Saleh v Minister for Immigration and Border Protection - [2017] AATA 367

Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367 (24 March 2017)
Division:GENERAL DIVISION
File Number: 2016/0331
Re:Hassan Saleh
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:24 March 2017
Place:Perth

The decision under review is affirmed.
......................[sgd]...........................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations considered – other relevant considerations considered – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed -- decision under review affirmed
LEGISLATION
Migration Act 1958 – s 501 - s 501(3A) – s 501(6) – s 501(7) - s 501CA(4)
Direction No 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – 6.2 – 6.3 – 7(1) – 8(1) – 13.1(1) -- 13.1.2 – 13.2 -- 13.3(1) – 14(1)(a), (b) and (c) – 14.2(1) -- 14.3(1) – 14.5(1)
CASES
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [94]
Minister of Immigration and Border Protection v Le [2016] FCAFC 12
Passells and Minister for Immigration and Border Protection [2016] AATA 1033
Mlinar and Minister for Immigration and Multicultural Affairs [1997] ALD 771
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143
REASONS FOR DECISION
Dr Christopher Kendall
24 March 2017
INTRODUCTION

This matter requires the Tribunal to determine whether it should exercise the discretion in s 501CA(4) of the Migration Act 1958 (Cth) (the “Migration Act”) to revoke an earlier decision to cancel a visa held by Mr Hassan Saleh.
Mr Saleh is 33 years old. He is a citizen of Lebanon and was raised in a Shia Muslim family. He arrived in Australia in 2007 and was granted a Prospective Marriage (Temporary) visa. Mr Saleh was granted a Class BS Subclass 801 Partner (residence) visa (the “visa”) on 18 July 2011.
Mr Saleh was married to his first wife, an Australian citizen, in early 2008. She was the niece of the wife of Mr Saleh’s uncle, who also lives in Australia. The marriage ended and Mr Saleh was granted a permanent spouse visa on the basis that he had experienced family violence.
Soon after his marriage ended, Mr Saleh began suffering from depression.
Mr Saleh’s troubles continued when he was seriously injured in a motor bike accident in November 2011. This was his second motorcycle accident, having previously been injured in Lebanon when he was 18. After the second accident, Mr Saleh was hospitalised. He suffered considerable pain, was heavily medicated with pain killers and his pain has been ongoing.
In the words of Mr Saleh’s solicitors, all of this resulted in him being “in a dark place”.
Mr Saleh began a relationship with another woman. At around this time, Mr Saleh began to use illicit drugs. He became addicted to methamphetamine (ice) and also used marijuana.
Mr Saleh converted to Christianity in mid-2012.
Mr Saleh’s new partner’s family did not approve of the relationship. In December 2012, there was an argument that ultimately resulted in criminal charges against Mr Saleh and a conviction (discussed below). The relationship ended and Mr Saleh’s physical and mental health further deteriorated. He remained addicted to drugs and this, he claims, lead him to commit various property related offences.
In February 2014, Mr Saleh pleaded guilty to and was convicted of a series of criminal charges including:
·     Make Threat to Kill (2 charges);
·     Threat to Destroy/Damage Property (3 charges);
·     Burglary (three counts);
·     Theft (2 charges); and
·     Intentionally Damage Property; and
·     Intentionally Destroy Property (ST5 at 204).
Mr Saleh was sentenced to 12 months’ imprisonment for these offences and fined $1,500. He subsequently appealed this sentence to the Victorian County Court. His sentence was upheld on 14 March 2014 (ST6 at 352).
In May 2014, Mr Saleh was granted parole. His parole was then revoked (in mid-October 2014) for non-compliance after he returned a positive urine screen for drug use. Mr Saleh was returned to prison and served the remainder of his sentence. On 16 May 2015, Mr Saleh was transferred from prison to immigration detention. He has been in detention since that time.
On 22 April 2015, Mr Saleh’s visa was cancelled under s 501 (3A) of the Migration Act (the “Original Decision”). The visa was cancelled mandatorily on the basis that Mr Saleh had a “substantial criminal record” and, as such, did not pass the “character test” as that term is defined in the Migration Act. Specifically, it was found that Mr Saleh had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. Mr Saleh was formally notified of the cancellation of his visa on 22 April 2015 (T4 at 72).
On 17 April 2015, Mr Saleh lodged a “Request for Revocation of a Mandatory Visa Cancellation” under s 501 (3A) of the Migration Act with the Department of Immigration and Border Protection (the “Department”).
On 14 January 2016, a Delegate for the Minister refused to revoke the Original Decision (the “Delegate’s Decision”) (T2 at 14). The Delegate determined that Mr Saleh did not pass the “character test” and was not satisfied, applying the principles outlined in A Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“Direction No 65”), that there was “another reason why the original decision should be revoked.” In the circumstances, the Delegate refused to exercise their discretion to revoke the Original Decision to cancel Mr Saleh’s visa.
By application filed on 19 January 2016, Mr Saleh applied to this Tribunal for review of the Delegate’s Decision (T1).
ISSUES
The issues for determination by the Tribunal are:
(i)whether Mr Saleh passes the “character test” as that term is used in s 501(6) of the Migration Act; and
(ii)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in Mr Saleh’s favour (i.e. whether the mandatory cancellation of his visa should be revoked by the Tribunal standing in the Minister’s shoes).
EVIDENCE
General
This matter was heard in Perth on 7 March 2017. Mr Saleh appeared in person with the assistance of an interpreter. Mr Saleh was represented by counsel, Mr Aleksov, who appeared via video link from Melbourne. Mr Aleksov was instructed by Ms Ford. The Minister was represented in Perth by Mr Gerard from the Australian Government Solicitor. The Tribunal thanks Ms Ford and Mr Gerrard for their invaluable assistance both prior to and during the hearing of this matter.
The evidence before the Tribunal consisted of:
·A 111 page set of T-documents (T1 to T4) (R1);
·A 365 page set of Supplementary T-documents (ST1 to ST6) (R2);
·A Statement of Facts, Issues and Contentions from Mr Saleh’s solicitors (referred to as “Written Submissions”) dated 25/8/16 (A1);
·Written Submissions on behalf of Mr Saleh in relation to international non-refoulement obligations dated 3/3/17 (A2);
·A DFAT Country Information Report on Lebanon dated 18 December 2015; A BBC Article dated 27/6/16 referencing an attack on a Christian Village in Lebanon; A Kataeb News article dated 2/6/16 on the rise of ISIS in Lebanon; A World Health Organisation Report on Health Care Services in Lebanon (A3);
·A statement from Mr Saleh dated 25/8/16 (A4);
·A statement from Mr Robert Munro of Prison Fellowship dated 20/8/16 (A5);
·A letter from David Shaw of Prison Fellowship dated 3/3/17 in relation to drug and alcohol rehabilitation support for Mr Saleh (A6);
·A statement from Lorraine and David Shaw dated 3/3/17 regarding accommodation and employment support for Mr Saleh (A7);
·A supporting letter from St Mary's Outreach Services (A8);
·A report by Counsellor Rory Ford dated 3/3/17;
·A letter from David Shaw dated 18/08/16 in relation to Mr Saleh’s good character;
·A letter from Lorraine Shaw dated 18/08/2016 in relation to Mr Saleh’s good character;
·A Statement of Facts, Issues and Contentions from the Minister dated 10/10/16; and
·Further written submissions from the Minister in relation international non-refoulement obligations dated 2/3/17.
The Tribunal has reviewed all of the material before it and highlights all relevant materials below.
CONSIDERATION
(i) Does Mr Saleh pass the Character Test?
The Tribunal must first consider whether Mr Saleh passes the “character test” as that term is defined in s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (b) or (c); or
… and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
Section 501(6) of the Migration Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added]
Section 501(7) of the Migration Act relevantly provides;
(7)For the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more. [Emphasis added]
It is common ground that:
· as a consequence of receiving a sentence of a term of imprisonment in excess of 12 months – namely, a 12 month term of imprisonment for various offences – Mr Saleh has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act; and
· as Mr Saleh was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
On the evidence before it, the Tribunal finds that Mr Saleh does not pass the character test as that term is defined in the Migration Act.
(ii) Should the Tribunal Revoke the Decision to Cancel Mr Saleh’s Visa?
Having determined that Mr Saleh does not pass the character test and was liable for mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of Mr Saleh’s visa should be revoked by the Tribunal sitting in the Minister’s shoes.
Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the original decision to cancel a visa if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked. [Emphasis added]
The central question before the Tribunal is whether there is “another reason” to revoke the original decision to cancel Mr Saleh’s visa. In considering Mr Saleh’s request for revocation of the cancellation of his visa, the Tribunal must comply with Direction No. 65: see s 499(2A) of the Migration Act. Direction No 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It states:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)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 only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No 65 provides guidance to the Tribunal on how to determine whether the mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 7(1) states:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No 65 further states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case ...
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4)Primary considerations should generally be given more weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction No 65 sets out considerations that are relevant in relation to Mr Saleh’s matter when exercising the discretion in s 501CA(4) of the Migration Act to revoke the mandatory cancellation of his visa.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
i.Protection of the Australian community from criminal or other serious conduct;
ii.The best interests of minor children in Australia; and
iii.Expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a) The nature and seriousness of the person’s conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(a) Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. They include:
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeat offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

The evidence shows that Mr Saleh has the following criminal record (T4):

Court Court Date Offence Court Result

Melbourne County Court

14 Mar 2014

Possess Amphetamine Fail to Answer Bail

Shop Theft - Less Than $600

Dishonestly Undertake in Realisation Stolen Goods

Handle/Receive/ Dispose of Stolen Goods

Theft - From Shop

Make Threat to Kill (2 charges)

Threat to Destroy/Damage Property

Burglary (3 Charges)

Theft (2 Charges)

Intentionally Damage Property

Intentionally Destroy Property

On all charges: Convicted. Fined aggregate $1,500.

On all charges: Imprisonment for aggregate 12 months

Pending Charge

20 Feb 2014

Possess Drug of Dependence - Prescription Drug

Attempt Theft - From Shop

At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.

Criminal Damage (Intent Damage/Destroy)

Handle/Receive/ Retention Stolen Goods

Deal Property Suspected Proceed of Crime

Pending Charge 15 Sep 2013 Possess Controlled Weapon Without Excuse At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.

