RLXN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2152
•4 July 2022
RLXN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2152 (4 July 2022)
AppID: RLXN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType: Migration
Division:GENERAL DIVISION
File Numbers: 2022/3036
Re:RLXN
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:4 July 2022
Place:Melbourne
The Tribunal affirms the decision the subject of review.
..................[SGD]......................................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Partner (Class BC) (subclass 100) visa – Migration Act 1958 (Cth) s 501(3A) – Lebanon – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 90 – primary and other considerations – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 9
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown v Minister for Immigration & Citizenship [2009] FCA 1098
Brown v Minister for Immigration & Citizenship [2010] FCAFC 33
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CRI026 v The Republic of Nauru [2018] HCA 19
CVN17 v Minister for Immigration & Border Protection [2019] FCA 13
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FTZK v Minister for Immigration & Border Protection [2014] HCA 26
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Hughes v R [2017] HCA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82
Safar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1372
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 150 (entered into force 22 April 1954)
Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Headspace – National Youth Mental Health Foundation Ltd, ‘Substance Use Assessment & Treatment’, Headspace (Web Page, 2022)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Mayo Clinic staff, ‘Drug addiction (substance use disorder)’, Mayo Clinic (Web Page, 26 October 2017)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
REASONS FOR DECISION
Senior Member C. J. Furnell
4 July 2022
In this proceeding, the issue is whether the decision to cancel the applicant’s Partner (Class BC) (subclass 100) visa ought to be revoked. Under the Migration Act 1958 (the Act), the Tribunal can only do this if it is satisfied of either of two things.
For the reasons which follow, I am not satisfied of either of those things. Hence, the Tribunal affirms the decision the subject of review.
PROCEDURAL BACKGROUND
On 2 April 2019, the applicant was convicted of a number of offences. His conviction for one of those offences, 'Attempted Armed Robbery’, attracted a sentence of imprisonment for a term of three years and nine months.[1]
[1] G6, pp.39-40. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.
On 17 June 2019, the applicant’s visa was subject to mandatory cancellation.[2] The cancellation was mandatory because, under s 501(3A) of the Act:
(a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[3] having been sentenced to a term of imprisonment of 12 months or more;[4] and
(b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
[2] G55, pp.169-75.
[3] As defined in the Act, s 501(7).
[4] Act s 501(7)(c).
The applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[5]
[5] Act, s 501CA(3). See G9-G11, pp.54-75.
As a result, the respondent became obliged under s 501CA of the Act to revoke that decision if satisfied either that the applicant passed the character test or that there was another reason why the visa cancellation decision should be revoked.[6]
[6] Act, s 501CA(4).
On 7 April 2022, a delegate of the Respondent decided not to revoke the visa cancellation decision (the non-revocation decision).[7]
[7] G3a, pp.10-12; G4, p.18.
On 13 April 2022, the applicant applied to the Tribunal for review of the non-revocation decision.[8] In the application, the decision was said to be wrong “… taking into account the interests of the applicant's family members and the level of rehabilitation that the applicant has achieved.”
[8] G2, pp.4-9.
In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[9] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[10]
[9] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].
[10] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21] but see Derrington J in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 but cf Katzmann J in the same case at [3]-[6].
The applicant accepts that he does not pass the character test[11] but submits that there is another reason why the visa cancellation decision should be revoked.
[11] Applicant’s Statement of Facts, Issues and Contentions of 25 May 2022 (A SFIC) at [6].
As is apparent from my decision in this matter, I have rejected that submission.
MATERIAL BEFORE THE TRIBUNAL
In endeavouring to undertake the task entrusted to the Tribunal in this proceeding, I have had regard to the submissions made at and before the hearing, evidence adduced at the hearing,[12] and to certain documentary material lodged with the Tribunal prior to the hearing.
[12] In terms of submissions made before the hearing, reference is made to the Respondent’s Statement of Facts, Issues and Contentions of 6 June 2022 (R SFIC) and the A SFIC. As for evidence adduced at the hearing, the Tribunal heard from the applicant; his sister-in-law; a clinical psychologist, Ian McKinnon; and the applicant’s wife.
That documentary material comprised:
(a)Documents provided by the respondent under s 501G of the Act (which I refer to as the “G” documents and being Exhibit R1);
(b)A compiled bundle of summons and other material lodged with the Tribunal by the respondent (which I refer to as the “S” documents and being Exhibit R2);
(c)A bundle of 353 pages of supporting documents lodged with the Tribunal on behalf of the applicant on 25 May 2022 (Exhibit A1); and
(d)A bundle of 54 pages of supporting documents lodged with the Tribunal on behalf of the applicant on 8 June 2022 (Exhibit A2).
Aspects of the Factual Context
The applicant is a citizen of Lebanon, was born there in May 1986 and is currently aged 36.[13]
[13] A SFIC [11].
The applicant’s father died when the applicant was four or five years of age. His mother, aged 65, lives in Lebanon.[14]
[14] At the hearing, the applicant claimed his mother was older than 70. This is not consistent with date of birth information he provided prior to the hearing: see Exhibit A2, p.4 [10], where the mother was said to have been born in December 1956, making her 65.
The applicant is the second youngest of eight children.[15] Two brothers live in Australia as do an uncle, an aunt and around 30 cousins.[16] One of his Australian resident brothers has two sons, who I will refer to as “AB and “JA”, while the other brother living in Australia has a daughter, who I will refer to as “ST”.
[15] G7, p.45.
[16] Exhibit A2, p.17 [119].
The applicant would appear to have extensive family relationships with persons living outside Australia, including five siblings (with two sisters and a brother living in Lebanon), 15 nieces and nephews and 35 cousins.[17]
[17] G10, p.66.
The applicant initially arrived in Australia in August 2008 but only stayed for around two and a half months. He returned in August 2009 aged 23 and, other than with respect to around three weeks starting in late July 2010, has remained in Australia ever since.[18] Of that three-week period, the applicant spent approximately two weeks in Lebanon, attending a family wedding.
[18] G54, p.168.
Soon after arriving in Australia the applicant married his first wife with whom he had two daughters, “ME” born in July 2011[19] and “HA” born in August 2015.
[19] G24, p.110.
Before his daughters were born, the applicant and his former wife had conceived two sons, but one was stillborn and the second was the subject of a miscarriage.
The Applicant was granted a permanent residency Partner (subclass 100) visa on 10 August 2012.
In around late 2014[20] or 2015,[21] the applicant and his first wife separated when she was (apparently unknown to the applicant) pregnant with HA.[22] In December 2015, they appeared to have agreed orders by consent pursuant to which ME would live with the applicant three days a week.[23] Those orders did not address arrangements concerning HA.
[20] G23, p.105. Noting that the couple’s second child was born in August 2015 and that the history taken by Ian Mackinnon in December 2018 suggested that the couple separated in 2015: G21, p.98.
[21] Defence submissions on plea: Exhibit R2, p.9.
[22] Exhibit A2, p.7 [43].
[23] Exhibit A1, pp.28-31.
In February 2015, the applicant and his current wife (referred to in this decision as “Ms S”) participated in an Islamic marriage ceremony. They were legally married in February 2016.[24]
[24] G26, p.115.
The applicant completed the equivalent of year 8 schooling in Lebanon and, from the age of 14, worked as a motor mechanic apprentice.[25] In October 2013, after arriving in Australia, the applicant completed a “Certificate III in Automotive Mechanical Technology.”[26] He has been employed as a mechanic for most of his time in Australia, including long periods of running his own mechanical workshops. Prior to his incarceration, he was working as a mechanic in a car yard owned by his brother.[27]
[25] G21, p.98.
[26] G45, p.146.
[27] G21, p.98.
In or around 2012, the applicant started smoking marijuana roughly once a week. In late 2016 or early 2017, he started using methamphetamine (Ice). He would use it almost daily for five or six days and then sleep for around two days. He later told a psychologist that “…Early 2017, I had Family Court proceedings going on. Very stressed…”.[28]
[28] G21, p.99.
In June 2017, the applicant was admitted as an in-patient to the Sunshine Area Acute Psychiatric Unit for around eight days; and, again, for around 10 days at the beginning of July 2017. He was diagnosed with an amphetamine-induced psychotic disorder, with treatment for the disorder said to have been made complicated by a “dual diagnosis of Methamphetamine abuse and continued psychosocial stressors including financial debt and custody and fatherhood matters pertaining to his daughters.”[29]
[29] G19, p.93.
In August 2017, the applicant was said to “remain willing” to receive support in addressing these matters, having been encouraged to return to his general practitioner and re-engage with a particular psychologist.[30] Antipsychotic medication, Apo-olanzapine, was then prescribed[31] (which the applicant was taking until around early 2020[32]).
[30] G19, p.93.
[31] G20, p.94.
[32] Exhibit A2, p.5 [20].
