Soueid and Minister for Immigration and Border Protection (Migration)

Soueid and Minister for Immigration and Border Protection (Migration) [2017] AATA 1072 (14 March 2017)
Division:GENERAL DIVISION
File Number(s): 2016/7028
Re:Talal Soueid
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:14 March 2017
Date of Written Reasons: 12 April 2017
Place:Sydney

The Tribunal sets aside the decision of the delegate of the Minister for Immigration and Border Protection dated 22 December 2016 and in substitution, decides that the decision to cancel the Applicant’s visa dated 22 August 2016 is revoked.
..........................[sgd]..............................................
Bill Stefaniak AM RFD, Senior Member
Catchwords
IMMIGRATION – partner visa – mandatory cancellation - failure to pass the character test – whether to exercise s 501CA discretion to revoke mandatory cancellation – applicant committed armed robbery and assault in company – two years’ imprisonment – protection of the Australian community – likelihood of reoffending – expectations of the Australian community – impact on family members – best interests of child – decision set aside and substituted
Legislation
Migration Act 1958 (Cth), s 501CA(4)
Secondary Materials
Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
WRITTEN REASONS FOR ORAL DECISION
Bill Stefaniak AM RFD, Senior Member
12 April 2017

The decision under review is a decision made by a delegate of the Minister, which was dated 22 December 2016, not to revoke an earlier decision to cancel the applicant’s Class BS Subclass 801 Partner Visa (the Visa). The decision under review was made under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The applicant is a 35-year-old citizen of Lebanon, who first arrived in Australia in March 2008, and he was a holder of a prospective partner visa. The applicant was convicted in the Parramatta District Court in New South Wales of robbery armed with an offensive weapon, and was sentenced to a full‑time custodial sentence of two years with a non-parole period of one year. That was from 11 September 2015; he was due for release on 10 September 2016. He was taken into custody and is, as I understand it, at Villawood to this day.
His visa was cancelled on 22 August 2016 as he did not pass the character test, and that is because he has been sentenced to a term of imprisonment of 12 months or more; I do not think anything is in dispute in relation to that. A letter notifying the applicant of the cancellation decision also notified him of the opportunity to seek revocation of that decision. He made representations in September 2016 seeking revocation, namely, and his main reasons being the impact his removal would have on his wife, daughter, family members and himself. He presented supporting documentation, which is before the Tribunal. He presented submissions made by his representative in November 2016, which are found in the ‘G-Documents’, provided by the respondent. The applicant was unsuccessful and that is why we find ourselves here today.
At this stage, I will simply put on the record the sentencing judge’s comments. Her Honour went into some background in relation to the applicant as well, noting that he moved to Australia from Lebanon in March 2008. He has now been here close to nine years. His wife is an Australian citizen. She was born in 1986. He was born in 1981 in El Minieh in Lebanon, and is a citizen of Lebanon. He married his wife in 2008. They have an Australian born daughter who is going to be four in April.
The offence was committed in May 2013 with an unknown co-offender. Her Honour went on to say in her sentencing remarks, and had reference to the agreed statement of facts that would have been tendered and are also of some importance in this Tribunal, that the victim was a manager of a takeaway food shop in Mount Druitt. The victim was 24. On the night of the incident, the victim locked his store, placed the takings from the till in a small bag and left.
At 11.35pm that evening, the victim returned to his residence. He drove into his car park situated off the street, parked his car, immediately following which the applicant and the unknown co-offender approached his vehicle. As he attempted to open his door the applicant, who was unarmed and wearing a baseball cap, assaulted the victim. The victim tried to defend himself and in the course of the struggle, the baseball cap that the applicant was wearing fell onto the road.
The unknown co‑offender was armed with a metal pole. He used the pole to assault the victim. Both also punched and kicked the victim on his body, legs and hands when he was on the ground. The main aggressor was the co-offender. The victim covered his head with his hands to protect his head. During the assault, one of the offenders removed a small black bag containing the money from the till.