Although Mr Saleh claims that he does not recall committing these crimes (because he was under the influence of drugs) he does not deny that he committed them. He does, however, seek to explain his behaviour and conduct by offering the following summary of what his life has been like since arriving in Australia in 2007. Specifically, in a written statement dated 25 August 2016, Mr Saleh details a difficult childhood and the problems he faced in his first marriage and after his second relationship failed. Relevantly, he states:
5.… I supported my family financially as much as I could however when I was around 18 years old I was involved in a serious motor bike accident and this led to me being hospitalised for 3 months and during this time I could not work. After I was discharged from hospital I had a big hospital bill to pay and we did not have money to pay it. We went to some charity organisations to help us pay the bill but nobody could assist so in the end my maternal grandmother sold the only piece of land she had to pay the bills.
6.I sustained a lot of injuries from this accident including permanent disfigurement and scarring of my torso and lower body. These injuries left me with chronic pain which I have had to manage since then.
Moving to Australia
7.I had one uncle … who was living in Australia and he always tried to help my family. In 2007 he organised for me to come visit him in Australia for a few months. During this time, I stayed with my uncle and his family in his home in Melbourne. He introduced me to my now ex-wife ... who was the niece of his wife. [She] showed me around Melbourne and we got to know each other. After a little while [she] and I decided that we liked each other a lot and wanted to get married. …..
8.I went back to Lebanon and we applied for a prospective marriage visa. Once this was granted I moved to Australia and we got married in 2008. ….
…
11.Our relationship was very difficult and tumultuous. … For two years I stayed in the relationship enduring physical, emotional and financial abuse.
…
13.After this I applied for permanent spouse visa on the basis that I had experienced family violence. I went through a Family Violence Assessment at Centrelink in 2011 and they confirmed that I suffered family violence ….. I was then granted a permanent subclass 801 visa. I have spoken to doctors, social workers, psychologists and psychiatrists over the years to help me deal with what happened during my marriage....
14.Following the breakdown of my marriage … I had bad depression. I felt like a failure and still didn’t understand why [first wife] and her family hated me so much. It was very difficult during this period and I tried to get through it the best I could with the support of my uncle … and his family. I lived with them after my separation and continued working as a tiler.
15.In around November 2011 I was involved in another motor bike accident. I was hospitalised again at the Royal Melbourne Hospital for three days and this brought back terrible memories of my last accident. The injuries I sustained were not as a bad as the first time but I was told that I had a soft tissue hand injury and a closed brain injury. I do not know further details of these injuries.
Relationship with [second partner]
16.I met [second partner] in 2011 or 2012 at a nightclub ….. I have trouble remembering dates and years especially during that time of my life. [Second partner]... and I hit it off quickly and began dating. We fell in love but at the same time I became involved with some bad people who introduced me to illicit drugs. I do not know why I started taking drugs but all I know is that I was in a very dark place. I was feeling very vulnerable and lonely as I was still recovering from the breakdown of my marriage and trying to deal with all the horrible things that were said and done to me during that time.
17.[Second partner’s] family were not approving of our relationship because of my religious background. This lead me to begin learning about the Christian faith and I connected to it very much. It seemed much more peaceful than Islam and I liked its teachings. I converted to Christianity in approximately August 2012. I was baptised in a Catholic church ….. [Second partner] was there but no one else. Since being in detention I have received another blessing by a Father because I wanted to reaffirm my commitment to God. I also got a tattoo of a crucifix on my forehand to display my faith. None of this mattered to [second partner’s] family and they continued to come between us.
18.[Second partner’s] father was particularly upset about our relationship ….. [Second partner’s] father and I had many arguments and he continuously told me that I was not good enough for his daughter. This was very hard for [Second partner] because she was stuck in the middle of us. Eventually [Second partner’s] father told [second partner] that she had to choose between me and her family and she chose her family. It was a hard decision for [second partner] because she still loved me and I was very upset that her family had put her in the position of having to choose. After this we had a big argument in her family home on 31 December 2012. I said some things during this argument that I deeply regret and as soon as I said them I left their property. [Second partner’s] family took her on holiday after this fight and I never saw her again.
Criminal offending
19.After [second partner] and I separated my mental and physical health got even worse. I was working as a sub-contractor for … but after the break up I stopped going to work. I was so upset and lonely without [second partner] ... and I couldn’t face work.
20.Things got out of control quite quickly after me and [second partner] broke up. The only people I had contact with and hung out with were the people who gave me drugs. I moved around a lot during this time and slept on other people’s couches. I did not stay in touch with my uncle because he did not approve of the people I was spending time with and did not want me to use drugs.
21.During this time, I used illicit drugs like ice and heroin even more. My terrible drug habit caused me to do things that I would never normally do. I committed crimes to finance my habit and I am deeply sorry for this.
22.I began stealing from people to try and get money to fuel my drug habit. I never wanted to hurt anyone and in my normal state I would never steal something that wasn’t mine. However during 2013 I was controlled by my drug habit and that made me do things like steal a motor cycle, petrol, commit petty theft and other things that I am not proud of.
23.On Christmas day in 2013 I was high and not myself. I broke into some houses and stole items before I collapsed outside one of the houses from a drug overdose. I was taken to hospital and when I was discharged the following day I was arrested by the police. They took me to the police station but I was in such a bad state that a medical officer said I was not in a position to be interviewed.
24.I was charged with a number of offences including those noted above but also others that occurred in 2012 and 2013. The most serious charges I was facing related to the residential burglaries and the threats to [second partner’s] family made during our last encounter. As I said above I deeply regret the things I said to [second partner’s] family and I never had any intention of carrying out those threats. I was upset and hurt because I was losing [second partner] and while this is no excuse to threaten physical violence I never intended to cause any harm to [second partner] or [my first wife’s] family.
25.I pleaded guilty to the offences I was charged with. On 14 February 2014 I was convicted and sentenced by Broadmeadows Magistrates Court in relation to a variety of charges which had occurred over the past 18 months and was ordered to undergo an aggregate sentence of 12 months imprisonment. I appealed the sentence only to the County Court however the same sentence was ordered.
26.I did not recall doing a lot of the crimes that I was accused of but this is because I was high on prescription and illicit drugs for most of that time. It is very hard for me now to think of the things that happened which led to my imprisonment. Drugs had a terrible influence on my life and caused me to make many poor decisions which I know affected innocent people. I am very sorry for my offending. I take responsibility for what I did and recognise that it hurt people. I know that drugs are not an excuse for my offending, but using drugs was the reason why I committed those offences.
27.My time in prison was very difficult. I did not cause any trouble with the other inmates or with the prison staff however I struggled a lot personally. I was still battling severe depression as well as dealing with chronic pain from the injuries I sustained in the motor bike accidents. In addition to this I was also experiencing withdrawal symptoms from the drug ice. I have tried to commit suicide more than once and this resulted in being hospitalised for psychiatric treatment. The reason that I have repeatedly tried to kill myself in the past is because I was scared about my future and the possibility of going back to Lebanon and being harmed my family. I was also struggling to deal with the physical pain and thought that ending my life was the best option because then I wouldn't be in pain anymore. I now know that there are better ways to deal with the chronic pain and suicide is not the answer.
28.My prison sentenced ended on 16 May 2015 and I was then transferred to immigration detention where I have been since then.
29.I sincerely regret the choices I have made in the past and I will not make the same mistakes again. If my visa is not cancelled and I am able to stay in Australia I am going to stick to the same pain management plan that the detention health staff have set up for me in Australia. I will continue to take anti-depressant tablets because they help to stabilise my mood. I know that there is no need to take illicit drugs and I believe I have the strength to work through any future problems without drugs. I have learned many lessons from imprisonment and detention like the importance of work and friendship. If I am allowed to stay in Australia I want to live in Perth so that I can continue to be involved with my bible study group and have the support of my friends, I want to have a fresh start and I can get that in Perth. I will visit Melbourne so that I can see my family but I think it is best to be somewhere where I do not have so many bad memories.
In addition to Mr Saleh’s statement of 25 August 2016, the Tribunal notes a further statement from Mr Saleh (undated, T4 at 54) that relevantly provides:
In 2006, I visited my uncle for a 3 month holiday. During my holiday I met my future wife. After that I had gone back to Lebanon for 5 months. Then in 2007 in came back to Australia a received a spousal VISA. I commenced working at a tiling business …. I continued to work until in 2010. In 2011 I separated from my partner who I really loved. I then went to see 2 psychiatrists and they prescribed me with Xanax and Anti-depressant as I started cutting myself. …. I began to live separately and continued tiling. In 2012, I met my new girlfriend.... The relationship … helped me through the break up with my ex-wife. During this time I began nightclubbing and associating with the wrong people. This is when I began to use drugs started using ice with my prescription meds. Our relationship began to be serious even though I was hiding my habit from her. …. In 2013, I met the parents we had disagreements due to my religion Islam from the Shia sect. I really wanted to make it work with [second partner] ... So to show commitment to [second partner], I converted to Christianity to make it work with her and her parents. To prove my sincerity I tattooed a crucifix to my forehand to help with relationship between her and parents. …
Mr Saleh then details the breakdown with his second partner’s father and details an argument with him. He continues:
I was served an AVO. After that we stayed together 3 weeks. Her Uncle's came and picked her up took her home. …. She called me up after that and said she wanted to separate because I don't want to cause you any problems because of your AVO I don't want to cause you any issues. Her family sent her on a holiday. I have never seen her since. I had a court case for the Intervention order. But I never went to court because I was a mess on Xanax and drugs and lost the form and date of the court case. At this stage I lost myself due to the breakup and the cocktail of drugs. Then I tried to kill myself. Someone rang the Ambulance in the share house. Ambulance came and took me to …. mental institute for a week after release I tried to overdose and kill myself with half a bottle of pills and ice. I was unconscious on the street and woke up in …. hospital. Police came to hospital and took me to station. Warrants issued on me and I was arrested. I was in [mental health hospital] cells and my female lawyers told me to plead guilty and that I would get a CCO. She was not aware of my immigration status and the fact that I would be deported if I was sentenced to more than a year jail. Plead Guilty to things I didn't want too but because of my “Broken English” there was confusion. [sic]
Mr Saleh seems to suggest above that he should not have been found guilty of the offences for which he was convicted and that he only pleaded guilty because his lawyer told him to. As explained most recently by Senior Member Walsh in Passells and Minister for Immigration and Border Protection [2016] AATA 1033, the Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; 102 ALR 19 at 22; Mlinar and Minister for Immigration and Multicultural Affairs [1997] ALD 771; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.
In relation to the seriousness of Mr Saleh’s criminal conduct, the Tribunal also notes submissions made on his behalf by Victoria Legal Aid dated 7 December 2015 (T4 at 72) as follows:
Nature and seriousness of the conduct
The relevant offences which engage the mandatory cancellation power under s.501 (3A) are those that attracted the aggregate sentence of 12 months imprisonment on appeal to the County Court of Victoria on 14 March 2014.
These include three residential burglaries and associated thefts committed in Meadow Heights during a limited period on 25 December 2013 and which preceded his collapse from drug overdose and admission to hospital. The other offences which attracted the aggregate sentence of 12 months imprisonment were two charges of Make Threat to Kill and an associated charge of Threat to Damage Property, arising out of a single brief incident on 31 December 2012 in which he threatened the parents of his then girlfriend in the context of a family argument ….
The imposition of immediate imprisonment is an indication that the court treated the offences as serious given Mr Saleh had no prior history of imprisonment. However, the length of the term of imprisonment together with the order that the sentence imposed was an aggregate, is an indication that the objective seriousness of the offending was very far from the upper level of seriousness for the type of offence. It is conceded that the circumstances of the offending reflect poor behaviour regulation. This is very likely to have been influenced by Mr Saleh's illicit substance use combined with abuse of prescription medication because of poorly managed chronic pain. The offending appears spontaneous and there is no indication of planning or premeditation that would place the offending in a more serious category. There is no evidence of actual violence or any attempt to carry out the threats made to [his first wife’s] family. He in fact left their property immediately after making the threats. The burglaries approximately 12 months later, while committed on residential properties, appear the product of a single “spree” in which Mr Saleh was mentally disordered end likely to have been under the influence of drugs which caused his collapse and hospitalisation.
It is submitted that while reflecting poorly upon Mr Saleh's character, the offending is not at such a sustained and serious level that would warrant the cancellation of his visa as a necessary consequence. He does not present with a long record of criminal offending or as a person with a recidivist history of serious criminal offending. Mr Saleh's offending is explicable, whilst not excusable, in the context of a serious decompensation in his mental state in the period 2011 to 2013. Likewise his inability to comply with the conditions of his parole order in 2014. He has not offended since 25 December 2013. There is no allegation that he breached the conditions of his parole order by re-offending. The reason for the revocation of his parole order was the return of positive urine screens. The impact of his chronic pain condition and its causal nexus to the index offending is relevant and should not be underestimated by the decision-maker in determining the seriousness of the offending in the context of his revocation request.
...
Nature of Harm
Our primary submission is that while the Index offending was objectively serious, it was not so serious that it justifies the cancellation of his visa. Our submissions made about the seriousness of the offending above are relied upon.
The evidence of Mr Saleh's instability and resort to drug seeking and self-harming behaviour, particularly in custody and Immigration detention centre environments where access to strong pain medication has been limited, is illustrative of the resistance of chronic pain to conventional medical treatment. It is also Illustrative of the acute damage done to a sufferer's mental state by neurogenic pain. These are factors that should properly mitigate the finding about the overall seriousness of the index offending.

