellation of the applicant’s visa should not be revoked.
OTHER CONSIDERATIONS
International non-refoulement considerations
The applicant has not led any evidence in support of any non-refoulment considerations except the possibility that his name may still be on an airport list which he said a friend saw at least five years ago.
There is no statement in support, just the vague oral evidence of him being told this. Since then his nephew has come to Australia and the fears the applicant had about the pistol seemed to have been shown to be ill founded after all.
At any rate, the applicant can always raise non-refoulment issues separately if he was to apply for a protection visa should further evidence come to light, regardless of the finding of this tribunal.
Strength, nature and duration of ties
The applicant has spent nearly half his life in Australia and has not been back to Lebanon. He has raised two children here and all his close relatives live here. He has, despite his repeated offending, a good work history in Australia.
His ties to Australia are strong and this weighs in his favour.
Impact on Australian business interests
There are none.
Impact on victims
There are no apparent victims, but the victims of his break and enter and steal offences would have felt their homes violated with all the trauma that can go with that realisation. There are no current known victims of his more recent offences.
Extent of impediments if removed
The extent of impediments would be considerable as, while he speaks the language and knows the culture and while he does have some family in Lebanon in the form of uncles and cousins, he does not have a place he could stay and getting work may be a problem initially. He is however a hard worker and has skills that would be useful anywhere in the world.
His health concerns are relevant as whilst the latest DFAT Country Information Report on Lebanon shows a reasonable health system which is one of the best in the Middle East and on par with Estonia and Portugal, it is nowhere near as good as in Australia.
There would be significant impediments for him if he were to be removed.
CONSIDERATION
Whilst the other considerations do weigh in favour of revocation it is the primary considerations that must carry the most weight and the protection of the Australian community and the expectations of the Australian community do weigh heavily in favour of non-revocation of the cancellation decision.
The best interest of the children certainly weigh heavily in favour of revocation but despite this being a very sad situation for his family, especially his children, the applicant has through his addiction and subsequent actions continued to commit numerous offences, despite the obvious problems it has caused his family. It has nearly, if not actually, destroyed his marriage and as already discussed the tribunal has little confidence that he will not reoffend for the reasons already given. He has done several rehabilitation programs only to lapse on each occasion.
There are two decisions that are similar and relevant to this case, namely the decision of Member Bygrave in GCLV and Minister for Home Affairs (Migration) [2018] AATA 4460; and the decision of Senior Member Puplick in Karan and Minister for Home Affairs (Migration) [2018] AATA 4480. Both those decisions affirmed the delegated decision and both concerned applicants who had drug issues and young children.
I was also impressed with the quality of the delegated decision and reasons dated 21 November 2018 which I found well thought out and well written. I would agree with the delegate that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the best interests of his children as a primary consideration, and other countervailing considerations as described above.
I believe the Australian community would feel very sad for the applicant and for his children especially, but it would expect this tribunal to do its duty to the Australian community and uphold the delegate’s decision.
It is a shame for the applicant that because, it seems, of his injury in 2004 he did not become an Australian citizen. However, he has not and is still only on a visa which has now been revoked.
He should not give up hope. When his children get a little older they should be able to see him in Lebanon and involve him in their lives and those of their children. They can always stay in contact by social media these days too. They will always be his family regardless and one day the law may alter to allow him to return to Australia as well.
However, for the reasons given, the decision of this tribunal is that the decision will be affirmed.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member.
............................[SGD]............................................
Associate
Dated: 13 February 2019
Date(s) of hearing: 31 January 2019, 1 February 2019 Applicant: In person Counsel for the Respondent: J Liang, Clayton Utz
ANNEXURE A
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
PART C
13. Primary considerations - revocation requests
(1) Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case
(1) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also 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.
13.1.1The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)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);
h)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; or 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;
13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
13.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person
should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa,
other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
14.1 International non-refoulement obligations
(1)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). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
14.3 Impact on Australian business interests
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
14.4 Impact on victims
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
14.5 Extent of impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
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