RRKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3828
•20 October 2021
RRKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3828 (20 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5268
Re:RRKW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 October 2021
Place:Sydney
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.................................[sgd].......................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – conduct constituting family violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations – impediments to removal – impact on victims – links to the Australian community – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act (Act) ss 14, 499, 501 and 501CA
CASES
Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 372
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
DAJ21 V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1099
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
Do and Minister for Immigration and Border Protection [2016] AATA 390
DOB18 v Minister for Home Affairs [2019] FCAFC 83
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Leha v Minister for Immigration [2000] AATA 1054
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Smith v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3575
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Amnesty International, “Lebanon: One year on from devastating Beirut explosion, authorities shamelessly obstruct justice” Amnesty International (2 August 2021): House: align="left">Ben Hubbard, “Collapse: Inside Lebanon’s Worst Economic Meltdown in More Than a Century”, The New York Times (4 August 2021): Direction No. 90
NSW Government Communities and Justice, “Prisons in NSW are now smoke-free” (10 August 2015): Olding and Saffron Howden, “$300 for a pack of cigarettes: Smoking ban in NSW prisons creates thriving black market”, Sydney Morning Herald (16 October 2015)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
20 October 2021
On 6 January 2021 a delegate of the Minister (the Respondent) cancelled the visa held by RRKW (the Applicant), resulting in the Applicant becoming an unlawful non-citizen[1] of Australia. The cancellation decision was made under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). The Applicant made representations seeking a revocation of this decision.[2] On 29 July 2021 a further delegate of the Minister made a decision not to revoke the visa cancellation.
[1] Migration Act (Act) s 14(1).
[2] Act s 501CA(4).
On 4 August 2021 the Applicant applied to this Tribunal for a review of the non-revocation decision and the matter was heard on 7 and 8 October 2021. The hearing was conducted on the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols. The Applicant was legally represented, and the parties were assisted by interpreters in the Arabic language as and when required. Paragraph 500(6L)(c) of the Act sets a time limit within which this Tribunal must make a decision on such applications, failing which the decision under review is taken to be affirmed. The statutory time limit expires on 22 October 2021.
At the hearing, on the application of the Applicant, the Tribunal issued a confidentiality order under subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) as issues related to possible international non-refoulement obligations were raised for consideration.
The basis of the original cancellation decision was that the Applicant failed the “character test” in the Act, because he had a “substantial criminal record” as constituted by subsections 501(6) and 501(7). A substantial criminal record is defined as one where a person has been subject to a “sentence of imprisonment of 12 months or more” and once they have been so sentenced they are taken to have failed the character test.
Where a person has failed the character test then the original visa cancellation may be revoked if there is “another reason” to do so.[3]
[3] Act s 501CA(4)(b)(ii).
The definition of what might constitute “another reason” is set out in Ministerial Direction 90 (MD90) which was made by the Minister under section 499 of the Act and whose provisions are binding on decision-makers, including this Tribunal.[4] MD90 came into effect on 8 March 2021.
[4] Act s 499(2A).
RELEVANT PERSONAL DETAILS
RRKW was born in 1994 in Lebanon and is a Lebanese citizen. He arrived in Australia on 27 June 2011 (aged 17 years)[5] and on 12 January 2012 he was granted a subclass 100 visa.[6] At some stage the Applicant was granted a Class BC subclass 100 Spouse visa which was the visa cancelled on 6 January 2021.[7]
[5] Holding a TK-445 (dependent child) visa. Section 501G Documents (G-documents) at 101.
[6] As dependent child of his father’s subclass 100 visa. G docs at 67.
[7] G-documents at 11.
On 11 September 2016 the Applicant was married to Ms RS in accordance with the provisions of Islamic Sharia law by a Marriage Celebrant recognised under the Marriage Act 1961 (Cth).[8] Ms RS (hereafter “the Applicant’s wife”) is recognised by the elders of the Larakia community of the Northern Territory via the Gwalwa Daraniki Association as a person of “Aboriginal descent”.[9]
[8] G-documents at 81.
[9] Ibid at 89.
The couple have four minor children:
·MX (born December 2016)
·RX (born January 2018)
·AX (born September 2019)
·XX (born June 2021).[10]
[10] Ibid at 82-84.
RS and the four children are Australian citizens.
In addition to his wife and children, the Applicant has his father, stepmother and four step-siblings residing in Australia[11] and they in turn have 7 minor children between them.[12]
[11] Ibid at 57.
[12] Ibid at 56.
On his wife’s side, the Applicant has a mother-in-law, 3 sisters-in-law and 2 brothers-in-law who have 7 minor children between them.[13]
[13] Ibid at 57.
THE APPLICANT’S OFFENDING RECORD
The Applicant has an offending record of lamentable length encompassing some 33 separate offences over a 7-year period and commencing less than two years after his arrival in Australia.
That record is as follows:[14]
[14] Taken from the Respondent’s Statement of Facts, Issues and Contentions (SFIC) at 1.
13 November 2013
The Applicant appears in Bankstown Local Court and is convicted of:
· resident 3 months not obtain NSW licence (2 counts); and
· never licensed person drive vehicle on road.
The Applicant is sentenced to 12 month bond to get a NSW drivers licence and not drive until he has one. He was also fined $300.
8 January 2015 The Applicant appears in Bankstown Local Court and is convicted of:
· drive etc when visiting privileges withdrawn; and
· driver or rider state false name or home address.
He is fined a total of $1500.
15 June 2015
The Applicant appears in Bankstown Local Court and is convicted of:
· driver or rider state false name or home address; and
· never licensed person drive vehicle on road.
The Applicant is fined a total of $800 and disqualified from driving for three years.
2 May 2018
The Applicant appears in Bankstown Local Court and is convicted of:
· drive motor vehicle during disqualification period (3 counts);
· use unregistered registrable Class A motor vehicle on road;
· use uninsured motor vehicle;
· cross unbroken lane line-not class B/C S-T-C, ave speed zone; and
· unlawfully possess Australian driver licence.