Finally, in a Statement of Facts, Issues and Contentions dated 25 August 2016, solicitors for Mr Saleh contended as follows in relation to the seriousness of his offences:
22.The applicant’s conduct seriously interfered with the perception of safety of individuals, and with their security of property. Whilst serious matters, these sit at the lower end of the spectrum in terms of “harm” to the community. No person suffered physical violence, there was no abuse of power over vulnerable persons, nor any corruption of morality. The offences occurred in a context where the applicant was a victim of family violence (with its well-known insidious deleterious effects) (threats to kill) and where the applicant was addicted to drugs and offended for the purpose of feeding the addiction.
24.It is also important to notice that the applicant is in some measure a victim of his own drug taking. He was led into the habit by others, did not deal in drugs, and the property offences were committed for the sole purpose of feeding his addiction.
25.There is no evidence to indicate that the victims of the applicant’s offending have suffered any sustained injury or harm. The offending is of such a nature that one can safely expect that the victims, though likely to have been seriously upset for a time, would ultimately make a full recovery.
Counsel for the Minister, in turn, in a Statement of Facts, Issues and Contentions dated 10 October 2016 contended:
19.Relevantly, in considering the nature and seriousness of the non-citizen’s conduct to date, decision-makers must have regard to factors including, relevantly:
19.1.The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously (13.1.1(1)(a))
19.2.The sentence imposed by the courts for a crime or crimes (13.1.1 (1)(c))
19.3.The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness (13.1.1(1)(d))
19.4.The cumulative effect of repeated offending (13.1.1 (1)(e)).
21.The applicant’s offending includes violent offences which are viewed very seriously. In relation to the applicant’s conviction for 2 charges relating to the Threats to Kill, the offence occurred on 31 December 2012 and involved threats to kill to member of the [first wife’s] family who had invited the accused to their house to discuss a financial matter. ...
22.In relation to the offences involving Threats to Kill and the other offences for which the applicant was convicted in March 2014, the Magistrates’ Court ordered that the applicant serve an aggregate sentence of 12 months’ imprisonment for the most serious charges, being the residential burglaries and offences committed against the [first wife’s] family. The sentence was upheld on appeal in the County Court. In late May 2014, the applicant was released on parole, but parole was revoked on 15 October 2014 for non-compliance after the applicant returned a positive urine screen for drug use.
23.The applicant has a history of not complying with court orders, including 3 outstanding warrants for his arrest for failing to appear, 2 summons and 1 bail. He continued to commit serious indictable offences whilst on bail. The applicant concedes that on one occasion relating to the personal safety intervention order, he did not go to court because he “was a mess on Xanax and drugs” and further that, he tried to overdose and kill himself with half a bottle of pills and ice.
24.The respondent submits that the applicant’s offending is serious in nature and includes offences of violence. The imposition of immediate imprisonment is an indication that the court treats the offences as serious. While the applicant submits that no personal harm came of the threats to kill, the violent offences can still be viewed as objectively serious. Further, the link between the applicant’s drug addiction and offending conduct cannot be said to be a “medical issue” as opposed to a “character issue” as submitted by the applicant. What is relevant to the issues to be determined is that there is a clear nexus between the applicant’s drug use and his offending conduct and the associated risk of harm to the Australian community should the applicant reoffend in a similar manner in the future. Further, the applicant’s breach of parole, as a result of a positive drug test, and failure to answer to bail, are indicative of a pattern of behaviour which demonstrates the applicant’s inability to comply with court orders, by reason of his drug addiction or otherwise. It is also submitted that regard should be had to the cumulative impact of the applicant’s offending in assessing the objective seriousness of the offending.
In determining whether Mr Saleh’s criminal conduct can be viewed as serious, the Tribunal also notes the sentences imposed by the courts for his crimes. No sentencing remarks were made available from the Victorian Magistrates Court in relation to the imposition of a 12 month prison sentence. However, the Tribunal notes the transcript on appeal to the Victorian County Court in relation to the seriousness of Mr Saleh’s crimes (T6). The sentencing remarks of Judge Taft demonstrate how serious His Honour viewed Mr Saleh’s criminal conduct:
HIS HONOUR: … I find it hard to conceive that such a lenient sentence was given, given the objective gravity of the offending itself …
…
HIS HONOUR: Can I say to you quite candidly, when I read the summaries, and particularly with reference to the house that’s been ransacked…
MS WOODWARD: Yes, it’s alarming.
HIS HONOUR: Were Mr Saleh to be before me in this court on an offence of that sort, there would have to be an extraordinarily compelling plea material to get a sentence that was so merciful…
…
HIS HONOUR: The difficulty here, quite candidly, is that the gravity, the objective gravity, of the offending is so great …
… It’s the objective gravity of the offending and the absolute refusal to comply with the law. He’s picked up driving whilst unauthorised on 11 May 2013, 26 May again, 12 July again, 29 July again. Now, one can put the traffic offences to one side, it’s the burglaries on domestic homes
…
HIS HONOUR: and the wanton destruction
…
HIS HONOUR: that does seem to me to demand a prison sentence of the sort that has been imposed. I repeat again if people burgle domestic homes and ransack them, I will almost always, and depending upon their particular circumstances, impose a significantly longer term of imprisonment than that imposed upon your client.
…
HIS HONOUR: it may be that he was destitute and without a home. It’s one thing to break into a home and steal cash or some property, but to ransack a home is quite another.
…
HIS HONOUR: … I will say to you that I regard the sentence imposed by the magistrate as a most merciful sentence, notwithstanding the considerations that you've raised…
…
HIS HONOUR: Certainly. Mr Saleh, I'm told by Ms Woodward, who has said everything possible that could be said on your behalf, that your life has come unstuck following the collapse of your marriage. You've been hopeless and you've been using ice. You may not have any memory of ransacking the private home that you burgled, but let me say to you that if you had come before me having ransacked a home which you'd broken into, you would have been looking at a lot longer sentence.
Just imagine your home being broken into and smashed up. You wouldn't like it. The community doesn't like it and the courts don’t like it either. I have to say to you the sentence imposed was, in my view, a merciful sentence. I appreciate that things have not been easy within the prison system and I deeply regret it. That you should come to this court sporting a bruise, which I can see from back here, having been assaulted, that you're moving from prison to prison is most unfortunate.
I'll do what I can to try and ensure at least you can get some courses and enrol in something that will assist your prospects of getting parole. But ultimately, if you burgle homes and if you both burgle and ransack them, then you are going to be in bigger and bigger trouble when brought before courts in the future.
Now, somehow - and I know it’s easy for me to say and it’s a lot easier to do - but you're going to have to get your life in order and do something about ice because let me give you an example. This week I’ve had a young man in front of me who’s used ice. He’s ran over two people and he’s looking at many, many years in gaol.
So if you use ice, you are very likely to commit serious criminal offences which will be rewarded by very significant terms of imprisonment. So when you do get parole, you need to try as best you're able to turn your life around.
At the very least, don’t use ice, also don’t drive. The orders, as I’ve indicated, of the Magistrates’ Court are set aside. The same order is imposed and pre-sentence detention pursuant to section 18(4) of the Sentencing Act is reckoned as 78 days as of now and will be ordered as part of the sentence to be served.
The Tribunal notes that in considering the nature and seriousness of Mr Saleh’s criminal offending, offences that are violent in nature are viewed seriously.
The Tribunal notes submissions made on Mr Saleh’s behalf that although Mr Saleh’s conduct “seriously interfered with the perception of safety of individuals, and with their security of property” these matters “sit at the lower end of the spectrum in terms of ‘harm’ to the community”. The Tribunal also notes the contention that “there is no evidence to indicate that the victims of the applicant's offending have suffered any sustained injury or harm. The offending is of such a nature that one can safely expect that the victims, though likely to have been seriously upset for a time, would ultimately make a full recovery.” The Tribunal also notes that these offences occurred in a context where Mr Saleh was a victim of family violence and Mr Saleh was addicted to prescription and illicit drugs and offended for the purpose of feeding his drug addiction.
The violence Mr Saleh experienced undoubtedly scarred him emotionally and resulted in him spiralling into drug addiction – drug addiction that, in turn, lead to the crimes for which he was found guilty and sentenced to a term of imprisonment. While the Tribunal expresses considerable sympathy for Mr Saleh, the Tribunal does not accept that these facts diminish the seriousness of what occurred.
Mr Saleh’s offending includes offences that can indeed be viewed objectively as violent and hence serious. In relation to his conviction for 2 charges relating to the Threats to Kill, the offence occurred on 31 December 2012 and involved threats to kill members of his first family. In relation to these offences and the burglary offences for which Mr Saleh was convicted in March 2014, the Magistrates’ Court ordered that Mr Saleh serve an aggregate sentence of 12 months’ imprisonment for the most serious charges, being the residential burglaries and offences committed against his first wife’s family. The sentence was upheld on appeal in the County Court by Judge Taft and His Honour makes it quite clear just how serious he viewed Mr Saleh’s criminal conduct. The Tribunal agrees with His Honour’s assessment in that regard. The sentence Mr Saleh received and the comments made in that regard evidence the seriousness of his offending. Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of Mr Saleh’s visa.
Before this Tribunal, Mr Saleh indicated that he had no memory of what had occurred. He did, however, indicate that he was sorry for what had happened. The Tribunal accepts that Mr Saleh does feel remorse for his past conduct. Despite this, the nature of Mr Saleh’s violent offences reflect a degree of recklessness toward the well-being of the Australian community that cannot be excused or dismissed. The fact that he was drug addicted at the time his crimes were committed will arguably be of little comfort to those victimised by his conduct.
Mr Saleh’s offending raises significant concerns about the safety of the Australian community should the decision to cancel Mr Saleh’s visa be revoked. His crimes of violence are particularly serious and weigh heavily against revoking the decision to cancel his visa.
(b) The risk to the Australian community should further offences be committed
Paragraph 13.1.2(1) of Direction No 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In relation to the risk to the Australian community should Mr Saleh commit further offences or engage in other serious conduct, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 25 August 2016 solicitors for Mr Saleh relevantly contended:
17.After some difficult times whilst in prison and in immigration detention, the applicant has transformed his life. He has beaten the addiction and has started to contribute positively to the community. He has resumed contact with his family in Australia and speaks with them regularly.
18.The applicant has developed substantial insight into his offending, is remorseful and has taken substantial steps towards rehabilitation. He has also developed substantial insight into his past drug-taking behaviour, and developed strategies to cope with the stressors that provoked that behaviour in the first place.
23.There is now minimal risk of the applicant re-offending. It is clear that his offending was the product of a drug addiction and that he is now well along the road to recovery. He has developed techniques to manage the stressors provoking his initial drug use, has disassociated with the persons who supplied him drugs, and the situation is under control, if the applicant were allowed to return to the community, he would live in Perth and be involved in a church group. This contact would ensure that his recovery from addiction is not jeopardised, and that he has available support to avoid returning to drug use. Assuming that the applicant avoids drug use, there is no evidence to support the existence of any risk of him offending in any way in the future.
In this regard, the Tribunal also notes submissions made on Mr Saleh’s behalf by Legal Aid Victoria dated 7 December 2015 (T4 at 81):
It is submitted that a genuine and realistic assessment of Mr Saleh's record and his current circumstances must result in the conclusion that provided he is properly supported with appropriate medical treatment for his medical condition, he does not present an unacceptable risk of offending against the Australian community.
As noted above, there is no evidence that his offending is the product of entrenched anti-social attitudes. The Department of Immigration is in possession of information that indicates he has a strong work record and work ethic. His offending was spontaneous; disordered and relatively confined in terms of time frame. It can be causally linked to his chronic pain condition and his mental decompensation.
It is submitted that any assessment about risk of re-offending must take into account his medical condition and its sequelae. Chronic pain is a complex condition and there is sufficient evidence to find that the condition has been made arguably worse by the limitation on medical treatment available in the custodial and detention centre environments and the stress of detention generally.
The Tribunal also notes that in a written statement dated 25 August 2016, Mr Saleh states:
Immigration Detention
30.Like prison, being in detention has been very difficult on my physical and mental well-being. At the beginning it was hard for me because I was feeling very low and still in a lot of pain that could not be properly managed. As a result I tried to commit suicide again, first by hanging myself and then by cutting my throat with razor blades. I was again hospitalised and released back to into detention.
31.I have had ongoing health issues however in recent months things have been much better. While I am still managing chronic bone and muscle pain amongst other health issues I am feeling more myself. I have not used any illicit drugs in almost 12 months and that has helped me to regain control of my life. I will never use illicit drugs again because I have developed strategies to cope with the stressors that led me to taking drugs in the first place. This includes sticking to the pain management plan set out by my doctors, regularly seeing a psychologist and keeping myself busy with work and by being involved with my church group.
32. I have developed friendships with fellow detainees and also have good relationships with the detention staff. I am very anxious about my visa being cancelled and being forced to return to Lebanon however I do my best in detention to distract myself. I do this by cutting the hair of the other detainee’s and being involved in weekly bible study. There are a group of volunteers from ‘Prison Fellowship’ who come to the detention centre and conduct a bible study with detainees. I have been involved with this bible study since approximately August 2015 and this has helped me develop my faith further. It has also allowed me to make great friendships and this has improved my mental health a lot. I am very happy to experience all this love and trust from the Church people and I can’t even imagine not being able to experience it.
33. l am receiving a lot of support from the IHMS team at the detention centre. I am still on a lot of medication to assist with pain management and my depression. I take approximately 6-8 tablets per day as prescribed by my doctor. I see a mental health nurse every day, a psychologist every week, a psychiatrist every fortnight (Dr William) and a GP whenever needed. I have a good relationship with all of the people assisting me and am very grateful for their help.
34.I realise now that committing an offence places my whole life in Australia in jeopardy. I am determined not to let that happen again. I have worked hard to rebuild my life in immigration detention and I want to be able to prove that I can be a valuable member of the community again. I am grateful to the people that have given me a second chance and I hope to be given the opportunity to show that I can be a good person and contribute to Australian society.
35.My family have not been able to visit me in detention because they live in Melbourne and I am in Perth. We talk to each other a lot and I know they would like to visit me but it is hard because they have and [sic] work and school.
45.I am a different person to the person who was imprisoned over two years ago. Through God and the help of my friends and family I have changed and I will not do anything to harm anyone again. Most importantly, I will never use illicit drugs again and will use my best efforts to educate others about the dangers of using drugs.

