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

[2022] AATA 2490

LXHH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2490 (8 August 2022)

Division:GENERAL DIVISION

File Number:          2022/4155

Re:LXHH  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:8 August 2022

Place:Sydney

The decision under review is affirmed.

................................SGD........................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class BC Subclass 100 Partner visa – where visa was cancelled under s 501CA(4) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – special consideration – mandatory cancellation of visa is not revoked - decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

8 August 2022

1. The Applicant requests the Tribunal to review a decision of the Respondent made on 17 May 2022 not revoke the cancellation of the Applicant’s Class B Subclass 116 Carer visa (visa) made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).

FACTS

2.       A table prepared by the Respondent which contains non-contentious facts are set out below and helpfully summarises some major factual matters.

Date	Event	Reference
28 July 1989	The Applicant is born in Lebanon.	G2, pages 2; 73; 78
28 July 1989	The Applicant arrives in Australia at the age of 22.	G2, pages 80; 120
5 November 2013	The Applicant departs Australia.	G2, page 120
11 December 2013	The Applicant returns to Australia.	G2, page 120
22 April 2014	The Applicant departs Australia.	G2, page 120
23 June 2014	The Applicant returns to Australia.	G2, page 120
1 February – 11 November 2017	The Applicant commits four offences of have sexual intercourse with a child between the ages of 10 to 14 years (DV).	G2, page 41
8 January 2018	The Applicant’s minor daughter is born while the Applicant is in custody.	G2, page 100
17 December 2018	The Applicant is convicted of four counts of have sexual intercourse with person > 10 & < 14 years (DV) and sentenced to five years imprisonment.	G2, pages 37 – 40
18 December 2018	The District Court of New South Wales issues a five year Final Apprehended Domestic Order, which is in force until 17 December 2023.	G2, page 91
20 February 2019	The Applicant makes representations seeking revocation of the mandatory cancellation of his visa.	G2, pages 73 – 76
29 November 2020	The Applicant signs a Notice Issued to Registrable Persons under the Child Protection (Offenders Registration) Act 2000, which contains the conditions he must abide by in relation to any contact with minors.	G2, page 58
6 December 2020	An incident report indicates that contraband was located in the Applicant’s room at Villawood Immigration Detention Centre.	G2, page 140
6 November 2021	An incident report indicates that the Applicant physically assaulted another detainee while detained at Villawood Immigration Detention Centre.	G2, page 130
15 January 2022	An incident report indicates that the Applicant physically assaulted two other detainees while detained at Villawood Immigration Detention Centre.	G2, page 126
21 January 2022	An incident report indicates that the Applicant physically assaulted another detainee while detained at Villawood Immigration Detention Centre.	G2, page 125
17 May 2022	A delegate of the Respondent decides not to revoke the mandatory cancellation of the Applicant’s Visa. On the same date, the Applicant is notified of this decision.	G2, page 7
24 May 2022	The Applicant lodges an application for review of the decision not to revoke the mandatory cancellation of his Visa.	G1, page 1

BACKGROUND AND OFFENDING HISTORY

3.       The Applicant was born in Lebanon in July 1989 and is 33 years of age. He came to Australia at the age of 22 with family members and his father joined the family at a later time. The Applicant married and his wife was expecting their child who was born in January 2018 during part of the time of offending.

4.       Prior to the child’s birth, the Applicant committed four extremely serious offences of sexual assault against his 14-year-old cousin.

5.       The Applicant was in a position of trust. The offences were committed in the victim’s home and involved actual penetration in a digital way by the Applicant. The offences are made more serious by reason of the fact that they were committed over a period of 10 months and on four separate occasions.

6.       Although the Applicant said at sentence that he was remorseful, it appears to the Tribunal that he had little insight into his criminal conduct. That was demonstrated at the time of sentence. The Applicant further, asserted in oral evidence at the hearing in an attempt to explain his offending behaviour, that he had heard that Australia was a European country and ‘you can do what you want and no-one will judge you’. However, the Applicant went on to explain that he knew what he did was wrong.

