RGCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3051

RGCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3051 (26 August 2021)
Division:GENERAL DIVISION
File Number: 2021/2643
Re:RGCZ
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:26 August 2021
Place:Melbourne

The Tribunal affirms the decision under review.
......................[SGD]..................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Visa refusal – citizen of Lebanon – Partner (Provisional) (Class UF) visa –family violence offending – failure to pass character test – whether discretion to refuse visa should be exercised – Ministerial Direction 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
CASES
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1842
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CPJ16 v Minister for Home Affairs [2020] FCA 1408
Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 846
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Hughes v The Queen [2017] 344 ALR 187
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration & Multicultural & Indigenous Affairs v Godley (2005) 141 FCR 552
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
PQSM v Minister for Home Affairs [2019] FCA 1540
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516
Walker v Page [2020] FamCAFC 226
SECONDARY MATERIALS
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
26 August 2021
INTRODUCTION

The Applicant in this matter (the Review Applicant) has asked the Tribunal to review a decision by a delegate of the Respondent, to refuse her husband (the Visa Applicant) a Partner (Provisional) (Class UF) visa (the visa), under s 501(1) of the Migration Act 1958 (Cth) (the Act).
The hearing was held on 4 and 5 August 2021. The Applicant appeared in person and was represented by Mr Aleksov of counsel, instructed by Clothier Anderson Immigration Lawyers. The Visa Applicant appeared from Lebanon by video call and was assisted by an interpreter in the Arabic (Lebanese dialect) language. The Respondent was represented by Jonathan Barrington of counsel instructed by Mills Oakley.
No request was made by either party for a confidentiality order. Given the circumstances of the case, however, which includes issues like unexplained injury to a child and involvement of child protection authorities and the Children’s Court, the Tribunal considers it desirable to make a confidentiality order pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth). Accordingly, the Review Applicant will be referred to in the title of these reasons as ‘RGCZ’. Except for the limits specified in the confidentiality order, information tending to reveal the identity of the Review Applicant must not be published or disclosed.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Review Applicant is an Australian citizen and under 30 years of age.[1] Her parents, relatives and friends live predominantly in Australia. The Visa Applicant is a 31-year-old citizen of Lebanon.[2] He was born, raised, educated, worked, and completed military service in Lebanon,[3] where his parents, siblings and other relatives and friends continue to live.[4]
[1] Exhibit R1, 433.
[2] Ibid, 254; Exhibit A2, 1 [6].
[3] Ibid, 2 [13]; Exhibit R1, 258-259; 368-369.
[4] Exhibit R1, 212-219; 267-268; 271; 437-439.
The Visa Applicant arrived in Australia in 2013 as an unauthorised maritime arrival[5] and remained in immigration detention until August 2013. After being released into the community he met the Review Applicant in late 2014[6] and married her the following year.[7]
[5] Ibid, 206; 369 [19]; Exhibit A2, 3 [22].
[6] Ibid, 248.
[7] Ibid, 432.
The Visa Applicant has committed offences in Australia as disclosed by his National Police Certificate dated 14 March 2019.[8] These are:
[8] Ibid, 34; 40-43.

COURT DATE OFFENCE RESULT

Magistrates’ Court May 2017
Recklessly Cause Injury

Contravene Family Violence Order – Intend Harm / Fear

Aggregate imprisonment for 42 days concurrent.[9]

Community correction order (CCO) for 12 months.[10] To perform 150 hours of unpaid community work for 12 months.

Magistrates’ Court August 2015 Drive Whilst Disqualified Convicted. Community correction order for 12 months. To perform 120 hours of unpaid community work for 12 months.

Local Court May 2015 Drive Motor Vehicle During Disqualification Period. Fined $800. Licence disqualified for 12 months.
[9] Ibid, 43. But for the Visa Applicant’s plea of guilty, the Magistrate indicated a sentence of six months’ imprisonment would have been imposed.
[10] Ibid, 37. The terms of the Visa Applicant’s 2017 CCO included a 12-month condition that he undergo a mental health assessment and treatment as directed, and offending behaviour program as directed, and any other treatment and rehabilitation as directed.

The Recklessly Cause Injury and Contravene Family Violence Order offences were committed against the Review Applicant. The Visa Applicant was also subject to intervention orders (IVO) during 2016 and 2017.
The Visa Applicant was granted a Bridging Visa in March 2017,[11] which was cancelled following the May 2017 convictions under s 116 of the Act (Bridging Visa cancellation).[12] He was subsequently taken into immigration detention.
[11] Exhibit R1, 188.
[12] Ibid 188-204.
The Visa Applicant unsuccessfully sought review of the Bridging Visa cancellation in the Migration and Refugee Division of the Tribunal, which affirmed the decision on 16 July 2017.[13] In its reasons, the Tribunal gave consideration to Victoria Police’s assessment of the Visa Applicant as an ‘extreme risk of violence’, which the presiding member found carried ‘considerable weight’.[14]
[13] Ibid 177.
[14] Ibid 186.
The Visa Applicant successfully applied for cancellation of his CCO in late 2017, which was granted by the courts because he was ‘…in immigration detention and has been since 4.7.17. His visa has been cancelled and is likely to be deported…’.[15]
[15] Ibid, 38-39.
The Visa Applicant’s request for a Protection Visa was refused by a delegate of the Respondent in early 2018; a decision subsequently affirmed by the Immigration Assessment Authority.[16]
[16] Ibid 339.
The Visa Applicant voluntarily returned to Lebanon under escort of immigration authorities in June 2018.[17] Since departing Australia over three years ago, the Visa Applicant has lived with his parents in Lebanon and works full time on their farm.[18] Approximately a year after departing Australia, he applied for a Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa (the combined application),[19] sponsored by the Review Applicant.
[17] Ibid 206.
[18] Ibid, 209; 254; 258; 363 [22].
[19] Ibid 207-253.
On 19 May 2020, a delegate of the Respondent wrote to the Visa Applicant, advising that refusal of the combined application was being considered under s 501(1) of the Act.[20] The delegate indicated the Department held information suggesting the Visa Applicant did not pass the ‘character test’ based on s 501(6)(d)(i) of the Act, which states:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia…
[20] Ibid 272.
The delegate referred to the Visa Applicant’s domestic violence offending in 2017 and invited him to comment on this information.[21] The Visa Applicant made representations, with the assistance of his then Migration Agent, which were received by the Respondent on 25 July 2020. This included a Personal Circumstances Form-Response to matter under s 501 of the Migration Act 1958 (2020 PCF).[22]
[21] Ibid, 273-274.
[22] Ibid 281-394.
A further letter from the Respondent invited the Visa Applicant to comment on the Bridging Visa cancellation and an email from Victoria Police dated 23 September 2020.[23] He did so through his lawyer on 22 January 2021,[24] which included a statement by the Review Applicant, psychological reports, a letter from a speech pathologist, and a medical report.[25]
[23] Ibid, 278.
[24] Ibid, 442-449.
[25] Ibid 442-454.
On 19 April 2021, a delegate of the Minister refused to grant the combined application under s 501(1) of the Act (the visa refusal decision).[26]
[26] Ibid 11.
On 27 April 2021, the Applicant asked the Tribunal to review the visa refusal decision.[27]
[27] Ibid, 1-8.
PROCEDURAL HISTORY
An initial case management hearing was held on 7 May 2021. Written scheduling orders were issued, and a hearing listed for 4 and 5 August 2021.
Reconstitution
On 14 May 2021, the Review Applicant requested through her solicitor, Ms Verma, that the application be re-constituted to a female member (reconstitution request). Ms Verma wrote to the Head of the Tribunal’s General Division stating:
…In accordance with item 3.9 of the President’s Direction on Constituting the Tribunal, we write now to request that the matter be constituted to a female member, considering the sensitivity of the matters likely to be discussing during the hearing. Item 3.9 of the President’s Direction provides as follows, in relation to reviews other the Migration and Refugee, Social Services or Child Support divisions:
You or the decision-maker may write to us to suggest that a Tribunal with particular knowledge, expertise or experience be constituted for the purposes of a proceeding and provide reasons for this view. Any such communication should be lodged with us no later than at the time you or the decision-maker lodge a Hearing Certificate. If we do not require a Hearing Certificate, any such communication should be lodged with us no later than 7 days after the final conference, conciliation or other ADR process.
This case concerns allegations of family violence by [the Visa Applicant] against… [the Review Applicant, whose]…evidence regarding past events is likely to be critical to the review. She must feel free to provider that evidence in a supportive, open and non-judgmental setting. This is best facilitated by a female member of the Tribunal.
The outcome of the review is critical for both [the Review Applicant] and her husband. If the decision under review is affirmed, [the Visa Applicant] will remain separated from [the Review Applicant] and their three Australian citizen children for the foreseeable future.
We note that the Tribunal has been provided with various psychological reports in relation to [the Review Applicant], which were furnished to the Department of Home Affairs in connection with her husband’s visa application – we enclose selected copies again now. We ask accordingly that [the Review Applicant] be dealt with as a vulnerable witness.
Accompanying the reconstitution request was a report from psychologist Ms Karin Steinhoff dated 18 January 2021. Key aspects of the report are summarised as follows:
(a)The Review Applicant’s mental health was reported to be ‘stable and she does not meet the diagnostic criteria concerning any psychological conditions’;
(b)If the ‘outcome of her husband’s migration matter results in permanent separation and a fracture to her family unit, her mental health will rapidly decline and result in severe depression’, impacting her parenting capacity;
(c)The Review Applicant is ‘extremely vulnerable’, is ‘at risk of suffering severe depression and anxiety’, and ‘will not have the emotional resilience to cope’ if she ‘loses her hopes and dreams’ of having her husband join her in Australia;
(d)The Review Applicant had undertaken previous lengthy visits to Lebanon to see her husband and had plans to return in 2020, but the COVID-19 situation had ‘compounded uncertainties about their future circumstances and delayed their opportunities to see each other as a family’;
(e)The Review Applicant had completed her first year of an undergraduate degree, and Ms Steinhoff was concerned that ‘any further periods of family separation could lead to physical, emotional and academic regression’; and
(f)The Review Applicant’s children required ‘significant care and supervision’ and she hoped the Visa Applicant could soon assist her. Ms Steinhoff stated it is in the children’s best interests to have an ‘ongoing meaningful relationship with their father and an opportunity to strengthen the already established bond’.
On 18 May 2021, the Tribunal responded to Ms Verma, advising that the reconstitution request is ‘more properly dealt with by the Senior Member to whom the matter is constituted’. In advance of a Directions Hearing, Ms Verma lodged a further letter from Ms Steinhoff dated 24 May 2021,[28] which stated the Review Applicant is:
(a)‘suffering from depression and her mental health is highly vulnerable to any negative information concerning her family circumstances’;
(b)‘anxious about the process and is experiencing fears about attending and discussing personal matters. I strongly recommend that if she is required to attend, she is offered emotional support because she is very uncomfortable discussing personal issues in front of strangers. She can become easily overwhelmed and will have difficulties understanding complex questions’;
(c)susceptible to having memories of traumatic events triggered if raised at the hearing and had told Ms Steinhoff: ‘I am really scared; I’m already starting to worry about being questioned about the past’; and
(d)‘more likely to be open and relaxed in front of a female Tribunal Member given her Muslim religious background as she is not accustomed to talking openly in front of males particularly regarding personal and sensitive issues surrounding family violence’.
[28] Exhibit A4.
The Respondent, then represented by Mr Oliver Young, took a neutral position regarding the reconstitution request but confirmed male counsel was briefed to represent the Minister at the substantive hearing. This meant that irrespective of constitution, the Review Applicant’s evidence would be received through questioning by two male barristers.
Tribunal consideration on reconstitution
At the Directions Hearing on 28 May 2021, the Tribunal noted that cl 3.9 of the President’s Direction is more typically used when requesting members with specialised experience. Non-exhaustive examples include a member with tax and accounting experience hearing a commercial matter, or a medically trained member hearing a case where complex medical evidence is at issue. The President’s Direction states that such requests should be lodged with the Tribunal ‘no later than 7 days after the final conference, conciliation or other ADR process’. The Applicant’s request for reconstitution was made a week after a hearing date was set, and scheduling orders issued.
When asked what specific knowledge, expertise or experience was being sought, and who in the Tribunal has that experience, Ms Verma conceded the reconstitution request was not specifically captured by cl 3.9 of the President’s Direction. She stated this was not requested on the basis of skills or expertise, but on ‘innate characteristics’, and ‘any female member would fit the bill’.
No authorities were submitted by the Applicant relevant to reconstitution on gender. The Tribunal referred to Walker v Page [2020] FamCAFC 226, in which a plaintiff sought a judge’s recusal based on prejudice by gender. This is distinguishable from the present matter, however, because Ms Verma confirmed the Applicant was not requesting recusal but reconstitution.
Tribunal conclusion on reconstitution
The Tribunal declined the reconstitution request, gave ex tempore reasons, and advised that written reasons would be provided in the substantive decision. These now follow:
(a)The Tribunal does not constitute matters based on gender, nor is it accepted that only a female member can deal with sensitive evidence in a ‘supportive, open and non-judgmental setting’. The Tribunal’s membership, irrespective of gender, is well-practiced in dealing with difficult evidence in a sensitive way;
(b)The preference of applicants is considered where possible but must be balanced with the practical requirements of dealing with a large volume of applications. Agreeing to reconstitute applications based on characteristics like gender has the potential to create an unsustainable situation for caseload management;
(c)Everything in the first two pages of Ms Steinhoff’s most recent letter, except for the last paragraph, relates to the Review Applicant’s concern about an adverse decision and ‘being questioned about the past’. This is understandable but arises irrespective of who presides. Personal and sensitive matters will inevitably arise because of the nature of considerations under Direction 90. Moreover, both parties are represented by male barristers;
(d)The Tribunal proposed the following measures to assist in alleviating concerns raised in Ms Steinhoff’s report:
(i)Attempts would be made to source a female Arabic interpreter, which Ms Steinhoff thought would be helpful, and which was subsequently organised for the hearing;
(ii)Provision would be made for more frequent adjournments if required during the hearing, which Ms Steinhoff said would assist;
(iii)The Tribunal offered the Review Applicant the opportunity to appear remotely from another hearing room by audio visual means. While Ms Steinhoff thought this would be helpful, Ms Verma said the Review Applicant wanted to be in the hearing room because of likely questions about honesty and character, which were best addressed while she was physically present; and
(iv)The Tribunal would permit the Review Applicant to be accompanied by a friend or relative to provide emotional support, which Ms Steinhoff thought would be helpful. The Review Applicant was subsequently accompanied by a female support person who sat with her during the hearing.
Objections to extension of time for summons requests
On 20 May 2021 the Respondent wrote to the Tribunal seeking leave to extend the time to lodge summons requests by one day as follows:
Additional information has come to our attention regarding this matter. In particular, that there have been child protection orders issued by the DHHS regarding the [Visa Applicant]. We believe this information is relevant and will assist the Tribunal in determining whether the applicant passes the character test under section 501(6) of the Migration Act 1958 (Cth).
…We respectfully request that the due date for the lodgement of summons be extended to this Friday 21 May 2021 to allow us to issue a further summons to the DHHS to produce documents.

Ms Verma objected to the request in the following terms:
We formally object to the issue of further summons by the Tribunal in this matter, directed to the DHHS file relating to [the Visa Applicant]. The involvement of DHHS with…[the]…children is addressed in material before the delegate and was limited to momentary engagement in 2016. There was no ongoing involvement after that, and there is certainly no involvement now. The delegate did not treat that involvement as relevant to the assessment under s 501(6) of the Act, and nor logically could the Tribunal.
After considering submissions, the Tribunal decided to extend the time for summons requests by a day. The Tribunal was satisfied there was a real possibility the documents requested by the Respondent might assist in resolving the proceeding. Concurrent inspection orders were granted for this material.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions.
Section 501(1) of the Act, read in conjunction with s 501(6)(d)(i) , provides that the Minister may refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test because, in the event that the person were allowed to enter or to remain in Australia, there is a risk the person would engage in criminal conduct in Australia.
If an applicant fails the character test, the Tribunal must then determine whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.[29] Guidance in exercising the discretion is found in Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[29] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The Direction
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Tribunal must comply with the Direction, which most recently came into effect on 15 April 2021.[30]
[30] Section 499(2A) of the Act.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act. Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states:
…
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
The Direction provides the following principles at cl 5.2 as a framework within which decision-makers should approach their task of deciding whether to refuse a non-citizen’s visa under s 501:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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.
(2) 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.
(3) 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 measureable risk of causing physical harm to the Australian community.
(4) 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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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 measureable risk of causing physical harm to the Australian community.
Annex A to the Direction provides both general and specific guidance to decision-makers in determining whether a person passes the character test. Section 1 of Annex A provides:
(1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test …
(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
Clause 6 of the Direction provides that a decision-maker must take into account the considerations identified in clauses 8 and 9 of the Direction, where relevant to the decision.
If it is determined that the Visa Applicant does not pass the character test, the following primary considerations at cl 8 of the Direction must be applied to the specific circumstances of this case:
(a)protection of the Australian community from criminal or other serious conduct;
(a)whether the conduct engaged in constituted family violence;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian community.
Clause 9(1) of the Direction requires that other considerations must be taken into account where relevant. These 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;
(ii)impact on Australian business interests.
Clause 7(1) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.
Clause 7(2) provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman[31] regarding a previous equivalent Direction:
…Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[31] Suleimanv Minister for Immigration and Border Protection (2018) 74 AAR 545, [23] (Colman J).
In Jagroop,[32] the Court held that:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
[32] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78].
Annex A, s 2 of the Direction is titled ‘Application of the character test’. Clauses 6 and 6.1 relevantly state:
6Risk in regards to future conduct (section 501(6)(d))
(1)       A person does not pass the character test if, in the event that the    person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2)       The grounds are enlivened if there is evidence suggesting that    there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)       It is not sufficient to find that the person has engaged in conduct    specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1      Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)       A person does not pass the character test if, in the event that the    person were allowed to enter or remain in Australia, there is a risk   that the person will engage in criminal conduct in Australia.
(2)       The reference to criminal conduct must be read as requiring that    there is a risk of the person engaging in conduct for which a criminal   conviction could be recorded.
ISSUES TO BE DETERMINED
The issues to be resolved in this case are:
(a)Whether the Visa Applicant fails the character test based on a risk he would engage in criminal conduct in Australia: s 501(6)(d)(i) of the Act; and
(b)If so, whether the discretion to refuse the visa should be exercised, after applying the relevant primary and other considerations in the Direction to the specific circumstances of this case.
EVIDENCE
Documentary evidence
The following documents were taken into evidence:
(a)Documents lodged by the Respondent numbering 459 pages;[33]
[33] Exhibit R1.
(b)Supplementary documents lodged by the Respondent numbering 197 pages;[34]
(c)Eleven-page statement of the Review Applicant dated 5 July 2021;[35]
(d)Translated ten-page statement of the Visa Applicant dated 22 June 2021;[36]
(e)Report of clinical psychologist Mr Patrick Newton dated 26 June 2021;[37]
(f)Two-page letter from psychologist Ms Karin Steinhoff, dated 24 May 2021;[38]
(g)One-page letter from psychologist Dr Esma Kurt dated 1 July 2021;[39]
(h)One-page letter of speech pathologist Ms Kamelia Dennaoui dated 2 July 2021;[40]
(i)One-page list of occupational therapy appointments for the Review and Visa Applicant’s eldest child between 27 May 2021 and 30 September 2021;[41] and
(j)Eleven pages of photocopied photographs, showing the Review Applicant and Visa Applicant in family settings.[42]
[34] Exhibit R2.
[35] Exhibit A1.
[36] Exhibit A2.
[37] Exhibit A3.
[38] Exhibit A4.
[39] Exhibit A5.
[40] Exhibit A6.
[41] Exhibit A7.
[42] Exhibit A8.
Review Applicant’s Evidence
The Tribunal has considered several statements and other materials relating to the Review Applicant as follows:
(a)Nine-page Statutory Declaration dated 12 June 2019;[43]
(b)One-page letter from her general practitioner dated 20 December 2020;[44]
(c)Three-page Statutory Declaration dated 14 January 2020;[45]
(d)Eight-page Statutory Declaration dated 21 July 2020;[46]
(e)Emails to the Respondent dated 8 December 2020, and 8 March 2021;[47] and
(f)Eleven-page statement of the Applicant dated 5 July 2021.[48]
[43] Exhibit R1, 375-383.
[44] Ibid, 440.
[45] Ibid, 392-394.
[46] Ibid, 384-391.
[47] Ibid, 395-397.
[48] Exhibit A1.
In her oral evidence, the Review Applicant said the Visa Applicant is a good father who is loving and attentive to their children. She wants him in her life and feels ‘like I couldn’t do anything without him’. Her evidence is summarised as follows:
(a)Her father insisted she marry his nephew and forced her to do so while visiting Lebanon. Her father disapproved of her subsequent relationship with the Visa Applicant, disparaging him for coming to Australia ‘by boat’, and ‘using [her] for a visa’;
(b)Although her father was eventually receptive to her marrying the Visa Applicant, he changed his mind in 2015, purportedly because of a dowry dispute;[49]
[49] Exhibit R1, 376-377.
(c)The Review Applicant described 2016 and 2017 as the most difficult period of her life, explaining that she was young with her first child, and had no support from her family. She argued with the Visa Applicant about many issues,[50] including about her ‘cooking and the food not being nice’.
[50] Ibid, 378; 385.
(d)The Review Applicant agreed police attended their home on several occasions and was taken through the following police reports in evidence:
(i)15 March 2016:[51] The Review Applicant could only remember being woken by a police officer who checked she was alright and then left. She could not recall telling police that she and the Visa Applicant ‘fight all the time’;
[51] Exhibit R2, 5.
(ii)29 March 2016:[52] The Review Applicant explained this incident occurred when the Visa Applicant began to ‘pressure [her] to lie down’ and was ‘sort of grabbing at [her] and forcing [her] to lie down’. She said the pushing was becoming ‘more forceful.[53] She tried to leave the house and was yelling loudly upon exit, but the Visa Applicant pursued her, grabbed her arm forcefully, put his hand over her mouth, and pulled her backwards towards their house in view of neighbours.[54] Police were called. The Review Applicant said she told police the Visa Applicant struck her to the face but now claimed this never happened, and she ‘made up a lot of stuff’. When asked by Mr Aleksov why she had made false claims to police, the Tribunal paused proceedings to remind the Review Applicant about her right to silence and privilege against self-incrimination. Mr Aleksov said that privilege was expressly waived for this line of questioning. When again asked why she gave false information to police, the Review Applicant said it resulted from the involvement of her family and wanting to make her father happy: ‘at the time my statement was taken my family was around…I was angry and when I am angry I tend to do that. My family told me to say things and I went with that. I regret it, I did the wrong thing’;
[52] Exhibit R2, 7.
[53] Exhibit A1, 6 [50].
[54] Ibid, 6 [50].
(iii)The Review Applicant said that after the incident on 29 March 2016 she was supportive of a ‘basic intervention order’ taken out by police but not a full-exclusion order.[55] She said this prevented the Visa Applicant from contacting her and their child,[56] but she nevertheless continued to have daily contact with him in breach of the IVO;[57]
[55] Ibid, 6 [54]-[55]
[56] Exhibit R1, 181 [30] - 182 [32]-[36]; 323 [10.i.]; 363 [23]; 370 [25].
[57] Exhibit A1, 6 [56].
(iv)When referred to evidence about IVOs being taken out to address concerns about her safety, the Review Applicant responded: ‘there were lots of IVOs, I don’t remember’. When asked about a report prepared for the Court referring to the Review Applicant being observed during a hospital visit with a black eye,[58] she responded: ‘I fell in the bathroom while I was in the shower and I had hit my eye and my eye was bruised’. When asked about an addendum report for the Court referring to her being observed in May 2016 with two black eyes but denying family violence,[59] the Review Applicant said she could not recall attending this meeting with two black eyes. She recalled being referred to the agency involved as a ‘new mum struggling’;
[58] Exhibit R2, 33.
[59] Ibid, 52.
(v)The Review Applicant said she travelled to Lebanon for a holiday in December 2016 with her infant son and stayed with the Visa Applicant’s family for several months.[60] She enjoyed this very much, felt loved and supported, and learned a lot from his family about cooking, parenting, and married life. She said this was in stark contrast to life in Australia where she had ‘no supports’ from her own family;
[60] Exhibit R1, 379.
(vi)17 April 2017: When asked about a police report relating to an incident on 17 April 2017, the Review Applicant said she and the Visa Applicant were arguing loudly for five to ten minutes, because he was pressing her to do something in relation to an application on his phone and ‘wouldn’t take no for an answer’. The following exchange occurred between Mr Aleksov and the Review Applicant:
Review Applicant: …he kept on trying to hand me his phone, so I was really angry, I grabbed his phone and I threw it on the floor so when I threw it on the floor he was trying to grab it but punched me at the same time. And that’s basically it….
Mr Aleksov: Ok – he punched you once?
Review Applicant: Yep.
Mr Aleksov: Must have been hard?
Review Applicant: Yeah.
…
(e)During cross-examination, the Review Applicant said she could not recall precisely what she told police but confirmed he only struck her once. She said the reference in the police report to her vision going black was not true. She also claimed it was untrue that the Visa Applicant gave her water breaks before hitting her again, or was guarding the door to prevent her leaving, or hid her mobile phone causing her to feel trapped, or that she feared for her safety. She claimed to be able to leave anytime but elected not to do so, even after her uncle attended and tried to convince her to accompany him to her parents’ home. The Review Applicant agreed she was concerned this incident of violence occurred despite the counselling and behavioural change program the Visa Applicant undertook in 2016. She said the Visa Applicant was seeing a psychologist in 2016, resulting in positive changes, but he stopped seeing the counsellor;
(f)The Review Applicant said in the immediate aftermath of being struck on 17 April 2017, her eye swelled up. She said the Visa Applicant helped by applying a cloth, water, and aloe vera to the swelling. She said an uncle visited her the next day, became aware of the injury to her face and called police, who arrived to investigate. When asked about a police report in which she is recorded as claiming the Visa Applicant pressured her to do things on his phone and hit her several times causing her to fall over, the Review Applicant stated inter alia: ‘A couple of things I said to police were not true…I don’t remember exactly what I told the police, I remember what happened, not what I told the police.’ She explained her uncle’s wife became involved, who wasn’t happy about the Visa Applicant’s violence, and ‘was saying stuff’ to the Review Applicant, which she falsely conveyed to police. This included claims the Visa Applicant had thrown her over a fence and hit her repeatedly;[61]
[61] Exhibit A1, 9 [80]-[81].
(g)When asked by Mr Aleksov why she gave false information to police, the Review Applicant responded: ‘When I’m angry I tend to make up a lot of things…I feel like by me doing that [my family] will be closer to me’. In her documentary evidence the Review Applicant explained some of her relatives influenced her to ‘exaggerate’ what happened during these arguments and to make up ‘stories about the violence’.[62] The Review Applicant agreed however, that she ‘must have said the things’ recorded by police while interviewing her;
[62] Exhibit R1, 386.
(h)The Review Applicant has previously claimed the Visa Applicant was never ‘violent to me or the children’ and had ‘made a mistake under a lot of family pressure and one-time mistake, happened nearly three years ago’.[63] At the present hearing she maintained the only time the Visa Applicant hit her was during the 17 April 2017 incident. This conflicts with the Visa Applicant’s oral evidence that he struck her during both the March 2016 and April 2017 incidents. This inconsistency is discussed later;
[63] Ibid, 390-391.
(i)When asked about a report in evidence in May 2017 referring to her having ‘significant bruising to her face and neck’,[64] the Review Applicant responded: ‘All I remember is my eye’;
[64] Exhibit R2, 94.
(j)The Visa Applicant was imprisoned because of the April 2017 offending and subjected to a further 12-month IVO following sentencing on 30 May 2017. This prevented him from committing family violence against the Applicant and their son or intentionally damaging their property;[65]
[65] Exhibit R1, 47; 49-53. The Tribunal notes the Visa Applicant was already in immigration detention by this time, but was nevertheless required by the IVO not to communicate, approach within 5 metres, or be within 200 metres of a place where his wife and child lived, worked or attended school / childcare.
(k)After the Bridging Visa cancellation and refusal of his Protection Visa, the Visa Applicant decided to voluntarily return to Lebanon in June 2018. The Review Applicant said she subsequently travelled to Lebanon twice with her children to be with him, remaining for approximately a year.[66] At the time of her June 2019 Statutory Declaration, the Review Applicant was 36 weeks’ pregnant with her third child and said she planned to return to Australia ‘to deliver the baby and after the baby has had the first vaccination…go back to Lebanon because I want to be with my husband for ever and…stay together as a family…(with a ) happy and loving life together forever’.[67] After giving birth in Australia, she did return to Lebanon from October to December 2019, but came back to Australia because her eldest son’s ‘place on [a health-related] wait list was about to come up’.[68] She planned to again return to Lebanon for an extended period from April 2020[69] but was prevented from doing so due to travel restrictions arising from the COVID-19 Pandemic. [70] The Review Applicant said she got on very well with the Visa Applicant’s ‘big loving family’[71] in Lebanon;
[66] Ibid 295.
[67] Ibid, 382.
[68] Ibid, 295; 392 [4]; Exhibit A1, 11 [96].
[69] Ibid, 295.
[70] Ibid, 386.
[71] Ibid, 376; 386.
(l)After returning to Australia in December 2019, the Review Applicant said she lived with her sister for a time and then obtained private rental in August 2020.[72] When asked about her income, the Review Applicant said Centrelink payments are her only source of income;
[72] Ibid, 393, [11]-[12].
(m)The Review Applicant was asked about the circumstances of her infant son sustaining a fracture to his femur in early May 2016, following which she and the Visa Applicant had their access to the child restricted. She responded:
It was because of his injury…[child’s name redacted] had a non-accidental injury, he had a broken femur, I don’t know who did it, we couldn’t provide an explanation, that is why they had us supervised. It was from then onwards we weren’t allowed to care for him alone...
(n)The Review Applicant submitted she was ‘never very clear with the doctors or police’ about what she thought happened. She said Child Services were called to the hospital because of the unexplained nature of the child’s injuries and she informed them at that time the Visa Applicant routinely breached the IVO with her consent. Restrictions were subsequently placed on both of their access to the child for the remainder of 2016,[73] requiring others to help supervise the child’s care. She also had to see a counsellor fortnightly and received support from an organisation that observed and assisted her parenting skills;[74]
[73] Exhibit A1, 7-8 [65]-[66].
[74] Exhibit R2, 53.
(o)The Review Applicant said that despite their past issues, she decided to forgive the Visa Applicant and continue their relationship, ‘with professional help like counselling and anger management course’.[75] She could not recall how long he attended counselling, had not considered divorcing him, and had since noted ‘significant changes’ in his approach to conflict. She said the Visa Applicant was now respectful, non-abusive, aware of how his anger affects others, and communicates more effectively. They plan to undertake further counselling and ‘therapy together’ if he can return to Australia,[76] which the Review Applicant thought ‘might help us move forward…assessing what happened in the past and setting out different ways to improve’;
[75] Exhibit R1, 378.
[76] Ibid, 389-390.
(p)Prior to the Visa Applicant’s voluntary return to Lebanon in June 2018, the Review Applicant said she ‘sold everything’ and relocated to Lebanon in February 2018 to live on the Visa Applicant’s family farm.[77] Notwithstanding the comparatively difficult life there, she felt ‘safer and calmer’ as a result of the ‘practical and emotional support’ provided by the Visa Applicant’s family. She and the Visa Applicant subsequently implemented strategies to deal with conflict in non-aggressive ways, by ‘giving each other time’ when an argument commences and communicating better. She thought they could apply the same strategy in Australia. Although she enjoyed living in Lebanon, she is concerned about residing there more permanently because of issues like security, hygiene, and the need to use a generator during electricity interruptions;
[77] Ibid, 380.
(q)While living in Lebanon the Review Applicant said she noticed their eldest child’s ‘speech and language were not developing’ commensurate with other children his age.[78] The child was subsequently diagnosed with speech and development delays requiring therapy, which commenced in Australia in 2020;
(r)The Applicant is concerned that if she returned to live in Lebanon permanently, her children will not have the same access to education, healthcare, and learning assistance as they do in Australia through Medicare and other benefits. Moreover, her studies, which commenced in 2020, would have to be curtailed. Notwithstanding these difficulties, she stated in her documentary evidence that she wants the Visa Applicant’s ‘parenting support and emotional support as a husband’ and ‘being separated again isn’t an option for me’;[79]
(s)The Review Applicant has been seeing psychologist Ms Karin Steinhoff since December 2018 and said she has become ‘different, stronger, more decisive and stable’ through therapy;[80]
(t)The Review Applicant misses the support of the Visa Applicant and experiences stress raising three children on her own.[81] Her eldest son’s needs are particularly difficult to contend with[82] and ‘professionals’ have told her he ‘might be playing up…due to the absence of a father figure’.[83] She said the two older children are very attached to and constantly ask to speak with their father. She is concerned at the lack of opportunity for their youngest child to bond with the Visa Applicant;
(u)The Applicant said in documentary evidence she is concerned about the ‘Revolution’ in Lebanon,[84] although this claim was not advanced during the hearing. She said a visa refusal decision would confront her with the choice of remaining in Australia as a single mother ‘on welfare’, or returning to Lebanon and ending her studies, with lesser opportunities for herself and the children:
If [Visa Applicant’s] visa is refused, it will ruin our relationship and our family life, and everything we have built together for the past 6 years. We will not be able to continue to have a married life because I could not live permanently in Lebanon with the children. It would not be safe for me and the children, and I would not have family or community supports like I have in Australia. I could not afford to pay for a psychologist, a chiropractor, social worker, and the children will not have access to maternal child health service and other childcare opportunities.
I do not want to separate from my marriage, but we will have to put the children's safety and wellbeing before our marriage relationship. If I had to separate from [Visa Applicant], I will break down as I have done so before, when I heard the news that his visa was cancelled. I will have to make a hard decision; to suffer with my husband in Lebanon under very unsafe and poor conditions with the children or live alone with the children as a single mother in Australia. I can only make this very hard decision about the future of my relationship when I am faced with whatever is the visa decision. There are too many things to think about to make this decision. I am in a very bad dilemma because I love him, I want to be with him, and I can't imagine my life without him. If I am told he cannot come to Australia I will really struggle mentally.[85]
(v)If the Visa Applicant could return to Australia, the Review Applicant said he would live at her rental property and look for work. Even if unable to find employment, he could: ‘study or find something to do’.
[78] Exhibit A1, 10 [94].
[79] Exhibit R1, 382.
[80] Ibid, 392-393; Exhibit A5.
[81] Ibid, 393.
[82] Exhibit A1, 11 [101]-[102].
[83] Exhibit R1, 394.
[84] Ibid, 388.
[85] Ibid, 389.
Visa Applicant’s Evidence

The Visa Applicant was assisted by an interpreter in the Arabic (Lebanese dialect) language. His evidence is summarised as follows:
(a)The Visa Applicant adopted his statement dated 22 June 2021 as true and correct. He agreed that he had been under some form of restriction, court-ordered undertaking, or in custodial settings for most of his stay in Australia. He claimed to have developed anxiety and depression due to his circumstances, including abuse from the Review Applicant’s family, who did not approve of him. He said that 2016 and 2017 were the hardest years of his life and he constantly fought with the Review Applicant. He said this period of their lives was impacted by youth, parenting challenges, problems with the Department of Immigration regarding his visa applications and coming from a ‘different background and culture’. He said they ‘used to fight about everything – meals, plates, television programs…’ and it was an ‘accumulation of so many things that triggered so many problems’;
(b)When asked why the Tribunal should be confident a return to Australia would not trigger further problems and a repeat of family violence, the Visa Applicant said:
I have worked on myself…we’ve set a certain plan and we’ve applied that…we are now older, more mature and have children who are getting older…the things in the past are no longer there…I think now talking about the present we have turned to be very good people, no more stressing circumstances…[He claimed to have] reconciled with [the Review Applicant’s] father…[and]…there isn’t that same background for triggering more problems…all life and circumstances have totally changed.
(c)In relation to police attendance at their home on 15 March 2016, the Visa Applicant claimed he was on the telephone to his family in Lebanon and because his ‘voice was loud’, neighbours called police. He recalled two police officers attending to investigate reports of fighting or domestic violence. He told them the Review Applicant was asleep and after a female officer checked on her, he said police left;
(d)In relation to an incident two weeks later on 29 March 2016, the Visa Applicant previously stated in his documentary evidence that following an argument between them, the Review Applicant ran from their home crying and screaming, following which he pursued her, grabbed her hand, covered her mouth, and tried to bring her back into the house. This was observed by neighbours and reported to police.[86] There is no previous mention in the Visa Applicant’s documentary evidence that he hit the Review Applicant during this incident in 2016, which only refers to a single incident of violence in 2017.[87] During the Visa Applicant’s cross examination, however, he conceded that he hit the Review Applicant on the right side of her face on 29 March 2016 consistent with the police report.[88] He explained that he lost ‘control of [his] behaviour’. He agreed this was a serious incident and an IVO was subsequently taken out against him. He could not remember if he was charged with Recklessly cause injury, which was withdrawn in September 2016;[89]
[86] Exhibit A2, 6 [54].
[87] Exhibit R1, 291.
[88] Exhibit R2, 7.
[89] Exhibit R1, 183 [40].
(e)The Visa Applicant was referred to a report prepared for the Children’s Court by child protection authorities in May 2016, which said he presented with ‘limited insight into family violence’[90]: ‘In relation to family violence [Visa Applicant] acknowledged that he slapped [Review Applicant] in the face, however did not consider this family violence, stating ‘I didn’t kill her’.[91] The Visa Applicant claimed not to have said this, and any misunderstanding arose because the interpreter spoke a different dialect;
[90] Exhibit R2, 38.
[91] Ibid, 34.
(f)Despite an IVO being in place and the Review Applicant telling him they could not live together, the Visa Applicant said he nevertheless visited daily to see her and their child.[92] When asked if he entered the house, the Visa Applicant said he could not remember. It was not contested the Review Applicant became pregnant with their second child during the 2016 IVO[93] and the Visa Applicant conceded: ‘I admit I breached the order and was not respectful enough of Australian laws, but I assure you this will never happen again’;
(g)The Visa Applicant does not know how their infant son’s femur was broken in early May 2016, but recalled that child protection services and the Children’s Court became involved and he was only allowed supervised contact with his son;[94]
(h)The Visa Applicant said he undertook four to six sessions with a counsellor at the Victorian Arabic Social Services in the aftermath of the incident on 29 March 2016. He said this gave him a ‘clearer perspective of family violence’ and reinforced it was ‘preferable children don’t witness any family violence’. He also completed a Men’s Behavioural Change Program, which he said: ‘highlighted the negative things family violence might leave on the household’. He said the sessions were approximately two hours in duration with 10 to 15 participants. When asked if he had a certificate or other evidence relating to this or other courses, the Visa Applicant did not;
(i)The Visa Applicant agreed that notwithstanding the previous counselling and offence-specific course he undertook in 2016, he again struck the Review Applicant to her face on 17 April 2017,[95] claiming to have slapped her once. He said the course and counselling he previously undertook were ‘very short and not enough’, stating: ‘I don’t think I benefitted properly from those programs’. He aspires to undertake further courses and counselling to ‘learn more’. Contrary to the reference in Mr Newton’s report that the Visa Applicant undertook offence specific counselling and rehabilitation while in immigration detention, the Visa Applicant said he had no access to any such counselling or rehabilitation while in detention. The Tribunal is satisfied this aspect of Mr Newton’s report is erroneous;
(j)When referred to a police report relating to the April 2017 incident,[96] the Visa Applicant disagreed that he struck the Review Applicant several times causing her to fall over, stating: ‘I slapped her once’. After this incident he said the Review Applicant went to bed and it was not true he took her phone or guarded the door to prevent her leaving. He said that he sincerely apologised to her for his actions, put cold pads on her face and stayed by her side all night: ‘I could not sleep that night. My phone was not working. I took [the Review Applicant’s] phone and all night, I kept myself awake. I went outside every five minutes to have a cigarette’. He also claimed the reference in the police report to him removing light globes to prevent the Review Applicant leaving was untrue, because she turned the lights in the bathroom on twice during the night ‘to check her face and cried’;
(k)The Visa Applicant said police came to their home the next day but disagreed with the police report that he told them the Review Applicant was not home. He claimed to have informed police she was in the backyard. When referred to a section of the police report stating he conversed with one police officer in Arabic, the Visa Applicant said he could not recall the details of his discussions with police. In his written evidence, however, the Visa Applicant recalled some elements of his discussion with police, including falsely telling them he helped the Review Applicant scale the fence, because he did not want her to get in trouble.[97] He was subsequently arrested;
(l)The Visa Applicant said he later learned from the Review Applicant that she falsely overstated his violence to police, but she subsequently retracted the statement;[98]
(m)After voluntarily returning to Lebanon in June 2018, where the Review Applicant and their children had earlier relocated in February 2018, the Visa Applicant said it was ‘beautiful’ to be back with his family. They learned how to be ‘together as a family’, with the support of the Visa Applicant’s parents. He said that he has no intention of ever repeating his violent conduct again;[99]
(n)The Visa Applicant said the Review Applicant experienced considerable difficulties since returning to Australia in December 2019. This included the developmental challenges of their eldest child, while concurrently caring for two infant children without his support. He claimed in his documentary evidence that he provides ‘all the financial support’ for his family from his work on the family farm in Lebanon, because the Review Applicant ‘is no longer receiving financial support from Centrelink’.[100] This is inconsistent with the Review Applicant’s oral evidence, during which she stated her sole source of income is Centrelink benefits;
(o)The Visa Applicant said he is sorry for his past conduct and has become a better husband and father because of these experiences. He wants to resume life in Australia as a stable and safe place for his family. If allowed to return, he intends undertaking psychological counselling.[101] The Visa Applicant said he would ‘never’ commit domestic violence or be violent in the presence of his children again. He intends applying the strategies learned since returning to Lebanon to better control his temper and avoid arguments escalating. These included leaving the house to give each other ‘space’, go and do some cooking, go to sleep to avoid the argument, and only address their differences after the children are asleep.
[92] Exhibit A2, 6 [58].
[93] Exhibit A2, 7 [63].
[94] Exhibit A2, 7 [62]; Exhibit R2 [34]-[36].
[95] Exhibit A2, 7 [66].
[96] Exhibit R1, 63.
[97] Exhibit A2, 8 [73].
[98] Exhibit A2, 8 [76].
[99] Exhibit A2, 9 [85].
[100] Exhibit A2, 9 [92].
[101] Exhibit A2, 9 [94].
Evidence of Family and Friends
The Tribunal has considered:
(a)A Statutory Declaration from the Review Applicant’s brother dated 14 July 2020, in the context of responding to the Notice of Intention to Consider Refusal of the visa application.[102] The witness provides an Australian address and refers to a ‘one-time’ single ‘incident that occurred…in 2017’. This reflects an incomplete understanding of the Visa Applicant’s violence and other conduct. The author stated the Visa Applicant is ‘focussing on solving problem in a calm, centred and caring manner’. Reference is also made to the Visa Applicant engaging in counselling ‘to learn new strategies to cope’ and skills learned from ‘programs’;
(b)An undated statement from a friend of the Visa Applicant, who is a Lebanese citizen. The witness stated he believes he has known the Visa Applicant since their days in the same village in Lebanon[103] and referred in singular terms to a ‘one-off’ event ‘that occurred between [Visa Applicant] and [Review Applicant] in 2017’. This reflects an incomplete understanding of the Visa Applicant’s violence and other conduct. The witness stated that the Visa Applicant has changed, become a better person, better understands what he did was wrong, was under enormous pressure at the time of his offence (sic), had ‘undealt with issues’, and has undertaken ‘therapy, and anger programs’ to enable him to ‘be in space that was safe and supportive’; and
(c)A translated letter from a person purporting to be the Mayor of the area the Visa Applicant lives in Lebanon. No reference is made to the Visa Applicant’s offending, with only a general claim: that he ‘doesn’t do any violent of immoral act’.[104]
[102] Exhibit R1, 419-420.
[103] Ibid, 421-422.
[104] Ibid, 423-424.
The authors of the above statements were not called as witnesses and could not be cross-examined. The two statements from a family member of the Review Applicant and friend of the Visa Applicant wrongly refer to the Visa Applicant’s violence as a single event and are overly general and imprecise about the source of their knowledge about the Visa Applicant’s offending and subsequent development. The letter purporting to be from the Lebanese Mayor makes no reference to the Visa Applicant’s criminal history in Australia.
Evidence of Mr Newton
Psychologist Mr Patrick Newton provided two reports: one dated 20 July 2020 following a 90-minute consultation via video-link to Lebanon with the Visa Applicant on 25 June 2020 (July 2020 Report);[105] and another dated 26 June 2021 following a one-hour consultation via video-link to Lebanon on 24 June 2021 (June 2021 Report).[106] In his oral evidence Mr Newton adopted these reports as true and accurate.
[105] Ibid, 366-374.
[106] Exhibit A3.
In his July 2020 Report, Mr Newton assessed the Visa Applicant was experiencing mild symptoms of reactive anxiety and depression, primarily centred on ‘separation from [the Review Applicant] and children and his concern for their well-being and security in the absence of his care and nurturance’.[107] He considered the Visa Applicant’s symptoms were ‘somewhat in excess of those normally evident in individuals in situations such as his’, and assessed that he met the diagnostic criteria for an ‘adjustment disorder with mixed anxiety and depressed mood’. In his July 2020 Report, Mr Newton stated the Visa Applicant ‘did not report active symptoms of PTSD’ and ‘was adamant that no further trauma-focused intervention was required from his perspective’.[108] Mr Newton thought the Visa Applicant would benefit ‘from the provision of some supportive counselling until his stress resolves.’[109]
[107] Exhibit R1, 371 [34]-[35].
[108] Exhibit R1, 371 [36].
[109] Ibid, 374.
Mr Newton’s June 2021 Report can be summarised as follows:
(a)The Visa Applicant’s mental state had ‘deteriorated significantly’ due to his continuing separation from the Review Applicant and their children. Mr Newton said his previous diagnosis of an adjustment disorder in July 2020 remained valid, although the Visa Applicant was at risk of ‘developing a depressive disorder if his stressors were to become chronic’;[110]
(a)The Visa Applicant’s risk of violence against an intimate partner was assessed utilising the Brief Spousal Assault Form for the Evaluation of Risk (B-Safer), which Mr Newton said was ‘validated with individuals from diverse cultural and linguistic groups and…has a growing evidence base’.[111] Mr Newton noted the Applicant’s major risk factors arose from ‘his history of violence…and breach of a formal court order…[which were]…matters of concern’;
(b)The Visa Applicant had completed ‘offence-specific treatment’,[112] encompassing ‘anger-management training and general psychological counselling’,[113] which Mr Newton erroneously thought was undertaken while the Visa Applicant was in immigration detention.[114] When referred to the Visa Applicant’s oral evidence that he was not able to undertake any rehabilitation in detention, Mr Newton said his report was: ‘based upon what I had believed he had said to me;’
(c)The Visa Applicant had ‘developed a good level of insight…accepts responsibility for his actions, and has empathy for the suffering he caused’, which ‘formed the basis for heartfelt and apparently genuine remorse’.[115] Mr Newton assessed that the Visa Applicant’s insight had ‘deepened substantially’ between his two reports;[116]
(d)The Visa Applicant constituted ‘a low risk of further spousal violence’, and did not require additional rehabilitative treatment to further reduce his risk of interpersonal violence;[117] and
(e)The Visa Applicant was ‘a low risk’ for general criminal recidivism, again with no ongoing rehabilitative needs identified.[118]
[110] Exhibit A3, [23].
[111] Exhibit R1, 372 [40].
[112] Ibid, 372 [42]; 374 [51.(4)].
[113] Exhibit A3, [31].
[114] Exhibit R1, 370 [30].
[115] Ibid, 374 [51.(4)].
[116] Exhibit A3 [ 26].
[117] Exhibit R1, 373 [45]; Exhibit A3 [31].
[118] Ibid, 373 [50].
Mr Newton’s oral evidence can be summarised as follows:
(a)He undertook two video consultations with the Visa Applicant collectively comprising two-and-a-half hours;
(b)When asked by Mr Barrington whether his reports represented the ‘sum total’ of family violence he knew the Visa Applicant had engaged in, Mr Newton responded: ‘That reflects the material [the Visa Applicant] discussed with me.’ Mr Newton was unaware of the March 2016 family violence, stating: ‘He didn’t discuss that with me;’
(c)When asked whether the undisclosed incident of family violence in March 2016 affected his opinion, Mr Newton responded: ‘It would be another incident of domestic violence or family violence within the context of that relationship. It would not overall impact the opinions I’ve reached’, but would ‘confirm the designation’ of the Visa Applicant’s offending history;
(d)Mr Newton said the B-Safer methodology ‘guides a clinician into the areas that ought to be assessed so each of those factors is a relevant consideration, and when assessing each of those factors it’s not a matter of saying yes or no, it’s a matter of evaluating their salience, their importance and their persistence in a person’s life;’
(e)When asked whether the previously undisclosed instance of family violence changed his assessment regarding escalation of violence, Mr Newton responded: ‘No, I don’t think it would indicate an escalation of the violence;’
(f)When asked whether ‘escalating injury’ to the Review Applicant would show escalation of violence, Mr Newton responded: ‘It may do, then again it may not, it depends very much upon the context in which that escalation occurred, interpersonal context of escalation, emotional context of escalation, the ongoing context in the Applicant’s criminal history and behavioural activity more broadly, it may well represent an escalation but it does not necessarily represent an escalation;’
(g)When asked whether he was aware the Visa Applicant had previously completed counselling and a behavioural change program after the first incident of family violence in 2016, Mr Newton said he understood from the Visa Applicant’s claims that these had instead taken place while he was in detention;
(h)When asked if the occurrence of another incident of family violence after completing these rehabilitative programs changed his assessment, Mr Newton responded:
Um, no, it wouldn’t, because it’s based upon his current attitudes now, and his current attitudes based on the two interviews I’ve had with him approximately 12 months apart…indicates that he has robust and well-established insight, that insight has been reflected and maintained in contexts that have been trying and testing of that insight, so that he and his wife had lived together in Lebanon subsequent to that without domestic violence being a significant part of their relationship, he was able to discuss the events that had occurred in the past with me and to show insight into those, he was able to discuss future strategies for managing domestic violence or challenging situations in his relationship without recourse to domestic violence, my assessment of his insight currently as it stands is that it is very good. There are no persisting negative attitudes of relevance to his risk of domestic violence or other forms of violence going forward.
(i)When asked whether knowledge about the Visa Applicant’s repeat offending, despite having undertaking rehabilitation a year earlier, affected the weight he placed on his expressions of remorse, Mr Newton agreed it was a relevant factor that he ‘wouldn’t want to dismiss out of hand’. He considered the rehabilitation previously undertaken by the Visa Applicant in 2016 ‘was a good start but not a comprehensive program’ which had not addressed some ‘attitudes’, ‘cultural features’, ‘ways of interacting with his wife and perhaps attitudes towards women’:
It’s manifest to me that subsequent work that he’s done after the 2017 incident has indeed addressed those other attitudes in a more comprehensive fashion, but it’s been a men’s behavioural change program that’s been Arabic-focused, that it’s been culturally specific because of that, and it’s addressed factors which on the basis of that report you’ve just read from were left unaddressed…the work done to control anger there seems to be in terms of general emotional regulation work, rather than anger management specific intervention, and so while it’s disappointing he did not apply those emotional regulation skills more effectively in 2017, in some ways it’s not entirely surprising in the absence of more comprehensive treatment that wasn’t possible.
(j)Mr Newton stated that Arabic-specific counselling would have constituted more comprehensive treatment for the Visa Applicant. When put by Mr Barrington during cross-examination that Arabic-specific counselling had been completed in 2016 prior to the 2017 incident of family violence, Mr Newton responded that would:
…clearly indicate that the intervention that had occurred at that time hadn’t been as comprehensive or as robust as one would have liked…I suppose there’s always the risk of a preferred or a desired outcome not manifesting itself after treatment, but what I would say as compared to 2016 intervention as to now, there’s a substantial amount of real world consequence from the behaviour that [Visa Applicant] has experienced, which he has reinforced the importance of sustained change to him, he’s been separated from his family now for an extended period of time, since at least late 2019 but more generally from some time more than that, he’s had the experience of immigration detention, he’s had the experience of incarceration, he’s had the experience of other deterrent impacts, which one would have to factor into the equation, which in fact I do factor into the equation in terms of evaluating his risk now, while it’s disappointing that earlier treatment did not yield comprehensive and robust outcomes, I don’t think that necessarily means that all treatment subsequent to that would likewise fail to render robust and appropriate outcomes…
(k)When asked how he had determined the relationship issues between the Review Applicant and Visa Applicant were resolved, Mr Newton responded:
It has to be based upon self-report of course, and the report would be based upon the report of both…himself and of his wife…in particular in determining that I have regard to his reported statements, the fact that he and his wife have lived together under difficult circumstances in Lebanon, for an extended period after the violence took place, the statements which [Review Applicant] is reported to have made to the psychologist during conjoint counselling and the continued determination through these proceedings to pursue reunification with the family.

When asked whether he used an actuarial assessment or relied on clinical judgement when assessing the Visa Applicant’s risk of recidivism, Mr Newton said the B-Safer measure is a ‘structured clinical judgment instrument rather than a pure actuarial measure’.
TRIBUNAL CONSIDERATION OF WITNESS EVIDENCE
Review Applicant’s evidence
The Review Applicant claimed in a Statutory Declaration that the Visa Applicant previously made a ‘one-time mistake’.[119] The Tribunal is concerned about the changing nature of her evidence over time, concession that she allowed the Visa Applicant to daily breach an IVO, and admission that she gave false information to police on more than one occasion. In her written evidence[120] and in oral evidence at the present hearing, the Review Applicant either made no reference to, or explicitly denied, the Visa Applicant struck her during the 29 March 2016 incident. She claimed to have fabricated this in her report to police. This directly contradicts the Visa Applicant’s oral evidence that he did strike the Review Applicant to the face during the 29 March 2016 incident. It appears clear the Review Applicant’s withdrawal of her statement to police and claims she exaggerated what happened at the urging of relatives, does not fully disclose the violence committed against her. The Tribunal has decided to treat her evidence about violence committed by the Visa Applicant with caution.
[119] Exhibit R1, 390-391.
[120] Exhibit A1, 6 [50].
Visa Applicant’s Evidence
Several aspects of the Visa Applicant’s evidence remain unclear, including documentary claims that he undertook military service in Lebanon ‘during the height of the civil war’.[121] His submissions vary from being a ‘military officer’[122] to a ‘soldier driver’.[123] He also claimed to have deserted but was ‘granted an honourable discharge from the Army’.[124] There is no corroboration for any of these claims, nor were they advanced during the hearing in respect of their relevance to the Visa Applicant’s family violence in Australia. Moreover, the Applicant was born in 1989 and the Lebanese Civil War effectively ended in 1990, which is within the Tribunal’s personal knowledge, having served with the United Nations in Lebanon during 1991. Although not much ultimately turns on this and no weight is placed on the inconsistencies in the Visa Applicant’s claims about military service, the Tribunal does not accept that his experiences during military service are in any way relevant to his offending in Australia. This is particularly so given Mr Newton’s evidence that the Visa Applicant ‘did not report active symptoms of PTSD’ and ‘was adamant no further trauma-focused intervention was required from his perspective’.[125]
[121] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), 2 [8].
[122] Exhibit R1, 240.
[123] Exhibit R2, 263.
[124] Ibid, 368 [15]; Exhibit A2, [12].
[125] Exhibit R1, 371 [36].
The Visa Applicant’s claim that he provides ‘all the financial support’ for his family in Australia is directly contradicted by the Review Applicant’s evidence that she and her children are solely reliant on Centrelink payments and other Government-funded support.
The Tribunal accepts the Visa Applicant’s evidence that he struck the Review Applicant to her face on 29 March 2016, which is consistent with the police report taken at the time. But it is not much to his credit that it has taken him until this hearing to make that concession. Consider the following claims previously made to police, the Tribunal, the Visa Applicant’s own representatives, and the Court:
(a)The Visa Applicant made no reference to striking the Visa Applicant to the face on 29 March 2016, only admitting there was ‘yelling’ and ‘grabbing’, following which she ‘suddenly’ ran from their home;[126]
(b)Mr Newton makes no reference in his reports to the Visa Applicant striking the Review Applicant except during the 29 March 2016 incident. Mr Newton stated in his oral testimony the Visa Applicant did not tell him about this, which is accepted;
(c)The Review Applicant’s Statement of Facts, Issues and Contentions makes no mention of the Visa Applicant striking her during the incident on 29 March 2016, only during the April 2017 incident;[127]
(d)At the hearing of his appeal into the Bridging Visa cancellation in July 2017, the Visa Applicant denied ‘there was any series of incidents’ in March 2016[128] and made no reference to striking the Review Applicant on 29 March 2016;
(e)In submissions to the Department in his 2020 PCF, the Visa Applicant referred to his offending in April 2017 as the ‘first time that I had lost my temper and hit my wife’.[129] He repeatedly referred to only a single instance of striking her in April 2017, which appears to be false information knowingly given;
(f)In submissions to the Department by the Visa Applicant’s previous migration agent,[130] reference is made to a ‘minor altercation’ in May (sic) 2016 and an assault in April 2017 resulting in the Review Applicant sustaining a ‘black eye’. The migration agent further referred to a ‘single incident’ of violence against a woman[131] as the ‘only blemish in his otherwise clean history’;[132]
(g)In a letter from his current lawyers to the Respondent, it is stated the Visa Applicant’s prior domestic violence conduct consisted of a ‘minor altercation’ in May 2016 (sic) and the April 2017 incident resulting in his convictions;[133] and
(h)At the present hearing the Review Applicant said during oral evidence the Visa Applicant punched her to the face during the April 2017 incident, while the Visa Applicant insisted he only slapped her.
[126] Exhibit A2, 5 [53].
[127] ASFIC, 5-6 [26].
[128] Exhibit R1, 182 [35].
[129] Ibid, 291.
[130] Ibid, 323.
[131] Ibid, 327 [35]; 345 [36]; 347 [45].
[132] Ibid, 329.
[133] Ibid, 445.
Evidence of Family and Friends
In considering such references, the Tribunal is mindful they can often provide the best possible perspectives about an Applicant’s conduct, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members and friends, particularly those with only a limited understanding of the Applicant’s past conduct, and when their perspectives are not tested through cross-examination.
DOES THE VISA APPLICANT PASS THE CHARACTER TEST?
The Full Court of the Federal Court of Australia has previously explained the nexus between the character test and Parliament’s intent, in Akpata:[134]
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of a relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[134] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, 105 (Lander J).
It is worth noting the reference to the word ‘significant’ is no longer used in conjunction with assessing risk since Akpata.[135] Pursuant to the Direction, the grounds under s 501(6)(d)(i) of the Act ‘are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to…remain in Australia’, would engage in criminal conduct.[136] It is insufficient to find that the Visa Applicant has engaged in such conduct in the past, there must be a risk of him engaging in criminal conduct ‘in the future’.[137]
[135] As amended by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).
[136] Direction, Annex A, Section 2 cl 6(2).
[137] Ibid, cl 6(3).
In Hughes v The Queen (2017) 344 ALR 187 [74] (Hughes), Nettle J observed that evidence of a past offence is not significantly probative of the committing of another offence. His Honour stated that to make evidence of conduct or offending probative of subsequent offending, what is required is ‘something more about the nature of the offences or the circumstances of the offending in each case … which rationally affects to some significant degree the assessment of the probability that the accused committed the offence’.[138]
[138] Hughes at [154].
The High Court’s reasoning in Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 (“Guo”) is often cited for its relevance to administrative decision-making and the ‘inter-relationship between the establishment of the occurrence of past events and the evaluation of the prospect that an event might occur in the future’. The majority observed that past events ‘are not a certain guide’, and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’. The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed about past events’.[139]
[139] Guo at 574-575.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 [74], Rares J reasoned:
The Tribunal did not make a finding about the applicant’s conduct during 2010 to 2015 by analysing whether or not it was criminal. It did not need to characterise that conduct…as criminal in order to assess whether there was a risk, in the future, that the applicant would engage in criminal conduct…The Tribunal was required under s 501(6)(d)(i) to examine the risk of the applicant’s future conduct based on her past conduct.
In cases where there is a criminal record, an adverse inference can more reliably be drawn. Proven offences also enable a decision-maker to consider the risk of re-offending or harm arising more accurately from a repeat of such conduct. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, Branson J held that a conviction was ‘strong prima facie evidence of the facts’.[140] As the High Court observed in Guo, past actions are also often a reliable basis for determining the probability of future behaviour.[141]
[140] At [43].
[141] Guo, 574-576.
Applicant’s Submissions
Mr Aleksov submitted the Applicant was subjected to several stressors at the time of his offending, including youth, an uncertain visa situation, relationship pressures, parenthood challenges with a first child, and pressure from the Review Applicant’s family, who were unsupportive of their relationship. Mr Aleksov said this had changed because the Review Applicant’s family were no longer actively working against the relationship. Mr Aleksov acknowledged there was no evidence from the Review Applicant’s family.
Mr Aleksov referred to the Review and Visa Applicant learning new strategies to manage their relationship while living in Lebanon, and avoid any further loss of control. He said the Visa Applicant had been ‘scared straight’ by the consequences of his past conduct, which would act to prevent reoccurrence, because he now ‘realises what’s at stake’. Mr Aleksov submitted that while it could not be said there was ‘no risk’, there was ‘no material risk’ of the Visa Applicant repeating his family violence. Mr Aleksov said an unfavourable migration outcome was not the correct response to family violence in current circumstances, where the Review Applicant had forgiven the Visa Applicant and wanted to reunite. He used the metaphor of ‘responding to a broken arm by cutting the arm off’ in advancing this contention.
Respondent’s Submissions
Mr Barrington submitted that both assaults committed by the Applicant in March 2016 and April 2017 were serious and the Visa Applicant’s evidence about the March 2016 assault should be preferred to the Review Applicant’s continuing denial that he struck her. That was because the Visa Applicant’s evidence coincided with the police records. Mr Barrington said that despite the Visa Applicant undergoing counselling and a Men’s Behavioural Change Program in 2016, which were designed to prevent reoccurrence, he committed his most serious family violence a year later. He said deterrence through an IVO and judicial orders had also not worked, with the Visa Applicant breaching IVOs and Children’s Court orders.
Mr Barrington said limited weight should be placed on Mr Newton’s report in circumstances where he conducted two relatively short video sessions with the Visa Applicant in Lebanon, was unaware of the domestic violence in March 2016, and had erroneously thought the Visa Applicant undertook counselling and offence-specific rehabilitation while in immigration detention. Mr Barrington also said the information contained in Mr Newton’s report was largely self-reported by the Visa Applicant.
TRIBUNAL FINDING: DOES THE VISA APPLICANT PASS THE CHARACTER TEST?
The Visa Applicant’s Australian National Police Certificate is an accurate record of his offending.[142]
[142] Exhibit R1, 34.
Relatively soon after arriving in Australia, the Visa Applicant drove whilst disqualified and then repeated the offence soon after. In that respect his driving offences are not isolated, and he was not dissuaded from repeating the same offence by a 12-month licence disqualification and $800 fine. The driving offences are not particularly serious, although they show that relatively soon after arriving in Australia, the Visa Applicant was not dissuaded from repeating this conduct despite corrective penalties.
The Visa Applicant committed family violence against the Review Applicant on more than one occasion between 2016 and 2017 and was not dissuaded from more serious violence against her by an IVO. In March 2016 he struck her to the face, pursued her outside the home, covered her mouth to prevent her screaming, and tried to drag her back into the house. The Visa Applicant subsequently breached an IVO by repeatedly visiting the Review Applicant and their child. The Tribunal does not accept he cannot recall if he entered the home. Whether the repeated breaches of the IVO were with the Review Applicant’s approval or not is beside the point and reflects the Visa Applicant’s persistent disregard of judicial orders. A year later, on 17 April 2017, the Visa Applicant again struck the Review Applicant to the face, despite having undertaken counselling and offence-specific rehabilitation. The Tribunal was unpersuaded by the Visa Applicant’s claims that the counselling and rehabilitation provided was too short, ‘not enough’, and he did not ‘benefit properly from those programs’. This is because:
(a)The Review Applicant gave evidence that ‘the psychologist was helping him…I saw a change when he was seeing her’. Additionally, submissions from the Visa Applicant’s previous migration agent were that he:
…has sought psychological intervention and has spoken at length with a psychologist to gain insight into his behaviour and how he handles himself in stressful situations. He has been provided with tools to cope in such situations and he reports that he is achieving success in his endeavours.[143]
(b)Mr Newton’s evidence is that:
In addition to the counselling he received [the Visa Applicant] said that he had participated in a Men’s Behaviour Change program with an Arabic-specific focus as well as attending individual anger-management training whilst in immigration detention (sic). He said that he had found both the group-based and the individual programs to be extremely helpful and added that he wished he had undertaken such courses “a long time ago”.[144]
[143] Exhibit R1, 346.
[144] Ibid, 370.
The Visa Applicant claimed in previous documentary evidence that he lied to police about assisting the Review Applicant in evading them by jumping over a back fence when they came to check on her welfare in April 2017, which he repudiated at the present hearing.
The Tribunal makes no finding about the cause of the fractured femur sustained by the couple’s infant child in May 2016 but notes an interim accommodation order was made to involve others in the child’s care. Both the Review and Visa Applicants were subsequently allowed only supervised access with the child. Whatever the reasons for this decision by child protection authorities, it can only have resulted from a professional judgement that it was in the best interests of the child not to have unsupervised access with the Visa and Review Applicants for the duration of the order.
The Tribunal has some concerns about aspects of Mr Newton’s evidence:
(a)Mr Newton did not use an interpreter for the two consultations he had with the Visa Applicant by video-call to Lebanon in 2020 and 2021. The Applicant’s legal representative, Ms Verma, submitted in an email dated 6 August 2021 that:
As to Dr Newton’s consultations with [Visa Applicant], I am instructed that these did not take place with the assistance of an Arabic interpreter. Dr Newton is plainly a reputed and highly qualified forensic expert; he assessed on both occasions that [Visa Applicant] was able to comfortably participate in the interview process in English.
To clarify, [the Visa Applicant], speaks functional English and we have taken instructions from him in English throughout the preparation of his matter. The Tribunal would have noticed this from my discussions with [Visa Applicant] during the hearing in order to connect him via Microsoft Teams.
The assistance of an Arabic interpreter was sought at the hearing, of course, to ensure that [Visa Applicant’s], evidence was completely and accurately understood by the Tribunal.
(b)Ms Verma previously wrote to the Tribunal on 29 July 2021 prior to the commencement of the hearing in the following terms:
Could I also please confirm that an Arabic (Lebanese) interpreter has been arranged for the hearing next week, as indicated in the application? There is a significant difference in Arabic dialects, and I am instructed that only a Lebanese dialect speaker will be suitable for [the Visa Applicant].
(c)At the hearing the Visa Applicant gave evidence exclusively with the assistance of an interpreter. He stated that a comment attributed to him for a court report about not considering his conduct to be family violence because he ‘didn’t kill’[145] the Review Applicant, arose from interpreter issues;
(d)Mr Newton’s reference to the Visa Applicant participating in a Men’s Behaviour Change Program and attending individual anger-management training whilst in immigration detention is clearly erroneous. In his oral evidence, Mr Newton, explained the inclusion of this in his report was ‘based upon what I had believed he said to me.’ The Applicant stated definitively during the hearing, however, that he did not undertake rehabilitation in detention because of a lack of English. In circumstances where the Visa Applicant appears reliant on an interpreter, casts doubt on information recorded for a court report because of interpreter issues, and Mr Newton erroneously recorded details about the Applicant’s rehabilitation, it remains of concern that an interpreter was not used for the interviews with Mr Newton, to best ensure the Visa Applicant’s claims were accurately recorded;
(e)The Visa Applicant did not tell Mr Newton about the March 2016 incident of family violence. In circumstances where the Visa Applicant has omitted highly relevant information, less weight is placed on his self-reported claims;
(f)Mr Newton’s report refers to an argument and police callout in ‘May 2016’,[146] which appears erroneous;
(g)It remains unclear to the Tribunal how Mr Newton is aware the counselling and rehabilitation previously undertaken by the Visa Applicant ‘was a good start but not a comprehensive program’ which had not addressed some ‘attitudes’, ‘cultural features’, ‘ways of interacting with his wife and perhaps attitudes towards women’. There is no evidence that the specifics of the rehabilitation course undertaken by the Visa Applicant years earlier were available to Mr Newton; and
(h)Mr Newton’s reference to the ‘subsequent work’ the Visa Applicant has ‘done after the 2017 incident’, which he assesses have addressed the Visa Applicant’s ‘other attitudes in a more comprehensive fashion’, appears entirely based on the Visa Applicant’s self-reported claims.
[145] Exhibit R2, 34.
[146] Ibid, 370 [25].

On balance, this consideration weighs moderately against granting the visa.
TRIBUNAL CONSIDERATION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.3 of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Review and Visa Applicants have three biological children who are currently between two and five years of age.[157] Mr Aleksov submitted this primary consideration was of such weight as to ‘overcome the adverse things’ the Visa Applicant has done while living in Australia. Mr Barrington said it was accepted the children’s interests weighed in favour of the Visa Applicant resuming a paternal role in their lives, which was most prominent for their eldest child. Mr Barrington said two of the children were previously exposed to the Visa Applicant’s domestic violence, which moderated the weight to be given to this consideration.
[157] Ibid, 264; 434-436.
The Visa Applicant described a continuing close relationship with his three children, including daily telephone contact and two extended visits by the Review Applicant and their children to Lebanon amounting to approximately 14 months since June 2018.[158] His evidence is summarised as follows:
(a)The Review Applicant has forgiven him for his violence against her, allowed him to return to the family home after release from prison, and visited him with the children while he was in custodial settings. They talked on the phone multiple times each day and have continued to do so since.[159] This has enabled him to remain part of the children’s lives;
(b)The children have a right to a father figure in their lives and his absence deprives them of his ‘physical love and attention’, which is ‘detrimental to their emotional and psychological wellbeing’.[160] He stated the children need his physical presence to ‘alleviate any concerns regarding future psychological issues, support them and provide for them be an active father (sic) in their development and growth’;[161]
(c)It is difficult for the Review Applicant to raise the children in his absence, because of limited support in Australia, a ‘tense relationship’ with her own family, and she consequently relies on him for ‘emotional and physical support’;[162]
(d)Visa refusal would have an adverse effect on the Review Applicant’s mental health and impact her ability to care for their children, because she is ‘vulnerable to worsening depressive and anxiety symptoms’ since the 2019 pregnancy with their youngest child.[163] Although he was ‘certain [the Review Applicant] would give up her life in Australia to join [him] in Lebanon because there is a lot of love between [them]’ they ‘would not compromise the children’s future for their love;[164]
(e)Visa refusal would cause hardship for the Review Applicant and their children because the standard of living in Lebanon ‘is extremely poor and unsafe’, which may cause the Review Applicant to remain in Australia for the children’s safety.[165] In such circumstances their marriage could end ‘because living apart long term as a married couple is not sustainable nor healthy for a marital relationship;’
(f)Childcare services in Lebanon are ‘inadequate, unavailable or affordable (sic)’,[166] and the couple’s eldest son would not receive comparable state funding for his ‘language delays, reduced attention and behavioural difficulties’.[167] The Visa Applicant concurrently claimed, however, that when their eldest child lived with him in Lebanon, the child’s ‘behaviour and language improved significantly’;[168] and
(g)The Review Applicant could likely bring the children to see him in Lebanon only once or twice a year, which would be disruptive for the children, particularly when they commence school.
[158] Ibid, 287; 330-333.
[159] Ibid, 286.
[160] Ibid, 287.
[161] Ibid, 287.
[162] Ibid, 285.
[163] Ibid, 285.
[164] Ibid, 285.
[165] Ibid, 285.
[166] Ibid, 285.
[167] Ibid, 285; 287; 389.
[168] Ibid, 287.
The Tribunal has considered:
(a)Eleven pages of photographs reflecting the Visa Applicant’s relationship with his children;[169]
[169] Exhibit A8.
(b)In his 2021 report, psychologist Mr Newton recorded that the Visa Applicant’s children were previously ‘exposed to the domestic violence’ he committed against the Review Applicant, but considered the risk of the children being exposed to further domestic violence is ‘low’.[170] Mr Newton also referred to the presentation of the couple’s eldest child to hospital in May 2016 with a non-accidental fractured femur, following which Victorian Forensic Services:[171]
[170] Exhibit A3, [28]-[29].
[171] Exhibit A3, [28].
… raised clear protective concerns which were the basis of previous involvement of protective services. I note that while one of the children suffered nonaccidental injuries in the past, the circumstances under which these occurred are unclear and there has been no determination that either [Visa Applicant] or [Review Applicant] were responsible.
(c)Letters from clinical psychologist Dr Esma Kurt,[172] the latest of which states the couple’s eldest child has undertaken 13 sessions of psychological support and intervention utilising NDIS funding since September 2019 and ‘presents with speech and language delay, behavioural difficulties, and some symptoms of ADHD’. Dr Kurt said the child misses his father, was due to commence ‘year prep’ in early 2021 and would not have his father present to share this important milestone. Dr Kurt stated:
[172] Ibid, 398-400.
It is my clinical opinion [child’s] emotional well-being is significantly impacted by the prolonged absence of his father. Any further delay or refusal of entry to Australia will have detrimental effects on [child’s] social and emotional development and well-being.[173]
…
The ongoing delay in granting a visa for [the Visa Applicant] to come to Australia and be with his family continues to have an ongoing negative impact on [the child]. This young family needs to be united and I implore that the Department of Home Affairs fast tract any proceedings and consider the wellbeing of [the child] and his siblings.[174]
(d)The reports of consultant psychologist Ms Karin Steinhoff dated 8 May 2019[175] (2019 Report) and 18 January 2021 (2021 Report).[176] At the time of Ms Steinhoff’s 2019 report the Review Applicant was due to give birth to her third child in Australia, having returned from Lebanon. Ms Steinhoff considered it was in the interests of the Review Applicant’s eldest child to remain in Australia and access NDIS entitlements for developmental needs. Ms Steinhoff claimed the child ‘would not be offered the level of services that he requires’ in Lebanon.[177] Ms Steinhoff considers the child would also benefit from the Visa Applicant fully participating in and contributing to whatever treatment plan was decided. Ms Steinhoff said the Review Applicant needed ‘in home parenting assistance’ with her children, which was best provided by their father, as well as ‘emotional, economic and physical support because she completely relies on him’.[178] Ms Steinhoff assessed the Review Applicant’s mental health as ‘highly vulnerable and without her husband’s immediate support, her mental health is highly likely to further significantly decline’;[179]
(e)Letters from speech pathologist Ms Kamelia Dennaoui dated 17 March 2020, 9 July 2020, and 17 January 2021[180] which stated she had assessed the Review Applicant’s eldest child regarding ‘language delays, reduced attention and behavioural difficulties’. Ms Dennaoui noted the child’s behaviour and language improved while living with his father in Lebanon but deteriorated since COVID-19 prevented the family from returning to Lebanon. She opined that the child would benefit from being reunited with his father in Australia, particularly as he was about to commence school; and
(f)A list of forthcoming NDIS-funded therapy sessions for the Applicant’s eldest child until 30 September 2021.[181]
[173] Ibid, 399.
[174] Ibid, 400.
[175] Ibid, 401-405.
[176] Ibid, 406-412.
[177] Ibid, 403.
[178] Ibid, 404.
[179] Ibid, 405.
[180] Ibid, 413-418.
[181] Exhibit A7.
Ms Steinhoff’s 2021 Report was summarised earlier in these reasons. She did not give evidence at the hearing and the basis of her knowledge about Lebanon’s health and support systems remains unclear.
Neither Dr Kurt nor Ms Dennaoui referred in their correspondence to the Visa Applicant’s criminal offending, were not called to give evidence at the hearing, and could not be cross-examined. Consequently, the Tribunal places less weight on these reports.
Tribunal findings: Best interests of minor children in Australia
The Tribunal accepts the Visa Applicant loves his children and has played a prominent and continuing role in their lives despite being imprisoned, detained, and experiencing long periods of separation since his return to Lebanon over three years ago. He is understandably concerned about the Review Applicant’s inability to return to Lebanon due to COVID-19 restrictions and the difficulties confronting her as she raises their three children in Australia without his direct support or any support from her own family. This is particularly so given their eldest child’s development delays and behavioural issues, as well as the general challenges of concurrently raising three children under the age of five. The Tribunal accepts the Review Applicant evidence that she and their children would be assisted by the Visa Applicant’s direct contribution to the children’s care.
The Tribunal is unable to make a finding about what the Review Applicant may do in the event of an adverse decision, which remains uncertain. It is accepted this would confront the couple with a very difficult choice. If the lifting of COVID-19 restrictions enabled the Review Applicant to return to Lebanon as she previously intended, this would appear to alleviate some concerns she raised about shared parenting and support. But she also raised adverse consequences like leaving behind the comparative advantages and opportunities in Australia. This includes the developmental support her eldest child currently needs and receives in Australia. Either choice has obvious disadvantages and the Review Applicant’s mental health may deteriorate if she decides to remain in Australia without the Visa Applicant’s support. This may adversely impact her parenting and coping ability.
This primary consideration weighs substantially in favour of granting the visa if the Review Applicant decided to remain in Australia with her children, and less so if she decided to reunite with the Visa Applicant in Lebanon as she previously intended.
Tribunal Consideration: Expectations of the Australian community
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(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;
(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;
(f) worker exploitation.
Clause 8.4(3) states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.4(4) states this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision makers to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in each case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[182]
[182] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[183]
[183] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court’.[184]
[184]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Both parties said this primary consideration was against the application because of its deemed application but differed on the weight to be attributed. Mr Aleksov said as a ‘generic deeming provision’ this consideration has ‘little utility in complex cases such as this’. Mr Barrington submitted it carries ‘very significant weight against’ the application.
Tribunal Findings: Expectations of the Australian community
The expectations of the Australian community apply regardless of whether the Visa Applicant poses a measurable risk of causing physical harm: cl 8.4(3). He has not lived in Australia from a young age or for most of his life: cl 5.2(4). The evidence discloses several criminal offences, including family violence offending that gives rise to serious character concerns: cl 8.4(2)(a) of the Direction. The Visa Applicant should therefore expect to be denied the privilege of coming to Australia: cl 5.2(2) of the Direction.
This primary consideration carries moderate weight against granting the visa.
ADDITIONAL CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Neither party submitted this consideration was relevant.
Tribunal findings: International non-refoulement obligations
Neither the claims of the Visa Applicant or Review Applicant enliven cl 9.1 of the Direction and this consideration carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2 (1) of the Direction 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.
The Applicant has spent most of his life in Lebanon and since voluntarily returning there in June 2018 has lived and worked on his family’s farm. His parents, eleven siblings, and other relatives and friends live in Lebanon. Mr Aleksov stated in closing submissions that there is ‘no extent of impediments’. Mr Barrington submitted the Visa Applicant’s contention that his ‘grim circumstances’ in Lebanon should weigh in his favour, ought to be rejected. That was because none of the considerations are directed to whether he would be better off in Australia.
Tribunal findings: Extent of impediments if removed
There are no discernible age, health, language, or cultural impediments, particularly given the Visa Applicant has lived in Lebanon for most of his life and returned there voluntarily over three years ago. He has substantial family support to draw upon, works on his family’s farm, and did not advance impediments during his oral evidence.
This consideration is not relevant and carries neutral weight.
Tribunal consideration: Impact on victims
Clause 9.3 (1) of the Direction 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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Review Applicant stated she has forgiven the Visa Applicant for his violence against her and they have reconciled.[185] She referred in her evidence to living with the Visa Applicant for approximately a year in Lebanon, during which there was no repeat of the violence against her. She stated:[186]
…since the last incident he has not shown me any reason to be afraid for myself or the children. [The Visa Applicant] is not at risk of re-offending or ever being violent to me or the children. If I thought that there were any risks to me and or the children, I would not have continued phone contact with him from Australia or tell him all about the children or let the children speak to him. I would have ended the relationship rather than put myself or the children at any risk.
[185] Exhibit R1, 345 [38]; 390; Exhibit A1.
[186] Ibid, 390.
Tribunal findings: Impact on victims

The impact of an adverse decision in this matter on the Review Applicant as a mother and wife has been considered elsewhere in these reasons. Nevertheless, and consistent with the reasoning of the Federal Court and Full Federal Court,[187] the Tribunal accepts the Review Applicant has forgiven the Visa Applicant for his violence against her and has no concerns about it being repeated. Having regard for the totality of the evidence, the Tribunal finds this consideration weighs somewhat in favour of granting the visa.
[187] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646; CGX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1842; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69; Filipovich vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 846.
LINKS TO THE AUSTRALIAN COMMUNITY
Clause 9.4 of the Direction requires decision-makers to reflect upon the principles enumerated at cl 5.2 in considering the strength, nature and duration of the non-citizen’s ties to Australia (as set out in cl 9.4.1) and the impact of the s 501 decision on Australian business interests (as set out in cl 9.4.2).
There is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. The presumption in the Direction is therefore not displaced and cl 9.4.2 of the Direction has neutral weight.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen 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.
The Visa Applicant lived in Lebanon from birth in October 1989 until May 2013, and voluntarily returned to Lebanon in mid-2018 after his visa was cancelled. He has spent a relatively brief period of approximately five years living in Australia, much of which was spent in immigration detention or under some form of conditional liberty.
The Visa Applicant was unemployed for a time after arrival in Australia and then claimed to have undertaken work as a carwash attendant and fitting car accessories in 2013 and 2014.[188] These claims are uncorroborated. He also claimed to have undertaken vocational training towards a Certificate III in Early Childhood Education and Care,[189] but there no independent corroboration of this. He claimed to Mr Newton that he established ‘two enterprises offering family day care’ with the Review Applicant, which ‘operated successfully from 2013 until 2017’,[190] but there is no independent corroboration of this, and he did not advance past work and business efforts in oral evidence.
[188] Exhibit R1,258.
[189] Ibid, 259.
[190] Ibid 369.
The Tribunal has previously considered evidence relating to the continuing close relationship between the Visa Applicant and the Review Applicant and their children, who are Australian citizens. His other links in Australia, on the evidence presented, are very limited.[191]
[191] Ibid 419-424.
The Visa Applicant stated he incurred a debt to the Australian Government because of a ‘Deportation escort fee’,[192] which the Tribunal is satisfied he has repaid.
[192] Ibid, 262.
Tribunal findings: The strength, nature, and duration of ties to Australia
Less weight is placed on this consideration given the Visa Applicant was convicted of offences in 2015, soon after being released into the community from immigration detention in August 2013.
Only limited weight can be placed on the Visa Applicant’s positive contribution while living in the Australian community, evidence for which is scant at best. Repayment of the deportation escort fee since returning to Lebanon is to the Visa Applicant’s credit.
The Visa Applicant has very few ties in Australia, except for the Review Applicant and their children. His strongest ties are in Lebanon, where he has spent all his formative years and most of his adult life, including since returning from Australia in mid-2018.
Notwithstanding the Visa Applicant’s limited ties to Australia, this consideration nevertheless weighs moderately in favour of granting the visa. That is because of the Review Applicant’s reliance on him, her preference to remain in Australia for their children’s best interests and to continue her studies, and the impact of COVID-19 restrictions currently preventing her from returning to Lebanon.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ relevant to the specific circumstances of this case, as provided for by the non-exhaustive considerations at cl 9(1) of the Direction.
CONCLUSION
Family violence violates the dignity and personal security of those subjected to it, causing potentially serious physical and psychological consequences. The Visa Applicant was convicted of family violence offences while living in Australia and has not been entirely forthright in the past about its extent. He also admits to persistently breaching court orders. It is of concern that even after undertaking offence-specific rehabilitation and counselling in 2016, he committed further domestic violence against the Review Applicant a year later. This is very serious and although his risk of committing further family violence is low, it is nevertheless a real risk. The Visa Applicant does not pass the character test.
In determining whether the discretion to refuse the visa application should be exercised, the relevant primary and other considerations in the Direction were applied to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance that greater weight ‘should generally be given’ to primary considerations.
It is noteworthy that the Visa Applicant was under some form of conditional liberty or restriction for much of his five-year stay in Australia. He has few ties here apart from the Review Applicant and their children, and there is scant evidence of positive contribution.
The Visa Applicant has a close relationship with his children and has played a prominent role in their lives notwithstanding his circumstances. It is accepted the Review Applicant and children would be assisted by his direct contribution. It remains unclear what the Review Applicant will do in the event of an adverse decision in this matter, but it is accepted the couple would be confronted with a very difficult decision carrying adverse consequences irrespective of the choice made.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds. the discretion granted by s 501(1) of the Act should be exercised to refuse the visa. That is because the primary considerations ‘Protection of the Australian community’, Family violence committed by the non-citizen, and ‘Expectations of the Australian community,’ substantially outweigh the combined weight to be given to the primary consideration Best interests of minor children in Australia and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

......................[SGD]..................................................
Associate
Dated: 26 August 2021

Date of hearing: 4 and 5 August 2021

Counsel for the Applicant:
Mr Angel Aleksov

Solicitors for the Applicant:
Clothier Anderson Immigration Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Mr Jonathan Barrington

Mills Oakley

COURT	DATE	OFFENCE	RESULT
Magistrates’ Court	May 2017	Recklessly Cause Injury Contravene Family Violence Order – Intend Harm / Fear	Aggregate imprisonment for 42 days concurrent.[9] Community correction order (CCO) for 12 months.[10] To perform 150 hours of unpaid community work for 12 months.
Magistrates’ Court	August 2015	Drive Whilst Disqualified	Convicted. Community correction order for 12 months. To perform 120 hours of unpaid community work for 12 months.
Local Court	May 2015	Drive Motor Vehicle During Disqualification Period.	Fined $800. Licence disqualified for 12 months.

Date of hearing:	4 and 5 August 2021
Counsel for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant:	Clothier Anderson Immigration Lawyers
Counsel for the Respondent: Solicitors for the Respondent:	Mr Jonathan Barrington Mills Oakley