Mr Saleh further writes in an undated statement (T4 at 54):
I would like to draw attention to my incarceration which I have been a model prisoner and have rehabilitated. Overcome my drug problem and learnt to avoid relapse. I have used my time in jail to get close to Jesus Christ my lord by attending church sessions. KAJROS course program which is a Christian program. I have learnt the skills to live a righteous Christian life away from drugs, alcohol and crime. Therefore, I believe if given a chance It is the will of Jesus Christ almighty that I've been given a second chance and born again will utilize my new life as an effective member of the community and a true follower of the lord Jesus Christ. [sic]
In this regard, the Tribunal notes that numerous letters have been written for Mr Saleh attesting to his good character and his prospects for a better future. Relevantly, the Tribunal notes a letter of Support from David Shaw of Prison Fellowship Australia (dated 18 August 2016) which provides:
I am very happy to write a Letter of Support for Hassan Saleh.
I first met Hassan not long after he arrived at the Perth Immigration Detention Centre during September 2015. At that time he appeared to be heavily sedated and was having trouble communicating and he was escorted 24/7 by Serco Officers.
Today, Hassan is a new man. Today he is a very happy, quiet man who goes out of his way to help and look after others.
Hassan from the outset of his time at Perth Immigration Detention Centre (PIDC) was keen to join our weekly programme.
As time has gone by, I have noticed Hassan has changed from a young man stressed by his circumstances, to a man relaxed, very aware of who he is and very keen to rejoin and give to Australian society.
I believe Hassan's troubles started when his marriage broke down and this, followed by his awareness that his employer was charging a high rate for Hassan to lay tiles (because of his high quality of work) and yet paying Hassan a lot lower rate which caused Hassan some financial pressure.
All the above combined caused Hassan to react poorly on occasion.
Hassan has told me of his previous challenges and how he tackled them. Today he says he would handle things very differently and is keen to get going in Australia with his new attitude and new approach to life and living.
I have also noticed how today Hassan is treated very differently by the Officers. He is respected because of his new attitude of helping other and because of this they are also very happy to help him.
Before, he appeared to be very grim faced, today when he smiles the whole room lights up....he is a new man. I believe Hassan has changed for the better.
I also believe that Hassan would make a very good contribution to Australian Society and would be very grateful if given that opportunity.
Hassan, as stated, is a very good tiler and through this trade would make a valuable contribution to the Australian workforce.
I also believe that Hassan has been rejected by his family as he has changed religion and returning to his Country would cause him a lot of problems with his family and Society in general.
I believe that Hassan's conversion to Christianity is genuine. Hassan is not the same man that he was when he committed the offences that led to his imprisonment. Hassan is a good person and is deserving of the opportunity to remain in Australia.
A letter of support dated 18 August 2016 was also provided by Lorraine Shaw of Prison Fellowship WA. Ms Shaw states:
I write this letter in support of Mr Saleh's application to be granted permission to remain in Australia.
I have known Hassan for almost 12 months since he arrived at the Perth Immigration Detention Centre.
Hassan attends a programme each week which is run by Prison Fellowship W.A. I am a volunteer with that organization and have been involved with the programme at the Perth Immigration Detention Centre for over 7 years.
When Hassan first came, to our programme he was obviously struggling with medical and other personal problems and was in a bad state. He has changed a great deal from that first meeting and now a very personable and likeable young man who is well respected by other detainees and the SERCO officers.
Hassan is a very hospitable person and seeks to help others wherever he can.
I have also visited Hassan on a personal basis and learnt about his past.
I understand Hassan did not receive a high level of education in Lebanon but became a tiler with a high standard of workmanship. This is the trade he worked at in Melbourne.
Hassan freely admits he has made mistakes and given the chance, he would do things differently next time and I believe he would contribute much to our Australian society.
It would be dangerous for Hassan to be returned to Lebanon and to his family who have disowned him for professing to be studying the Christian faith which he is very keen to learn about and is making good progress.
I respectfully request Hassan Saleh be granted the opportunity to remain in Australia.
A further letter dated 20 August 2016 was provided by Robert Munro, also from Prison Fellowship. He writes:
My name is Robert Munro and I am an Australian citizen, having been born and raised in Western Australia. I am a husband, father and grandfather who has been very involved in community activities with my family throughout my life.
I have been employed in various aspects of the mining industry for the past twenty five years and am currently the coordinator of the parts division for a company that manufactures drilling rigs for exploration.
My association with Hasan Saleh has been through my involvement with Prison Fellowship meetings at the Perth Immigration Detention Centre.
Over the time that I have known Hassan, he has always shown great respect for the people with whom he interacts and is extremely humble and servant hearted. He is a softly spoken man who takes care with his appearance.
Hassan shows appreciation for my commitment to visiting the centre by welcoming me enthusiastically and showing hospitality in the only way that he is able to and that is by preparing a cup of coffee for me. In our group meetings Hassan eagerly participates in discussions.
To the best of my knowledge, Hassan has adjusted well to a different lifestyle in Australia by embracing language and cultural differences. His positive attitude has been demonstrated by the fact that he has desisted speaking negatively or aggressively about the past circumstances that led to him leaving the land of his birth.
Based on what I know of Hassan's personality and what I know of other migrants' stories, I believe that Hassan would make a positive contribution to Australia. In my opinion, he would be absorbed into a community with others from his homeland, and within that fabric, his character and positivity would be recognised and appreciated.
I believe that it is Hassan's desire to be gainfully employed in order to realise the ambitions he has for his life.
It is further noted that Mr Saleh’s uncle has offered to support Mr Saleh should he have his visa reinstated and be released from detention (T4 at 56 and 109). Relevantly, he writes:
I own a company … with my partner … Our business has been operating for 7 years and specialises in automotive repairs on local and European makes of cars. We have one full time employee and we are hoping to expand our business and take on more staff in the future (at 109).
…
I am writing to you this letter in regards about my nephew Hassan Saleh who's Permanent Visa to remain in Australia was recently cancelled due to his offences. I would like to state that I am willing to offer and give my nephew, Hassan Saleh full care and support by supporting him with full time employment with my company, ….and accommodation at my residential home. I have been in touch with Hassan since he was transferred to Christmas Island and I am aware that he has been seeking a lot of help and care and is extremely sorry and regretful of his past offences that he has committed. I would like to ask the Department of Immigration to grant him back his Permanent Visa to remain in Australia by giving Hassan a chance to prove to you and most importantly himself to be a good citizen, I am his uncle willing to work with the Department of any arrangements made by the Immigration Department (at 56). [sic]
The Tribunal also received a further letter of support from David and Lorraine Shaw dated 3 March 2017 that reads:
My wife and I wish to state that we are happy to have Hassan stay at our house for an indefinite period should he be released into the Community.
We have known Hassan for 1 year 7 months.
During that time, we have met with him at least fortnightly, sometimes more often.
We have found him to be a changed young man who admits his mistakes and is keen to start a new life here in Australia.
We would also work with Hassan to find him employment as a Tiler (his previous trade) or whatever is available for him.
We have done this in the past with others and are fully aware of the commitment.
My wife and I will be overseas from 15th March until 19th May 2017 and therefore unable to have Hassan until after our return.
The Tribunal also received a letter from St Mary’s Outreach Service (undated) that reads:
It is with pleasure that I introduce to you St Mary's Outreach Service (SMOS) in its capacity to provide charitable support on behalf of Mr Hassan Saleh.
Over the capacity of about 6 months volunteers from our charity have been visiting Mr Hassan Saleh in Perth Immigration Detention Centre.
It is our hope, that if it pleases your Honour to release Mr Hassan Saleh back into the community that a dedicated team from our charity would be assigned to help him find suitable accommodation, meals and job opportunities as his profession as a tiler. It is our aim to serve the community and assist refugees onto their feet and integrate in WA to the benefit of the broader Australian community.
Who we are as a charity
St Mary's Outreach Service (SMOS) is a WA based, not-for-profit community outreach organisation, operated predominantly by Perth Christian volunteers.
Our ambition is to promote the needs and provide support to our fellow West Australians from across all ages and circumstances.
In all SMOS strives to respond to the needs of the community through;
•Helping rehabilitate prisoners and juveniles, whilst supporting families of incarcerated members of the community.
•Addressing the needs of refugees settling in Australia through housing and providing job opportunities and integrating into Australian society as valuable members.
•Outreach to the homeless by providing meals, clothing, and social support.
•Visiting the elderly in local nursing homes; assist seniors continue their independence at home, helping with shopping, getting around, and maintenance.
•Visiting the sick in Perth's hospitals, homes and supporting their families.
•Our Back2School Project, sponsors local low socioeconomic schools by donating breakfast, fruits and school supplies to underprivileged children; so they can be encouraged to attend school and improve their performance, goals and success for their future.
The Tribunal also notes a letter from Mr David Shaw on behalf of Prison Fellowship regarding available drug and alcohol support for Mr Saleh (dated 3 March 2017) that reads:
It has been suggested that should Hassan revert to Drugs and Alcohol again, it is important there be a support system available to him.
I have spoken with the: -
North East Metro Community Alcohol & Drug Service 4 Stafford Street, Midland.
…
I shared Hassan's history with them and they stated that they would happily and quickly accept Hassan into their programme should that ever be required.
Finally, the Tribunal received a written report from “Registered Counsellor” Rory Ford dated 3 March 2017, that reads:
Presentation
Mr. Saleh presented as stable in mood and affect, and despite his ongoing mental health concerns he presented with no current distorted perceptions, or concerns around active psychosis symptoms. While he appeared to have trouble recalling specific historical information around dates and periods of substance use due to past head injuries, with prompting he was able to provide sufficient information.
Purpose
The purpose of this assessment was to conduct a thorough forensic and Alcohol and Other Drug assessment to explore risk and protective factors for Mr. Saleh when considering his support needs post release from detention. This information is for the purpose of his Immigration Tribunal hearing and is to be kept strictly private and confidential.
Presenting Concern
Mr. Saleh is a 32-year-old Lebanese born man who moved to Australia in 2008 and is currently being held in immigration detention awaiting an appeal of a VISA cancelation. He was incarcerated for offences relating to theft, driving, drug driving and threats to kill with a release in May 2015 from prison to immigration detention. It appears that his offending occurred during a period of poly substance abuse, relationship issues and homelessness that were present in the year prior to his incarceration in prison in 2014. While he presents with no current substance issues in detention, it is apparent that he has significant pain management needs and mental health issues that are possibility being exacerbated in detention with the uncertainty of his release being in Australia or deported to his homeland where he fears isolation and inadequate physical and mental health services would decrease his capacity to cope in Lebanon.
Risk and Protective Factors
Protective factors include the late onset of his substance history and offending history. Mr. Saleh is a 31-year old man who presents with no substance history prior to the age of 27 and no offending history until the age of 29. He cited precipitating events linked to his substance use being a relationship breakdown and a work peer introducing him to cannabis and methamphetamines, while at the same time beginning to misuse his prescription medication for pain management.
He noted that perpetuating factors that continued to escalate his misuse of benzodiazepines included his ongoing pain management issues. However, stated that factors that increased his methamphetamine and cannabis abuse were his relationship issues, the desire for escapism and homelessness in the period of his offending in 2014. He made a direct link between his substance use and offending.
Hi [sic] most significant protective factor his [sic] current involvement with the Prison Fellowship program in Western Australia (involvement and planning confirmed by worker David Shaw by the writer). While Mr. Saleh has been in detention he had been involved with the Fellowship program on a fortnightly basis and in the last three months on a weekly basis. Mr. Saleh plans to remain in Perth post release from detention if allowed to remain in Australia to continue using this support and make a “fresh start”. The Fellowship confirmed that they would then be able to provide assistance in finding housing for Mr. Saleh as well as coordinate any treatment referrals and plans to support his integration in to Perth.
Relocating to a new area could also be seen as a protective factor as he cited only peers connected to drug use back in Victoria and a strained relationship with his only family in Australia being an uncle who also resides in Victoria.
Due to the direct link between his offending and past substance use, there does not appear to be any further identified risk factors in terms of re-offending if he does not relapse on to drug use. However, he does present with ongoing mental health concerns that would need to be managed in the community. He also has past links to pain management and substance use to cope, so further AOD counselling programs would most likely benefit Mr. Saleh to remain abstinent post release (thus decreasing his risk of reoffending).
It is recommended that any treatment planning around post release into the community must involve a complex care and dual diagnosis approach of mental health supports, pain management treatment and AOD counselling.
...
Legal History
He was incarcerated for 12-months including a period of five months on parole that he breached due to positive drug tests following drug lapses in the community. He has now been held in immigration detention where he has remained for approximately 15-months.
In relation to his offending it appears that his convictions of drug driving, theft of a motor bike, driving without a license (x5) and threats to kill were all committed in 2013/14 during his period of regular substance abuse.
He disclosed that he had limited memory of the details of his crimes as he had been substance affected on methamphetamines, cannabis and Xanax tablets at the time, adding that he had been asked to leave his uncle’s house due to drug use at the time and was homeless. He suggested that the theft offences were attempts to finance his drug use at the time. He stated that the offences were “out of character” and he had no history of offending prior to the onset of his substance issues.
Substance History
He presented the following substance history:
Methamphetamines
Recalling no substance history prior to 2011, he stated that he was working with a colleague who introduced him to the drug initially for stimulant effects at work. He stated that he enjoyed the escapism effects of the drug and began a pattern of smoking once a week with this friend. He noted that when his relationship broke down in 2013 he started to smoke on a daily basis to cope and noted that he had continued to smoke half a gram a day for approximately 12-months until his incarceration in prison in 2014.
Whilst out on parole for a five month period he noted that he linked back in with a peer for support, however, as he was a drug user he noted that he had three lapses on to the methamphetamines in that month that resulted in the breach of his parole.
Cannabis
After he began smoking methamphetamines in 2011 he was also introduced to cannabis via the same peer. He added that he had then enjoyed the way the drug helped him sleep and manage his physical pain. He notes he was smoking each night “a joint” where he noted that this pattern continued going through two grams a week until prison in 2014.
Benzodiazepines
He reported that he had accessed a GP in 2011 after a prior relationship break down as he was experiencing feelings of anxiety and panic. He notes that he was then prescribed Xanax pills for this condition. He admits that some days he was taking the medication as prescribed but would binge on between two and eight pills once or twice a week. He noted that again this was for escapism and management of physical pain that continued until prison in 2014.
Opiates
He was unclear about where he had become dependent on opiate medications after formally going on the methadone program in prison or whether this was when being placed on opiate medications at the beginning of his detention period. A prior report noted that he had been placed on pharmacotherapy for both pain management and possible misuse of opiates in prison in 2015. He notes that he had remained on the Suboxone (20mg) program for pain management in detention and plans to continue with this treatment post release.
He denied any history of substance use within detention, therefore screening tools around dependency were not applicable given the past use was over 12-months. However, if you looked at his level of poly drug use prior to incarceration in 2014 during the period of his offending it would be deemed as dependent use according to the DUTIT tool.
Alcohol and Other Drug (AOD) Treatment History
He reported that due to his lack of proficient English he was unable to be accepted in any AOD counselling or treatment programs in prison, however, whilst on parole he attended four sessions of AOD counselling at Youth Projects in Glenroy.
While he cited no AOD specific treatment available in prison, he noted that he has linked in with the Prisoner Fellowship in detention (confirmed involvement by David Shaw at Fellowship by the writer). It was also noted that they will assist with any referrals required as part of his treatment planning post release.
Medical History
He appears to have had two significant motor bike accidents with the first being in Lebanon in 1998 where he suffered injuries to the head and body where he was hospitalised for four months. The second accident happened here in Australia in 2011 where he reported to have injured his head, neck, leg and knee where he was hospitalized for two days. He described being in ongoing pain in his legs and back as a result. He noted that the pain would produce thoughts of self harm to end the pain that included a suicide attempt approximately one week before our assessment (see further details below in mental health history). Mr. Saleh also made a direct link to the abuse of cannabis and benzodiazepines in the past to his issues of pain management.
He notes that he was currently on medication for pain management including Lirica (nerve medication) and Suboxone (20mg).
His other medication relates to his mental health (see further below — Luvox l00mg and Olanzapine 7.5mg).
He had an ABI assessment that confirmed issues around short term memory and some cognitive challenges, but not significant enough to impact daily living abilities being memory challenges. He further noted that he had trouble with memory recall, but was able to concentrate sufficiently to complete daily tasks.
Mental Health History
He appears to have been diagnosed with depression in 2014 and reports he had been linked with the Northern Area Community Health as inpatient on 3/09/2014. In prison in 2014 he attempted suicide by hanging, and again in detention approximately 14-months ago by cutting his stomach. His had another attempt on 12/05/2016 in detention where he set himself a light [sic], with his most recent episode being one week prior to the assessment where he had wrapped himself in toilet paper in the bathroom and set himself on fire. He stated that detention staff and peers found him and put him out that resulted in small burns to his leg.
Mr. Saleh stated that his trigger for suicidal ideation and intent was to end his ongoing pain issues and last week was triggered by the fear of being deported to his homeland where he fears further isolation. It appears there is a clear link to his fears of deportation and suicide attempts, with the risk factor increasing with recent lethality of means. He denied any current intent of self harm at the time of the interview and stated that he was meeting with the psychiatric nurse at the detention centre on a daily basis and with the registered Psychiatrist fortnightly.
He disclosed that he had experienced psychosis symptoms when incarnated again in 2015 that he stated continued until approximately 12-months ago. He stated that these included positive psychosis auditory and visual hallucinations of figures coming out of the roof and encouraging him to self harm. He stated that he believes this was as result of his past methamphetamine abuse and no longer experienced these symptoms.
At the time of the assessment he completed the K10 Psychiatric mood disorder questionnaire and endorsed a total of 50 out of 50 score on the items that suggests significantly high current mood disorder symptoms. Therefore, it is recommended that any treatment planning around post release in to the community must involve a complex care and dual diagnosis approach of mental health supports, pain management treatment and AOD counselling.