The Applicant is sentenced to a community service order of 100 hours in relation to each of three of the offences. He is also fined $1,750.
6 March 2019
The Applicant appears in Bankstown Local Court and is convicted of:
· drive recklessly/furiously or speed/manner dangerous;
· drive motor vehicle during disqualification period;
· possesses prohibited drug;
· supply prohibited drug - small quantity; and
· unlawfully bring etc. anything into place of detention.
The Applicant is sentenced to an intensive correction order and alcohol/drug rehabilitation commencing 06/03/2019 and concluding 05/03/2020, and a total of 300 (served cumulatively as 200) hours community service work.
He is also fined $2,200 and disqualified from driving for 12 months.
6 March 2019
The Applicant appears in Darwin Local Court and is convicted of:
· supply prohibited drug <= small quantity; and
· unlawfully bring etc anything into place detention.
The Applicant is sentenced to 12 months imprisonment (served in the community by way of an intensive correction order).
16 June 2020
The Applicant appears in Darwin Local Court and is convicted of aggravated assault with a weapon.
The Applicant is sentenced to a 12 month good behaviour bond.
15 December 2020
The Applicant appears in Darwin Local Court and is convicted of:
· unlawfully possess property;
· possess ammunition without permit/licence;
· fail to meet storage requirements;
· possess fire arm with altered ID marks;
· possess carry use controlled weapon;
· possess less than traffic quantity of schedule 2 dangerous drug in a public place;
· possess thing for use in administration of dangerous drug; and
· assault a worker - victim suffers harm.
The Applicant is sentenced to an aggregate of 6 months for the weapon related offences and three months for the assault on a worker. He is fined $750 for the drug related offences.
The Applicant is also convicted of two counts of breach of bail for which he was fined $250 on each count, and a further breach of order for release on bond was proved.
OBSERVATIONS ON THE OFFENDING RECORD
There are several matters of note in regard to the Applicant’s offending record which inform the Tribunal’s consideration of the possible existence of “another reason” why the visa cancellation might be revoked.
The offence resulting in a 12-month sentence
In the first place it is noted that while the Applicant was sentenced to a term of imprisonment of 12 months, the Court directed that this be served by way of an Intensive Corrections Order.[15]
[15] G-documents at 37.
In relation to this matter, the Applicant did not spend any time in jail as a result of the sentence. Nevertheless, the fact that the sentence was for 12 months is, in itself, sufficient to engage the provisions of the Act which establish this as constituting a failure of the character test. As the Full Federal Court explained:
7 The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of ss 501(6)(a) and (7). The definitions of "imprisonment" and "sentence" in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of ss 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.[16]
…
Section 501(7)(c) is concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served…[17]
[16] Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [7] per Rares J.
[17] Ibid at [74] per Nicholas J.
The Tribunal is aware that any convictions themselves cannot be challenged or called into question by it, nor can the Tribunal go behind the convictions and re-examine matters de novo.[18]
[18] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 per Sheppard J at 596; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[19]
[19]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653 per Fisher and Lockhart JJ.
These “wider” and “different” matters for determination require specifically, that the Tribunal’s task includes making assessments in relation to the considerations laid out in MD90.
The Victorian Court of Appeal in LLF explained the limits of the Tribunal’s jurisdiction in this regard:
...The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[20]
[20] Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155 at [42]. Citations omitted and emphasis added.
This statement was expressly approved by Murphy J in Singh[21] and by Bromberg J in HZCP when he said:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[22]
[21] Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556 at [35].
[22] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
The circumstances of this conviction are that the Applicant was asked to smuggle some tobacco into the Wellington (NSW) Correctional Centre when he and his family visited his cousin Ali who was incarcerated there. It is the Applicant’s evidence that Ali contacted him and asked him to bring some “cigarettes” into the prison for him.[23]
[23] Applicant’s Statement, undated, at [16]-[26].
As of 10 August 2015, smoking has been banned in all NSW correctional facilities.[24] Needless to say this resulted in the development of a “black market” for cigarettes[25] and a degree of smuggling of them into the facilities. The Applicant was provided with the “cigarettes” by another “cousin” who wrapped them in some children’s balloons and the Applicant himself then attempted to smuggle them into the correctional centre concealed in his underwear. His attempts were foiled when the “cigarettes” were detected by a sniffer dog. When examined, the “cigarettes” were found to contain marijuana mixed with tobacco and this resulted in the Applicant being charged with the offence of “possess prohibited drug”; “supply prohibited drugs – small amount” as well as with the offence of taking a prohibited item into prison.
[24] NSW Government Communities and Justice, “Prisons in NSW are now smoke-free” (10 August 2015):
[25] Rachel Olding and Saffron Howden, “$300 for a pack of cigarettes: Smoking ban in NSW prisons creates thriving black market”, Sydney Morning Herald (16 October 2015).
These matters were dealt with by Magistrate Elks in the Bankstown Local Court on 6 March 2019. The sentences were as follows:
“IN RELATION TO THE SECOND SET OF MATTERS ENDING IN 775, IN RELATION TO TAKING PROHIBITED ITEMS INTO THE PRISON, YOU ARE CONVICTED AND YOU ARE FINED AN AMOUNT OF $1,000.
IN RELATION TO THE POSSESS PROHIBITED DRUG, YOU ARE CONVICTED AND FINED $200.
IN RELATION TO THE CHARGE OF SUPPLY, YOU ARE CONVICTED. YOU ARE SENTENCED TO AN INTENSIVE CORRECTIONS ORDER FOR A PERIOD OF 12 MONTHS. YOU ARE TO REPORT TO THE COMMUNITY CORRECTIONS OFFICE AT BANKSTOWN WITHIN SEVEN DAYS.