As mentioned earlier, the applicant was convicted of attempted armed robbery on 2 April 2019. He was also then convicted of intentionally causing injury, intentionally damaging property, possessing a firearm as a prohibited person, using a firearm with reckless disregard to the safety of others, possessing cartridge ammunition without a permit or licence, and possessing a drug of dependence.[33]
[33] G6, p.40.
The circumstances of the applicant’s offending are identified in a transcript of proceedings before Lacava J of the Victorian County Court.[34] That offending occurred over two days, the first in January 2018 and the second in May 2018. Overall, His Honour regarded the level of the applicant’s offending as “being most serious”.[35]
[34] G7, pp.41-1.
[35] G7, p.48 [27].
The January 2018 offending resulted in the convictions for intentionally causing injury and damage to property. What then occurred was described as follows:
“You were the driver of a vehicle on the Melton Highway Taylors' Lakes when you became involved in an altercation with the victim who was driving in the same direction as you. You had a passenger with you. He threw a paper cup containing some ice and some drink at the victim's car. When the victim threw the cup back at you, you stopped your car and you and your passenger got out. You went to the driver's side window of the victim's car and punched him in the nose. You then kicked the side door and mirror of his car damaging both. Then you again went to the driver's side window and struck the victim in the face three more times whilst asking him “What's wrong”. The victim suffered from a swollen lip, swollen nose, a chipped tooth, a sore finger and nose and he required medical attention.”[36]
[36] G7, p.43 [6].
Lacava J characterised what transpired as a serious example of offending in a “road-rage situation,” when the applicant had been “unprovoked and had time to think”.[37]
[37] G7, p.44 [8].
His Honour considered, however, the offending in May 2018 to be “far more serious”. What then occurred was described as follows:
“…you went to a convenience store in Ardeer which was operated by an Asian gentleman who was alone and unarmed. You entered the store armed with a loaded semiautomatic handgun. Both you and your accomplice were wearing face masks, dark clothing, gloves and sunglasses… Brandishing your gun you demanded cash from the cash register and you repeatedly demanded that the victim open the cash register. You then moved around the counter and stood to the victim's right. You fired a shot from the gun which impacted the ground. You then tried to open the register by striking it with your gun at which point the gun discharged a second time. The victim ran from the store to call police. You and your accomplice fled empty handed.”[38]
[38] G7, p.44 [10]-[11].
His Honour characterised what transpired as:
“…high-level offending of this kind. It was planned, you were armed with a gun which was twice fired. You were disguised to prevent detection. You were foiled only because the cash register would not open. You clearly subjected the victim to acts of violence… Your moral culpability for the offending in the attempted armed robbery is high. I reject any argument that I should regard your moral culpability as having been reduced because of an unknown psychotic illness.”[39]
[39] G7, p.45 [13].
At the hearing of this proceeding, the applicant accepted Lacava J’s description of the circumstances of the relevant offending (albeit that, on cross-examination, this was qualified to a limited extent when the applicant stated that the January 2018 offending was provoked).[40]
[40] In an undated letter, the applicant stated that the person assaulted had “engaged in profanities about my seven year old daughter” but then went on to state that he fully understood that he should nevertheless have “contained” himself in that “testing moment”: G13, p.79.
In terms of the context in which the applicant’s offending occurred, before His Honour was a January 2019 report of a December 2018 assessment undertaken by a consultant psychologist, Ian Mackinnon.[41]
[41] G21, pp.95-102.
Mr Mackinnon opined that, at the time of the offending, the applicant was probably suffering from symptoms consistent with a psychotic disorder (type unspecified), substance abuse disorder and depressed mood disorder; and that his offending “appears to have been precipitated by the emergence of a mild to moderate Psychotic Disorder and Illicit substance abuse.” The conditions from which he was then suffering were, according to Mr Mackinnon, such as to affect the applicant’s ability to reason and make sound judgements. While Mr Mackinnon opined that the applicant’s psychotic disorder and depression preceded his use of Ice, this is difficult to reconcile with the 2017 diagnosis of the applicant’s psychotic disorder as one which was amphetamine-induced.
Based on Mr Mackinnon’s report, a submission was made on behalf of the applicant at his plea hearing, to the effect that a depressed mood disorder, psychotic disorder and substance abuse disorder had made a significant contribution to his offending. This was not accepted by Lacava J. Instead, any ongoing mental health issues which the applicant had were not considered by His Honour to have been significant. The applicant’s offending was, according to His Honour, explained by his having been drug-affected (albeit that being so affected was said not to excuse that offending).
In August 2018, the applicant was arrested and has been on remand or in prison since then.
In September 2018, orders were made in the Federal Circuit Court granting the applicant’s first wife sole parental responsibility for ME and HA, with the applicant’s time with his daughters being said to be “reserved”.[42]
[42] Exhibit A1, pp.23-6.
DOES APPLICANT PASS THE CHARACTER TEST?
As already mentioned, the applicant concedes that the Tribunal cannot be satisfied that he passes the character test.[43] Having regard to the factual context just outlined, he was right to do so.
[43] A SFIC [6].
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[44] The applicant has such a record given that he has been sentenced to a term of imprisonment of 12 months or more.[45]
[44] Act, s 501(6)(a).
[45] Act, s 501(7)(c).
As I am not satisfied that the applicant passes the character test, the decision to cancel the applicant’s visa can only be revoked if I am satisfied that there is another reason why the decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As is clear from my decision in this proceeding, I am not satisfied that there is such a reason.
In arriving at that state of non-satisfaction, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[46]
[46] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J. “Its role is to act as a guide to the exercise of the identified powers”: see BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22]. As guidance, it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Compliance with Direction 90 requires that I consider whether to revoke the decision to cancel the applicant’s visa “given the specific circumstances of the case.”[47] Direction 90 is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[48]
[47] Direction 90, cls 5.1(3) and 13(1).
[48] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45] citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.
That consideration is to be undertaken informed by,[49] and in the context of a framework comprised of, [50] certain principles.
[49] Direction 90, cl 6.
[50] Direction 90, cl 5.2.
Those principles are set out in cl 5.2 of Direction 90. They are as follows:
“5.2 Principles
(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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age
(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.”
I turn now to the considerations which (to the extent that they are relevant), I am required by Direction 90 to take into account in deciding whether to revoke the decision to cancel the applicant’s visa.[51]
[51] Direction 90, cls 5.2, 5.2(5) and 6.
CONSIDERATIONS – OVERVIEW
The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[52]
[52] Direction 90, cl 8.
The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[53]
[53] Direction 90, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[54]; and one or more primary considerations may outweigh other primary considerations.[55]
[54] Direction 90, cl 7(2).
[55] Direction 90, cl 7(3).
While primary considerations are generally afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[56]
[56] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[57]
[57] Direction 90, cl 7(1).
Before delving into each of the relevant considerations referred to in Direction 90, I digress simply to note that the applicant submits that the decision to cancel his visa ought to be revoked when regard is had to five considerations, being (according to the applicant):
(a)The best interest of his two young Australian citizen daughters;
(b)The low risk of his re-offending;
(c)Strength, nature and duration of his ties to Australia;
(d)Impact on Australian business interests; and
(e)Extent of impediments to him and others if he is removed to Lebanon.[58]
PROTECTION OF THE AUSTRALIAN COMMUNITY[59]
[58] A SFIC [10].
[59] Direction 90, cl 8.1.
I turn now to the first of the primary considerations, the protection of the Australian community from criminal or other serious conduct.
This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[60]
[60] Direction 90, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct.[61]
Nature and seriousness of conduct[62]
[61] Direction 90, cl 8.1(2).
[62] Direction 90, cl 8.1.1.
The nature of the applicant’s offending was outlined earlier when discussing the factual context.
As for the seriousness of that offending, I find it to have been very serious. That finding is:
(a)Consistent with the view expressed by Lacava J when sentencing the applicant, who regarded the level of the applicant’s offending as “being most serious”.[63]
(b)One which the applicant accepts.[64]
[63] G7, p.48 [27].
[64] The applicant accepts that his offending can be characterised as very serious, given that his offending involves violence: A SFIC [23]. He accepts that his offending is very serious: G10, p.67. I note that while the applicant accepts that his offending was very serious, in several submissions the applicant stressed that it occurred in the context of his illicit drug use and mental health disorders: A SFIC [25]. The applicant stated that at the time of his offending he was using drugs and had psychological issues so that he was unaware of his actions: G10, p.67. See G14, p.82, where it was said that the applicant’s offending occurred when he was affected by drugs and suffering from mental health disorders. At G16, p.89, the applicant states that “my addiction is what led me to being incarcerated.”
While the applicant accepts that his offending was very serious, on his behalf it is submitted that regard should nevertheless be had to various circumstances personal to the applicant.[65] As I see it, however, an offender’s personal circumstances (such as the offender being drug affected and having a substance abuse problem,[66] being remorseful[67] or being incident-free while in prison[68]) are not, at least generally, of relevance in assessing the seriousness of the relevant offending.