In oral submissions counsel for Mr Saleh further argued that, in effect, the language in Direction 65 does not preclude the Tribunal from making an assessment of any non-refoulement obligations owed to Mr Saleh. Rather, it is permissive and, in the circumstances of this case, the Tribunal is morally obliged to do so, despite any protection visa protections that might arise at a later date and as assessed elsewhere. In effect, counsel contended that the Tribunal was required to assess any non-refoulement obligations that arise in relation to Mr Saleh because Mr Saleh had specifically raised this as an issue and risked permanent detention. Hence, a failure to address this would amount to jurisdictional error on the part of the Tribunal and a failure to provide natural justice (citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [94]).
In analysing this issue, the Tribunal pays particular attention to and is guided by the decision of the Full Federal Court in Minister of Immigration and Border Protection v Le [2016] FCAFC 12 (Allsop CJ, Griffiths and Wigney JJ).
The central issue on appeal in Le was whether the primary judge erred in finding that Australia’s non-refoulement obligations to Mrs Le were a mandatory consideration in exercising the Minister’s power under s 501(2) of the Migration Act to cancel her visa.
Given the significance of this decision, it is helpful to quote from it at length. Le stands as the lead authority in relation to this issue and the Tribunal is bound by what it says about the obligation of the Tribunal to consider any non-refoulement obligations now that Mr Saleh has raised this as a concern.
Relevantly, the Full Federal Court found as follows:
5.It will be necessary to say something more later about Ms Le’s migration status. At this broad introductory level, it is sufficient to note that Ms Le is a citizen of the Socialist Republic of Vietnam (Vietnam) and that she arrived in Australia on 3 October 1984 on a K4011 Refugee (Vietnamese) Permit. Before arrival she had been assessed by Australian officials overseas as a refugee for the purpose of the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 and entered into force on 22 April 1954, as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967 (Refugees Convention) and she was granted permanent residence on arrival. Significantly, to date, she has neither sought nor been granted a “protection visa” within the meaning of s 35A of the Migration Act.
…
9.The statement of reasons provided by the Minister in conjunction with his cancellation decision included express consideration of such matters as the nature and seriousness of Ms Le’s criminal conduct, mitigating factors, the risk of her re-offending, Ms Le’s ties to Australia and the best interests of minor children. Paragraphs 46 to 48 of the statement of reasons relate to the Minister’s consideration of international non-refoulement obligations. Given their central relevance in the appeal, it is desirable to set them out in full:
46.Ms LE arrived in Australia as a refugee in 1984 and was granted permanent residence on arrival.
47.I note that when she was last considered for visa cancellation, which commenced in 2004 Ms LE made claims that required assessment in relation to Australia’s international non-refoulement obligations. The Department completed an international obligations assessment on 29 July 2004 and another on 10 November 2006, both of which found that cancellation of Ms LE’s visa would not result in a breach of Australia’s international non-refoulement obligations.
48.Ms LE has not made any claims in relation to the current character consideration process that require assessment in relation to Australia’s international non-refoulement obligations, however she is able to make a valid application for another visa. I note that Ms LE is not prevented by s48A of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Ms LE for the purposes of determining whether her visa should be cancelled.
…
17.In her outline of written submissions, the respondent stated that these five grounds of appeal raised one issue; namely, whether, before cancelling her visa, it was mandatory for the Minister to consider whether a consequence of the cancellation decision might be to violate her rights not to be refouled back to Vietnam and to breach Australia’s obligations not to refoule her. It is appropriate to consider and determine the appeal on this basis.
...
41.For the following reasons, we respectfully consider that the primary judge erred in holding that the issue of Australia’s obligation not to refoule Ms Le was a mandatory consideration in the particular circumstances of Ms Le’s case when the Minister was considering whether or not to exercise his discretion to cancel her 1994 visa under s 501(2) of the Migration Act. In our view, this was not a mandatory relevant consideration under s 501(2) in circumstances where it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia’s non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister. It is critical to this analysis that, as the Minister acknowledged in both [48] of his statement of reasons and in his submissions to the Court, there is no legal impediment to Ms Le applying in Australia for a protection visa.
42.This analysis is consistent with the Full Court’s approach in both Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 (Ayoub) and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148 (COT15).
43.In Ayoub, as in Ms Le’s case, the visa which was cancelled was not a protection visa. When Mr Ayoub’s visa was cancelled under s 501(2), the Minister noted Mr Ayoub’s claim that he was afraid of being removed to Lebanon because there was a dangerous situation there and the country was on the brink of civil war. The Minister said in his statement of reasons for the cancellation decision that the existence of a non-refoulement obligation did not preclude the cancellation of Mr Ayoub’s visa because “Australia will not necessarily remove a person, as a consequence of cancelling their visa, to a country in which a non-refoulement obligation exists”.
44.The Full Court rejected the contention that the primary judge had erred in not accepting Mr Ayoub’s claim that this passage revealed jurisdictional error. The Full Court noted that the effect of s 501E of the Migration Act was that, notwithstanding the cancellation of Mr Ayoub’s visa under s 501, Mr Ayoub was not prevented from making an application in Australia for a protection visa. The Full Court emphasised the importance of the statutory scheme which, in the case of a person in Mr Ayoub’s circumstances, separated the consideration of cancelling his visa under s 501 from the possible future exercises of other statutory powers, including those relating to the determination of a valid application for a protection visa, at which point the Minister would be obliged to consider any non-refoulement obligations as well as the prospect of indefinite detention should it arise.
45.The significance to be attached to these separate steps in the statutory scheme is reflected in [19] of the Full Court’s decision in Ayoub, in which the Court clarified the effect of the earlier decision of a differently constituted Full Court in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (NBMZ) (emphasis added):
NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.
46.Nothing in Ayoub casts doubt on the correctness of the central finding by Allsop CJ and Katzmann J in NBMZ at [17] that, in considering whether or not to refuse a protection visa under s 501(1) of the Migration Act to a person who had been assessed as having the status of a refugee for the purposes of the Refugees Convention, the Minister is obliged to take into account the legal consequences of his decision (and, to similar effect, see Buchanan J at [177]).
47.Significantly, in NBMZ, the appellant had been assessed as a refugee for the purposes of the Refugees Convention and had applied for a protection visa. The Minister exercised his discretion under s 501(1) to refuse that application. By operation of s 48A of the Migration Act (and subject to the Minister’s discretion under s 48B) the appellant was precluded from lodging in Australia a fresh application for a protection visa. As a person who was an unlawful non-citizen, the appellant had to be detained (s 189) and removed from Australia as soon as reasonably practicable (s 198). Under s 195A, the Minister had a discretion to grant a detainee a visa where the Minister thought that it was in the public interest to do so (whether or not a visa application had been made), but as each member of the Full Court in NBMZ pointed out, there was no reference in either the Department’s briefing paper or in the Minister’s statement of reasons to the possibility or willingness of the Minister to contemplate granting the appellant a visa under that provision. The Full Court found that, in these circumstances, the matter should be determined on the hypothesis that the appellant would be indefinitely detained and any question of a visa being granted under s 195A was a matter of speculation. Thus it was in those particular circumstances that the Full Court found in NBMZ that the Minister was obliged, in considering the exercise of his power under s 501(1), to take into account the legal consequences of his decision to refuse the protection visa on character grounds, which consequences included the prospect of the appellant being detained indefinitely in Australia.
48.Ayoub was applied by a differently constituted Full Court (North, Collier and Flick JJ) in COT15, which involved the cancellation of a visa by the Minister’s delegate. In COT15, the relevant power which was exercised was not that under s 501(2), but rather that under s 109 of the Migration Act. The effect of that provision was to permit a visa to be cancelled if incorrect information had been provided. The visa which was cancelled was not a protection visa. In challenging the delegate’s decision in the Migration Review Tribunal, the appellant claimed that his life would be threatened if he was returned to Afghanistan and that this would also amount to a breach of Australia’s non-refoulement obligations. The Tribunal affirmed the delegate’s decision to cancel the appellant’s visa, being satisfied that the appellant’s claims could be addressed in any subsequent protection visa application. The Federal Circuit Court of Australia dismissed the appellant’s judicial review application, holding that non-refoulement obligations were not a mandatory consideration and that, in any event, the Tribunal had considered them.
49.On appeal, the Full Court rejected the appellant’s central contention that Australia’s non-refoulement obligations were a mandatory consideration in the exercise of the power under s 109. The Full Court applied Ayoub and emphasised that Australia’s non-refoulement obligations could be raised in a subsequent protection visa application and would need to be determined on that occasion. At [38], the Full Court stated:
The same reasoning [i.e. as in Ayoub] is applicable in the circumstances of the present case. That reasoning is reflected in the decision of the Tribunal. The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.
50.Another relevant Full Court decision is Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 150 ALD 252 (Cotterill). At first glance, it might appear to be inconsistent with some aspects of Ayoub and COT15. On closer analysis, however, we consider that there is no material inconsistency. The reasoning and outcome in Cotterill reflect the particular circumstances of that case.
51.The Full Court in Cotterill was constituted by North, Kenny and Perry JJ. Justice North delivered a separate judgment and upheld the appeal on grounds which included, but went beyond, the single ground which was upheld in the joint judgment of Kenny and Perry JJ.
52.Justice North held that the Minister’s decision to cancel an absorbed person visa under s 501(2) was vitiated by the following three jurisdictional errors:
…
(c)the Minister had failed to consider the possibility that, because of the appellant’s health problems, it might not be possible to remove him from Australia which raised the possibility that he might be indefinitely detained and this gave rise to a jurisdictional error by analogy with NBMZ.