IN RELATION TO THAT MATTER, YOU ARE TO COMPLETE 100 HOURS COMMUNITY SERVICE AND I ALSO PLACE A CONDITION ON THAT ORDER THAT YOU ATTEND FOR ANY REHABILITATION OR TREATMENT 40 AS DIRECTED BY THE COMMUNITY CORRECTIONS OFFICE.”[26]
[26] G-documents at 40.
In sentencing His Honour stated:
“In relation to the other series of offences, the offender pleaded guilty to those at the first available opportunity on 16 January of this year, and he will be given full credit in relation to his early plea, being 25%. Once again, these are serious offences, although I will say that the possess prohibited drug is probably the least serious of the offences that I will be dealing with here today. Taking prohibited items into a place of detention is serious. Supply is also serious. I take into account Mr Fernandez's submissions that it is perhaps at the lower end of seriousness in respect to supplies, and I accept that.”[27]
[27] Ibid at 39.
Aggravated assault
In relation to the conviction in Darwin which is recorded as “aggravated assault with a weapon” the circumstances are set out in the sentencing remarks of Chief Justice Morris on 16 June 2020:
“HER HONOUR: Mr [RRKW] you've pleaded guilty at an early opportunity in relation to this assault. It was an assault of threatened violence. not actual violence. And while the older gentleman… as a result of everything that happened on that day, did end up with some stitches, that wasn't because of your actions, that was somebody else's actions.
You had gone to help your sister-in-law to remove a child from what you had been told was a violent situation. Unfortunately things were made worse for any children who were in that area, including the young boy because a whole heap of people turned up angry, upset, and with weapons. You were there. You were probably angry and upset, but you didn't have a weapon until you picked up one that had been thrown near you, and you picked up that machete. How you used it was that you were banging on a door with it while holding it, and that caused fear to the victim.
So despite the fact that it is with a weapon, it is towards the lower end of the scale in relation to assaults. You've got no convictions in relation to assaults or offences of violence on your record. I do have your full record from New South Wales. You've only been in the Territory since last year, but there has been no trouble for you in the Territory. This happened in January, and as lawyer said, and it’s not disputed there has been no trouble since.
It appears to me that you have accepted responsibility that what you did was the wrong way to go about handling that situation. And you have pleaded guilty. Given all of those circumstances it is appropriate to convict you in relation to the charge and release you on a good behaviour order. That's a promise you make to the court to stay out of trouble, and it's going to be for 12 months. If you do commit another offence punishable by imprisonment, not only will you get in trouble for the new thing, but the court will come back and revisit this, and you get resentenced in relation to this particular good behaviour bond.”[28]
[28] Ibid at 36.
Weapons Offence
When again before the court in Darwin on 15 December 2020 related to certain weapons offences, Judge Cavanagh described the earlier incident in terms of the Applicant as:
“He was before this court on 16 June this year for – and found guilty and convicted of aggravated assault after taking a machete to a scene of violence, having armed himself with the machete and threatening people with it.”[29]
[29] Ibid at 29.
This places a somewhat more serious and sinister characteristic on the earlier incident, but the Tribunal places greater weight on the characterisation given by Chief Justice Morris.
In this instance there is some discrepancy in terms of the weapon in question. Judge Cavanagh describes it as a “loaded revolver”[30], the Applicant as a “pistol… [for] pig hunting”.[31] In any event it was an unlicensed firearm, with identification numbers erased which the Judge described as “a very sinister thing indeed.”[32] The Applicant apparently also had a machete with him and was sentenced to an aggregate of 6 months, suspended after 2 months. He was also fined for breaches of his good behaviour bond which the Judge described as “significantly serious.”[33]
[30] Ibid at 29.
[31] Applicant’s Statement, undated, at [29].
[32] G-documents at 29.
[33] Ibid.
Victim (female) suffering harm
In the same proceedings before Judge Cavanagh the Applicant was sentenced to three months imprisonment (part of the aggregated 6 months) for some sort of assault upon a woman working in the Hibiscus Tavern in Darwin. This incident arose from a dispute about the Applicant and some of his friends playing poker machines. The exact nature of the assault is not clear from the documentation although there is a Victim Impact Statement on the part of the victim indicating that the Applicant spat in her face, causing her great distress and concern about possible hepatitis or COVID infection[34] and referring to her as an “old mole”.[35] The Applicant has consistently denied that he spat at the victim, but rather that he “spat to the floor to show his anger”.[36]
[34] Summons Bundle at 31.
[35] Ibid at 32.
[36] Ibid at 35.
Whatever the case, Judge Cavanagh stated that, “[t]he assault on the woman was foul, demeaning, offensive and a rotten thing to do, and calls to be denounced in strong terms”.[37]
[37] G-documents at 33.
The Applicant’s version of these events is:
“The staff member said later that I spat at her face, inside the pub. I didn’t do that, I wouldn’t do that. I know that I spat at the ground. But the judge during sentencing said he would only give me one extra month if I plead guilty to the offence, and that I might not get bail if I didn’t plead guilty that day. So I agreed to plead guilty. For this one I wish I hadn’t plead guilty because I had witnesses and I think the video would have shown that I spat at the ground not at her face. But I shouldn’t have spat at all. The staff member said it was disgusting and I agree. It was disgusting. I don’t normally do that. I don’t remember ever doing that before.”[38]
[38] Applicant’s Statement, undated, at [13].
The issuing of a Domestic Violence Order
An incident took place at the Luma Luma apartments in Darwin on 6 November 2020 which resulted in the Police taking out a Domestic Violence Order against the Applicant in relation to his wife.[39]
[39] Summons Bundle at 22.
The circumstances surrounding this are embarrassing to both the Applicant and his wife in terms of recounting them, but they go to the credibility of the Applicant in terms of his evidence before the Tribunal.
What appears to be the case is as follows:
·The Applicant was told to leave the family home by his wife because she was concerned about his drug use and the impact it was having on his children. His wife told the Tribunal she was concerned “a few times” about this.