[65] A SFIC [24]-[28]: for instance, it is said that the applicant’s offending occurred “at the height of his substance abuse.”.
[66] A SFIC [24], 27].
[67] A SFIC [26], [28b].
[68] A SFIC [28d].
I now turn to address the factors to which I am required by Direction 90 to have regard. [69]
Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[70]
[69] Direction 90, cl 8.1.1(1).
[70] Direction 90, cl 8.1.1(1)(a).
A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have, noting that the offending included crimes of violence.
Prior to the hearing, the respondent submitted that the applicant’s conduct could also be considered to have been very serious on the basis that there is evidence before the Tribunal “…of the applicant committing acts of family violence against his ex-wife (including a threat to kill her and her husband and kidnap their children) (S2/72–74) and against his current partner (including physical violence) (S2/75–77).”[71]
[71] R SFIC [25].
I accept this submission, in part. For reasons outlined later when addressing the family violence consideration, on the material before me, I do not find that the applicant committed acts of family violence in relation to his first wife but did do so in relation to his current wife, Ms S.
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against government representatives or officials in the performance of their duties[72]
[72] Direction 90, cl 8.1.1(1)(b).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
With the exception of certain crimes and conduct, the sentence imposed by the courts for a crime or crimes[73]
[73] Direction 90, cl 8.1.1(1)(c).
The applicant was sentenced to a term of imprisonment in respect of each of a number of offences.[74]
[74] G6, pp.39-40.
In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[75] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[76]
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[77]
[75] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[76] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[77] Direction 90, cl 8.1.1(1)(d).
The applicant submits that he remained incident-free in the community between 2009 and 2018, that his offending occurred over two days, and that he could not be considered to have engaged in a “…prolonged period of offending or even of increasing seriousness.”[78]
[78] A SFIC [26].
Subject to my comments later in the context of the family violence consideration, and to some motor vehicle offences (mainly relating to speeding),[79] I accept that submission. Nevertheless, this does not detract from the conclusion that the offending and certain of the conduct engaged in by the applicant was very serious.
The cumulative effect of repeated offending[80]
[79] S3, p.140.
[80] Direction 90, cl 8.1.1(1)(e).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[81]
[81] Direction 90, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[82]
[82] Direction 90, cl 8.1.1(1)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[83]
[83] Direction 90, cl 8.1.2.
I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.
In considering that risk, I am required by Direction 90 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and to the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved).[84]
[84] Direction 90, cl 8.1.2(2).
As to the nature of harm to individuals should the applicant engage in further criminal or other serious conduct, based on his history of offending and the nature of certain of the conduct engaged in by the applicant, individuals (comprising persons unknown to the applicant) would be likely to suffer significant harm, comprising significant physical and psychological harm, and possibly death (consequent upon the infliction or threat of violence, including violence and threats involving the use of a firearm), and financial harm (by way of damage to property and theft).
As to the nature of harm to the Australian community should the applicant engage in further criminal or other serious conduct, again based on his history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, it would have the potential to result in the community incurring significant additional law enforcement, incarceration and healthcare costs. Moreover, unlawful violence towards members of the community of the type engaged in by the applicant in the past engenders concerns about safety, concerns which encourage suspicion and limit social cohesion, thereby harming the community as a whole.
As to the likelihood of the applicant engaging in further criminal or other serious conduct, on the material before me, I am satisfied that it is unlikely. Put another way, I find that the applicant’s risk of recidivism is low, as submitted by both the applicant and respondent.
Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a material risk of him doing so again.[85]
[85] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
According to Mortimer J in Splendido,[86] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[87] for it to do so more than a mere outline of past conduct needs to be shown, if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct is to be avoided.[88]
[86] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[87] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26] where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so.”
[88] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[89] There it was said that:
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”
[89] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (Guo) at 574.
In Splendido,[90] Mortimer J stated that:
“The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”
[90] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
In Hughes,[91] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:
“Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”
[91] Hughes v R [2017] HCA 20.
Hence, facts need to be identified about the applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the applicant engaging in the relevant conduct. I now endeavour to do so.
In terms of the applicant’s past conduct, it reveals no regularity of offending. Rather, an examination of the applicant’s record reveals two days of offending in 2018, a record consistent with a characterisation of his offending conduct as aberrant.[92] It is not a record suggestive of a lifestyle dependent on, and reflective of, an ingrained habit of offending. In his evidence before the Tribunal, Ian Mackinnon, psychologist, stated that the applicant does not evince anti-social traits and his offending while affected by Ice is not a reflection of his inherent character.
[92] In his report of January 2019, Ian Mackinnon stated that the “offences appear to represent an extreme anomaly” in the applicant’s personal history: G21, pp.97-102.
The applicant is, I find, genuine in his acceptance of responsibility for his offending and sincere when expressing remorse for it[93] (noting that, insofar as his offending was causally connected to his use of illicit drugs, he continued with that use in a context where, given his treatment in 2017 as an in-patient for amphetamine-induced psychosis, he would have been well aware of their deleterious effect on his behaviour and mental wellbeing). A person who accepts responsibility for having done something and truly regrets having done so is less likely to do that thing again.
[93] Lacava J also accepted that the applicant was remorseful: G7, p.46 [20]. So too did the prison case officer who compiled a parole application report in April 2020: see S4, p.192.
Given the causal connection between the applicant’s offending and his illicit drug use (a connection identified by Lacava J[94] and accepted by the applicant[95]), an assessment of the applicant’s risk of recidivism is influenced greatly by an assessment of the risk of him relapsing into illicit drug use. Indeed, it was the latter risk that underlay the caution shown by Lacava J in April 2019 when considering the applicant’s prospects of rehabilitation. According to His Honour, the applicant had “…a very bad drug addiction and experience shows me that one must be cautious trying to predict the future without proper treatment. In my view your prospects for rehabilitation must remain guarded. Whether you remain drug free outside of a prison setting remains to be seen.”[96]
[94] As noted earlier, His Honour said the applicant’s offending could be explained but not excused by his having been drug-affected.
[95] In evidence at the hearing, the applicant stated that the driver of his offending was his use of Ice. In closing, the applicant’s counsel stated that the applicant’s offending had been because of his use of illicit drugs.
[96] G7, pp.48-9 [29].
This concern about the risk of the applicant’s relapse into illicit drug use is also reflected in a May 2022 report of Ian Mackinnon. In it, he resiled from an opinion he had expressed in 2019 to the effect that the applicant had overcome his substance abuse disorder. Instead, Mr Mackinnon opined that the applicant “…will be at some risk or relapsing into illicit substance abuse, in a post-release context, especially if his living circumstances are not then stable and/or he encounters significant new life stressors.”[97]
[97] A2, p.46.
Almost inevitably, the applicant would have to confront various “life stressors” on release into the community. Indeed, it is likely that at least some of the stressors he would have to confront are of a type which are said to have led to his initial use of Ice in late 2016 or early 2017. Those stressors were said to include “…custody and fatherhood matters pertaining to his daughters.”[98] When explaining his drug use, the applicant stated ““…Early 2017, I had Family Court proceedings going on. Very stressed…”.[99] What led to his drug use was said by the applicant to have been his problems with his first wife.[100]
[98] G19, p.93 (Mid West Mental Health Service letter of 10 August 2017).
[99] G21, p.99.
[100] S4, p.185; see also G12, p.77, where the applicant states “…my marriage did not work out as I planned and worse, I turned to ice to cope with my issues.”
On the material before me, there is nothing to suggest that the difficulties that the applicant had with his first wife, including difficulties in obtaining access to his daughters, have resolved. His first wife currently has sole parental responsibility for the applicant’s two daughters and they live with her. She has made a number of serious allegations against him, as outlined in various police incident reports.[101] Irrespective of the validity or otherwise of those allegations, their making suggests that the first wife is not kindly disposed towards the applicant, and that the applicant may well have difficulty in simply agreeing with his first wife’s arrangements for access to his daughters. That suggestion is reinforced when regard is had to the first wife’s comment, relayed by the applicant at the hearing, that she will abide by whatever arrangements are determined by the Court. Indeed, according to the applicant, upon his release from prison, he “…will contact the Court for updated Orders…”,[102] his plan being “…to make an application to the family court to allow me access…” to HA and ME when released into the community.[103] He “will fight for contact when released from prison.”[104] All this suggests that, on his release into the community, the applicant would be likely to confront at least some of the stressors that are said to have led him to use Ice.[105]
[101] S2, p.72-4, pp.101-4.
[102] Exhibit A2, p.8 [46].
[103] G10, p.65. See also Exhibit A2, p.12 [81]: “My main priority will be getting a family law lawyer so that I can go back to Court and get time with my daughters”.
[104] S4, p.325.
[105] See also the statement of one of the applicant’s brothers that “…things between him and his ex-wife are not amicable. Without an order from the Court, he would not be able to see or communicate with his daughters.”: Exhibit A2, p.27 [16].
Nevertheless, a number of other factors have now come into play which engender confidence that the applicant will abide by his commitment not to again use illicit drugs.[106] That confidence is reflected in evidence given by Ian Mackinnon at the hearing. While in his May 2022 report Mr Mackinnon did opine that there was some risk of the applicant relapsing into illicit substance abuse, when pressed on this matter at the hearing, he quantified this risk as low.
[106] See, for example, G10, p.67.
The applicant would appear to have generally abstained from using illicit drugs[107] for a significant amount of time while in prison, an environment unlikely to have been stress-free (albeit that, on one occasion on his admission to Marngoneet Correctional Centre in April 2019, he tested positive to buprenorphine[108]).
[107] See, for instance, several negative urine test reports at S1, pp.51-2, p.193.
[108] S4, pp.201-5. The applicant’s explanation about this was that he only used that drug in order to obtain a positive drug test and thereby procure his admission to a program of methadone injections: Exhibit A2, 10 [62]. I find that explanation to be implausible given that, when initially confronted with the positive drug test results by prison authorities, the applicant’s response was to state that he “did not use”: S4, p.208.
Since around March 2021,[109] the applicant has been taking medication in an effort to avoid any relapse into illicit drug use. Initially that medication was methadone, but in January 2022 the applicant advised that he had been “…accepted into the …[sublocade[110]] Program and will remain on the program once allowed back into the community.”[111]
[109] Exhibit A2, p.5 [21].
[110] Sublocade is, apparently, buprenorphine which the Tribunal understands to be an opioid which helps prevent cravings for other opioids by blocking opioid receptors in the brain.
[111] G16, p. 89. See also S4, p.320.
While in prison, and subject to some initial, apparently minor, issues,[112] the applicant has remained incident-free.[113] Indeed, in May 2021, September 2021 and May 2022 he was described as a “model prisoner” or as an “ideal prisoner in every respect.”[114] His apparently exemplary behaviour while in prison is consistent with the applicant’s acceptance of responsibility for his offending and his expressed determination to not re-offend. It has, I infer, also been responsible for a reduction in the relative contribution which the applicant’s history of illicit drug use is perceived (at least by Corrections Victoria) to make to his overall risk of recidivism. In this regard, in 2019 the greatest contributor to that risk was apparently considered by Corrections Victoria to be the applicant’s history of illicit drug use.[115] However, by March 2022, this had changed so that illicit drug use was no longer considered to be the greatest contributor to the applicant’s recidivism risk.[116]
[112] S4, p.193.
[113] S4, p.194.
[114] S4, pp.278 and 370.
[115] S4, p.184.
[116] S4, p.232. See also S4, p.233-4.
An aspect of the applicant’s conduct while imprisoned has been his completion of courses apparently specifically designed to mitigate the risk of relapse into illicit drug use. In particular, the applicant completed:
(a)A 24 hour drug and alcohol treatment program,[117] a program in relation to which the applicant was said by the program convenor to have been “extremely motivated” and to which he had shown a high level of commitment;[118] and
(b)A six hour Ice Effects program.[119]
[117] G31, p.122.
[118] S4, p.186.
[119] G38, p.129.
In addition, while imprisoned, the applicant completed a myriad of other programs and courses. While not specifically directed to the risk of relapse into illicit drug use, they ought (as submitted on the applicant’s behalf) mitigate that risk by enhancing the applicant’s life skills and his capacity to deal with the stresses and strains of everyday living. Those programs and courses include:
(a)Atlas programs “Learning for Life”;[120] “Houses and Homes”;[121] “Jobs and Careers”;[122] “Healthy Living”;[123] and “Family, Friends and Community”;[124]
(b)Personal development programs and the ATLAS and lifestyle cooking program;[125]
(c)A “Talking Change” Program;[126]
(d)Units of study offered by the Box Hill Institute comprising a prepare and serve espresso coffee program;[127] a participate in workplace safety arrangements unit;[128] a prepare to work safely in the construction industry unit, a control traffic with a stop-slow bat unit and an implement traffic management plan unit;[129] and a perform routine gas metal ARC welding unit.[130]
[120] G32, p.123.
[121] G33, p.124.
[122] G34, p.125.
[123] G35, p.126.
[124] G36, p.127.
[125] Exhibit A1, p.35.
[126] G37, p.128.
[127] G40, p.133.
[128] G41, p.135.
[129] G42, p.137.
[130] G43, p.139.
It is apparent from this that there is some truth to the applicant’s submission that, whilst in prison, he had “…taken every opportunity to rehabilitate myself, to demonstrate that I am a changed man. I have engaged in every relevant/recommended course that I can to improve myself”[131] and that, since his incarceration, he had “done everything possible to turn my life around.”[132]
[131] G15, p.87.
[132] G16, p.89.
The applicant would appear to have strong family support. His wife, Ms S, has been a frequent visitor to him while in prison (to the extent that pandemic restrictions permitted)[133]; and, according to the applicant, they speak every day. In addition to statements made and evidence given by Ms S, the applicant’s two Australian citizen brothers, a sister-in-law and a nephew have all provided statements in support of his case.
[133] G30, p.121 (Corrections Victoria visitor list in the February 2021 to August 2021 period).
It is true that, as noted by Lacava J,[134] members of the applicant’s family had known of the applicant’s Ice addiction well before his offending, and that their support at that time did not assist the applicant in breaking his addiction or prevent his offending. When asked about this, however, Ms S provided reason to believe that the family support available now to the applicant ought to be more effective than it was in the past in protecting the community against any further offending by the applicant. According to Ms S, she and the rest of the applicant’s family are now more experienced in dealing with the issues that had confronted the applicant and, as such, are better placed to recognise and address those issues should they arise. Moreover, the applicant is said by Ms S to be “… significantly more patient, calmer, healthier and grateful now, than prior to his arrest in 2018.”[135]
[134] G7, p.48 [26].
[135] Exhibit A1, p.70 [15].
Quite apart from his commitment to continue with his Sublocade medication, the applicant has specific and viable pro-social plans once released into the community. He has accommodation ready with Ms S[136] (being a house close to other, supportive family members), a car available to him,[137] and both he and Ms S have expressed a desire to have children.[138] He has said he intends to obtain a mental health care plan (involving sessions with a psychologist[139]) from his general practitioner and attend an in-depth drug and alcohol program not available to him in prison.[140]
[136] Exhibit A1, p.12 [78].
[137] Exhibit A1, p.71 [18].
[138] Exhibit A1, p.13 [78]; Exhibit A1, p.70 [10], p.71 [18]
[139] Exhibit A2, p.13 [85]. In particular, the applicant has expressed a desire to continue sessions with Ian Mackinnon: Exhibit A2, p.19 [129],
[140] Exhibit A2, p.13 [86].
The applicant has good prospects for full-time employment once released into the community. A person fully employed is less likely to offend. Quite apart from its psychological benefits, employment reduces both financial pressures and the time available to transgress.
The material before me suggests that the applicant found consistent employment prior to his arrest in 2018 (with the exception of a period of around six months in 2017),[141] has employable skills (being a motor mechanic) and his brother has offered the applicant full-time work on his release into the community,[142] an offer which the applicant plans to accept.[143] That offer appears realistic given the applicant’s experience as a mechanic and the brother’s ownership of a car yard which deals in used cars. Indeed, consistent with the strong family support available to the applicant, the brother has, apparently, set up a mechanic shop in his car yard for the applicant to work in upon his release.[144]
[141] Exhibit A1, p.7 [33]-[37]: noting, however, that the applicant could only recall lodging tax returns in the 2012 to 2016 period. According to Ms S, “…Until [RLXN]’s mental health deteriorated and subsequent drug use, he had always worked full-time.”: Exhibit A1, p.70 [12].
[142] Exhibit A1, pp.141-42.
[143] Exhibit A1, p.13 [83].
[144] Exhibit A2, p.26.
Lastly, the applicant is now fully aware of the risk to his capacity to remain in Australia should he be released into the community and then re-offend (although the protective aspect of this awareness is significantly dependent on the applicant having the mental acuity to appreciate the risk, something that might well be impaired were he to relapse into illicit drug use).[145]
[145] Exhibit A2, p.18 [126]: “I know that if I make the same mistakes again, that I would not have my visa given
back to me again. I can assure the Tribunal that I know that this is the last chance for me. I promise that I
will not make the same mistakes again.”
I note that a finding that the applicant’s recidivism risk is low is consistent with:
(a)Opinions expressed by Ian Mackinnon. In 2019, Mr Mackinnon stated that the applicant’s “rehabilitative prospects are good and he is unlikely to reoffend in a similar serious manner.”[146] In 2022, he said that the applicant “…poses a low risk of recidivism – especially for serious offending similar to the matters that led to his current imprisonment.”[147]
(b)The views of a clinical psychologist employed by the Victorian Department of Justice and Community Safety, Dr Berman. In July 2019, after employing a standardised screening tool to determine the applicant’s suitability to participate in certain programs, Dr Berman identified the applicant as falling into the low-risk category for violent recidivism.[148]
[146] G21, p.102.
[147] Exhibit A2, p.48.
[148] G28, p.117. See also S4, p.190.
Conclusion
The protection of the Australian community consideration weighs against me being satisfied that there is another reason to revoke the visa cancellation decision. The extent to which it does so, however, is a function of combining findings that tend in different directions.
Tending to an attribution of significant weight to the consideration are my findings that the applicant engaged in offending and conduct that was very serious; and that individuals and the Australian community are likely to suffer significant harm should he again engage in such offending and conduct.
Tending in the other direction, however, is my finding that it is unlikely that the applicant will again engage in further criminal or other serious conduct and that his risk of recidivism is low.
In combination these findings result in an attribution of moderate weight to this consideration.
FAMILY VIOLENCE[149]
[149] Direction 90, cl 8.2.
Prior to the hearing, the applicant submitted that the family violence consideration was irrelevant as he had no convictions for, and has not been charged with, “any conduct which relates to family violence”.[150]
[150] A SFIC [22].
It is true that the applicant has not been convicted of or charged with any such offences. Nevertheless, that submission failed to recognise that the relevance of the family violence consideration is not dependent on there being such convictions or charges. The consideration may have relevance when “there is information or evidence from independent and authoritative sources” that the person concerned has been involved in family violence and the person has been afforded procedural fairness.[151]
[151] Direction 90, cl 8.2(2)(b).
The Tribunal was taken to various police incident reports relating to the applicant and his current wife, Ms S. The information in the reports is from the Victorian police, a source I consider to be independent and authoritative. The information in the reports suggest that the applicant has been involved in family violence. The applicant was afforded procedural fairness in relation to those reports. He was provided with a copy of them approximately one week before the hearing and the respondent’s contentions based on them were reflected in the RSFIC, also provided to the applicant approximately one week before the hearing.
In these circumstances, the family violence consideration is of relevance in this proceeding (as acknowledged by the applicant’s counsel at the hearing).
Information in the relevant police incident reports might have resulted in criminal convictions if established in criminal proceedings. Any reliance on them by the Tribunal would not, however, be directed to the question of whether criminal conduct has occurred. Hence, the Tribunal would not be subject to the admonition about the need for caution before reaching a view that such conduct has occurred absent a prosecution and conviction.[152]
[152] Brown v Minister for Immigration & Citizenship [2009] FCA 1098 at [85] and, on appeal, Brown v Minister for Immigration & Citizenship [2010] FCAFC 33 at [128]. See also FTZK v Minister for Immigration & Border Protection [2014] HCA 26 at [16] where French CJ and Gageler J held that “meticulous investigation and solid grounds” are required to make findings about criminal conduct in the migration context and “the decision-maker must pay close attention to the probative relevance of the material” before him or her.
Nevertheless, in considering whether family violence has been engaged in, I would not normally attribute probative value to police incident reports. Despite police being a source of information which is independent and authoritative, their incident reports generally comprise representations that are prejudicial hearsay made by persons not called to give evidence. Basing a serious finding on reports of that nature when the validity of the representations reflected in them has not been tested would be akin to basing the finding on “…inexact proofs, indefinite testimony or indirect inferences.”[153] In such circumstances, and consistent with the need to treat such evidence cautiously,[154] the “…prejudicial impact of relying on police reports that are explicitly denied and untested in court, or not corroborated by other probative evidence, is too great.”[155]
[153] Briginshaw v Briginshaw (1938) 60 CLR 336 but cf BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [66].
[154] CVN17 v Minister for Immigration & Border Protection [2019] FCA 13 where, at [100], Kenny J stated that “It might be thought that in such a case the Tribunal would treat such evidence cautiously, acknowledging the limits of the material before it that was said to evidence such conduct, including its cogency and reliability.” Her Honour’s statement was recently cited with apparent approval in QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82 at [38].
[155] Safar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1372 [35].
In this case, however, I do rely on certain of the relevant reports, being those that relate to the applicant’s current wife, Ms S. First, when taken to them, the applicant did not deny their accuracy. Instead, he said that at the time he was under the influence of drugs and did not remember any of the relevant incidents. He did, however, remember apologising to Ms S. Second, Ms S’s evidence at the hearing was, in large measure, corroborative of the reports.
This serves to distinguish the reports relating to Ms S from those which relate to the applicant’s first wife. I do not rely on the latter reports.[156] The applicant vehemently denied the accuracy of those of them to which he was taken in this proceeding; and they were not otherwise corroborated (albeit that an intervention order was granted in favour of the applicant’s first wife and a personal protection order in favour of her current partner).[157] That the representations reflected in them have not been tested, either in this proceeding or in any court, is a particular concern, given the level of ill will that clearly exists (or, at least, existed) between the applicant and his first wife (justified or not).
[156] While I note that the respondent made reference to them in the R SFIC at [25] and [38a], at the hearing of this proceeding, counsel for the respondent accepted that the Tribunal should not rely on them.
[157] S2, pp.72-74, 84-5, 87-9, 92, 101-3, 129-34.
On the basis of the police incident reports in relation to Ms S,[158] however, in combination with evidence adduced at the hearing, I find that the applicant has engaged in family violence in relation to her.
[158] S2, pp.75-7.
In accordance with Direction 90, the seriousness in this proceeding of the concern resultant from that finding is proportionate to the seriousness of the family violence engaged in by the applicant.[159]
[159] Direction 90, cl 8.2(1).
In assessing the seriousness of that family violence, I am required by Direction 90 to consider, where relevant, certain factors.[160] I do so now.
Frequency of family violence engaged in by the Applicant's conduct and/or whether there is any trend of increasing seriousness.
[160] Direction 90, cl 8.2(3)(a)-(d).
Police reports describe six incidents involving the applicant and Ms S in the period between November 2016 and December 2017.
As mentioned, the applicant did not contend that the description of the various incidents in these police reports was inaccurate. He said, in essence, that he did not recall the incidents as he was then using drugs. Ms S’s evidence was to the effect that the description was generally accurate but not 100% accurate.
The first incident occurred in November 2016. In the police report it was said to involve the applicant head butting Ms S several times when they were at a concert. Ms S did not adopt that description. While she was head-butted, it occurred, she said, by accident, as a result of the applicant being pushed by a third party. I do not characterise accidental contact of that nature as family violence.
The second incident occurred in May 2017. In the police report it was said to involve the applicant hitting Ms S with a plastic chair in the course of an argument with her. Ms S stated that she and the applicant were arguing about his drug use, after she had found a “meth pipe”. She threw the pipe at him and, to avoid being hit by it, he pushed her backwards, such that she stumbled and fell on, and broke, a plastic garden chair. Again, I do not characterise what occurred, as described by Ms S, as family violence. By pushing Ms S away to avoid being hit by an object she threw at him, the applicant was not engaging in “violent, threatening or other behaviour …that coerces or controls…or causes… [Ms S] to be fearful.”[161] In this regard, I note that Ms S denied being fearful of the applicant.
[161] Direction cl 4(1), definition of “family violence”.
The third incident occurred in August 2017. In the police report it was said to involve the applicant kicking Ms S off their bed and then throwing her mobile phone at her head. Ms S stated that she and the applicant were arguing about his having stopped taking medication. She decided to leave their house. While she was packing to leave, the applicant threw her mobile phone at her. I find that this incident did constitute family violence. It was violent and it was otherwise behaviour which, I infer, was intended to coerce Ms S into not leaving their home.
The fourth incident occurred in September 2017. In the police report, it was said to involve the applicant, while psychotic, head butting a wall and punching and kicking Ms S. Ms S agreed that the applicant was in a psychotic state. She said she slapped him after he had head butted the wall and that he then slapped her back. I find that this incident did constitute family violence.
The fifth incident occurred in November 2017. In the police report, it was said to involve the applicant stomping on Ms S when she had tripped and fallen on the ground, and then punching her in the back of the head. According to Ms S, the applicant was, at the time, suffering from paranoid delusions. She had fallen over, and she kicked the applicant. He kicked her back. She then slapped him, and he responded by pushing her in the back of the head. I find that this incident did constitute family violence.
The sixth and last incident occurred in December 2017. In the police report, it was said to involve the applicant threatening to punch Ms S if she did not go with him, and dragging Ms S by the arm to his car. According to Ms S, she discovered that the applicant was checking on her at her work, believing she was associating with people out to get him and that she was no longer working as a teacher. In the course of the ensuing argument, he dragged Ms S to his car. I find that this incident did constitute family violence. As a result of this last incident, Ms S called the police in the hope, she says, that it would stop the applicant going to her place of work.
Ms S stated that there were no further incidents of family violence after December 2017.
With the exception of the November 2016 incident, Ms S attributed the applicant’s conduct in relation to these incidents to his drug use.
In the result, we are left with four incidents of family violence. That is, as I see it, frequent, when assessed over the period of around five months in which those incidents occurred (August to December 2017). It is decidedly less frequent when assessed over the period of around 3 and a half years in which the applicant and Ms S have been in the community as a married couple; and even less so when assessed over the period of around nine years in which the applicant was free in the Australian community.
There is no trend of increasing seriousness apparent from those four incidents. They did not result in Ms S suffering serious injury and there were no further incidents in the period of around nine months after December 2017 while the applicant was free in the community.
The cumulative effect of repeated acts of family violence
I find that there is no subsisting cumulative adverse effect of the family violence engaged in by the applicant.
It is apparent that by December 2017, Ms S was sufficiently concerned about the applicant’s conduct to contact police. Nevertheless, Ms S does not now appear to be suffering any ill effects as a result of the applicant’s violence. As mentioned earlier, Ms S says she does not fear the applicant and has, indeed, been strongly supportive of him, both in these proceedings and more generally throughout the applicant’s period of incarceration.
In the material before me, there is no probative evidence of anyone other than Ms S having suffered from family violence engaged in by the applicant.
Rehabilitation achieved since last known act of family violence
Considering rehabilitation in this context also requires a consideration of the extent to which the applicant accepts responsibility for his family violence-related conduct, the extent to which the applicant understands the impact of his behaviour on Ms S,[162] and any efforts to address factors which contributed to his conduct.
[162] It is not suggested that there were any witnesses to the four incidents of family violence engaged in by the applicant.
I am satisfied that the applicant accepts responsibility for the family violence he has perpetrated in relation to Ms S. When taken to the relevant police incident reports, he did not deny his involvement in the events described therein. He simply said that he did not remember them. He did go on to say, however, that he had apologised to Ms S for them.
Mentioned earlier were several courses and units of study completed by the applicant while in prison. None were specifically directed to mitigating the risk of family violence. In this regard, however, the applicant’s evidence was (and I accept) that while in prison, he sought admission to a behavioural change program but had been denied because he was considered to be in the low-risk category for violent recidivism.[163]
[163] G28, p.117.
As for understanding the impact of his violence on Ms S, I have found that there is no subsisting adverse effect on her of the incidents of family violence engaged in by the applicant. Nevertheless, according to Ms S, the applicant understands that he risks losing her should any such further incidents occur.
As for efforts to address factors which contributed to the applicant’s relevant conduct, I note that Ms S associates the various incidents with the applicant’s drug use and resultant amphetamine-induced psychosis, an association which I endorse given her description of the circumstances in which those incidents occurred. The applicant does not currently suffer from a psychotic disorder (an issue discussed later in the context of considering his mental health conditions) and has, I have found, a low risk of relapsing into illicit drug use.
Whether the applicant has re-offended since being formally warned, or since otherwise being made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Conclusion
The family violence consideration weighs against me being satisfied that there is another reason to revoke the visa cancellation decision. It does so, however, only to a limited extent, given the seriousness of the family violence engaged in by the applicant, as reflected in my findings in relation to the various factors required to be considered in this context.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA[164]
[164] Direction 90, cl 8.3.
The third primary consideration which I am required by Direction 90 to take into account is the best interests of minor children in Australia. Indeed, I am required to determine in relation to each relevant child whether non-revocation of the visa cancellation decision is in his or her best interests.
The children whose best interests the Tribunal was asked to take into account were the applicant’s two daughters, ME and HA, his nephew, JA, and his niece, ST.
Before addressing the specific factors which I am required by Direction 90 to take into account in considering the best interests of each of them, I digress to note certain submissions made on behalf of the applicant but not mentioned at the hearing. The focus of those submissions was the “Convention of the Rights of the Child” (apparently a reference to the United Nations Convention on the Rights of the Child ratified by Australia in December 1990).[165]
[165] G11, p.74; G14, p.83; A SFIC [49].
Apparently, in aid of a contention that “[d]epriving the applicant’s children of his presence would also be contrary to Australia’s international obligations”,[166] reference was made of several Articles of the convention (and to an allegedly related provision of the Family Law Act 1975).
[166] A SFIC [49].
It was said on behalf of the applicant that:
(a)Under Articles of the Convention “children have ‘the right to know and be cared for by his or her parents” and that a State party to the Convention must “ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with law and procedures, that such separation is necessary for the best interests of the child”.[167]
(b)Guidance is afforded by Article 3 of the Convention which requires “that the best interest of children should be of primary concern in making decisions that may affect them. All adults should do what is best for children.”[168]
(c)Articles 17 and 23 of the Convention provide that “it is in the best interest of the child to live with both parents.”[169]
[167] A SFIC [49].
[168] G11, p.74; G14, p.83.
[169] Ibid.
Despite references to various Articles of the Convention, the basis for the applicant’s contention that his removal from Australia would be contrary to Australia’s obligations under the Convention is unclear. What is being said might be that Australia’s obligations under the Articles to which reference was made require that, as matter of course, the interests of children be accorded pre-eminence, taking precedence over any other consideration. If that is what is being contended, it is rejected.
The terms of the Articles of the Convention to which reference was made are not accurately reflected in the submissions made about them. For instance, Article 17 appears to be irrelevant (noting that it is directed to media); as does Article 23 (noting that it is directed to disabled children). Article 3 requires that “the best interests of the child shall be a primary consideration” (reflective of the provisions of Direction 90). It does not provide that “all adults should do what is best for children.” When referring to the Article concerned with the right of a child to know and be cared for by his or her parents (Article 7), reference to an “as far as possible” qualification found in the Article is omitted. Similarly, the submissions omit reference to the express acknowledgement of state-initiated action separating children from their parents (such as in the case of imprisonment and deportation) found in Article 9(4) of the Convention.
I note in passing that, not having been enacted by Parliament, the Convention is not “a source of rights and obligations under domestic law,”[170] albeit that an object of Part VII of the Family Law Act 1975 is to give effect to the Convention.[171]
[170] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [20].
[171] Section 60B(4): note the interests of children are expressed to be paramount under the Family Law Act 1975 but only in the context of proceedings under Part VII of that Act-: ss 60CA and 60CB.
I turn now to the specific factors which I am required by Direction 90 to take into account, where relevant, in considering the best interests of each relevant minor.
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)[172]
[172] Direction 90, cl 8.3(4)(a).
The applicant is the father of ME and HA and is JA’s and ST’s uncle.
In terms of ME and HA, the applicant is said to have had or, indeed, to have a close relationship with them.[173] While I do not doubt the applicant’s desire to have such a relationship with them, evidence to that effect embellishes the truth. It is clearly not the case in relation to HA and overstates the position in relation to ME.
[173] The applicant’s sister-in-law stated that “[RLXN]is an excellent father and has a close relationship with his daughters before he was arrested.”: Exhibit A2, p.21 [7]. A brother of the applicant stated that “[RLXN] has always been an involved parent in his children’s’ lives and looks forward to returning to that role upon his release. Before he went away, [RLXN] and his immediate family (wife and children) would always do things together with my family and other family members.”: Exhibit A2, p.25 [8]. Another brother of the applicant stated that “[RLXN]has always been involved in his children’s lives…”: Exhibit A2, 34 [8]. A friend of the applicant stated that “I have seen [RLXN] as a happy and doting father to his children.”: Exhibit A2, 40 [21]. Ms S stated that “Prior to his incarceration [RLXN] had an ongoing and involved relationship with his children… [RLXN]and I both have strong relationships with his children and participated in their lives in various parental means”: Exhibit A1, pp.69-70 [10].
As for ME, she is 11. While the applicant may have had, as he contends, a close relationship with ME,[174] I find that he does not currently have such a relationship with her. She would have just turned seven when the applicant was placed on remand in August 2018. The applicant has not seen or spoken to her since then.[175]
[174] Exhibit A2, p.14 [92].
[175] Exhibit A2, p.14 [92]. See also S4, p.325.
Those conditions might, however, become apparent to others if the applicant’s mental health conditions were to deteriorate on his return to Lebanon. Mr Mackinnon’s May 2022 report provides support for the proposition that they would.[284] According to Mr Mackinnon:
(a)“if … [the applicant’s] visa remains cancelled and he is ultimately deported from Australia, he is likely to suffer significant deterioration of his mental health, with elevated levels of depression and general distress;”
(b)“a forced return to Lebanon is likely to cause … [the applicant] to suffer a resurgence of symptoms associated with his (currently residual/mild) PTSD and he may struggle to access appropriate mental health services”; and
(c)The resurgence of the applicant’s PTSD and difficulty in accessing mental health services are “likely to make a serious relapse into illicit substance abuse a probable outcome”. [285]
[284] Statements from family members also contend that the applicant’s conditions would deteriorate. For example, a brother states that “[RLXN] has struggled with depression and I have serious concerns about his mental health if he were to be deported, I believe that he will have some type of mental breakdown”: Exhibit A2, p.36. Another brother stated that “[RLXN] has struggled with depression and I’m sure that if he had to go back to Lebanon his depression would be the worst it has ever been.”: Exhibit A2, p.27 [19].
[285] G23, p.106.
Consequences of this nature, whether alone or in combination, could (depending on the severity of the deterioration) represent a serious impediment to the applicant’s ability to establish himself and maintain basic living standards in Lebanon. The rationale for Mr Mackinnon’s opinions as to those consequences being “likely,” however, is not identified to any great extent. As expressed, his opinions tend to be conclusionary, denying to the Tribunal a capacity to assess whether they are reasonably based. In this regard, Mr Mackinnon’s opinion concerning:
(a)Depression levels being elevated appears to be based on a view as to the consequences for the applicant of him being separated from his daughters and the rest of his family in Australia.[286] Why that separation is considered to be materially different from that which has occurred for around the last four years is left unexplained.[287]
(b)A resurgence of PTSD symptoms and the associated struggle to access mental health services rendering a relapse into illicit drug use a “probable outcome” is unadorned by any material rationale. While the applicant was said to have “spoken at length about anxiety, flashbacks, re-living and fear about the prospect of being returned to Lebanon, arising from his recollections of the violent assaults (including being stabbed),” Mr Mackinnon does not elaborate on why PTSD symptoms would be resurgent on the applicant’s removal to Lebanon, the extent of the likely resurgent symptoms, or why suffering such symptoms would render a relapse into illicit drug use a probable outcome (noting that in his 2019 report a resurgent PTSD was not identified as a factor that led to the applicant’s illicit drug use in the 2016 to 2018 period). Nor does he explain how a relapse into illicit drug use can be considered a probable outcome in circumstances where, according to Mr Mackinnon, the applicant’s substance abuse disorder is in partial remission and there is only a low risk of such a relapse.
[286] This echoes a contention made in the A SFIC at [71]: “The Applicant’s mental health is likely to worsen due to isolation and separation from his family, especially his wife and children.”
[287] As an aside, I note that Mr Mackinnon appears to ignore the fact that the applicant, on return to Lebanon, would be reuniting with some family members.
Mr Mackinnon did identify a difficulty in accessing mental health services as a cause of a potential relapse into illicit drug use. This might have been an oblique reference to a difficulty, when in Lebanon, of the applicant being able to continue with his current monthly treatment of Sublocade or in his capacity to implement his plan to have regular sessions with a psychologist (concerns expressed by the applicant[288]). If that was the reference intended by Mr Mackinnon, it would, as I see it, be inconsistent with his opinions concerning the low risk of recidivism and the low risk of relapse into illicit drug use, neither of which was conditioned on ongoing treatment (albeit that Mr Mackinnon did refer to the applicant being more likely than he had been to seek treatment “should it become indicated”).
[288] Exhibit A2, p.17 [113]-[114]: “it is important for my sessions to continue with Mr Mackinnon. I could not do that from Lebanon.”-It is very important that I be able to continue the injection program. I do not think that I would be able to access this in Lebanon and, if I was, then I am not sure how I could afford the treatment there.”
While the opinions expressed by Mr Mackinnon in his May 2022 report about the likelihood of a deterioration in the applicant’s mental health conditions were he to be returned to Lebanon might lack an evident base, that there is a real risk of such a deterioration is unsurprising given the economic and social circumstances the applicant would then likely find himself in, and given that there would then appear to be little hope of the applicant being able to re-join his Australian family (noting, for instance, that Ms S has stated that she will not live in Lebanon[289]).
[289] Exhibit A1, p.71 [20].
If the applicant’s mental health conditions were to deteriorate, the extent of any deterioration would likely be exacerbated because treatment may well be out of the reach of the applicant. In this regard, on the material before me, it would appear that:
(a)Generally, the Lebanese “health care system is under strain from COVID-19 and the economic situation. There are shortages of pharmaceuticals and medical supplies.”[290]
(b)While “care in many of Lebanon's large hospitals is generally as good as in Australia. Most good hospitals are private and expensive”.[291]
(c)Few suffering a mental health disorder in Lebanon receive treatment.[292]
(d)In terms of the treatment of those suffering substance abuse disorders, “Few detoxification beds are available in public or private hospitals. Harm reduction services remain limited.”[293]
(e)If the applicant were to find himself in prison consequent upon, say, a relapse into illicit drug use, the situation might be even more dire. For those in prison “the provision of basic medical care is constrained by inadequate staffing, poor working conditions, and overcrowded medical facilities.”[294]
[290] Exhibit A1, p.283 (The Australian government’s May 2022 travel advisory). Difficulties in accessing health services are referred to in a number of statements. See, for example, the statement of a brother of the applicant that “Lebanon does not have the mental health awareness or facilities to accommodate [RLXN], if his mental health were to deteriorate…”: Exhibit A2, p.25.
[291] Exhibit A1, p.291 (the Government travel advisory).
[292] Exhibit A1, p.219 (DFAT Report) [2.20].
[293] DFAT Report [2.24].
[294] DFAT Report [5.20].
The foregoing discussion and the consideration concerning impediments pre-supposes the applicant’s removal to Lebanon, his home country. Ms S, however, says she will not live in Lebanon but will not separate from the applicant. In the event of non-revocation of the visa cancellation decision her plan is to put in place arrangements facilitative of the applicant’s removal not to Lebanon but to a third country. To that end, since January 2022, she has been “…signing up for job agencies that specialise in getting qualified teachers positions overseas and help with the sponsoring of any dependents or partners of the teacher. Simply put, my plan if [RLXN] does not successfully have his visa returned, is that I would apply for jobs in other countries, obtain a new role overseas, organise for our house in Australia to be rented out and move overseas with my husband.”[295]
[295] Exhibit A1, p.72 [29]. see also Exhibit A1, pp.125-27.
At the hearing and as a result of investigations to date, Ms S stated that she had good prospects of obtaining employment in a third country. When asked whether her investigations encompassed issues involving an accompanying partner with a criminal record, she advised that they did.
Despite this, I accept the implicit submission made on the applicant’s behalf (when counsel for the applicant described Ms S’s plan and investigations to date as embryonic), that I should not place significant reliance on the prospect of the applicant being removed to a third country, rather than Lebanon.
Conclusion
I find that this consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision, to a moderate extent.
While Lebanon’s current economic and social circumstances are such as to make it likely that the applicant will face significant impediments in establishing himself and maintaining basic living standards in Lebanon, those impediments affect the capacity of Lebanese citizens generally to maintain such standards. They are not ones that would affect the applicant uniquely or affect him as a member of some minority group.
The foregoing is suggestive of attributing a low weight to this consideration. I have, however, elevated it to a moderate weight because of the real risk of the applicant having to face another impediment, one not shared by Lebanese citizens generally.
This impediment to the applicant establishing himself and maintaining basic living standards in Lebanon would arise were his mental health conditions to deteriorate. Those conditions are currently relatively benign.
Mr Mackinnon has opined that a deterioration in those conditions is likely should the applicant be removed to Lebanon. I have, as outlined earlier, some difficulty with accepting that opinion. Nevertheless, I do find that there is a real risk of their deterioration to a material extent (noting that any deterioration is likely to be exacerbated by a lack of access to medical supplies and treatment in Lebanon).
Impact on victims[296]
[296] Direction 90, cl 9.3.
In the circumstances, Direction 90 requires that consideration be given to the impact of a decision to revoke the decision to cancel the applicant’s visa, or a decision to not revoke it,[297] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.
[297] In cl 9.3 of Direction 90, the concept employed is of a “s 501CA decision”. That section in fact only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 9.4.2 of Direction 90 where the reference to a decision under s 501CA is clearly intended to encompass a decision not to revoke a visa cancellation decision but cf CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], where the analogous provision in the predecessor of Direction 90 was construed in a way that directed consideration only to a decision to revoke a visa cancellation decision.
Neither party contended that this consideration was of relevance in this proceeding. Moreover, while Ms S might be characterised as a victim of the applicant (given the incidents of family violence outlined earlier), any impact on her of a decision in this proceeding will not be one felt by her in her capacity as a victim but, rather, in her capacity as the applicant’s partner.[298]
Conclusion
[298] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [27], cited with apparent approval in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 at [43].
I attribute no weight to the impact on victims consideration in deciding whether there is another reason to revoke the visa cancellation decision.
Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[299]
[299] Direction 90, cls 9.4, 9.4.1 and 9.4.2.
In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.
The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.
Strength, nature and duration of ties[300]
[300] Direction 90, cl 9.4.1.
As to this first subsidiary consideration, in the circumstances, it requires that regard be had to:
(a)Any impact of a decision to revoke or not revoke the visa cancellation decision on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[301]
(b)The strength, duration and nature of any ties that the applicant has to the Australian community, having regard to how long he has resided in Australia and 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.[302]
[301] Direction 90, cl 9.4.1(1).
[302] Direction 90, cl 9.4.1(2).
Insofar as the applicant’s immediate family members comprise:
(a)His daughters (each of whom is an Australian citizen), I have considered the impact on them of a decision not to revoke the visa cancellation decision and concluded (for the reasons outlined earlier) that such a decision would not be in their interests but would not be significantly adverse.
(b)Ms S (an Australian citizen), the impact of a decision not to revoke the visa cancellation decision would be significantly adverse when compared to the impact of a decision to revoke that decision. She says that it will cause her “a devastating” amount of stress.[303] If the applicant is removed from Australia, it would involve her seeking employment outside Australia.[304] She would have to resign from a job she is happy with and proud of and relocate to a country with which she is unfamiliar, where she knows no one, and where she has no familial support.[305] At the hearing, Ms S also suggested that such a move may impact on her capacity and preparedness to have children, which she hoped to do should the applicant remain in Australia. All this presupposes that the applicant will be able to join Ms S in a country other than Lebanon. If that proves not to be the case, she would be without a partner on whom she has heavily relied and of whom she is clearly fond.
(c)For one of his two Australian brothers, the impact of a decision not to revoke the visa cancellation decision would be adverse. He states that the thought of the applicant “being deported gives me immense stress”; and the idea of it is “devastating”.[306]
(d)For the other of his two Australian brothers, the impact of a decision not to revoke the visa cancellation decision would be even more adverse. The applicant has, in the past, helped the brother in his business[307] and the brother has (as previously outlined) taken steps in implementation of a plan to employ the applicant. For this brother, the removal of the applicant from Australia would be “the saddest outcome possible.”[308]
[303] G46, p.149.
[304] Albeit not in Lebanon: Exhibit A1, p.71 [20].
[305] Exhibit A1, p.72 [28].
[306] Exhibit A2, p.36 [16].
[307] Exhibit A2, p.26 [9].
[308] Exhibit A2, p.27 [19].
As for the strength, duration and nature of any ties that the applicant has to the Australian community, as mentioned earlier, with the exception of some few weeks spent outside Australia in 2010, he has lived in Australia ever since arriving here in 2009, aged 23.
For much of that time he contributed positively to the Australian community, working as a mechanic[309] and providing employment for others.[310]
[309] G10, p.68; Exhibit A2, p.6 [32]
[310] Exhibit A2, p.6 [33]-[35].
He has very strong familial ties to the Australian community. There is evidence of some non-familial ties, but the material before me suggests that they are not significant.
As for familial ties, he has a number of family members resident in and citizens of Australia.[311] There is no evidence before me (or at least no evidence of any significance before me) as to the impact on a number of them of a decision to revoke or not revoke the visa cancellation decision. There is, however, evidence along those lines in relation to some of those members of the applicant’s broader family. In this regard, I mention:
(a)His nephew JA and niece ST, the effect on whom of the applicant’s removal from Australia has been outlined earlier
(b)Another nephew, aged 21, called “AB” in these reasons. AB states that the applicant is his best friend[312] who has been more like an older brother than an uncle[313] and whose life “would honestly not be the same without my uncle around.”[314]
(c)A sister-in-law who says she would be “devastated” if the visa cancellation decision is not revoked.[315]
[311] The applicant’s evidence is, as outlined previously, that he has two brothers living in Australia along with an uncle, an aunt and around 30 cousins.
[312] Exhibit A2, p.30 [3].
[313] Exhibit A2, p.30 [7].
[314] Exhibit A2, p.30 [14].
[315] Exhibit A2, p.22 [15].
There is also evidence of another familial tie to the community constituted by the applicant’s apparent devotion to his two sons who did not survive postpartum. The applicant states that, when free in the community, he regularly visits and says prayers over their graves.[316]
[316] Exhibit A2, p.6 [9]-[40]; p.8 [47]; p.12 [82].
As for non-familial ties, they would not appear to be significant.
In his most recent statement, the applicant refers to his involvement in a particular mosque.[317]
[317] Exhibit A2, p.18 [121].
In this regard, an Imam at the mosque has provided a reference for the applicant.[318] I do not, however, attribute much probative value to this reference. The Imam seems unaware of the current context. In the reference the applicant is described as a role model “for our youth” and is said to have been regularly volunteering for the mosque. This is most surprising given the nature of the applicant’s offending and given that he has been incarcerated for around the last four years. While the reference is recent (dated 18 May 2022), it is said to be provided in connection with the applicant’s application for Australian citizenship. The Imam also seems to be unaware of the nature of the applicant’s offending, describing the applicant as having found himself in an unfortunate situation with the law and suggesting that this occurred because the applicant was “assisting a third party without full knowledge of the background events.”
[318] Exhibit A1, p.161.
It is clear, however, that the applicant has at least one substantive, non-familial tie to the Australian community in the form of a friendship with a former employee of the applicant, who speaks in glowing terms of the applicant.[319]
Impact on Australian business interests[320]
[319] Exhibit A2, pp.37-40.
[320] Direction 90, cl 9.4.2.
As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact on Australian business interests of not allowing the applicant to remain in Australia.
While the applicant submitted that this consideration supported revocation of the visa cancellation decision,[321] the basis for the submission was not explained in either the A SFIC or in the hearing.
[321] A SFIC [10].
The applicant’s removal from Australia may affect his brother’s business. It would do so, however, via an employment link, given the brother’s intention to employ the applicant in the business.
As I see it, there is nothing to displace the general position found in Direction 90 to the effect than an employment link is given weight only where the decision to revoke or to not revoke the visa cancelation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia (which is not the case here).
Conclusion
I find that the links to the Australian community consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision.
The applicant has strong familial ties to Australia. The weight to be attributed to the consideration by reason of these strong ties is, however, offset by an absence of strong non-familial ties. In the result, I attribute moderate weight to the consideration.
Another matter: impact on Lebanese family members
There is another consideration of relevance in this proceeding; not one expressly identified in Direction 90.
This other consideration concerns the effect on the applicant’s family in Lebanon of a decision not to revoke the visa cancellation decision.
As outlined earlier, the applicant’s mother, two of his sisters and a brother live in Lebanon. They are said to be struggling[322] (unsurprising given Lebanon’s current circumstances).
[322] Exhibit A2, p.35 [12].
When free in the community, the applicant was a source of regular financial support for his mother[323] and of occasional financial support for his siblings in Lebanon.[324]
[323] Exhibit A1, p.70 [11]; Exhibit A2, p.26 [9]; Exhibit A2, p.35 [9].
[324] Exhibit A1, p.70 [11].
Accordingly, for so long as the applicant is unable to obtain and maintain well-paid employment in Lebanon, non-revocation of the visa cancellation decision would likely adversely affect the applicant’s family members in Lebanon as it would:
(a)Mean that a previous source of financial support remained dormant; and
(b)Make the lives of those family members more difficult, at least financially, given that the material before me suggests that they would assume a responsibility to try and support the applicant in his reintegration into life in Lebanon.[325]
[325] Exhibit A2, p.35 [12], p.26 [14], p.22 [14]; Exhibit A1, p.71 [23].
The extent of this adverse effect is unknown. Much depends on how long it would take the applicant to become financially viable in Lebanon and the depth of the “struggle” faced by his Lebanese family members. Hence, while this other consideration weighs in favour of there being another reason to revoke the visa cancellation, it does so only to a limited extent.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or in relation to which I have not made findings:
(a)Weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct, family violence, and expectations of the Australian community (with the weight attributed to each such consideration being moderate, limited and moderate, respectively).
(b)Weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary consideration as to the best interests of minor children in Australia (to a limited extent), and the other considerations concerning impediments to be faced by the applicant should he be removed from Australia (to a moderate extent), the applicant’s links to the Australian community (to a moderate extent) and impact on Lebanese family members (to a limited extent).
Overall, I am not satisfied that there is another reason to revoke the visa cancellation decision. This state of non-satisfaction is consistent with my findings in relation to three of the four primary considerations. In this regard, the general position under Direction 90, which has the primary considerations being given greater weight than the other considerations, is not displaced in the circumstances of this proceeding.
DECISION
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that the applicant passes the character test.
I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.
Accordingly, for these reasons, I affirm the decision under review.
I certify that the preceding 304 (three hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
....................[SGD]....................................................
Associate
Dated: 4 July 2022
Dates of hearing: 14 and 15 June 2022 Advocate for the Applicant: Dushan Nikolic Solicitors for the Applicant: Carina Ford Immigration Lawyers Advocate for the Respondent: Anthony Gardner Solicitors for the Respondent: MinterEllison
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