53.Justices Kenny and Perry allowed the appeal in Cotterill on the basis of the third ground alone. Their Honours made reference in [135] of their joint reasons for judgment to “other troubling aspects of the Minister’s decision”, as indicated in North J’s reasons, but they found it unnecessary to explore these aspects further. Their Honours held that the real possibility that the appellant might suffer indefinite detention if his visa was cancelled was a mandatory relevant consideration in the particular circumstances of that case. The Minister had failed to consider that mandatory consideration.
54.Justices Kenny and Perry referred to both NBMZ and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 (NBNB). NBNB was handed down on the same day as NBMZ. It was heard by the same Full Court (i.e. Allsop CJ, Buchanan and Katzmann JJ). NBNB concerned a group of people who had been determined to be refugees but whose applications for protection visas had been refused by the Minister under s 501(1) because of the character test. The Full Court held that the Minister had failed to consider the legal consequences of his visa cancellation decisions, namely that the appellants faced indefinite detention, and that, following NBMZ, this amounted to jurisdictional error.
55.In Cotterill, Kenny and Perry JJ referred at [123] to NBMZ as supporting their Honours’ conclusion that the possibility that the appellant might suffer indefinite detention if his visa was cancelled was a mandatory consideration. Their Honours described NBMZ as involving a decision by the Full Court that “... in making a decision under s 501(1), the Minister’s failure to consider that the visa applicant would face indefinite detention if a visa were refused constituted jurisdictional error”.
56.In Cotterill, Kenny and Perry JJ found that, because of the operation of ss 189, 196 and 198 of the Migration Act, there was a possibility in the particular circumstances of that case of the appellant being detained indefinitely. Their Honours noted (at [131]) that the appellant’s ill-health was the factual circumstance which created the possibility that removal might not be “reasonably practicable” for the purpose of s 198. This did not mean that the circumstances in Cotterill were relevantly different from those in NBMZ (where the relevant factual circumstance was that the prospect of the appellant obtaining a visa under s 195A which would bring an end to his immigration detention was “at best, a matter of speculation”: at [4] per Allsop CJ and Katzmann J). Justices Kenny and Perry stated in Cotterill at [132]:
As indicated in [123] above, NBMZ is authority for the proposition that, in exercising power under s 501(1) or (2), the Minister must take into account the legal consequences of a decision under the Migration Act. If indefinite detention is in prospect as a legal consequence of a proposed decision, the Minister must take this consideration into account. It is immaterial that the factual circumstances giving rise to that legal consequence are different.
57.The different factual circumstances between those in NBMZ (and in NBNB) and those in Cotterill did not affect the Minister’s obligation to take into account as a mandatory consideration the prospect of indefinite detention as a legal consequence of the Minister’s decision under either s 501(1) or (2) of the Migration Act. In Cotterill (at [133]), Kenny and Perry JJ raised that in NBMZ that prospect was “virtually certain” on the facts of that case, whereas in Cotterill the material before the Minister, including that relating to the appellant’s ill-health which could affect him travelling, indicated that there was “a real possibility” that his removal would not be reasonably practicable (as referred to in s 198). Consequently, the appellant faced the prospect of indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act. Kenny and Perry JJ concluded at [133]:
The Minister was obliged in this case as in NBMZ to take into account that the material before him disclosed that the appellant’s indefinite detention was in prospect if he cancelled the appellant’s visa, as a consequence of ss 189, 196 and 198 of the Migration Act.
58.We do not understand their Honours’ analysis of NBMZ in either [123] or [132] of Cotterill to suggest that, in exercising the power under s 501(2), the Minister must in every such case take into account the prospect of indefinite detention as an aspect of the legal consequences of such a decision. In our view, it is significant that NBMZ involved a refusal to grant a protection visa on character grounds. It may be inferred that the appellant there was prevented by s 48A from making a fresh visa application in Australia and there was a finding by Allsop CJ and Katzmann J that the possibility of the appellant obtaining a visa under s 195A was simply a matter of speculation. The facts in Cotterill do not suggest that there was any factual basis for the appellant in that case to make an application for a protection visa either in Australia or elsewhere. The prospect of his indefinite detention in Australia related to his ill-health and not to Australia’s non-refoulement obligations.
59.Finally, reference should be made to another Full Court decision which was handed down after judgment was reserved in this appeal. In AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105, the Court (Allsop CJ, Robertson and Griffiths JJ) dismissed an appeal in which it was claimed that the primary judge erred in not accepting that the Minister had failed to take into account the mandatory consideration of the appellant’s possible indefinite detention when the Minister decided to cancel the appellant’s visa under s 501(2) on character grounds. The cancelled visa was not a protection visa and it was common ground that the appellant there was not prevented from applying in Australia for a protection visa even though his earlier visa had been cancelled. The Full Court observed at [69] that the consideration of any such future protection visa application by the appellant would require the Minister to conduct an up to date assessment as to whether Australia owed the appellant protection obligations under the Migration Act. At [70], the Court added that the appellant’s right to apply for a protection visa meant that “the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention”.
60.To sum up, we do not consider that there is any material inconsistency in the Full Court decisions referred to above. These decisions illustrate the potential complexity of the issues. There is a potentially wide range of factual circumstances which can arise when consideration is being given to the exercise of the significant powers in ss 501(1) and (2). Those factual circumstances may relate to the individual’s personal circumstances, which can themselves vary enormously. The matter is further complicated by the possibility that the individual’s legal status as an unlawful non-citizen (which necessarily flows from the cancellation decision and the operation of s 501F) might change because, for example, the person has a right to apply for another visa, including a protection visa. The consideration of any such subsequent protection visa application will require an assessment of Australia’s non-refoulement obligations and the prospects of the person being detained indefinitely. Another relevant factor is whether, at the time of considering the exercise of the powers in s 501(1) or (2), there is any material which is relevant to the likelihood of the Minister exercising his or her personal powers under provisions such as s 195A to grant the person a visa (even in the absence of a visa application) which would have the effect of bringing to an end that person’s detention and displace the duty to remove the person under s 198. Another relevant matter is the operation of s 197C of the Migration Act, which makes plain that Australia’s non-refoulement obligations are not a relevant consideration when an officer comes to discharge the statutory duty imposed by s 198 to remove an unlawful non-citizen as soon as reasonably practicable. Necessarily, therefore, to the extent that that issue is material it must be addressed at an earlier stage in the decision-making process.
61.All these factors have a bearing upon the issue whether Australia’s non-refoulement obligations and the prospect of indefinite detention are mandatory considerations at the time when consideration is being given to the exercise of the powers in s 501(1) or (2). Given the inherent complexity of the matter, it would be unwise to be overly prescriptive in summarising the relevant legal principles, however, the Full Court decisions referred to above support the following non-exhaustive summary of some of the relevant principles:
(a)in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;
(b)those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;
(c)the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or (2), there is at least a real possibility that the person’s removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act;
(d)the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably – for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person’s health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;
(e)in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;
(f)this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or (2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and
(g) the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or (2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances.
62.The primary judge’s approach is inconsistent with these principles and, in particular, with the Full Court’s decisions in Ayoub and COT15. His Honour did not refer to either of these decisions in his reasons for judgment. Senior counsel for the Minister said that Ayoub was drawn to his Honour’s attention. COT15 was handed down only two days before his Honour published his judgment and it may well be that he was unaware of it.
63.The primary judge attached particular significance to the fact that it was common ground that Ms Le is a person who had been determined to have the status of a refugee for the purposes of the Refugees Convention. His Honour relied on this fact in distinguishing Huynh and in applying Lee J’s decision in Nguyen.
64.In Nguyen, the Minister had cancelled Mr Nguyen’s existing visa under s 501(2). Mr Nguyen had been assessed by the Office of the United Nations High Commissioner for Refugees (UNHCR) to be a refugee for the purposes of the Refugees Convention. He had then been accepted for resettlement in Australia. Significantly, the visas held by both Mr Nguyen and Ms Le were not protection visas within the meaning of s 35A of the Migration Act. There is no apparent reason why Mr Nguyen, like Ms Le in the present case, could not have applied in Australia for a protection visa after his then existing visa was cancelled. If that be the case, we consider that Lee J was wrong to conclude that the Minister fell into jurisdictional error in cancelling Mr Nguyen’s visa because the Minister did not have regard to Australia’s protection obligations to Mr Nguyen. Those obligations were not a mandatory consideration in the decision-making process relating to s 501(2) if, notwithstanding the cancellation of his existing visa, Mr Nguyen had the right to apply in Australia for a protection visa. Australia’s protection obligations and the prospect of Mr Nguyen being detained indefinitely would have been mandatory considerations in the context of the determination of any such protection visa application.
65.For these reasons, the primary judge erred in concluding, in the particular circumstances relating to Ms Le, that Australia’s non-refoulement obligations were a mandatory consideration in the exercise of the Minister’s power under s 501(2). That is because it was open to Ms Le to apply for a protection visa and to put before the Minister any material relating to whether Australia owed protection obligations to her, whether her removal to Vietnam would be in breach of Australia’s non-refoulement obligations or whether there was some other reason personal to her as to why there was a real possibility that she might be held in immigration detention indefinitely.