·The Applicant repaired to the Luma Luma apartments/motel where he told the Tribunal he was depressed, texted his wife on several occasions and then called “an escort service”, although he also says that “[n]othing happened between me and the woman who came over”.[40]
·The Applicant goes on to say that his wife, apparently accompanied by her sister, subsequently arrived at the motel and knocked on the door of the room where he was staying. When he opened the door, he saw his wife and she attempted to enter the room. As the other woman was still present in the room he put his arms around his wife – he describes it as “hugging” her, in order to manoeuvre her away from the front door and deny her access to the room.
·The Applicant denies “pushing” his wife in any way although he agrees that his sister-in-law was there and yelling “stop pushing her, stop pushing her”.[41]
·In her testimony to the Tribunal, the Applicant’s wife agreed that she “tried to force myself into the room” and that the Applicant restrained her “not violently” because he “wanted to keep me out because of the lady in there.”
·The Applicant’s wife further told the Tribunal that she did not want the DVO issued, that she had considered approaching the Court to have it lifted, but decided to allow it to remain in place as a way of making sure “that he kept off drugs”.
[40] Applicant’s Statement, undated, at [54]-[55].
[41] Ibid at [58].
There is however far more to the Luma Luma matter than either the Applicant or his wife were prepared to be forthcoming about before the Tribunal. This is evident from the Northern Territory Police Statement of Facts.[42] These reveal that:
(a)The woman with whom the Applicant was staying at the motel was in fact known to him and they were using methamphetamines and other drugs while they were staying there. There is a suggestion in the Police records that the Applicant had been staying in the Luma Luma apartments for some days.[43] When the Police searched the room they found extensive evidence of this in terms of drugs and injecting equipment. The Police also found a lister pack of Endone tablets and $850 in cash.
(b)In her oral evidence the Applicant’s wife also stated that she “heard the name” of the other woman and that she became involved in a physical altercation with her – a matter also recorded in the Police Report.[44]
(c)A further Police Statutory Declaration itself describes the other woman as “[RRKW’s] girlfriend”.[45]
(d)The Applicant’s wife also stated directly to him, “You’re screwing another woman. You’re married”.[46]
(e)The Police reports also indicate that the Applicant’s wife was accompanied at the time by her brother and that when the brother and another person tried to enter the Applicant’s room he became violent, started to throw things at them and generally “smashed up” the room.[47]
(f)The Police report also records that two motel employees saw that the Applicant “push(ed)” his wife but that when “asked if she wanted to make a complaint of assault against [RRKW] for pushing her she said no. She also declined a Support Link Referral for domestic violence assistance.”
[42] Summons Bundle at 4.
[43] Ibid at 28.
[44] Ibid.
[45] Ibid at 29.
[46] Ibid at 27.
[47] Ibid at 28-29.
Relevantly for the purposes of this determination, the Tribunal accepts that the Applicant was in a state of some distress, heavily influenced by drug use and generally out of control when his wife and whichever sibling(s) arrived at the motel where he was staying with a woman who was (probably) known to him. The Applicant attempted to prevent his wife from entering his room, however there was a subsequent altercation between this woman and the Applicant’s wife.
The Tribunal cannot be sure as to whether the Applicant “pushed” his wife or “hugged” her to move her out of the way. The Tribunal however does accept that the Applicant was not deliberately violent towards his wife and that the incident, variously described, does not constitute an act of domestic violence.
Incidents while in custody
The Summonsed Material before the Tribunal discloses that while the Applicant was in custody in Darwin he was involved in a series of incidents some of which involved breaches of prison discipline.[48] The Applicant has made submissions is relation to these matters[49] and provided oral evidence at the Tribunal hearing. In the view of the Tribunal nothing turns on any of these matters, they are run-of-the-mill prison incidents
[48] Summons Bundle at [36}-[60].
[49] Applicant’s Statement, undated, at [33]-[40].
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Clause 8 of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79 (MD79). This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·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.
Clause 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which 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:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria in terms of both consideration and evidence. Explicitly, it stated in SZJSS that:
[t]he weighting of various pieces of evidence is a matter for the Tribunal.[50]
[50] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, it becomes a matter of the Tribunal engaging in a process of “calculus” [51] to arrive at a final determination.
[51] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Protection of the Australian Community
The Tribunal must give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In relation to the matter of seriousness, the Respondent points to the facts that:
·the Applicant has committed a large number of offences (33) over an extended period of time (7 years) starting quite soon after his initial arrival in Australia; and
·there has been an increase in the seriousness of the offences, starting with “minor” traffic breaches and graduating to drug-related offences, offences involving an element of violence and continued disregard of bail or bond conditions.
The Tribunal accepts that the Applicant’s record is a poor one in every respect and that, especially in relation to his driving record, it illustrates a degree of contempt for the Australian legal system. However, this does have to be contextualised taking into account the Applicant’s drug use and degree of dependency and the circumstances surrounding the commission of some of the offences, especially those which the Courts treated as being at the lower end of the seriousness range. It is true that the Applicant has only spent a period of some 3 months in jail, but as noted above, this is not the relevant test. It is also true that in terms of “victims” there is no substantial evidence of any individual suffering actual harm at the hands of the Applicant.
In assessing risk, the Tribunal is asked to consider the likelihood of offending behaviour being repeated and the possible impact of such an event.
Ms Lisa Alam provided a written report for the Tribunal and gave oral testimony. Ms Alam is a Registered Psychologist and is herself of part-Lebanese descent. It was her conclusion that the Applicant posed a “low” risk of re-offending, provided that he maintained a regime of treatment for his drug-dependency which he has commenced while in Immigration detention.[52] This however would become a “moderate to low” risk were he continue with a pattern of regular drug use.
[52] Report of Ms Lisa Alam (Psychologist) dated 14 September 2021, Applicant’s Tender Bundle at 27.