7.       There were mitigating and subjective features taken into account at sentence which included the Applicant’s poor background and exposure to violence as a youth. The Tribunal, likewise, takes those matters referred to in the Sentencing Judge’s remarks into account in the Applicant’s favour in the overall assessment of Primary Consideration 1.

ISSUES

8.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

9. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

10.     Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

11. Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

12.     In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

13.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

14.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

15. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

16. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens 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 (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)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 non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)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. However, 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 (paragraph 5.2(4));

(e)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

17.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

18.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

19.     These principles are of course dependent upon the facts and circumstances of each case.

20.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

21.     The Tribunal must also take into account other considerations insofar as they are relevant.

22.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)  strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.

THE CHARACTER TEST

23.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

24.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

25.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

26. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

27.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind 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. 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.

28.     Paragraph 8.1(2) of Direction No. 90 provides that 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.

The nature and seriousness of the Applicant's conduct to date

29.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or 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).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

30.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(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 re-offending; 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).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

31.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

32.     The offences committed by the Applicant are particularly serious, committed against a relative in respect of whom he was in a position of trust, the Tribunal finds. There were four equally serious offences committed by the Applicant over a period of 10 months and the Tribunal does not accept that the Applicant did not gain some sexual gratification from the commission of those offences. Furthermore, the fact that the Applicant committed four offences, which the Tribunal infers the Applicant appreciated were serious, demonstrates to the Tribunal’s mind that the Applicant was unable to stop himself.

33.     A psychologist’s report which is relatively contemporary tendered at sentence in 2018, referred to the Applicant acknowledging his offending but that he was unable to explain his actions as driven by a process of his own thoughts and desires, except describing his actions as ‘Satan got into my mind’.

34.     An opinion expressed by the psychologist was that the Applicant exhibited features of a dependent and avoidant personality disorder and possibly had a paedophilic disorder. The psychologist noted, however, that the Applicant strongly denied experiencing sexual gratification from the offences. In the Tribunal’s view, the Applicant’s behaviour is indicative clearly of determined sexual gratification, the offences having been committed on four separate occasions. The Tribunal is not satisfied that there is sufficient evidence to conclude that the Applicant has a paedophilic disorder.

35.     The Applicant expressed remorse at the hearing. The Tribunal accepts this as genuine. He has the genuine support of his wife, sister and others who speak well of him, although this, the Tribunal views, is against the background of the commission of the offences themselves. The Tribunal infers, in the Applicant’s favour, that there is a real pressure upon the Applicant to continue to behave within the law because of the likelihood of future deportation. The Tribunal takes this into account in its overall assessment.

36.     The Applicant passionately explained that he had ‘been through a lot of things, gaol, and 100% I won’t do it again’.

37.     The Applicant says that he has been prescribed anti-depressant medication and anti-psychotic treatments, although there is no evidence before the Tribunal of any formal diagnosis.

38.     There is no evidence before the Tribunal that the Applicant has undertaken any formal rehabilitative courses in respect of his offending, although in evidence, the Applicant said that he had been seen by a psychologist in prison on numerous occasions (two times per week for 3 years) and gave oral evidence about ways by which he could guard against future offending. The Applicant said a psychologist had told him to forget about what he had done and think about his wife, child and family, or words to that effect.

39.     The Tribunal notes that the Applicant said that he has received counselling and been treated by a psychiatrist whilst in prison. The Applicant undertook whilst in custody/detention a number of courses including about the laws in Australia, aspects of Australia generally, and a computer course. The Tribunal notes that there is no other supporting evidence on this topic and although the Tribunal accepts the Applicant’s statements about counselling and treatment, the Tribunal places little weight on this in terms of rehabilitation and the lessening of the risk of the Applicant committing future offences.

40.     Even taking into account all that is said by his wife, sister and others who speak on behalf of the Applicant in his favour, there is, in the Tribunal’s opinion, a real risk that the Applicant will offend in the future, in relation to the same types of offences for which he has been previously convicted. There is no convincing evidence before the Tribunal that the Applicant has undertaken appropriate or practical rehabilitation to address his past offending.

41.     The Tribunal notes the Applicant appears to have access to employment should he be allowed to remain in Australia which would have the potential effect of lessening the likelihood of him committing further offences. Furthermore, the Applicant asserts that he has rehabilitated himself, in effect.

42.     The Tribunal does not find the above matters compelling in terms of the balance of its consideration of risk in respect of the Applicant.

43.     The Tribunal is ultimately satisfied that particularly because of the past offending and the number of offences committed and the nature of offending that the Applicant does pose a real risk of re-offending.

44.     Although the Tribunal is of the opinion that there is evidence upon which the Applicant could be assessed as a person who may commit offences in the future and pose such a risk, the real issue, in the Tribunal’s opinion under this consideration, is the magnitude and seriousness of the past offending.

45.     The Tribunal is of the view that the Applicant’s past offending is so egregious, demonstrating an unrestrained behaviour against a vulnerable child in respect of whom the Applicant was in a position of trust, that the Tribunal views that offending alone as bearing extreme weight against the revocation of the Applicant’s visa.

Primary Consideration 2 – Family violence committed by the non-citizen

46.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

47.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).

48.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

49.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

50.     This consideration, although a separate consideration, bears direct relationship to the offences committed by the Applicant against a family member, the Applicant’s cousin. The facts and circumstances have been described above. The victim was a young, vulnerable relative and the Applicant was a person in a position of trust.

51.     It is sufficient to say that this consideration also bears considerable weight against the Applicant.

Primary Consideration 3 – Best interests of minor children in Australia

52.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

53.     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 (sub-paragraph 8.3(2)).

54.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

55.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

56.     Although the Applicant has had a lack of opportunity to actually live with his wife and child since conviction in 2018, nonetheless, the Tribunal is prepared to accept, by virtue of the paternal relationship, that the child’s best interests in this case would be served by the Applicant remaining in Australia. The Tribunal notes that the Applicant’s wife has a right to live in Australia, as does the child.

57.     In evidence, the Applicant explained very emotionally that his child has pleaded with him to come home. The Tribunal accepts this expression as indicative of the depth of relationship between father and child.

58.     While that is a relevant consideration within the Applicant’s links to Australia, it is also relevant that the wife may or may not follow her husband to Lebanon. Were the wife to do so, both the mother and child would be deprived of a life in Australia. It is a better view to take that the child should have a direct and personal relationship with her father and that that relationship should occur in Australia, that is, the country in which the child presently lives.

59.     For the reasons expressed above, there is no doubt that in the child’s best interests, the Applicant should remain in Australia and the revocation of the visa should be overturned.

60.     There are three relevant minor children who are cousins to the Applicant, whose ages are 8 years, 10 years and 15 years.

61.     Prior to the hearing, the evidence was that the Applicant said that he has a close relationship with these cousins and because of his ‘situation’, those cousins are depressed and consider that there is something missing in their lives. The Applicant says, and the Tribunal accepts, that he treated the cousins appropriately and that there was an appropriate bond between the Applicant and those cousins. It does not appear that the Applicant plays a fundamental parental role, although it is to be supposed, and the Tribunal accepts, that culturally, the Applicant, as a male figure, would likely play a significant role in the lives of those cousins.

62.     At the hearing, the Applicant disavowed any relevant other minor children. Because of the language difficulties the Tribunal has identified, being the need for an interpreter for the Applicant, the Tribunal acts upon the original material placed before it, in the Applicant’s favour on this topic and treats the evidence of other minor children as relevant to this consideration.

63.     As to the interests of the Applicant’s child, the Tribunal accepts that the Applicant’s child knows the Applicant, appreciates the Applicant has a presence in her life, and asks her mother about him.

64.     The interests of all the minor children referred to above but particularly that of the Applicant’s daughter, are clearly served by the Applicant remaining in Australia.

65.     This consideration weighs strongly in the Applicant’s favour.

Primary Consideration 4 – Expectations of the Australian community

66.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

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 not to allow such a non- citizen to enter or remain in Australia.

67.     Paragraph 8.4(2) also provides that it 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

68.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

69.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

70.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

71.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

72.     In this case, the Applicant has been in Australia since 2012. On the evidence, the Tribunal accepts and also infers that the Applicant has contributed to Australian society. The Applicant’s child lives in Australia.

73.     The factors in the Applicant’s favour, some of which have been referred to above, do not, in the Tribunal’s opinion, affect the considerable weight that must be given to this consideration against the Applicant.

74.     This consideration weighs strongly against the Applicant’s request for revocation of the mandatory cancellation of his visa.

Other considerations

75.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

76.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(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 Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A 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 - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

77.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

78.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)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:

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.

79.     The Applicant was born in Lebanon and should he be returned to that country, in the Tribunal’s opinion, there are a number of impediments to returning to that country which will affect the Applicant in a negative way.

80.     The Applicant is 32 years of age and although born in that country, and there being no particular language or cultural barriers, nonetheless, the Tribunal identifies a number of features which would affect the Applicant.

81.     Although there is no objective medical evidence of any great detail, nonetheless, the Tribunal is satisfied that there is evidence before it by a psychologist that the Applicant, who demonstrates features of an avoidant personality disorder. Further, the Applicant’s mental and physical health are compromised by depression, high blood pressure, back pain, and to a lesser extent, gout and reflux. In custody and detention, the Applicant is receiving medication for some of these conditions. The Tribunal notes that the Applicant says he no longer suffers from depression although this, the Tribunal finds, was unconvincing.

82.     Furthermore, the Tribunal accepts on the evidence, that the Applicant suffers a post-traumatic stress disorder.

83.     The Applicant has relatives, including a brother and uncles, living in Lebanon, although it is not clear to what extent if, at all, they would be able to assist his re-integration in that country. The Tribunal is satisfied that the Applicant understands the language and culture of Lebanon and to that extent it would not be difficult for him to return.

84.     However, that is not the end of the matter. In the Applicant’s case, to return him to Lebanon and take him from his wife and child and require him to re-establish himself in that country will no doubt cause great emotional, social and economic distress. This, the Tribunal considers, is not merely a short-term matter of re-adjustment into another but familiar society.

85.     The Applicant has provided information describing social and economic deprivations, chaos and upheaval in Lebanon and his concern about returning, and the possibility of having his wife and child live in that country which he describes as ‘hard life conditions in Lebanon’. The Applicant has provided documentary evidence and photographic evidence to this effect. The Tribunal accepts these assertions by the Applicant.

86.     In the Tribunal’s opinion, to return the Applicant to Lebanon in those circumstances of such social and economic upheaval would make it more difficult for him to re-establish himself. This is likely to be even more difficult because of his need for medical assistance for the identified medical problems for which the Applicant is being treated in Australia. The separation of the Applicant from his wife and child, should he be returned to Lebanon, would make his deportation even more difficult.

87.     This consideration, taking into account the wide variety of factors, weighs heavily in the Applicant’s favour, and in favour of revocation of the mandatory cancellation of his visa.

Impact on victims

88.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

89.     There is no satisfactory direct evidence, nor is it possible to draw any relevant inferences from the evidence, in relation to this topic.

90.     Therefore, the Tribunal does not weigh this consideration against the Applicant.

Links to the Australian community

91.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(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.

92.     The Applicant responded to the mandatory cancellation of his visa, apparently seeking revocation of the cancellation of his visa, in the following terms: ‘I would like my visa to be revoked due to my special circumstances which are my wife and my one year old daughter don’t have anyone else to depend on, as my wife doesn’t talk to her family, also my father is sick as well as my mother, has many health issues which I can supply medical certificate for if you look at my record you will see my character, I have never had any problem within the community’.

93.     The Tribunal takes into account the fact that the Applicant says his wife and daughter do not have anyone else to depend on should he be removed from Australia and the wife is isolated from her family. The Applicant says his father is sick as well as his mother who has many health issues. No doubt the Applicant’s plea is that he is someone upon whom his family members must depend for assistance in a variety of ways. The Tribunal considers that these factors should be taken into account in the Applicant’s favour.

94.     The Applicant has lived in Australia since 2012, having arrived at the age of 22 years. The Applicant appears to have been employed satisfactorily up until the time he was imprisoned for the relevant offences. It is accepted that the Applicant engaged in volunteer work and further, that he has ties to the Lebanese Muslim community, amongst other things, through his attendance at a mosque.

95.     The Applicant’s wife and daughter, mother, father, sister, aunt and uncles reside in Australia. Family members have visited the Applicant in custody/detention.

96.     The wife is dependent upon the Applicant economically, socially and emotionally, and this has a consequence of affecting his child also. The Applicant’s mother is also dependent upon the Applicant in a social, economic and emotional sense. Furthermore, the mother of the Applicant is an elderly woman who is unwell and the Tribunal accepts she needs her son’s presence in Australia.

97.     The Applicant’s wife, according to a medical report which is contemporary from May 2022, has mental health issues and has suffered since the Applicant’s incarceration. It is likely, in the Tribunal’s opinion, that she will continue to suffer which may be made worse should the Applicant be removed from Australia.

98.     On some evidence before the Tribunal, which the Tribunal is prepared to accept, the wife has little contact and receives no assistance from her own family.

99.     The Applicant’s aged parents, who both suffer significant ill-health, rely on the Applicant for their needs, including health and emotional needs and wish to continue such assistance from the Applicant in the future. The Applicant expects to continue as a carer for his father. The removal of the Applicant from Australia would severely affect them.

100.    The Applicant’s sister gave written evidence to the same effect, saying that the Applicant’s parents both rely on the Applicant for assistance with their daily activities, in part because both are unwell.

101.    The entire family are close and they have visited him whilst in custody/detention. They will keenly feel his absence should he be deported.

102.    It is proper to infer that the Applicant’s mother and father who reside in Australia and who are elderly, rely on the Applicant, being the healthy male figure in the household. This is particularly so in a cultural sense because of the Applicant’s Lebanese background and that of his mother and father. Should the Applicant be removed from Australia, the parents will, the Tribunal infers, suffer greatly in social, economic, physical and mental health aspects of their lives and it would be devastating for them and for the Applicant’s wife, child, sister, and other family members should the Applicant be removed from Australia.

103.    This consideration, overall, weighs strongly in the Applicant’s favour.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

104.    There is no relevant evidence in relation to Australian business interests.

CONCLUSION

105.    Despite the many and substantial factors in favour of revocation of the mandatory cancellation of the Applicant’s visa, the Tribunal has decided that the extremely serious nature of the Applicant’s past offending, together with some likelihood of offending in the future, without question, outweigh all factors in the Applicant’s favour. In fact, in the Tribunal’s view, the Applicant’s past offending is so serious in its particular circumstances that considered alone, this strongly outweighs all other factors in the Applicant’s favour, including the serious consequences of the Applicant’s removal from Australia to his wife, child and family.

ORDER

106.    The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.................................SGD.......................................

Associate

Dated: 8 August 2022

Dates of hearing:	25 and 27 July 2022
Applicant:	LXHH
Solicitors for the Respondent:	Ms E Letcher-Boldt, Clayton Utz