The Tribunal has reviewed the evidence before it in relation to any refoulment obligations owed to Mr Saleh. Mr Saleh claims that he will be harmed if he is returned to Lebanon because of his conversion to Christianity and because of discrimination against persons with disabilities. This may well be the case. Unfortunately, the evidence before the Tribunal is far from complete. It is noted, in particular, that no International Treaty Obligations Assessment has been conducted. An assessment of that sort will be conducted if Mr Saleh applies for a protection visa. He is entitled to do so. In these circumstances, recognising paragraph 14.1(4) of Direction No 65 and the decision in Le, it is unnecessary for the Tribunal to determine whether any international non-refoulement obligations are owed to Mr Saleh for the purposes of determining whether the cancellation of his visa should be revoked. Nor is it desirable to do so here given the lack of evidence available to the Tribunal. The Full Court has now made clear the importance of the statutory scheme which, in the case of a person like Mr Saleh, separates the consideration of cancelling his visa under s 501 from the possible future exercises of other statutory powers, including those relating to the determination of a valid application for a protection visa – at which point the Minister will be obliged to consider any non-refoulement obligations owed to Mr Saleh, as well as the prospect of indefinite detention should it arise in the context of that protection visa application.
As per the principles outlined in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61, affirmed in Le, the Tribunal has also assessed whether on the facts of this case and on the evidence before it, Mr Saleh’s state of health might affect the state’s ability to remove him from Australia and return him to Lebanon. The Tribunal must assess whether there is a “a real possibility” that his removal will not be reasonably practicable (as per s 198 of the Migration Act) and whether, if so, Mr Saleh faces the prospect of indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act.
There is surprisingly little evidence before the Tribunal from medical practitioners, psychiatrists or psychologists about the nature of Mr Saleh’s mental health condition. Counsel for Mr Saleh seemed to suggest that the Tribunal should seek out any further evidence it requires. The Tribunal will always do what it can do to assist those who appear before it, particularly those who are unrepresented. With respect, however, to require the Tribunal to in effect “fill in the evidentiary gaps” every time there is a possibility that counsel has failed to provide the sort of evidence that might assist the Tribunal make a decision would result in a situation where the Tribunal could not possibly satisfy its core objectives as set out at s.2A(b) of the Administrative Appeals Tribunal Act 1975 – ie, that it conduct hearings that are fair, just, economical, informal and quick.
On the evidence before it, the Tribunal is not satisfied that Mr Saleh’s current mental health issues are of such a nature that he would be unable to be removed from Australia. In the circumstances and on the evidence, the Tribunal does not find that Mr Saleh risks permanent detention in Australia because of an inability on the part of the state to remove him for health reasons. The concerns highlighted in Cotterill v Minister for Immigration and Border Protection are thus not triggered here.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider Mr Saleh’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In relation to this issue, Mr Saleh contended as follows (A4):
43.I am estranged from most of my family in Lebanon. I still talk to my mother on the phone it is in secret. [sic] My family in Australia is my uncle …, my aunt and my two younger cousins. I am very close with my uncle and his family. I speak to them on the phone at least twice a week and communicate with my younger cousins through Facebook. They have not disowned me because they are different to my family in Lebanon. My uncle has lived in this country for 21 years and both my cousins were born here. Though they are Muslim they are more open-minded and accepting of different religions. My uncle believes that my religion is my choice and he does not let my decision to convert affect our relationship.
44.I have lived with my uncle and his family on and off since first coming to Australia in 2007 and as a result we have all developed a strong relationship. They have stood by me through everything and have provided me with shelter, love and support when I needed it. My younger cousins look up to me and see me as an older brother. I talk to them about all sorts of things, and often give them advice about life. I want to remain in Australia with them so that I can be someone they can depend on in the future.
Counsel for Mr Saleh briefly addressed this issue as follows:
37.The applicant’s ties to Australia are substantial. He has fallen in love twice in Australia and at least for a time, made two people happy through such love. He has also developed a network based in Perth. The applicant has submitted numerous letters of support, and the Tribunal should place weight on the wishes of these people - those who know the applicant want him to remain. This is a far more persuasive factor than the generalised and inchoate notions about “expectations of the community”.
In relation to this issue, counsel for the Minister contended:
30.The applicant has lived in Australia for 8 years. The applicant submits that if he remains in Australia, he will live in Perth and be involved in a Church group. He accepts that he will be able to find a job. The applicant has provided statements from Mr Shaw and Mr Munro from the Prison Fellowship attesting to their interactions with the applicant and as supportive of the applicant. The applicant’s uncle has offered him a place of residence and employment. The applicant has otherwise provided limited evidence of his ties to the Australian community.
There is evidence before the Tribunal that Mr Saleh does have ties to Australia. He has resided here for eight years, having arrived here at the age of 23. He was involved in two domestic relationships and contributed positively to the Australian economy as a tiler. He also now has a new network of friends through his involvement in Prison Fellowship.
On the evidence before it, the Tribunal finds that Mr Saleh has ties with the Australian community. This consideration weighs in favour of revoking the decision to cancel Mr Saleh’s visa.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if Mr Saleh is removed from Australia as follows:
14.5     Extent of impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)       The non-citizen’s age and health
(b)       Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
In relation to this issue, counsel for Mr Saleh contended:
36.Even if Australia’s non-refoulement obligations are found not to be engaged, the applicant will not have any supports from his family upon return, and it appears will not have any other kind of support available to him. Although he speaks the language and can work to support himself, it is inevitable that the cross tattooed on his forehead [sic] and his general absence of family connection will lead to him being socially ostracised. This is in addition to the significant difficulties the applicant will have in obtaining the quality of treatment he now has available to him in Australia. The Australian community would extend additional tolerance to a person to avoid their being exposed to such circumstances, and would expect that administrative action that causes suffering would be avoided as far as is possible.
Counsel for the Minister in turn contended:
34.The applicant submits that if he were removed to Lebanon he would face difficulties, including by reason of his lack of family support and access to health care of a lesser standard to here in Australia.
35.The respondent accepts that the lack of family and friends, the applicant’s conversion to Christianity and having health problems (including diagnosed mental health conditions) would make the transition back to Lebanon more difficult. However, the applicant speaks the language and is familiar with the culture. He would have equal access to health services as other citizens, although it is accepted that he will face challenges in this regard. He could also utilise his employment skills to find a job. The difficulties the applicant would face do not outweigh the other factors set out in the Direction.
The Tribunal finds there are impediments to Mr Saleh being removed to Lebanon in circumstances where the medical services available to him are poor (something that is not unique to Mr Saleh in the current climate), where his relationship with his family has arguably broken down and where he will, on the evidence before the Tribunal, struggle as a Christian convert and as a person with a mental health disability. Life will inevitably prove difficult.
This consideration weighs in favour of revoking the decision to cancel Mr Saleh’s visa.
CONCLUSION
Having received a sentence of a term of imprisonment in excess of 12 months, Mr Saleh has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as Mr Saleh was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
In determining whether there is any reason why the decision to cancel Mr Saleh’s visa should be revoked, the Tribunal has attached significant weight to the fact that Mr Saleh has committed the following crimes: Threat to Kill (two charges); Threat to Destroy/Damage Property; Burglary (three charges); Theft (two charges); Intentionally Damage Property and Intentionally Destroy Property.
The Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction 65:
a)violent crimes are viewed seriously – noting that Mr Saleh was convicted of burglary and a threat to kill; and
b)the sentence imposed by the courts for crimes – noting that in Mr Saleh’s case a custodial sentence was ordered and noting that he was returned to prison while on parole, having tested positive for drug use.
On the evidence before it, the Tribunal finds that Mr Saleh should, as per paragraph 6.1 of Direction 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that Mr Saleh may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should Mr Saleh engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of Mr Saleh re-offending. Mr Saleh has taken limited positive steps towards drug rehabilitation. In the circumstances, the Tribunal believes that there is an ongoing risk of reoffending and, as such, an unacceptable risk to the safety of the Australian community.
Given the nature of the crimes committed, the Tribunal is also of the view that the Australian community would expect that Mr Saleh’s visa would remain cancelled.
The Tribunal also notes that where great harm could be inflicted on the Australian community, other strong countervailing considerations may be insufficient for the Tribunal to revoke the decision to cancel the visa.
There are considerations that weigh in favour of Mr Saleh. These include the length of time Mr Saleh made a positive contribution to the Australian community and his ties to the Australian community. The Tribunal also accepts that Mr Saleh will face difficulties if he is returned to Lebanon because of the limited health care available to citizens in Lebanon, his relationship with his family arising from his conversion to Christianity and the other complex social issues that arise due to his conversion to Christianity.
The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the primary considerations referred to above, which should generally be given more weight.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65, and on the evidence before the Tribunal, the correct and preferable decision is to refuse to revoke the cancellation of Mr Saleh’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 124 (one hundred and twenty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