Ms Alam’s conclusions are based upon 2 audio-visual interviews with the Applicant and the administration of a number of standard psychometric tests. The Tribunal rejects the Respondent’s claim that this evidence is weak or not based upon adequate clinical testing and evaluation.[53]
[53] Respondent’s SFIC at [43].
Central to Ms Alam’s conclusions is the proposition that the Applicant has come to a realisation that his offending behaviour has opened the real possibility of his being removed from Australia and, in the process, losing access to his wife and children.
This realisation has come upon the Applicant late in the day as the presence of his children born in 2016, 2018 and 2019 had not served previously as a sufficient deterrent to prevent him committing further driving offences in 2019. However, in his evidence to the Tribunal, it was apparent that this dawning had taken place and that the Applicant was genuinely fearful of the full consequences of his offending behaviour being visited upon him. Indeed, it appears to be a classic example of Dr Johnson’s aphorism:
“Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”[54]
[54] James Boswell, Life of Samuel Johnson (1791) (World Classics edition, OUP, 1980) Volume 3, Entry for 19 September 1777 at 849.
Or, as put recently by Senior Member Dr N A Manetta:
[43] … I do not underestimate the effect of immigration detention… Immigration detention is the immediate precursor to forced removal. The reality of the end of one’s life in Australia becomes starkly obvious in immigration detention.[55]
[55] Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 372 at [43].
The Tribunal accepts that the likelihood of the Applicant reoffending is low, provided that his drug-dependency is addressed, and this matter will be further considered below.
The Applicant will also need to address his highly unsatisfactory driving record and should be aware that a negative driving record is a matter taken very seriously by this Tribunal.[56] The excuse proffered by the Applicant for his early repeat offences, namely that he needed to drive for employment purposes cuts no ice and any further excuses related to family or employment situations will cut none in the future. The potential dangers of his behaviour noted by Magistrate Elks in imposing a disqualification period in March 2019 need to be taken to heart by the Applicant.[57] The Applicant gives some recognition of this and suggests that in any event he is banned from driving until 2025.[58]
[56] As discussed in Smith v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3575 at [60]-[69].
[57] G-documents at 39.
[58] Applicant’s Statement, undated at [5]. The extent of the Applicant’s driving ban is not otherwise evident on the material before the Tribunal.
The Tribunal places significant weight on the further finding of Ms Alam (after administering further tests to the Applicant) as follows:
“The assessment instrument I used was the VRAG-R assessment guide (Violence Risk Appraisal Guide – Revised). The VRAG-R is a 12-item actuarial assessment instrument that takes into consideration a variety of factors that impact reoffending rates to determine an offender’s risk of recidivism in a percentage. According to Mr [RRKW’s] total score, he has been found to have a low-medium risk of recidivism, or 17% risk after 5 years. Compared to the average recidivism rate of adults in NSW as 42.4% in 2019, Mr [RRKW’s] estimated recidivism probability is significantly lower due to several significant positive factors such as: no sex offending history, a low number of prior admissions to correctional institutions, no conduct disorder prior to age 15, no elementary school maladjustment, no criminal violent history (murder, rape, assault with bodily harm) and marital status.”[59]
[59] Report of Ms Lisa Alam (Psychologist) dated 29 September 2021 at 2.
The Tribunal finds that in terms of the protection of the Australian community and the risk of the Applicant reoffending this criterion counts against revocation of the visa cancellation but to only a limited degree.
Conduct constituting family violence
The Respondent has advanced the proposition that the events at the Luma Luma apartments and the issuance, by the Police of a DVO against the Applicant should be taken as establishing that the Applicant was “perpetrating family violence for the purposes of Direction 90”.[60]
[60] Respondent’s SFIC at [55].
For the reasons stated above, the Tribunal rejects this proposition.
None of the factors outlined for consideration in sub-paragraph 8.2(3) of the Direction – frequency, cumulative effect or reoffending has been demonstrated and even were the one instance to be accepted as an act of family violence (which it is not), the “proportionate” test in sub-paragraph 8.2(1) of the Direction would militate against an adverse finding based upon it.
This criterion counts neither for nor against the consideration of revocation.
Best interests of minor children
Consideration of this issue is central to the case for revocation advanced by the Applicant. Sub-paragraph 8.3(4) of the Direction directs attention to the following factors:
(a)the nature and duration of the relationship between the child and the non-citizen (less weight should generally be given where there relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child; and
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
Judge Canavagh, who it appears was generally unimpressed by the Applicant nevertheless went out of his way to remark, “[h]e's got a lovely wife, who's pregnant. I'm sure he loves her and the kids.”[61] Indeed, if anything has been consistent through these proceedings it has been the Applicant’s expression of his love for his children and the testimony of others to this effect.
[61] G-documents at 29.
In particular, the Tribunal was impressed by the testimony of his mother-in-law (Mrs HS). She is a respected elder of the Larrakia people of the Darwin region and a senior manager in an Indigenous organisation responsible for land management and community housing. The Tribunal found her to be a compelling witness of integrity and directness.
In both her written statement and in oral evidence she indicated the extent to which the Applicant, as a non-Indigenous person was accepted into the local indigenous community, his voluntary work within their organisation and his importance as a father to his children. She describes the Applicant as being “always a loving, caring, respectful father”.[62] She also writes that:
“I’ve got a lot of love and respect for [RRKW]. He’s never disrespected me, he’s never disrespected [his wife]. And we’ve got a lot of love for him.”[63]
[62] Applicant’s Tender Bundle at 17.
[63] Ibid at 18.
The best interests of each of the four minor children need to be addressed separately.
The youngest child (XX) was born after his father was taken into detention and so the Applicant has never had the opportunity to establish a relationship with the child to date. In a second report, the psychologist Ms Alam drew attention to the evidence indicating how the “absence of a father negatively affects children’s social and emotional development”[64] and the Tribunal accepts that this is universally understood.
[64] Report of Ms Lisa Alam (Psychologist) dated 29 September 2021 at 1.
The third child (AX) is some three years old and has visited her father in detention where, according to her mother’s statement, “she goes running to him and screaming “daddy, daddy!”.[65] The Tribunal accepts that this child has an established relationship with her father.
[65] Applicant’s Tender Bundle at 14.
The second child (RX) is reported as also deeply engaged with her father, enjoys singing with him[66] and displays some degree of jealousy if she thinks that her father is paying too much attention to AX.
[66] Ibid.
The eldest child (MX) is reported as suffering from some “behavioural issues” which appear related to separation from his father. Dr Frank Chen, a General Paediatrician writes:
“MX’s behaviour difficulties have significantly worsened and his functioning at home is severely impacted by his father's absence. MX responds much better to his father in managing his behaviour. Without father at home significant burden and stress has been forced upon his mother who is also currently expecting her fourth child.”[67]
[67] G-documents at 86.
This degree of dependency and separation-distress is also reported by Ms Alam in her report.[68]
[68] Report of Ms Lisa Alam dated 14 September 2021, Applicant’s Tender Bundle at 22.
As already noted, there are some 14 directly or indirectly related nieces and nephews, of whom the Applicant appears to have a degree of relationship with two, being the sons of two of his sisters-in-law.
In relation to a minor child OX who is one of these children, the evidence is to the effect that the child suffers some mild (unspecified) form of disability. His mother is a single parent and the Applicant attempts to play a supportive “paternal” role in the child’s life. The child is occasionally included in activities undertaken involving the Applicant, his wife and their own children.[69]
[69] Applicant’s Statement, undated, at [77]-[79].
In relation to another minor child, CX (age 14) , the son of a different sister-in-law, the evidence of his mother, who has recently had a heart attack and continues to be in ill-health, is to the effect that the Applicant has a history of taking the boy fishing and quad bike riding and that there is a close relationship between them.[70]
[70] Statement from Applicant’s Sister-in-Law dated 30 September 2021.
It does not appear that there is any particular relationship with any of the other nephews and nieces, all of whom appear to be otherwise in stable two-parent family relationships.
The Applicant also supplied the Tribunal with a series of photographs and video recordings involving the Applicant and his three elder children.
In its submission the Respondent, while acknowledging the findings and conclusions of Ms Alam, invites the Tribunal to give this consideration little weight. It submits:[71]
“First, in relation to 8.3(4)(a) of Direction 90, the Respondent contends that the nature and duration of the relationship between the Applicant and two of his minor children is limited. The Applicant has been in incarnated [sic] since November 2020 meaning that he has not met his youngest child and he has lived with his second youngest child for little more than a year. The Respondent also notes that there is limited evidence as to the frequency with which the Applicant has maintained contact with all of his minor children whilst incarcerated, apart from his eldest being brought to visit him a ’few times’.
Second, in relation to 8.3(4)(d) of Direction 90, in the above circumstances, being where the Applicant has never lived with his youngest child and has lived for little more than a year with his third child, the Respondent contends separation from his children is unlikely to have a significant impact on the children's current lifestyle if they were to remain in Australia. Moreover, the children may maintain contact with the Applicant via electronic communications if they wish to do so.
Third, in relation to 8.3(4)(c) of Direction 90, the Respondent submits that in circumstances where the Applicant has a history of drug use, including with heroin and ice and remains a remains a risk of re-offending, the Applicant's reoffending may have a negative impact on his children.”
[71] Respondent’s SFIC at [64]-[66]. Citations omitted.
The Tribunal acknowledges that the last of these points has some relevance but is persuaded that both the Applicant and his wife are conscious of this issue and are taking steps to address it.
The Tribunal rejects the submission of the Respondent that this criterion should have limited weight and, indeed, takes a completely contrary view and accords it very significant weight in favour of the Applicant.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that the Australian community expects non-citizens to obey Australian laws while in Australia; where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative.[72] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
[72] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[73]
[73] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to his (or any other consideration) is a matter for the Tribunal itself to determine.
In making that determination the Tribunal places this criterion as part of the continuum of considerations and, within the overall ecology of this application accords it only limited weight.
Other considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman, “[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.” [74] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[75]
[74] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 27 February 2019.
[75] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations. [76]
[76] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
Non-refoulement obligations
Paragraph 9.1 of Direction 90 deals with the issue of Australia's non-refoulement obligations in the context of a decision whether to revoke the cancellation of the Applicant's visa and provides as follows:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of “protection obligations”, reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
It was a previous practice of the Tribunal in some cases where non-refoulement claims were raised, not to examine them in detail as a claimant, if unsuccessful in the Tribunal, had the right to apply for a Protection Visa where such claims would be considered thoroughly.
However, in Omar and BCR16 the Full Federal Court has made it clear that if non-refoulment claims are raised, and fears of harm are advanced, then the Tribunal must give active intellectual consideration of those claims.[77] Moreover, they must be actually weighed as claims and given weight and value as determined by the Tribunal.[78]
[77] Minister for Home Affairs v Omar [2019] FCAFC 188; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96.
[78] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 at [39].
Just because a claim for non-refoulment is made, it does not follow that Australia’s obligations will be engaged. Claims made at a high or abstract level of generality or claims which are not specific to the Applicant (as distinct from claims which might apply to almost any person or class of persons) or claims which have little or no relationship to the issues identified in the international conventions, must be accorded limited weight, if any.
In DOB18 the Full Federal Court stated:
In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.[79]
[79] DOB18 v Minister for Home Affairs [2019] FCAFC 83 at [185] per Robertson J.
The claims advanced by this Applicant fall into two categories. In the first place he alleges that he would suffer considerably because of his separation from his family; that Lebanon is an unsafe and unstable environment with a high degree of violence in the country; that there is endemic poverty and that Lebanon is the scene of his own traumatic childhood.[80]
[80] Submission by Westside Legal, G-documents at 74.
The second element of the Applicant’s submission is, in effect, that as a drug-user he would be at particular risk in Lebanon because the Lebanese Police have a habit of taking violent action (including torture) against people suspects of drug offences.[81]
[81] Applicant’s Tender Bundle at [105]-[164].
The Tribunal does not accept that either of these submissions is sufficient to engage Australia’s non-refoulement obligations.
The Tribunal (see below) accepts that the situation in Lebanon is dire and that the country is violent, poverty-ridden and to a large extent ungovernable. However, nothing in that relates specifically to this individual Applicant. There is nothing he has advanced at a level of particularity which marks him out for potential harm, let alone harm based on any of the criteria identified in the Conventions. He advances no claim of risk of harm on the basis of characteristics such as race, ethnicity, religion, sexuality or political opinion. If returned to Lebanon he would be at no more risk of harm than anyone else.
The Tribunal also does not accept a claim based on drug addiction. While it recognises that this is a medical condition, it is also one within the capacity of the Applicant to address. If he seeks to advance a claim to be allowed to remain in Australia because he is determined to “beat” his addiction, then, if he is serious he can beat it just as well in Lebanon as in Australia. The protections of non-refoulement do not extend to protecting people who, on return to another country, expect to be involved in breaking the local laws.
The Tribunal rejects the Applicant’s claims that Australia’s non-refoulment obligations should be enlivened on his behalf in this application. The criterion therefore counts neither for nor against the application.
Extent of impediments if removed
Initially it may be noted that the Applicant is generally in good physical health. It was his direct evidence that this was the case and that he is not in receipt of any treatment or medication for any physical ailment. He is a fit, young man. He spent the first 17 years of his life in Lebanon and is fluent in Arabic and entirely conversant with the lifestyle and mores in that country.
It is equally true that the Applicant has been diagnosed with some level of Post-Traumatic Stress Disorder (PTSD), although it does not appear that he is undergoing any formal treatment for this condition.[82] He also has a history of at least one attempted suicide.[83]
[82] Report of Ms Lisa Alam dated 14 September 2021, Applicant’s Tender Bundle at 20-27.
[83] Applicant’s Statement, undated, at [41]-[50].
Since being in Immigration Detention the Applicant has been on a regime of opioid-substitution based upon Suboxone injections.[84] This is a prescribed substance used to treat drug-addiction and needs careful monitoring. The Applicant attests that this treatment has assisted him and that he has been drug-free for at least the last three months.[85]
[84] Suboxone is a combination of buprenorphine and naloxone.
[85] Applicant’s Statement, undated, at [66]-[67]. Applicant’s Statement dated 1 October 2021 at [9].
The Applicant has previously been referred to drug and alcohol rehabilitation programmes as part of his intensive correction order in March 2019, however there is no evidence that he ever attended or completed any such programmes and his offending behaviour continued beyond this date.
Previous attempts by the Applicant to cease his drug-using behaviour have not been successful, however he has now been offered a place in the Banyan House therapeutic community, located in Darwin.[86] The programme offered there is based upon the therapeutic community model and can take between 16 to 52 weeks to complete. The Tribunal has before it a letter from Banyan House stating that the Applicant has been assessed as suitable to participate in their programme and that a place could be provided for him.[87]
[86] Banyan House: Letter from Banyan House dated 30 September 2021.
It is the Applicant’s evidence that if released back into the community he would avail himself of this opportunity for rehabilitation.
This chance would be forgone were the Applicant’s visa cancellation not to be revoked.
In its SFIC the Respondent states (at [97(c)]):
“there are no barriers to stop the Applicant being able to access the social, medical and economic support available to all citizens in Lebanon”
This comment seems to ignore the reality of Lebanon in late 2021. The Department of Foreign Affairs and Trade Country Information Bulletin supplied and relied upon by the Respondent is dated 19 March 2019. On 4 August 2020 the capital, Beirut, was rocked by an explosion which killed more than 200 people, injured 7,000, displaced 300,000 from their homes and according to some calculations caused $US18 billion in property damage. No one has been held accountable,[88] several investigating judges have been removed and the government has effectively ceased to operate. The Lebanese currency has lost 90% of its value since 2019 and annual inflation has reached a rate of 85%.[89]
[88] Amnesty International, “Lebanon: One year on from devastating Beirut explosion, authorities shamelessly obstruct justice” Amnesty International (2 August 2021): Ben Hubbard, “Collapse: Inside Lebanon’s Worst Economic Meltdown in More Than a Century”, The New York Times (4 August 2021): >
On the weekend after the Tribunal hearing the country’s electricity system failed and there was a two-day total blackout before the army could supply fuel to revive the country’s failed electricity generators.
Thus, while it might be true that the Applicant would have access to the “support” available to “all citizens” (that is “all citizens” not rich or corrupt enough to access privileged services) what this amounts to is returning the Applicant to join his fellow Lebanese citizens in the Stygian gloom of some Adullamite cave.[90]
[90] 1 Samuel 22.
The Applicant would suffer genuine hardship and serious disadvantage/impediment if returned to Lebanon and this criterion counts strongly in support of the revocation application.
Impact on victims
The Respondent has pressed the claim that the Applicant’s wife is the victim of at least one act of domestic violence. For the reasons outlined above the Tribunal has rejected this characterisation, although it is prepared to concede that the Applicant’s wife was a “victim” of some form of aggression or aggressive behaviour at the Luma Luma premises and she has been the protected person in terms of a DVO. As such, she may be classified as a “victim” for the purposes of MD90.
After the conclusion of this hearing, a decision was handed down by the Federal Court in which a decision of this Tribunal was set aside and remitted, for failing to give proper consideration to the impact on the wife of an applicant who had been the victim of his domestic aggression but nevertheless pleaded for him to be allowed to remain in Australia because his removal would adversely impact on her and their children.[91] In that case the Court was considering the specific provisions of clause 14.4 of MD79, however, the essential elements of that clause are repeated in section 9.3 of MD90. It states:
Decision-makers must consider the impacts of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizens criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
[91] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
The Court, after discussing the Full Federal Court’s decision in CGX20[92] which “grappled with the proper construction to be given” to this issue determined that the evidence of a wife who had been a victim of the applicant and had given evidence in his favour on the matter of revocation of a visa cancellation required the Tribunal to address that evidence (where that information is available) such that:
Such humble evidence had to be taken into account… and its import weighed in the balance of the matters required to be addressed by the Tribunal…”[93]
[92] CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69.
[93] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [87].
In doing so, the Tribunal would accord some weight to the “impact on victims” as defined in MD90 as being in favour of the revocation of the visa cancellation.
Links to the Australian community
Subparagraph 9.4.1(2) of the Direction provides that decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community, having regard to:
(a) how long the person has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the person began offending soon after arriving in Australia; and
(ii) more weight should be given to the time the person has spent positively contributing to the Australian community; and
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia.
There are a number of factors to be considered in relation to this criterion:
·The Applicant has extensive family ties in Australia to people who are permanent residents or who have indefinite rights to remain in Australia. The extent of the Applicant’s family ties have been discussed supra.
·The Applicant has lived almost continuously in Australia since 2011 with only a few brief periods overseas.[94]
·The Applicant’s mother-in-law has detailed the extensive extent to which the Applicant has been involved in (and employed by) the Gwala Darankiki Association and the extent to which he is accepted as an integral member of that local Indigenous community.[95]
·There are numerous testimonial letters and statements of support, both from family and community members, all of which attest to the Applicant’s commitment to his wife and family and to his activities in support of their communities.[96]
[94] G-documents at 100-101.
[95] Applicant’s Tender Bundle at 17-19.
[96] Ibid at 39-45.
Although the Tribunal recognises the qualification in sub-paragraph 9.4.1(2)(a)(i) it also notes that the Respondent agrees that this criterion counts in favour of the Applicant, although in its submission, only to a limited degree.[97]
[97] Respondent’s SFIC at [108].
The Tribunal, on the other hand gives this criterion considerable weight and also believes that the extent of family and community support evidenced will help ensure that the Applicant is able to rely on external factors to help in his own rehabilitation endeavours.
DISCUSSION AND CONCLUSIONS
Before turning to the “calculus” of criteria under MD90, the Tribunal needs to address the repeated pleas by the Applicant and his wife that he be given “as second chance”, or as the Applicant himself also put it, a “last chance”.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[98] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in migration cases should be considered.
[98] [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.[99]
[99] [2016] AATA 390 at [23].
In Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, in “recognition [of] his life changes”[100] since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[100] The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
The centrality of rehabilitation to the operations of the criminal justice system was emphasised by Senior Member Cameron as follows:
[T]he Australian nation has always been prepared to extend the hand of compassion, assistance and humanity… [T]he Australian community has always recognised the concept of rehabilitation and a second go.[101]
[101] Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [90] and [91].
The humane aspects of the administration of the Migration Act was remarked upon by Deputy President McMahon emphasising that “there would be a general expectation in the community that the Act would be administered fairly and humanely.”[102]
[102] Leha v Minister for Immigration [2000] AATA 1054 at [34].
In what has now become something of a classic expression of principles which should guide decision-makers in matters such as this, Chief Justice Allsop has stated:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[103]
[103] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]. Citations omitted.
In DAJ21, SC Derrington J made it clear that the principles enunciated in Hands should cause a decision-maker to give “intellectual consideration of the human consequences” for all the people who might be affected by a decision under s 501 of the Act, including, obviously all members of an applicant’s family.[104]
[104] DAJ21 V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1099 at [30].
The Tribunal has no more power than anyone to predict the future with any degree of certainty. What it can do however is evaluate the evidence before it in terms of the credibility of what the Applicant says he will do now that he understands that failure to obey the law in every respect from this point forward risks him being separated from his wife and family to whom, the Tribunal accepts, he is devoted.
In terms of establishing its conclusions within the formal evaluation of the factors to which it must have regard under MD90, the Tribunal finds that:
(a)the protection of the Australian community, and the risk of reoffending is a factor which weighs against the Applicant but that it does so to a minimum degree;
(b)there is no evidence of the Applicant having committed any acts of family/domestic violence and hence this factor weighs neither for nor against the Applicant;
(c)the best interests of a significant number of minor children counts substantially in favour of the Applicant;
(d)the expectations of the Australian community must necessarily count against the Applicant, but they do so only to a minimal degree;
(e)there are no non-refoulment obligations engaged by any of the Applicant’s claims and as a result this factor counts neither for nor against the Applicant;
(f)the extent of the impediments if the Applicant were removed to Lebanon are significant and overly burdensome and so count strongly in his favour;
(g)to the extent that the Applicant’s wife is taken to be a victim of any of his aggressive behaviour (not being acts of domestic violence), then given her evidence, this criterion must count in favour of the Applicant with some degree of weight; and
(h)the Applicant has strong, enduring and potentially enhanced links to the Australian community and this factor counts significantly in the Applicant’s favour.
The calculus taking all of these factors together is significantly in favour of the Applicant and in favour of the revocation of the visa cancellation decision under review.
At a more generalised level, The Tribunal is persuaded that the Applicant is entitled to a second/last chance and that he will make the best of it. It believes that he now fully understands and appreciates the grave consequences of not doing so.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
........................................[sgd]................................
Associate
Dated: 20 October 2021
Date(s) of hearing: 7 and 8 October 2021 Counsel for the Applicant: Ms N Laing Solicitors for the Applicant: Mr P Rama, Westside Legal Solicitors for the Respondent: Ms L Hargrave, Clayton Utz
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