The victim’s sister saw what was going on from a bedroom window and called out that she intended to call the police. At that stage both offenders stopped assaulting the victim and the unknown co-offender stated, “Don’t fuck with another man’s wife.” The two offenders then left the scene. The victim was conveyed to Westmead Hospital, where he was treated for bruising to the ribs, lacerations to his arms and legs and a cut lip.
A forensic analysis of the crime scene was conducted. An examination of the victim’s vehicle identified a number of fingerprints where the applicant was standing when he first approached the vehicle. Eight separate fingerprints were identified as belonging to the applicant. The applicant’s DNA was compared to the DNA taken from the baseball cap and there was a match.
Some 13 months later in June 2014, the applicant was arrested. He did not take part in an interview or in an identification parade. He pleaded guilty at the first available opportunity. Her Honour went on to say:
For that plea he is entitled to and I intend to afford [the applicant] a discount of 25 per cent for the utilitarian value of the plea. It is trite to observe that any armed robbery, where the maximum penalty is 20 years’ imprisonment, must be regarded as a significantly serious offence. When it comes to the objective seriousness of this offence I accept the Crown’s submission that in terms of seriousness the matter falls towards the midrange, although my finding is that it is not within the midrange, it is slightly below the midrange of seriousness for like offending.
The findings that I make is based on my finding that the offence appears to be opportunistic in nature and there is no obvious planning involved, particularly in relation to the taking of the money. The matter is, however, not without criteria that place it towards the midrange. They include the fact that the amount of money taken was quite significant, that the victim was physically attacked and there were injuries sustained, albeit minor injuries.
It is true, as the Crown submits, that [the applicant] did play an active part, although it must be observed, and I accept the submission of Mr Stanton that [the Applicant] played a less significant role than the role played by the unknown and unnamed co-offender.
[The applicant] is, in my view, less morally culpable for having committed the offence, although from a legal point of view [the applicant] is liable for all that took place during the commission of the offence, it being a joint criminal enterprise. There was actual violence and the amount of money was not small. The weapon was a metal pole.
Her Honour then discussed about the application of the ‘Henry Guidelines’ in considering a maximum penalty:
Unless there is exceptional circumstances all parties agreed a full-time custodial sentence was required.
Her Honour felt the circumstances were not exceptional. She referred to a report by Mr Chafic Awit, psychologist, dated 1 July 2015, who gave evidence in this Tribunal. He diagnosed the offender as suffering from post-traumatic stress disorder, generalised anxiety disorder and a major depressive episode. Her Honour went on to say:
[The applicant] is now 34 years of age. He has up until now resided with his wife and two year old daughter in their family home. He moved to Australia seven years ago in 2008. His criminal history records one matter, that is, never being licenced while driving on a road in 2013. I, for the purpose of sentence, do not consider that conviction relevant, and I treat [the applicant] as a person of prior good character. He is entitled to leniency because of that fact.
Her Honour returned to the applicant’s personal circumstances and noted that he married his wife six years ago, and though it is said to have been a long and hard process, they were blessed with a daughter after four years of marriage. Her Honour continued:
The struggle to conceive a child exacerbated a pre‑existing level of anxiety and depression on the part of the offender.
Her Honour then said:
[The applicant] was six years of age when he witnessed an unfortunate incident involving neighbours. Soon after that incident there was another incident involving inappropriate touching, and following that incident, a neighbour began to constantly verbally and physically assault [the applicant]. That occurred for a period of six years. Many threats were made, including that [the Applicant] would have his throat slit, and the throats of his parents and siblings. [The applicant] told the author of the psychological report that he believed the threats to be true and was petrified. He lived in a hyper-vigilant state for six years until [the neighbour] moved to a new country.
[The applicant] reported a number of symptoms that were consistent with post-traumatic stress disorder, hence a diagnosis of post-traumatic stress disorder. The report contains a version of the offence given to the author of the report by [the Applicant] that ultimately is not relied upon, however the clinical opinion of the author is that in his view [the applicant’s] behaviour in committing this offence appears to be a direct consequence of his psychological condition, including post-traumatic stress disorder, generalised anxiety disorder and major depressive episode.
The author states more specifically, [the applicant’s] poor decision making skills, impulsivity, hyper-vigilance and poor risk evaluation has played a significant role in relation to the offence before the court. Ultimately, I have come to accept that opinion, and that has led me to a finding that [the applicant’s] moral culpability for having committed this offence is reduced, although not significantly. However, I do not find that that condition affects the importance of general deterrence in a matter such as this, and moreover there is no evidence that [the applicant’s] mental state will make it more onerous for him to serve a custodial sentence.
Before the court are a number of testimonials. Without going into detail, it is clear that [the applicant] is highly regarded and that he has, up until now, been a positive contributor to the community. He has worked and has a good work history. Most significantly I have heard from [the applicant’s] wife. I accept Mr Stanton’s submission in relation to her that she is impressive and that she does seem to me to be a person of strength.
She has issued an ultimatum to the offender in terms of any reoffending. She met the offender in Australia and married him here. She speaks of their child who [was then] two years and five months. She speaks of her husband as being in constant employment. Significantly she speaks of the sorrow and remorse that [the applicant] has expressed. She says he made a mistake and he regrets it. She says he is a good man, a good husband, he has family in Australia and she has family in Australia.
The effect that his incarceration will have upon her is obviously significant and substantial. The effect that his incarceration will have on his family is significant. There will be an impact, not only financially but also, and most significantly, emotionally. The family will have to adjust to this situation. Financially she works but her work is not stable. She will continue to work and support her husband.
She said in her evidence [the applicant] was on bail for a significant period of time and that he did not breach his bail during that time. All in all when it comes to [the applicant’s] subjective case, and that is in mitigation, I find, firstly, that [the applicant] is a person of prior good character, and that this offending was indeed out of character. I find that he has expressed remorse and that remorse is genuine. I do not find it necessary to make any finding in relation to remorse on the strength or otherwise of the Crown case. To my mind remorse has been expressed and I accept that as genuine, and I will take it into account when sentencing [the applicant].
In his favour I find that he is unlikely to reoffend. As I have already said, I find that his moral culpability is reduced. All in all this is a case where [the applicant’s] subjective circumstances lead me to a finding that there are significant factors in mitigation. I do not find, however, that a collection of these factors amounts to exceptional circumstances. Both counsel have correctly submitted that before a sentence, other than a full-time custodial sentence is imposed, I would need to find exceptional circumstances. The painful recognition in this case is that there are none.
The Crown has submitted correctly that I should place emphasis upon general deterrence. That is undoubtedly correct. There is a need to punish [the applicant] and to denounce the conduct. The offence itself, having regard to the maximum penalty, use of a weapon, the amount taken and the assault upon the victim all lead to the conclusion that the offence is indeed a very serious one.
As to a finding of special circumstances I have no hesitation in making such a finding. This is [the applicant’s] first offence. It will be his first custodial sentence. There are good prospects of rehabilitation and all of those matters lead me to a finding of special circumstances.
Accordingly Her Honour sentenced the applicant to two years’ imprisonment, with one year non‑parole; the total term to expire on 10 September 2017. Those are the facts as expressed to her Honour, and that is something that the Tribunal cannot go behind. That is what he pleaded guilty to, and that is what we have to accept.
Before I turn to the evidence, I first should deal with the decision that the applicant appealed from to this Tribunal, namely that of the delegate on 22 December 2016.
It should be noted that the delegate reviews the matter on the papers. The delegate does not hear from the applicant, nor does the delegate have the opportunity to hear further evidence.
The delegate in this instance, whilst noting the very strong case in relation to the family circumstances, at the end of the day came to the conclusion that the serious nature of the offence and the protection of the Australian community, and indeed the general expectations of the Australian community, would outweigh any other factors, and made the decision on that basis.
In terms of the evidence before this Tribunal, the applicant gave evidence. In terms of the actual offence, he gave a slightly different account to the statement of agreed facts as presented to the sentencing judge. This may have been by way of elaboration.
He indicated that he, with his so-called friend, went off for a drive at about 11.30 at night. I do not place a huge amount of store on the time as a result of further evidence. He indicated he did not know why his friend wanted to go for a drive, but seemed to want to talk to him about something. He maintained that in his recollection it was not until after the offence, or around about after the offence that he knew why they had actually gone to talk to this man, although once in the car his friend indicated that while they were in the car they might as well go to speak to a fellow he needed to have a chat to.
He did not particularly think anything strange of that, and as the statement of facts indicated, they came across the victim. He said that the victim actually had got out of his car and then got straight back in. He then indicated that he ran to the car and opened the door and was kicked by the victim, and that is when he started punching him. He seemed to indicate that the victim was dragged out, I am not quite sure if it was by himself or by his friend, and it was then that he noticed his friend had a small iron bar up his sleeve.
The applicant said that after the victim got up from the ground, he placed himself between the victim and the main perpetrator. He knew nothing about the money. They left. He did not see his friend again until sometime later.
He indicated the initial intention was to go for a drive and have a chat with his friend who wanted to talk to him, and they had intended to go to the pub after they finished whatever business it was that his friend wanted to attend to. He indicated, and was backed up by his wife, that it took quite a while for the police to actually contact him, and it was in 2014 when he spoke to the police, and after the police spoke to him about the incident he went to see his friend to see what he should do, and that was when his friend threatened him that if [the applicant] dobbed him in, he would deal with him, and he knew where his family lived, and made the significant threats to his family that the applicant certainly took on board.
It seems to me unlikely that the applicant would not know until after the conclusion of the offence, why exactly his friend wanted to talk to this man. Whether a huge amount turns on that is another thing, but I think it is probably more likely than not that some reference may have been made to why his friend wished to talk to the victim. I am certainly satisfied it possibly was not a detailed conversation and may have simply been effectively a one liner, but it does seem to be a little bit strange that the applicant maintained that it was not until afterwards that he knew why they had gone there. It is possible, but I think more likely than not he would have had some idea, albeit, I would certainly feel that it may well be immediately prior to the actual incident, if not perhaps almost during the incident.
It is possible too that the applicant may have done something to put himself between the co-offender and the victim, in that the judge did refer to the injuries as minor, and there were lacerations to the arms and legs. That would be consistent with kicking or perhaps being hit with an iron bar, but when the judge said “minor” it may well be that that is what he did because clearly if the co‑accused really laid into the victim with an iron bar, one would expect more substantial injuries than those the victim appeared to have received.
What is of significance is why the applicant did not indicate to the police and the authorities who the co-accused was. The clear answer to that obviously is the threats, and from the evidence before the Tribunal, it certainly seems from the health professionals who gave evidence to the Tribunal on behalf of the Applicant, namely, Sam Borenstein and Chafic Awit; Borenstein being a clinical psychologist, and Awit being a psychologist, that it was to do with the traumatic experience he suffered as a six year old, lasting for some six years, and the threats made. Mr Borenstein indicated that apart from the post-traumatic stress disorder and the great fear he had for his family, a fear which indicated that he would ‘take the wrap rather than see his family hurt’, he was clearly terrified of his friend and believed his friend would carry out his threats if he dobbed him in. Despite both health professionals advising him that if he told police who his friend was, he may well escape a jail term, he took the wrap for the above reasons. In all other respects he appears to have cooperated with the authorities.

In evidence before the Tribunal, the applicant indicated that he is remorseful for his actions. He is worried immensely about them, he feels he has failed his wife and especially his child. He indicated that his intention is to seek further counselling, along with his wife. It was put to him by counsel for the respondent, that there was a two month gap where he could have sought counselling and there possibly might have even been an appointment he had with Chafic Awit during that time before he actually was sentenced; why did he not go then?
His response to that was that he was very much suffering from great anxiety, worried about going to prison, was concentrating on that and the time just got away.
I am satisfied though that he has attended counselling, and it does seem that as well as Mr Awit being prepared to further counsel him his wife has a separate counsellor. She gave evidence that that there is another person they will see in relation to ongoing counselling for his post-traumatic stress disorder, and that could include, in time, anger management.
He was asked questions as to why he did not participate in anger management programs in prison. It appeared that there were not any available to him because of his status, and also the fact that he was only a short-term prisoner, being there for effectively 12 months.
He repeated on a number of occasions, “I know I’ve made a mistake” and he stated he was not trying to resile from his involvement in the offence. There was some question as to why some of the things he volunteered were not volunteered earlier. He indicated that his English was not as good as it was now. He also indicated he did not have the benefit of an Arabic interpreter.
He indicated further in his evidence, that he would be going back to a part of Lebanon about two hours from Beirut, so that is probably pretty close, where there are a lot of Syrian refugees, there is not much work, he comes from a family of about 11 brothers and sisters, it is a poor village, it is a poor family, there would be very little opportunity to work because there are lots and lots of Syrian refugees competing for work, and Lebanon does not have the same health, education and social welfare systems as Australia.
As well as that, he said that the opportunities for his wife and daughter would be very different in Lebanon. It would be hard enough on his wife, who grew up in Australia, let alone his daughter. He indicated there are not the same opportunities for women and girls in Lebanon as there are in Australia.
It also appears that he has a fair amount of support in the community and that he is from a very loving family, and also the evidence of his wife was that he was a very good father, a devoted father and a pretty good husband in that he would change nappies, do work around the house and generally help her out with household chores.
She also gave evidence, and there is written evidence as well, that she has had some mental issues, and this has been a huge strain on her, as it is on him. The delegate did not dispute the significant impact that the removal of the applicant would have on his family, particularly on his daughter. I do not think there is any dispute in relation to that. Neither party was terribly far apart in relation to that particular point.
A number of witnesses were called to give evidence at the hearing. In addition to the applicant and his wife, a friend of the applicant, Raby Ghabireh, was called. Mr Ghabireh is a senior education manager, employed by the New South Wales Department of Education. He is the applicant’s gym buddy. When told about the armed robbery in company, Mr Ghabireh was shocked. He thought was totally out of character. He said the applicant wanted to turn back time so he did not do it again. He [the applicant] was very stressed by it all.
Mr Ghabireh said he grew up in a tough neighbourhood in Punchbowl, where he deals with a lot of people with mental health problems. He said, apart from going back to the gym with the applicant, he would help him reconnect with his family, help him with post trauma support and counselling, and was willing to assist him in seeking support for any anger issues. Mr Ghabireh also noted how impressive the applicant was with his daughter, and he said, “I’d like to be a father like him.” He said the way she looks at him, he is her world. He said the Applicant was particularly helpful to him because he and his wife had also experienced several miscarriages and the applicant had comforted him and given him hope in this regard.
Oussama Zraika also gave evidence by telephone. Mr Zraika has known the applicant since he was a boy in Lebanon. He said his family was well respected in the village. He did not know of the neighbourhood problem there at all. He said he was a very positive person. They met up again in Australia. He said when he married he was the same person but with responsibilities; his wife and children and his family came first. Oussama Zraika said he was his best friend after his brothers; he puts his family before anyone. He said the applicant helped him whilst he was in jail in relation to how Mr Zraika should react to a man who had swindled him out of some money and told him to trust and abide by the laws of Australia and not do anything illegal.
Mohammad Al Rajab gave evidence. He had known the applicant since he was about eight. Like Oussama Zraika, Mr Al Rajab did not know anything about the incident that occurred when the applicant was six, although Mr Al Rajab had grown up almost next door to the applicant’s family home.
The applicant was a year older than him and came from a poor family. He said he and the applicant would meet up in Australia and have a cup of coffee, play cards, have lunch. He said he was shocked at what the Applicant had done, but felt that he had been punished and he said he really felt he had learned a lesson. He went to visit him a few times in prison and also at the centre. He concluded by saying that “He prays a lot more now, he is closer to God; he is very worried about his family”.
Sam Borenstein, the clinical psychologist, gave evidence. He said the applicant had extreme severe symptoms of depression and stress, and mild to medium symptoms of anxiety. He said he is not his treating psychiatrist; the treatment stopped when he went to prison. He intends to start it again on release. He said that post-traumatic stress disorder is something that can be present in a supposedly happy person. He said most people do it quite naturally. He said quite often you will find someone smiling on the outside, and being troubled on the inside.
He said it was very common for persons in similar situations to the Applicant talking about not dobbing people in.
In terms of reoffending, he said prison had cut the applicant’s ties and he has had time to reflect on the effect of his actions on his wife and his daughter. He said by itself and with his general contrition he would be a low risk of reoffending. He said with treatment on release he would define his risk of reoffending as being extremely low.
He said the post-traumatic stress disorder, as a six-year-old, would override any likelihood of him being influenced by the possibility of a decrease in sentence if he named the co-offender and protection of his family would also override that, and that is why he did not dob in the co-offender.
Mr Awit, a psychologist, also gave evidence. He felt relevant considerations in relation to the applicant were issues with post-traumatic stress disorder, anxiety and depression, fertility issues, previous struggles in life, and this offence in particular. He also indicated that culturally, Lebanese people often go out at 11.30pm at night. A lot of things are done late at night, it really is quite common and by itself nothing should be read into that.
Mr Awit said that when it was suggested that the applicant dob his friend in, he became quite tense. He said, “He would rather take the blame than put his family in any danger”. He said even without more therapy, what has happened to him over the last three or so years would decrease the risk of him reoffending. With treatment, his post traumatic stress disorder would go into recession and that would further decrease any risk of reoffending.
I appreciate the very serious nature of the offence and the matters weighing heavily on the mind of the delegate. However, the Tribunal has to stand in the shoes of the decision maker in this matter, and I have to consider whether there is any other reason why the cancellation decision should be revoked, and I have to have regard to the principles and primary considerations, and the other considerations set out in the Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). I have to take into account the considerations in part C. I have also had the benefit of hearing from the applicant and his witnesses.
THE DIRECTION
The principles set out make it clear that being able to 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. I note the applicant submitted that it is actually a right conferred by statute. I note that, but certainly I think in common parlance Australian citizens would regard extending citizenship to others as a privilege, and I take it in that context.
The Australian community expects the Australian Government can and should refuse entry to non-citizens if they commit serious offences and crimes in Australia, and a non-citizen who has committed a serious crime, especially one of a violent nature, and particularly against vulnerable members of the community, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia. And finally, Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
PART C – PRIMARY AND OTHER CONSIDERATIONS
Paragraph 7 of the Direction requires the decision maker to take into account the considerations in Part C in deciding whether to revoke a mandatory cancellation of a non-citizen’s visa. Part C comprises both ‘Primary considerations’ and ‘Other considerations’. Paragraph 13 of the Direction sets out the Primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct.
(b)The best interests of minor children in Australia.
(c)The expectations of the Australian community.
Other considerations include international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and; extent of impediments if removed. Other considerations should generally be given less weight than Primary considerations.
Primary Considerations
(i) Protection of the Australian community
I note the Government is committed to protecting the Australian community from harm as a result of criminal activity, and there is a low tolerance for visa applicants who have previously engaged in criminal or serious conduct. The conduct to date is a serious assault and robbery, and it is an assault in company, with a weapon. It carries a maximum term of 25 years’ imprisonment.
It was a serious offence. Nothing can get away from that, and I think the applicant fully appreciates that fact, has agonised over it and wishes he could turn back time.
Apart from that offence, the applicant has a $200 fine for driving without a licence, and it appears that he had been picked up once before and warned for the same offence. It seemed on that occasion there was some issue about the fact he had at that time an international licence and because of that there was some confusion as to his status at the time.
In relation to the fine, I note the fact that it was a $200 fine and his explanation that at the time he was fined, he normally did not drive and that he had been attempting to get an Australian driver’s licence but he just had trouble with the questions because of his poor English and he had trouble reading.
I do take note of the fact that between the incident in May 2013 and his incarceration on 11 September 2015 he was at large. I also take note of the fact that there are no further offences. There is no indication that he has ever done anything else wrong, been before the courts, or indeed even been brought to the attention of the police, save for the unlicensed driver traffic matter.
I also note that the prison reports in three different areas of the prison indicate that he was a model prisoner, that he would have been given the lowest possible ranking to enable him to go outside and work, and that the only reason a ranking could not be given was because he was wanted by the Department after he finished his sentence, and for that reason he was not afforded the privileges he otherwise would have been given for being a model prisoner; no trouble whatsoever in prison. That is obviously to his credit too and is a relevant consideration in this matter.
Whilst the victim was not a vulnerable member of society, he nevertheless was attacked by two men, and it would have been a terrifying situation for him.
He does not have an extensive criminal record. Indeed this is very much a one-off, and the judge felt that to be the case. She also felt the risk of reoffending was low, and we have heard the evidence from the health professionals that regardless of whether he gets any further treatment it would be low, and if he gets treatment it would be very low. There is always a risk that someone may reoffend. In this instance it appears that all the parties involved from the sentencing judge down feel that it would be a low risk, but a low risk may still be an unacceptable risk.
Regarding the nature of the harm to individuals in the Australian community should the non-citizen engage in further criminal or other serious conduct, there is potential harm I suppose of something similar. There is no indication that this man has committed any crimes of dishonesty, but because of the post-traumatic stress disorder and the fact that he himself said he lashed out when he thought he was kicked, clearly might indicate a repetition. That would be the likely reoffending.
I think there would be very low risk of him reoffending in company, and it seems from the evidence that he is very keen just to avoid any situation where he would get into a position where he might reoffend and that he really just wants to be with his family and immediate friends.
He certainly has got a lot of friends and family in Australia who support him, and a lot of people are prepared to help him out. In terms of any rehabilitation in the community it is quite significant. I would have to say the likelihood of him engaging in further criminal or serious conduct, taking into account the information and evidence and the risk of the non-citizen reoffending, is indeed low, and with further psychiatric treatment very low indeed, and I think he seems himself to have learned a lesson.
The fact though that he does have some psychological issues issues and post-traumatic stress, and the fact that he appeared, briefly, a little bit toey at an early stage during cross examination gives me a little bit of cause for concern, but I think these concerns would be overcome if he were to have some further treatment.
I do note that once it became obvious to him that the questions were legitimate and that was just how we conducted things here, he relaxed and it did not seem to be an issue. I further note it could also have possibly had something to do with him having English as a second language.
I accept that the applicant’s rehabilitation is yet to be tested in the community. Though I do note that 13 months after he committed the offence and before he was spoken to by police, there was no reoffending, and for the 15 month period after he was spoken to by police and before he was sentenced and incarcerated there was no reoffending. So in effect it could well be said that some actual rehabilitation has been tested in the community, and I note he only had a couple of psychiatric sessions during that time.
Whilst it cannot be said with certainty, I think the Tribunal can be pretty confident that he will not relapse and reoffend should he return to the community.
(ii) the best interests of minor children
It is not disputed that the applicant’s daughter would be shattered if he was removed from Australia and she and her mother did not follow. It would seem also that the child’s mother would suffer serious psychological distress if the applicant was removed from Australia. It would seem most likely that they would follow him to Lebanon and that would be to the significant detriment of his daughter, to have to grow up in a male dominated society and indeed to his wife as well as she was born and grew up in Australia.
Both his wife and daughter would have far fewer opportunities in Lebanon than they would have in Australia and the evidence indicated, especially with regard to the health and education systems, that these were not of the same standard as in Australia. It would be very, very traumatic and a difficult situation were the applicant’s wife and daughter to follow him to Lebanon. If they for some reason did not follow, it would also be quite shattering for the daughter and more so her mother, certainly at least in the short-term.
This factor weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of the applicant’s Visa.
(iii) Expectations of the Australian Community
The Australian community is a very diverse bunch. There are probably some people in it who think anyone who commits a serious crime whilst on any sort of visa should be deported. Deportation of course is not just for a few years, it is, as the law currently stands, forever. Once someone is actually sent back to their country of origin, they cannot reapply for these types of matters, and so it effectively is for life.
It was submitted by the respondent, that when we look at the expectation of the Australian community, it has to be the Australian community as a reasonable community, apprised of the same information and facts that the Tribunal has before it here, so it can make its decision accordingly.
Australians are a fair people and they are prepared to give people a fair go. They do not take any nonsense, but if someone seems reasonable, they are prepared to give them a chance.
I think the Australian community would firstly be very disappointed that this man has committed the offence he did, but they would see it as a one-off; they would see that he has an excellent work history. I think he has only been unemployed for about two months in Australia, so he has certainly made a contribution there, and would continue to make a contribution. It is not like they are going to be forking out the taxpayer’s dollar for him, he will be a contributor.
They would see the fact that he is a good husband and father as being probably particularly heartening, the average Australian being a very reasonable decent person, and that would weigh very much in his favour.
They would be comforted by the fact that he appears to have a good support system, and whilst they would be very upset about the crime and somewhat worried about that, there might even be a possibility it might occur again; on balance I would think the expectations of the Australian community would be in this instance that this man is deserving of a go, primarily because of all the positive features surrounding him, and especially because of the effect it would have on his daughter and also to a lesser extent his wife.
Other Considerations
(i) International non-refoulement obligations

The respondent has said that there is nothing to stop the applicant, if I found for the respondent, that he could apply under international non-refoulement obligations, and that may well be so, but for the reasons I am giving, I do not think that that needs to be faced at this point of time.
(ii) Strength, nature and duration of ties
The applicant came to Australia at the age of 26. He did commit the offence within five years of being here and he did not arrive here as a child, but he has an Australian wife and an Australian born daughter, and he certainly has a very good work history here.
He cannot use his Certificate III in Security Operations for obvious reasons, for about another 10 years, and I think on balance he has made a reasonable contribution to the Australian community, and he will certainly continue to do so if released. He certainly has a good work ethic, and can go straight back into steady employment, and there are letters to that effect in the evidence.
(iii) Impact on Australian business interests
There is no evidence to suggest that a cancellation of the applicant’s Visa would have any impact on Australian businesses interests.
(iv) Impact on victims
There is no evidence in relation to impact on victims. He does not know the victim, and it is highly unlikely, as I said, for the reasons given, that he would do anything if he did.
(v) Extent of impediments if removed
I have already dealt with this consideration, in terms of the limited services available in Lebanon, the fact that he would have trouble getting employment, even though he knows a lot of people there and has family there, due to all the Syrian refugees and a lack of jobs. He does not have any cultural or language barriers if he went back, but clearly there are cultural barriers for his wife and cultural and initial language barriers for his daughter.
CONCLUSION
On balance, the factors in favour of the applicant staying in Australia weigh more heavily in favour of exercising the discretion to revoke the cancellation decision. The two Primary considerations that are fundamental here are the interests of his daughter and also I think the expectations of the Australian community, and there are some mitigating factors too in relation to the actual incident itself.
When one looks at all the factors, I am especially heartened by the fact that he has not committed any offences whilst in prison, been a model prisoner, and the fact that we actually have had at least a two year period prior to him being incarcerated and after the offence where he was in the community and did not commit any offences at all. I think maybe the licence-related incident might have occurred during that time but that was it, but clearly there was an opportunity there in that time if he was going to commit any other serious offences. All in all I am satisfied he should stay in Australia.
DECISION
The Tribunal sets aside the decision of the delegate of the Minister for Immigration and Border Protection dated 22 December 2016 and in substitution, decides that the decision to cancel the Applicant’s visa dated 22 August 2016 is revoked.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...............................[sgd].........................................
Associate
Dated: 12 April 2017

Date(s) of hearing: 1-2 & 14 March 2017

Counsel for the Applicant: Ms T Baw

Solicitors for the Applicant: Michael McCrudden Solicitors

Counsel for the Respondent: Ms D Watson

Solicitors for the Respondent: Australian Government Solicitor

[2017] AATA 1072

14 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	1-2 & 14 March 2017
Counsel for the Applicant:	Ms T Baw
Solicitors for the Applicant:	Michael McCrudden Solicitors
Counsel for the Respondent:	Ms D Watson
Solicitors for the Respondent:	Australian Government Solicitor