......................[sgd]......................................
Administrative Assistant
Dated: 24 March 2017

Date of hearing: 7 March 2017

Counsel for the Applicant: Mr A Aleksov

Advocate for the Applicant: Ms C Ford

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Court	Court Date	Offence	Court Result
Melbourne County Court	14 Mar 2014	Possess Amphetamine Fail to Answer Bail Shop Theft - Less Than $600 Dishonestly Undertake in Realisation Stolen Goods Handle/Receive/ Dispose of Stolen Goods Theft - From Shop Make Threat to Kill (2 charges) Threat to Destroy/Damage Property Burglary (3 Charges) Theft (2 Charges) Intentionally Damage Property Intentionally Destroy Property	On all charges: Convicted. Fined aggregate $1,500. On all charges: Imprisonment for aggregate 12 months
Pending Charge	20 Feb 2014	Possess Drug of Dependence - Prescription Drug Attempt Theft - From Shop	At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.
Criminal Damage (Intent Damage/Destroy)
Handle/Receive/ Retention Stolen Goods
Deal Property Suspected Proceed of Crime
Pending Charge	15 Sep 2013	Possess Controlled Weapon Without Excuse	At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.

Date of hearing:	7 March 2017
Counsel for the Applicant:	Mr A Aleksov
Advocate for the Applicant:	Ms C Ford
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor