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

[2023] AATA 1905

RLXN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1905 (30 June 2023)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/3036
General Division	)

Re: RLXN
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member D. J. Morris

DATE OF CORRIGENDUM:            30 June 2023

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

In the Decision, the words "Partner Class UF Subclass 309 visa" are deleted.

In their place, the words "Partner Class BC Subclass 100 visa" are inserted.

...................................[SGD]................................
Senior Member

Division:GENERAL DIVISION

File Number:          2022/3036

Re:RLXN

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:30 June 2023

Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal –

1.sets aside the reviewable decision dated 7 April 2022.

2.in substitution for the decision so set aside, decides that, under s 501CA(b)(b)(ii) of the Migration Act 1958, the mandatory cancellation of the Applicant’s Partner Class UF Subclass 309 visa is revoked.

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

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is a citizen of the Lebanese Republic – applicant held partner visa – substantial criminal record – applicant serving sentence of full-time imprisonment – visa cancelled mandatorily – applicant made representations – delegate of minister refused to revoke mandatory cancellation – applicant sought review by Tribunal – Tribunal affirmed decision not to revoke – applicant sought judicial review – parties accepted decision affected by jurisdictional error – consent order – matter remitted to Tribunal – new ministerial direction – primary considerations – offending serious – whether family violence – family violence found despite no convictions – other considerations – decision under review set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454

RLXN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1277

Secondary Materials

Migration Act 1958 – Direction No. 99 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)

REASONS FOR DECISION

Senior Member D. J. Morris

30 June 2023

INTRODUCTORY

1. The Applicant is a citizen of the Lebanese Republic. He was born in May 1986 and is aged 37. He first arrived in Australia in 2008 for a brief visit. He returned to settle here in August 2009 aged 23 as the holder of a Partner (Class UF) (Subclass 309) visa.

2. On 4 July 2022 the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) that the name of the Applicant in this proceeding not be published and assigned to him the anonym ‘RLXN’.

3. On 17 June 2019 RLXN was notified by the Department of Home Affairs (‘the Department’) of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that he had a ‘substantial criminal record’ and because he was then serving a sentence of full-time imprisonment for an offence against a law in Australia: ss 501(6)(a) and 501(7)(c) of the Act.

4. When he was notified of the visa cancellation, RLXN was invited to make representations as to why the cancellation should be revoked. He did so on 12 July 2019. On 20 January 2020 RLXN was invited to respond to further information, including a national criminal history check.  He responded in February 2020. On 4 May 2021 RLXN was invited to respond to further information being a new ministerial direction, Direction No. 90. He responded in June 2021.

5. On 7 April 2022 a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided that the power under s 501CA(4) of the Act to revoke the mandatory cancellation of RLXN’s visa was not enlivened. He was notified of this decision on 11 April 2022.

6. On 13 April 2022, RLXN asked the Tribunal to review the delegate’s decision. The Tribunal, differently constituted, heard the application on 14 and 15 June 2022. On 4 July 2022 the Tribunal made a decision affirming the decision not to revoke the mandatory cancellation of RLXN’s visa.

7. On 1 June 2022 the Minister for Immigration, Citizenship and Multicultural Affairs was sworn into office. He became the Respondent in this matter.

8. RLXN sought judicial review of the Tribunal’s decision by the Federal Court of Australia. On 25 October 2022 McEvoy J made an order by consent quashing the Tribunal’s decision and issued a writ of mandamus directing the Tribunal to determine the application according to law. The Court published reasons the next day: RLXN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1277.

   HEARING

9. The Tribunal heard the application on 1 and 2 June 2023 in Melbourne. The Applicant was represented by Mr Mathew Kenneally of counsel, instructed by Carina Ford Immigration Lawyers. The Respondent was represented by Mr Peter Turner, a solicitor with Minter Ellison.

10. RLXN gave evidence and was cross-examined. He also called the following witnesses who gave evidence in person: Ms GS, his wife; Ms FH, his sister-in-law; Mr MH, his brother; and Mr AA, his nephew. The Applicant also called Mr Ian Mackinnon, forensic psychologist, who gave evidence by video under s 33A of the AAT Act.

11. The Tribunal admitted into evidence the exhibits listed in the annexure to these reasons. Also before the Tribunal was a Statement of Facts, Issues and Contentions from the Applicant dated 10 May 2023 (‘ASFIC’), a Statement of Facts, Issues and Contentions from the Respondent dated 24 May 2023 (‘RSFIC’) and an Applicant’s Reply dated 29 May 2023.

    APPLICANT’S OFFENDING

12. Before the Tribunal was a national criminal history check relating to the Applicant, produced by the Australian Criminal Intelligence Commission on 28 August 2019 (Remittal Bundle ‘RB’, pp 44-45). It recorded seven offences, all imposed by the County Court of Victoria in April 2019.

13. RLXN was convicted of the offence of Attempted armed robbery, for which he received a sentence of three years and nine months imprisonment. On the same day he was convicted of the offences of Prohibited person possessing a firearm and Use firearm in other place with reckless disregard. He was sentenced to six months’ imprisonment on each count, to be served concurrently. He was also convicted of the offence of Posses cartridge ammunition without licence or permit, for which he was fined $500, and Possess a drug of dependence, for which he was discharged. On the same day he was convicted of the offence of Intentionally causing injury, and was imprisoned for six months, with three months of that sentence to be served concurrently, and the offence of Intentionally damage property, for which he received a gaol term of one month, to be served concurrently. The total effective sentence RLXN received was therefore four years’ imprisonment. A non-parole period of two years and eight months was set.

    THE QUESTIONS BEFORE THE TRIBUNAL

14. There are two questions for the Tribunal to address. The first is whether RLXN fails the character test. If the Tribunal is satisfied that he does not, then s 501CA(4)(b)(i) of the Act provides that the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that RLXN fails the character test, the second question is whether the cancellation of his visa should be revoked for “another reason”: s 501CA(4)(b)(ii).

    Does the Applicant pass the character test?

15. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation, relevantly, in RLXN’s case, of paragraph (6)(a) – that he has a ‘substantial criminal record’. A ‘substantial criminal record’ is further defined in s 501(7)(c) of the Act as where a person has been sentenced to a term of imprisonment of 12 months or more.

16. It was not in contest between the parties that RLXN does not pass the character test because he has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more.  It is also not in dispute that the Applicant was serving a sentence of full-time imprisonment on the day his visa was cancelled (RB, p 169).

17. The Tribunal finds, based on the County Court record before it and the date of cancellation that RLXN does not pass the character test.

    The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?

18. Having made the finding that the Applicant does not pass the character test, and being satisfied that the Applicant was invited under s 501CA(3) to make representations about the revocation of the decision to cancel the visa, the power was enlivened for the Minister, or his delegate (or the Tribunal now standing in his shoes) to potentially revoke the cancellation decision if satisfied that, under s 501CA(4)(b)(ii) of the Act that there is ‘another reason why the original decision should be revoked’.

19. In considering that question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 3 March 2023 a new ministerial direction, Direction No. 99 (‘the Direction’), took effect, as referred to above. It was not in contest between the parties that this is the direction to which the Tribunal must have regard, under s 499(2A) of the Act. The Tribunal notes that at the previous hearing which was the subject of the remittal by the Federal Court the Tribunal was obliged to apply an earlier Direction, which has different provisions and mandatory considerations.

20. The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists four primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.

    Direction No. 99

    PRIMARY CONSIDERATIONS

    Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

    The nature and seriousness of the conduct (paragraph 8.1.1)

21. The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed:

    (a)violent or sexual crimes;

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

    (c)acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed.

    The Respondent submitted that RLXN’s conduct should be viewed very seriously. He has committed serious and violent offences relating to attempted armed robbery, intentionally causing injury and intentionally damaging property, and possessed a firearm as a prohibited person. Counsel for the Applicant conceded that RLXN had a ‘serious but confined’ criminal history, and conceded that the attempted armed robbery was serious offending.

22. Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are: causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. None of the categories stipulated in paragraph 8.1.1(1)(b) is relevant to RLXN.

23. Paragraph 8.1.1(1)(c) says that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. As mentioned above, the County Court of Victoria imposed a total sentence of four years’ imprisonment on RLXN in 2019 for the group of offences for which he was convicted. The Respondent also noted that RLXN’s possession of a loaded semi-automatic handgun in contravention of a condition of an intervention order obtained by his first wife should be viewed very seriously.

24. The Respondent further submitted that there was evidence of RLXN committing acts of family violence against his ex-wife and his current wife, including physical violence, and that this conduct should be viewed very seriously regardless of the fact that there was no convicted offence for these acts.

25. The Respondent also submitted that RLXN has committed driving offences. Before the Tribunal in documents produced under summons by VicRoads was an extract of traffic offences in the name of the Applicant.  He appeared before the Magistrates’ Court of Victoria in July 2015 and was convicted of exceeding a 60 kph speed limit by 35 kph or more but less than 45 kph, with an offence date of September 2014.  His driver licence was suspended for six months.  He was also convicted of the offence of failing to have a vehicle under proper control. For both offences an aggregate fine of $500 was imposed.

26. In addition, RLXN had four other traffic infringements which led to demerit points: in June 2012 he received three demerit points for disobeying a traffic control signal. In September 2012 he received three demerit points for exceeding a speed limit by 15 kph or more but less than 25kph. In June 2014 he received three demerit points for another speeding offence in the same range. He also received six demerit points for the September 2014 speeding offence which was subsequently dealt with by the Magistrates’ Court.

27. In relation to the more serious offending, before the Tribunal were the sentencing remarks of the County Court Judge in 2019. His Honour noted that the Applicant had pleaded guilty to all the offences of which he was charged. The Judge noted the value of the guilty plea and that this could be taken into account in the sentencing. The circumstances of the offending are as follows:

28. In January 2018, RLXN was driving a motor vehicle and became involved in an altercation with another driver. A passenger with RLXN threw a paper cup containing ice cubes and some drink at the other car. The other driver threw it back. RLXN then went to the other car and punched the driver on the nose. He then kicked the side door and mirror of the other car, damaging them both. He then struck the victim three more times. The other driver suffered a swollen lip, swollen nose, chipped tooth, a sore finger and required medical attention.

29. His Honour referred to this incident as a ‘road-rage situation’ and a serious example of that kind of offending, which was unprovoked and where RLXN had time to think.

30. RLXN offended again in May 2018. The Applicant and a co-offender went to a convenience store operated by a man who was alone and unarmed. RLXN entered the store armed with a loaded semi-automatic handgun. Both the Applicant and his accomplice were wearing face masks, dark clothing, gloves and sunglasses. RLXN brandished the gun and demanded cash from the till. He fired a shot which hit the ground. He then tried to open the cash register with the gun, which again discharged. The victim ran from the store and called police. RLXN and his co-offender fled empty-handed. The Applicant was arrested after the police linked the vehicle he was driving to RLXN.

31. The Judge noted that at the time of this offending RLXN was drug-affected. He was consuming one gram of methamphetamine (ice) a day. His Honour described the offending as high-level offending of this kind. It was planned and the Applicant was armed. He subjected the victim to acts of violence. His Honour remarked that RLXN’s moral culpability was high. He rejected any argument that culpability should be reduced because of an ‘unknown psychotic illness’. His Honour said: “The fact remains you were drug affected. That explains your offending but does not excuse it.”

32. The Judge noted no prior criminal convictions other than these two incidents. His Honour noted submissions before the Court that RLXN started using cannabis in 2012 and developed a dependency in that drug over five years. From around the end of 2016 RLXN was using methylamphetamine as an addictive habit of one gram per day.

33. The Judge referred to a psychological report from Mr Ian Mackinnon dated January 2019. Mr Mackinnon thought RLXN might be suffering from a psychotic disorder and noted he had functional intelligence within normal range and had overcome his substance abuse disorder with evidence of negative urinalysis in prison.

34. The Judge accepted RLXN was remorseful and noted Mr Mackinnon’s opinion that the Applicant’s chances of rehabilitation were good. His Honour noted evidence that RLXN was hospitalised on an involuntary basis in June and July 2017. A medical practitioner at that time diagnosed Amphetamine Induced Psychotic Disorder, which she considered was complicated by ice abuse and psychosocial stressors including financial debt and custody and fatherhood matters.

35. His Honour concluded that the mental health issues were not significant and that RLXN’s offending occurred in a background where he was affected by ice.

36. The Judge referred to evidence from the Applicant’s brother and his wife and concluded he had good family support awaiting him when he is released from prison, while noting RLXN also had this family support before, and some of the family knew of his ice addiction, but that did not assist him to break the addiction.

37. The Direction requires the Tribunal to consider whether there has been frequent offending by the Applicant, any trend of increasing seriousness and the cumulative effect of repeated offending (paragraph 8.1.1(1) (d) and (e)). The Tribunal does not make a finding that there has been frequent offending. The offending appears to have occurred only in January and May 2018. However, it does find that there has been an increase in seriousness. The first matter was an incidence of road-rage which swiftly escalated to physical violence. The second incident was a premeditated and serious crime: RLXN and his co-offender were disguised, he was armed with a loaded firearm, and he fired it twice. The Applicant menaced an unarmed man operating a small business in order simply to get money. It was no doubt very frightening for the store operator. The Court noted that how RLXN obtained the firearm was unclear. What is clear is that he had been served with an intervention order in relation to earlier conduct with his first wife, and knew he was prohibited from possessing a firearm.

38. There is no evidence that RLXN provided false or misleading information to the Department, or that he has re-offended since being warned about the consequences of further offending on his immigration status (paragraph 8.1.1(1)(f) and (g)). Paragraph 8.1.1(1)(h) is not relevant.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

39. The Direction requires the Tribunal to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  In assessing the risk that may be posed by the non-citizen to the community, the Tribunal must have regard, cumulatively, to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in further criminal or other serious conduct. The Tribunal must take into account information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation.

1. Counsel for the Applicant submitted that RLXN’s risk of re-offending is low. Mr Kenneally noted that RLXN has been in Australia since 2009 and did not offend until January 2018 and has otherwise been a productive member of the Australian community. He noted that Mr Mackinnon has assessed RLXN on three occasions – once in January 2019 for the County Court; once for the Tribunal in June 2022 and once for this hearing in March 2023.

2. Mr Mackinnon gave oral evidence to the Tribunal. In terms of the underlying cause of RLXN’s criminal offending, Mr Mackinnon said the Applicant had emotional disturbance in his marriage including the loss of two children, one of whom miscarried and one who was stillborn. He said:

   The relationship was very rocky. He apparently started engaging in illicit substance abuse – cannabis – for quite a while. He then started smoking ice. He had depression and anxiety and suffered a psychotic episode. Prior to that, he was functioning quite well.

3. Mr Mackinnon said his opinion was that RLXN was very unlikely to re-offend unless he suffered a relapse into ice abuse. Mr Mackinnon was asked about the course of the prescription intravenous medication called Sublocade (which contains buprenorphine), which RLXN is on, and how would that prevent a relapse. He responded:

   It has anti-craving qualities. He’s been on it for quite a while. He can come of that at some point, perhaps after a year or two. Sublocade does not contain methamphetamine.

4. Mr Mackinnon was asked if he believed RLXN has a diagnosis of bipolar disorder. He responded:

   It may be valid. It may be quite well managed. I haven’t seen mood swings. The depressive component seems enduring but there are no manic episodes. When I saw him recently, his anxiety levels went through the roof, which is connected to his worry about visa matters. He’s on an antidepressant and another medication. Both have helped him to achieve relative stability.

5. Mr Kenneally noted a diagnosis of ‘Mild Residual PTSD’. Mr Mackinnon said:

   It hasn’t presented as full-blown. It relates to past traumas in Lebanon; I haven’t made a diagnosis of PTSD. He may have suffered it in Lebanon, but not the full-blown disorder.

6. Mr Mackinnon said he was aware that RLXN was admitted to hospital in March 2023. He said his understanding was that the Applicant reported feeling numbness and thought he was suffering a stroke. He said: “It seems likely it was a massive anxiety attack. I can’t say that with a high degree of confidence.” In response to a direct question from the Tribunal, Mr Mackinnon said that an anxiety attack could present with symptoms similar to a stroke.

7. Mr Mackinnon said he often dealt with patients in their 30s who had abused drugs since their teenage years. He said RLXN is not in this category, because he has owned property, worked, paid bills and operated pro-socially in the community. Mr Mackinnon said he therefore concluded that the substance abuse disorder did not present as an entrenched problem.

8. Mr Mackinnon said that the Applicant’s family support is important.

   They’ve known him at his worst and seem to want him back in their lives. They can assist as a social circle. He loves his daughters and is aware he has let them down. He wants to make up.

9. Mr Kenneally asked Mr Mackinnon what his assessment was of RLXN’s visits to the graves of his children in a suburban cemetery. He responded: “He hadn’t realized how important that was to him.”

10. Under cross-examination, Mr Mackinnon confirmed a diagnosis of a Major Depressive Disorder as a primary condition, with Anxiety as a secondary condition, which was largely reactive. He said he would add Substance Misuse Disorder in an advanced stage of remission, noting the Sublocade injection course.

11. When pressed by Mr Turner on a reference in his report to the Substance Misuse Disorder being in “partial remission”, Mr Mackinnon said he would update that to an advanced stage of remission, on the basis that RLXN had not used ice for five years.

12. He agreed that his suggestion of PTSD was speculative. Mr Turner asked Mr Mackinnon if he was aware that RLXN had returned to Lebanon since being in Australia. He responded, “I don’t think I was aware of that, I’m not sure. If that was just a visit, my attitude would be different if he was sent back there permanently.”

13. In his oral evidence, RLXN said he had undertaken a drug and alcohol course while at Port Phillip Prison, and a course on the effect of ice. He said the course explained what taking ice did to the human brain, how it can make a person violent and how a person gets addicted “the dopamine it gets high… and you want more high and more high”. He also did a 24-hour anti-addiction course.

14. In the papers before the Tribunal was evidence that RLXN completed a Level III drug and alcohol treatment programme in 2021 (RB, p 127); a ‘Learning for Life’ course (RB, p 128); a ‘Houses and Homes’ course (RB, p 128); a ‘Jobs and Careers’ course (RB, p 130); a ‘Healthy Living’ course (RB, p 131); and a ‘Family, Friends and Community’ course (RB, p 132);  He completed a Caraniche ‘Taking Change Program’ in June 2019 (RB, p 133) and a six-hour Alcohol and Other Drugs and Ice Effects course in July 2019 (RB, p 134). While in prison he also completed the following Box Hill Institute courses: a barista course; a workplace safety course; two traffic control courses; a course on working safely in the construction industry; and an arc welding course (RB, p 138-150).

15. RLXN said he had also undertaken a course in cooking. He was billeted in a prison lodge housing six men and he did all the cooking and budgeting for food. He did two English language courses and obtained a construction industry white card. Mr Mackinnon remarked that over the time he has seen the Applicant, there has been a notable improvement in his English proficiency.

16. While at Marngoneet Correctional Centre, RLXN was given a job in the visitor centre which he said is a trusted position because visitors can sometimes leave items there, intended for inmates. He said only trustworthy prisoners were given jobs there.

17. The prison records before the Tribunal reveal no incidents of adverse behaviour by RLXN while he was incarcerated.

18. The Tribunal notes that in 2013 the Applicant completed a Certificate III in Automotive Mechanical Technology through KAPS Institute of Management (RB, pp 151-152).

19. If released, RLXN said he would resume living with his wife, Ms GS. She lives two- or three-minutes’ drive from his brother, Mr MA. Mr MA owns a car yard and gave evidence that he would employ RLXN as a mechanic there. The Applicant said “I need to focus on going to see my GP and see a psychologist, maybe Mr Mackinnon, and stay on my medication.”

20. The Tribunal noted that the Respondent accepted the submission that RLXN was a low risk of re-offending. The Tribunal places significant weight on Mr Mackinnon’s reports and opinion, because he has seen RLXN over several years and has provided several reports. He therefore has been able to track the trajectory of the Applicant’s mental health and tackling his ice addiction.  The Tribunal accepts the conclusion that the likelihood of RLXN re-offending is low, especially if he returns to his former work as a mechanic and settles back into his domestic life with Ms GS. What will be essential is that he does not return to any illicit drug use.

21. In terms of paragraph 8.1.2(2)(a), the Tribunal finds that, because of the violent nature of the Applicant’s offending in both the ‘road rage’ incident and the more serious attempted armed robbery, where a firearm was fired, if RLXN was to re-engage in offending of a similar nature, the nature of harm to individuals in the Australian community would be very serious.

22. Overall, the Tribunal finds that the weight of this primary consideration bifurcates. In terms of the nature and seriousness of the conduct, the fact of the attempted armed robbery, notwithstanding the lack of a long history of offending, attracts a finding that weighs relatively heavily against revoking the cancellation decision. It was a violent and planned offence involving firearms.

23. However, in terms of the risk to the Australian community should RLXN engage in further criminal conduct, the Tribunal accepts the clinical opinion and finds that is a low risk, which weighs in favour of revoking the mandatory cancellation of his visa.

    Family violence committed by the non-citizen (paragraph 8.2)

24. The contents of the Applicant’s complete criminal history in Australia have been set out above. There are no convictions for family violence offences. However, Counsel for the Applicant conceded that this consideration is engaged due to the uncharged acts of family violence RLXN perpetrated against his wife, Ms GS.

25. The Direction provides, at paragraph 8.2(2) that this consideration is relevant where a non-citizen has been convicted of an offence, had a finding of guilt or charges proven which involve family violence and, relevantly in RLXN’s case where he has no family violence offences on his record (at 8.2.(2)(b)):

    (Where) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

26. In his oral evidence the Applicant said he met Ms GS in 2011 and a romantic relationship started in 2015. They subsequently married. He agreed she had taken out an intervention order in relation to his behaviour. RLXN said: “It was poor behaviour. Shameful and embarrassing.” When asked why it was embarrassing, he said, “Never been through stuff like this.”

27. The Tribunal asked RLXN directly what he was referring to when he said ‘stuff like this’. He responded: “I have done family violence.”

28. RLXN agreed he was aware that Ms GS listed incidents dating back to 2017, among which were him checking on her at the school where she teaches, because he did not believe she was a teacher.  RLXN agreed he was following her and went to the school on one occasion to ‘check up on her’. He said that his behaviour was poor when drug affected because it led to him “following [Ms GS]” and thinking she was spying on me or….” He said he did not have a clear recollection of the events but realizes now that Ms GS was not spying on him at all.  He said he was using ice at the time.

29. RLXN said he was hiding his drug use from his family, because he was ashamed and embarrassed. He said that taking drugs “is a big thing for us. It is not us.” He confirmed in response to direct questions from the Tribunal that none of his siblings had ever been in trouble.  When pressed under cross-examination, he said that he told his brother just before he went to prison about his ice use. He said he believed that his wife, Ms GS, had suspicions, but she did not see him taking drugs.

30. Before the Tribunal was a Victoria Police LEAP incident summary report dated December 2017 (RB, p 325-326). It recorded that the Applicant and Ms GS had been married for three years and that the Applicant had been diagnosed with psychosis in the last 12 months. The report said that RLXN’s mental health had deteriorated over this time and that Ms GS has reported ‘several incidents of assault’ between the parties.

31. The report referred to the following. The first incident in late 2016 when RLXN and Ms GS were at a concert and the Applicant became violent to other people at the concert and head-butted Ms GS several times. The second incident was on Mother’s Day in 2017 when a verbal argument took place between RLXN and Ms GS and the Applicant hit Ms GS with a plastic outdoor chair which broke over her, causing minor injuries. A third incident in the home where RLXN kicked Ms GS off the bed and, while she was on the ground, threw her mobile phone at her head. A fourth incident where RLXN was having a psychotic episode and head-butted a wall and then turned and punched Ms GS. A fifth incident where during an argument Ms GS walked backwards in fear, tripped and fell, and while she was on the ground RLXN stomped on her and punched the back of her head. A sixth incident in December 2017 where an argument ensued between the parties. RLXN threatened to punch Ms GS if she did not go with him. She complied and once outside the house he dragged her by the arm and tried to pull her into his car. The police applied for an intervention order to protect Ms GS.

32. In her statement dated 10 May 2023, Ms GS clarified or retracted a number of these complaints, or the description of the incidents.  She relevantly wrote: “I did embellish things when giving my statement to Victoria Police” and that this was due to her belief at the time that the police officer did not believe her initial complaint.

33. Ms GS was taken through the LEAP report in her oral evidence. She said that what the police recorded was a correct representation of what she said, but not of the events.  In respect of the first incident, Ms GS said she and RLXN were at a concert and “we accidentally butted heads; it was an accident”.  When asked by Mr Turner why she told the police she had been head-butted, Ms GS responded: “I was in an emotional state when the Order was made. RLXN told me he had gone to my work to see if I was actually there. I felt the need to do something.”

34. In regard to the second incident, Ms GS said, “There was a verbal argument where we did have physical slapping and I fell backwards into a chair.”  In regard to the third incident, Ms GS was asked whether RLXN threw her mobile phone at her head.  She responded, “No. He did throw the phone at me. It did not hit me though. I was going for a drive.”

35. In regard to the fourth incident where RLXN head-butted a wall of their residence, Ms GS said, “He was in a psychotic state. I hit him back and he slapped me.” In regard to the fifth incident where Ms GS told the police RLXN had stomped on her, she said, “I fell over and RLXN went to help me up. I hit him in anger. He hit me back. It was just a touch in the back of the head.”

36. The Tribunal directly asked Ms GS whether the Applicant had tried to drag her into a car, and she responded, “Yes”.

37. Ms GS agreed that she had made previous complaints to the police about RLXN’s behaviour in, she believed, September and November 2017.  When asked why she felt the need to make the complaints, Ms GS said: “He wasn’t taking his medication. I made the complaints hoping to get a mental health order enforced and for him to be taken back into psychiatric care.”

38. When asked about the terms of the order, she said it was that RLXN not follow her, that he was not to damage property and he was not to physically hurt her.  Mr Turner asked Ms GS why the Applicant would have told the Tribunal that he had ‘done domestic violence’.  She responded, “He would trust I was telling the truth. He would have no recollection.”

39. The Tribunal directly asked Ms GS whether she realized that, as a result of the complaints she made, RLXN could have been charged with assault.  She said, “If they had done an investigation, I would not have made the complaint.”  The Tribunal said to Ms GS it was a bold thing to do, purely to obtain a mental health order, and she could have been charged with making a false complaint.  Ms GS replied, “I thought it was the best decision at the time. My goal was not to have RLXN separated physically. I wasn’t thinking rationally. I wasn’t thinking about the consequences.”

40. Overall, the Tribunal finds Ms GS’s evidence perforated. The sense the Tribunal got is that she was retracting accounts of events that she had given to the police with a view to putting her husband into a better light, perhaps in relation to his migration circumstances. While the Tribunal may accept that Ms GS embroidered particular incidents with a view to RLXN being issued with an involuntary care order, the detail that she gave to Victoria Police in her initial complaint inclines the Tribunal to, on balance, conclude that the events did occur largely as she recounted them to the police officer. That should not be interpreted to doubt her desire to see RLXN receive hospital care because of his erratic and violent behaviour when affected by ice use.

41. I am satisfied that RLXN has committed family violence conduct within the meaning in the Direction. Even on her amended version of events, Ms GS said that he slapped her, hit her, threw a phone if not at her, then in her general direction, and tried to drag her into a car. In terms of paragraph 8.2(3)(a) and (b), I am satisfied on the evidence of Ms GS that there have been repeated acts of family violence over a period, if a relatively confined period, but not that there has been a trend of increasing seriousness. Repeated acts of family violence, even if not individually violent or serious, have a detrimental cumulative effect on the victim and, where relevant, children who might be exposed to it. In this case, there is no evidence of children being present.

42. This part of the Direction requires the Tribunal to consider the extent to which the person accepts responsibility for his family violence-related conduct, and the extent to which he understands the impact of his behaviour on the victim. I do conclude RLXN is remorseful, and I accept that he does not remember the details of his domestic violence conduct because he was affected by ice use at the time. The evidence supports a conclusion that RLXN was suffering from paranoic delusions, one of which was that his wife might not actually be a schoolteacher, and one of which related to people ‘spying’ on him. These can be directly attributed to the effect on him of his ice use.

43. This primary consideration weighs against the Applicant, and the weight is moderate. Domestic violence conduct, even if no charges were laid and if the perpetrator was affected by illicit drugs, is reprehensible conduct.

    The strength, nature and duration of ties to Australia (paragraph 8.3)

44. The Tribunal must consider any impact of the decision on RLXN immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.

45. The Tribunal should give more weight to the Applicant’s ties to his or her children who are Australian citizens, Australian permanent residents or who have the right to remain in Australia indefinitely. 

46. The Tribunal must also consider the strength, duration, and nature of any family or social links generally with Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely.

47. The Tribunal, under this new Direction, must also consider the strength, nature and duration of any other ties the Applicant has to the Australian community, including how long he has been in Australia. Relevantly to RLXN, more weight should be given to the time the Applicant has resided in Australia where he has contributed positively to the community during that time.

48. Apart from his two children (who will be considered below), RLXN has an Australian citizen wife in Australia, two brothers in Australia, two aunts/uncles, three nieces/nephews and, he estimated, 30 cousins (RB, p 71).  He also has friends who have provided testimonials, one of whom he assisted to obtain a job. He worked relatively steadily as a motor mechanic, obtained an Australian qualification, and could resume that trade.

49. RLXN did not begin offending soon after he arrived in Australia and has made some positive contribution to the community and the national economy.  The evidence given by his brother, sister-in-law and nephew about their regard for him and desire to support him if he is returned to the community was candid and, in the Tribunal’s assessment, genuine. The RSFIC conceded that this consideration weighed in favour of the Applicant but submitted that it did not attract significant weight. The Tribunal does not agree with that second submission.

50. The Tribunal finds that the primary consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.

    Best interests of minor children in Australia affected by the decision (paragraph 8.4)

1. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

2. The Tribunal must take into account various factors set out in paragraph 8.4(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which she is likely to play a positive role in the future, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.

3. From his first marriage, RLXN has two minor daughters in Australia who are Australian citizens, who will be called MX and HX.  MX was born in 2011 and is aged 11. HX was born in 2015 and is aged seven.  The ASFIC recorded that RLXN has been involved in the parenting of MX but has had only limited contact with his younger child.

4. RLXN also referred to his niece, S. She is his brother’s daughter. When asked her age, he said he was not sure exactly but believed she is one year younger than his older daughter, so would be aged about 10.

5. In respect of MX, RLXN agreed with Mr Turner that he had Court orders which provided for him to have access to his daughter, but he said they were suspended when he went to prison. He said he would see HX when he was doing a handover of MX with his ex-wife in compliance with their mutual custody arrangement.

6. Mr Turner noted that the Parenting Orders in evidence provided that MX and HX lived with their mother and RLXN had certain access rights before he was incarcerated. The Applicant agreed that was the case. He said in response to a direct question from the Tribunal that is what he will seek to have varied by the Court if he remains in the Australian community.

7. RLXN said that he had never looked after HX but has cared for MX and undertook a parenting course while in gaol.  He agreed that his daughters would continue to live with his ex-wife and her new partner, even if he established new access arrangements.

8. In his submissions to the Department (RB, p 68), RLXN wrote (in respect of MX):

   I had a good relationship with my daughter before I went to jail. She knows I am her father and I know that she wants to see me. If the cancellation is not revoked, my daughter will grow up without a father. Her mother will not move to Lebanon and I will miss out on the best years of my daughter’s childhood and ultimately I will miss out on all of her life and she will miss out on having her father around.

9. In respect of his niece, S, RLXN agreed he had spent less time with her from 2016 and estimated that she was aged around 4 or 5 at that time.

10. In respect of his daughters, RLXN accepted Mr Turner’s suggestion that he has not played a significant role in respect of them for more than half their lives.

11. The Tribunal is satisfied to make a determination that it would be in the best interests of MX and HX that their father remains in Australia. In the case of MX, she had regular contact with RLXN before he went into prison and was of an age when she would have built a relationship with him. In the case of HX, there has been only peripheral contact, but the Tribunal accepts it is RLXN’s desire to seek agreement to have greater access to both of his daughters. The Tribunal accepts that the mother of MX and HX and her new partner perform parental roles in relation to both children, but that if RLXN was deported, he would be unable to rekindle his parental role with his older daughter or establish one with HX.

12. In respect of his niece, S, the Applicant accepted in his oral evidence that others play a parental role in her life. Although she may be disappointed if her uncle was deported, she was of such a young age when he entered prison and did not, then, have regular contact, so the Tribunal does not make a determination about the effect on her if the Applicant’s visa were to be restored, or not.

13. Overall, the Tribunal finds that this primary consideration weighs somewhat in favour of restoring RLXN’s visa, but the weight is affected by the fact that the Applicant did not have day to day care of his daughters before he was incarcerated, and their principal carer was their mother.

    Expectations of the Australian Community (paragraph 8.5)

14. Paragraphs 8.5(1) and (2) of the Direction state:

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

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of 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.

    …

15. The Direction highlights specific categories of identified offences relevant to this decision are 8.5(2)(a) – acts of family violence and 8.5(2)(c) – commission of serious crimes against, inter alia, women and children. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’.

16. A superseded version of the Direction contained generally similar wording to paragraph 8.5 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to form a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’. In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by some other evaluative process. 

17. The Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.

18. The ASFIC conceded that this primary consideration weighs against the Applicant, but noted his offending occurred in a confined period and that his acts of family violence took place in what was described as an atmosphere of paranoia.

19. The Tribunal considers that the weight of the deemed expectations of the community would be against granting of the visa. Even though there was no long pattern of criminal conduct, the attempted armed robbery was at the higher end of seriousness.

20. The Tribunal finds that this primary consideration weighs against the Applicant.

    OTHER CONSIDERATIONS

    Legal consequences of the decision (paragraph 9.1)

21. The Direction reminds decision-makers that unlawful non-citizens are liable for removal from Australia as soon as practicable in the circumstances specified in s 198 of the Act and, in the meantime, to being detained under s 189.

22. The ASFIC raised the current situation in Lebanon, where the economic crisis is severe, noting that the World Bank has characterised the situation in that country as a ‘depression’ and one of the three worst economic collapses since 1850. Counsel for the Applicant noted that the Lebanese currency has collapsed, inflation is high, drinking water is in short supply and electricity is only available for a few hours a day. It was asserted that almost half the population requires food assistance.

23. The ASFIC noted that, with the economic decline, violent crime has risen, and public safety has declined because of the lack of capacity of government instrumentalities to respond and maintain order.

24. The ground of the remittal was that the Tribunal had previously not taken into account the Applicant’s fears of violent gangs if he was repatriated. In his personal circumstances form submitted to the Department, the Applicant wrote, “I will also face harm in Lebanon from a group of people who stabbed me before I travelled to Australia.” (RB, p 61)

25. He was asked whether he has returned to Lebanon since coming to Australia in 2009.  RLXN responded, “I went back in 2010 for 14 days for my brother’s wedding. It took place about 40 minutes’ drive from Tripoli”. He said even though he feared harm at that time, he still returned.  In response to Mr Turner, RLXN said that he had lodged a protection visa application but had not yet heard of any outcome in relation to that application.

26. RLXN said that his mother lives in Lebanon and he has other relatives there, but they are ‘doing things very hard’.  He agreed he worked as a mechanic there before coming to Australia.

27. RLXN was asked whether, if he was concerned about the potential for harm in Tripoli, whether he could live elsewhere. He said he could not. When pressed by the Tribunal, RLXN said, “I don’t have money. Mental health. Medication. People will kill each other for a loaf of bread.”

28. The submissions were that the Applicant’s mother lives in a small house, and has a carer. She would be unable, because of her frailty and age, to provide long-term accommodation and support for RLXN.

29. The ASFIC conceded that the Tribunal can defer making a consideration of whether RLXN invokes Australia’s protection obligations in a case where he has applied for a protection visa which is still under consideration.

30. The Tribunal accepts the uncontested evidence about the deterioration of the economic situation in Lebanon but considers that there is insufficient information before it to make a satisfactory determination on whether RLXN would face a risk of real harm if he is repatriated.  The Tribunal accepts the submission that the Applicant may face slightly more vulnerability in terms of criminal gangs because he has been away from the country for a long period in a western country. The Tribunal decides, taking into account paragraph 9.1.2(2) of the Direction, not to determine whether non-refoulement obligations are engaged in respect of RLXN.

31. The Tribunal finds that this consideration weighs neutrally.

    Extent of impediments if removed (paragraph 9.2)

32. The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to Lebanon, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in his home country.

33. The Applicant agreed that he speaks Arabic, although noted that there are different dialects in different parts of the country. The Applicant’s evidence is that he worked as a mechanic in Lebanon before first coming to Australia aged around 21. He has continued to work as a mechanic in Australia and obtained a Certificate III qualification.

34. The Tribunal does not reiterate the points made above about the deterioration of the economic and social fabric in Lebanon, and accepts that it would be very challenging for RLXN. Unfortunately, in respect of that, the Direction requires me to consider how it would affect his basic living standards in the context of what is available to other citizens of Lebanon, not against a yardstick of what is available in Australia, or what was available in Lebanon before the precipitous economic decline since 2021.

35. The Tribunal accepts that RLXN has a diagnosed mental health condition and that mental health care available in Lebanon, given the deterioration in the economy and in the ability of government services, would be a significant challenge to him. More importantly, the Tribunal notes the clinical evidence before it, and Mr Mackinnon’s evidence, about the course of intravenous Sublocade the Applicant is on. In particular, Mr Kenneally drew the Tribunal’s attention to the cost of the drug in Lebanon and how it would be prohibitively expensive and beyond the capacity of RLXN or his family to obtain. The Tribunal finds that this is a characteristic that is personal to the Applicant and is a relevant impediment to him being returned to his country of citizenship. 

36. Counsel for the Applicant referred to a 2022 report of the European Monitoring Centre for Drugs and Drug Addiction, Overview of drug markets in the European Neighbourhood Policy-South countries regional report (Exhibit A1, p 252) which relevantly states:

    Finally, the pronounced impact of economic difficulties in Lebanon on drug treatment efforts, which pre-date the COVID-19 pandemic, underline the risks for other states in the ENP-South region facing rising economic difficulties. In Lebanon, the deteriorating economic situation impacted negatively on drug treatment, and has been linked to a medication shortage (mainly buprenorphine), which is dispensed exclusively by the Ministry of Health. A fourfold increase in the price of opioid agonist medication was reported in interviews conducted for this study, from LBP [Lebanese Pound] 28 000 to LBP 108 000 (€16.36 to €63.11). During previous shortages, some people have begun using heroin again for cost reasons.

    (Emphasis added.)

37. The Tribunal is satisfied to accept the expert evidence of the pivotal nature of RLXN’s current intravenous Sublocade course of treatment and how it is directly linked to preventing him returning to using ice. Mr Mackinnon explained in response to a direct question from the Tribunal that this medication is not administered by weaning dosages, unlike for example methadone.

38. The Tribunal finds that this other consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively heavily so.

    Impact on victims (paragraph 9.3)

39. The Direction requires the Tribunal to consider the impact of the s 501 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 Applicant has been accorded procedural fairness.

40. The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.

41. There is no evidence before the Tribunal that victims of offences for which RLXN has been convicted have expressed a view about his immigration status. In respect of Ms GS, while the Tribunal has found that the Applicant committed domestic violence conduct against her, and while she has expressed strong views supporting the return to him of his visa, I do not consider this relevant in a case where the construction of this particular consideration stipulates that the behaviour must be criminal, i.e. must have resulted in a judicial sanction.

42. The Tribunal finds that this consideration weighs neutrally.

    Impact on Australian business interests (paragraph 9.4)

43. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 of the Act would significantly compromise the delivery of a major project or important service in Australia.

44. The Federal Court of Australia (Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, per Rangiah J, at [68]) has reminded decision-makers that any impact on Australia’s business interests must be considered, not just business interests of a particular scale or importance.

45. RLXN worked as a mechanic for most of the time when he was at liberty since he came to Australia. His brother operates a car yard and gave evidence that there is a mechanic’s position available for the Applicant at his establishment. The Tribunal accepts that RLXN has made a positive contribution to the Australian community through working. There has been a period where he did not work, the Tribunal deduces because of his drug addiction, and during the time he has been in gaol or immigration detention.

46. The Tribunal does not consider that there will be any impact on Australian business interests if the Applicant’s visa is not restored. The Tribunal finds this consideration weighs neutrally.

    SPECIAL CONSIDERATION

47. The Tribunal has considered all the relevant parts of the Direction. However I am not confined by the Direction and must consider any other matter relevant to the objects of the Act. There is one additional fact that is relevant to RLXN which does not neatly fit into the provisions of the Direction. The Applicant and his wife had two sons, one of whom was stillborn and one who died after the pregnancy miscarried. They are interred in a suburban cemetery in Melbourne. Before entering custody, the evidence is that the Applicant regularly visited their gravesites. Mr Mackinnon in his evidence said that he did not think the Applicant had realized until he was discussing his mental health state and descent into drug use how much he was affected by the death of these two children. Mr Mackinnon expressed the view that it would be a significant impact on RLXN if he was deported and was thereby unable to visit the graves of the two infants.

48. The Tribunal finds that this special consideration weighs in favour of restoring the visa, but not determinatively so.

    SUMMATION

49. The Tribunal’s consideration and findings have resulted in the following: The primary consideration relation to the protection of the Australian community divides in the weight attributed to it. In terms of the seriousness of the conduct, it weighs relatively heavily against restoring the visa. In terms of the risk to the Australian community of RLXN re-offending because both parties accept the professional conclusion that it is a ‘low’ risk, that weighs in favour of restoring the visa.

50. In terms of the consideration relating to family violence committed by the Applicant, that weighs against him but with the overlay that it was committed when he was drug-affected; which provides no excuse but does provide some context. In terms of the strength, nature and duration of ties to Australia, these are relatively strong: the Applicant’s wife is Australian, as are his two children. His brother and sister-in-law are settled here, and he has a strong relationship with them and with extended family, including his nephew who gave oral evidence. This primary consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.

51. In respect of the best interests of minor children in Australia, the Tribunal has determined it would be in the best interests of RLXN’s two daughters if he was not deported, but that weight is affected by the fact that he has not been involved in the upbringing of his two children for most of their lives.

52. The primary consideration relating to the deemed expectations of the Australian community weighs against restoring RLXN’s visa.

53. In respect of the other considerations, the Tribunal weighs three neutrally: the legal consequences of the decision (principally because of the protection visa application still under consideration); the impact on victims, and the impact on Australian business interests. However, the consideration relating to the extent of impediments if removed weighs heavily in favour of restoring the visa. The special consideration referred to above weighs in favour of the Applicant, but not determinatively.

1. Overall, the Tribunal is satisfied that the discretion provided for in s 501CA(4) is enlivened, that there is ‘another reason’ to revoke the mandatory cancellation of RLXN’s visa. His offending, while serious, was confined and driven by a malevolent drug addiction which altered his behaviour. He has sloughed off his drug addiction and is now on a course of remedial treatment. There is no evidence of any relapse in the last several years. He has undertaken a large number of rehabilitative courses and has behaved well in prison and detention. He has a loving and supportive wife and family in this country, and before spiralling into ice use was making a positive contribution to the national economy. He needs to continue his Sublocade treatment and ensure that he does not resume use of illicit drugs. He has a diagnosed mental health condition and in the Tribunal’s opinion would benefit  from continuing counselling, and I note he expressed the desire to continue to see Mr Mackinnon, with whom he has built a clinical rapport.

2. Having found that the discretion is enlivened, the logical consequence is that the Tribunal will set aside the decision under review, and will substitute a new decision that the mandatory cancellation of RLXN’s visa is revoked.

I certify that the preceding 144 (One-hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 30 June 2023

Date of hearing:

1 and 2 June 2023

Applicant:

RLXN

Counsel for the Applicant

Solicitors for the Applicant

Mr Mathew Kenneally

Carina Ford Immigration Lawyers

Advocate for the Respondent:

Mr Peter Turner

Solicitors for the Respondent:

Minter Ellison

Annexure

List of exhibits

A1       Applicant’s Amended Tender Bundle (‘ATB’)

A2       Further supporting documents of Applicant

A3       Second further supporting documents of Applicant

R1      ‘Remittal Bundle (‘RB’) documents, submitted by the Respondent

R2      Supplementary documents, submitted by the Respondent