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

[2023] AATA 2317

TPFQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2317 (21 July 2023)

Division:GENERAL DIVISION

File Number:          2023/2623

Re:TPFQ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

REASONS FOR DECISION

Tribunal:Senior Member S Burford

Date:21 July 2023

Place:Perth

On 10 July 2023, I made the following decision:

The decision of the delegate of the Respondent dated 13 April 2023 to refuse to grant the Applicant a Bridging E (Class WE) visa is affirmed.

These are my written reasons.

...............[Sgd]................................................

Senior Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister to refuse to grant the Applicant a bridging visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 36 year old man who arrived in Australia as a 26 year old – extent of impediments if returned to Lebanon – decision of the delegate of Minister to refuse to grant the Applicant a bridging visa is affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29(1)(c)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A

Migration Act 1958 (Cth) ss 5(1), 5AA, 5J, 5J(1)(a), 5J(4)(a), 5J(4)(c), 5H(1), 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 36(2B)(c), 46A, 48A, 189, 198, 499, 499(1), 499(2A), 500(1)(b), 500(6B), 500(6H), 500(6J), 500(6L), 501, 501(1), 501(2), 501(6), 501(6)(a), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i)

Migration Regulations 1994 (Cth) – Reg 2.12

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225

BBK15 v Minister for Immigration and Border Protection [2016] FCA 680

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

Deng v MICMSMA [2022] FCAFC 115

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, Country Information Report, Lebanon (19 March 2019)

Department of Foreign Affairs and Trade, Country Information Report, Lebanon (26 June 2023)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(1), 5.1(2), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 7, 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(iii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(c), 8.2, 8.2(1), 8.2(2), 8.2(3), 8.2(3)(c), 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(1), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9.1, 9.1(1), 9.1(2), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)

REASONS FOR DECISION

Senior Member S Burford

21 July 2023

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 13 April 2023 to refuse to grant the Applicant a Bridging E (Class WE) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Migration Act).

2. The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.

   BACKGROUND

3. The Applicant is a 36-year-old citizen of Lebanon. He first arrived in Australia on 24 April 2013 as an illegal maritime arrival when he was 26 years old.[1] 

   [1] RSIC, page 1.

4. On 12 February 2014, the Applicant was granted a Temporary Safe Haven (Class UJ) visa which ceased on 19 February 2014.[2] On 26 July 2016, the Applicant applied for a Temporary Protection (Class XD) visa, however this application was refused on 3 June 2019 on the basis that he was not a person to whom Australia owed protection obligations.[3]

   [2] R2, TB3, page 4.

   [3] R1, G19.

5. On 9 July 2019, the Immigration Assessment Authority (IAA) affirmed the decision to refuse the Applicant a protection visa.[4]

   [4] R1, G20.

6. Since arriving in Australia, the Applicant has been granted a series of Bridging E (Class WE) visas, the last ceasing on 15 August 2019.[5]  Following the ceasing of that visa the Applicant became an unlawful non-citizen. He remained in the community but did not hold a visa and was taken into police custody in June 2021.

   [5] R2, TB3, page 5.

7. On 14 October 2019, the Applicant applied for an extension of time to commence judicial review of the IAA’s decision in the Federal Circuit Court of Australia.[6]  

   [6] Proceedings MLG3501/2019.

8. On 17 March 2022, the Applicant was convicted in the Bankstown Local Court in New South Wales (NSW) of ‘Contravene probation/restriction in AVO (Domestic)’.[7] The victim of the offence was Ms L, the Applicant’s former partner. The Applicant plead guilty and was sentenced to a term of 12 months’ imprisonment with a non-parole period of eight months, commencing 30 June 2021.[8] He was released into immigration detention where he remains.

   [7] R1, G4, page 36.

   [8] R1, G4. page 36.

9. On 25 January 2023, the Applicant filed an application for the visa, on judicial review grounds.[9] That is the application which is the subject of this review. 

   [9] R1, G12.

10. In that application, the Applicant did not disclose his criminal convictions.[10] The Minister initially notified the Applicant of their intention to refuse his visa under s 501(1) due to his criminal record by letter dated 22 February 2023.[11]  This notice was amended by letter dated 24 February 2023 correcting a reference to a Criminal History Check which had accompanied the 22 February letter.[12] Further information before the Department was provided to the Applicant for comment or response by letters dated 7 March 2023 and 24 March 2023.[13] The Applicant submitted a personal circumstances form responding to the notice of intention to refuse the visa on 7 March 2023 and made further submissions on 10 March 2023 and 30 March 2023.[14]

    [10] R1, G12, page 94.

    [11] R1, G15, page 115-116.

    [12] R1, G15, pages 120-121.

    [13] R1, G15, pages 127-136.

    [14] R1, G16-17.

11. On 13 April 2023, a delegate of the Minister exercised their discretion under section 501(1) of the Migration Act and refused the Applicant the visa. This is the Reviewable Decision before the Tribunal. The Applicant was notified of this decision by email sent on 17 April 2023.[15]

    [15] R1, G3.

12. According to the Statement of Reasons for Refusal,[16] the delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(a) of the Migration Act.

    
    

    The delegate found the nature of the Applicant’s conduct was very serious and that if the Applicant remained in Australia there was a likelihood he would reoffend. The delegate considered that the protection of the Australian community weighed significantly in favour of exercising the discretion to refuse the visa.  The delegate found that the Applicant had engaged in family violence which should be viewed very seriously, and which weighed significantly in favour of refusing the visa. The delegate also considered that the expectations of the Australian community were that the visa would be refused and afforded significant weight to that consideration. The delegate found that there were no sufficiently countervailing considerations weighing against the exercise of the discretion to refuse the visa. On the basis of these considerations, the delegate decided to exercise the discretion to refuse the visa.

    [16] R1, G3, pages 17-34.

13. The Applicant lodged an application for review on 25 April 2023.[17] The Applicant originally filed an application for review on 23 April 2023 without a statement of reasons as required by s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). On 25 April 2023 the Applicant provided a statement of reasons for his application.[18] The Tribunal is satisfied that the application, including the statement of reasons, was lodged within time, pursuant to s 500(6B) of the Migration Act.

    [17] RSFIC, page 3.

    [18] R1, G24, pp 275 - 276.

14. On 10 May 2023, the Federal Circuit and Family Court of Australia (the FCFCA) dismissed the Applicant’s application for an extension of time to seek review of the IAA decision affirming the decision to refuse his application for a protection visa.[19] It appears on the information before the Tribunal that no reasons for the decision were published.

    [19] R2, TB1.

15. The Tribunal must hand down a decision on or before 10 July 2023.[20]

    [20] Migration Act s 500(6L).

    ISSUES

16. The issues before the Tribunal are:

    (a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

    (b)if the Applicant does not pass the character test, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.

17. For the reasons below, the Tribunal has decided that the correct and preferable decision is that the delegate’s decision of 13 April 2023 refusing the Applicant the visa be affirmed.

    THE HEARING AND THE EVIDENCE

18. The hearing was initially listed for 26 June 2023 at the Tribunal Registry in Perth, however this hearing was rescheduled due to the unavailability of the Member.

19. The rescheduled hearing was held on 3 July 2023 at the Tribunal Registry in Perth. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers and appeared in person. 

20. At the hearing, the Applicant made submissions, gave evidence and was cross-examined.

21. The following documents were marked as exhibits:

    ·Section 501G documents, labelled G1 to G24, consisting of pages 1 to 276 (Exhibit R1);

    ·Respondent’s Tender Bundle, labelled TB1-TB4, consisting of pages 1 to 613 (Exhibit R2);

    ·Respondent’s Supplementary Tender Bundle, labelled TB5-TB10, consisting of pages 614 to 1128 (Exhibit R3); and

    ·Department of Foreign Affairs and Trade (DFAT) Country Information Report: Lebanon, dated 26 June 2023 (Exhibit R4).

22. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 26 May 2023 prior to the hearing.

23. The Tribunal notes the Applicant did not file a Statement of Facts, Issues and Contentions or additional evidence prior to the hearing. A directions hearing was held on 4 May 2023 to program the matter for hearing during which the Tribunal discussed with the parties the provision of evidence and the restrictions imposed by ss 500(6H) [oral evidence] and s 500(6J) [documents] of the Migration Act. A further directions hearing was held on 16 June 2023 as the Applicant had not yet paid his application fee. The consequences of non-payment were explained to the Applicant. The fee was paid on the Applicant’s behalf on 19 June 2023.

24. In closing submissions, the Applicant indicated he could have provided additional evidence, but he did not know what to provide because he was not represented and was not told what to provide.[21] The Tribunal noted he had been provided with time prior to the hearing to submit evidence and that the Tribunal had explained at the directions hearing the timetable for providing evidence and the considerations arising for consideration under Direction No 99. At the directions hearing, the Tribunal had explained the matters arising for consideration under Direction No 99 to the Applicant. The Tribunal encouraged the Applicant at the directions hearing to look at the issues raised in the delegate’s decision record and to consider whether there was evidence, including from witnesses which might be able to address issues raised in the decision or in the matters listed for consideration in Direction No 99.  The Tribunal also directed that the Respondent file their SFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response.

    [21] Transcript, page 54.

25. The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written and in closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction No 99.  The Tribunal considered the Applicant was provided with a fair opportunity to give evidence and present arguments in support of the application and to respond to issues raised by the Respondent.

    LEGISLATIVE FRAMEWORK

    Migration Act

26. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds.

27. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.

28. Section 501(1) of the Migration Act is as follows:

    (1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

    Note:   Character test is defined by subsection (6).

    (Original emphasis.)

29. The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)

    the person has a substantial criminal record (as defined by

    
    

    subsection (7)); …

    (Original emphasis.)

30. A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:

    (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; …

    (Original emphasis.)

    Direction No 99

31. The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[22] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.

    [22] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].

32. On 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021).[23]

    [23] Direction No 99 paras 2-3.

33. Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(1), (2) and (4) being relevant to the current application:

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.

    (2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

    …

    (4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

34. Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to refuse … a non-citizen’s visa under section 501 …’ and are expressed as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2)[24] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

    [24] As there is no para 8.55(2), the Tribunal; infers this is a reference to 8.5(2).

1. Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the Tribunal must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).

2. In making a decision under 501(1), 501(2) or 501CA(4), the primary considerations to be taken into account by the Tribunal are:[25]

   (a)protection of the Australian community from criminal or other serious conduct;

   (b)whether the conduct engaged in constituted family violence;

   (c)the strength, nature and duration of ties to Australia;

   (d)the best interests of minor children in Australia; and

   (e)expectations of the Australian community.

   [25] Direction No 99 para 8.

3. The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[26]

   (a)       legal consequences of the decision;

   (b)       extent of impediments if removed;

   (c)       impact on victims; and

   (d)       impact on Australian business interests.

   [26] Direction No 99 para 9.

4. Guidance as to how a decision-maker is to apply the considerations in
   Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:

   (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (2)Primary considerations should generally be given greater weight than the other considerations.

   (3)One or more primary considerations may outweigh other primary considerations.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

5. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
   

   [27] Migration Act s 501(7)(c).

   a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[27]

6. The Tribunal finds that on 17 March 2022, the Applicant was convicted of the offence of ‘Contravene probation/restriction in AVO (Domestic)’ in Bankstown Local Court in NSW for which he was sentenced to a term of 12 months’ imprisonment.[28]

   [28] R1, G4.

7. As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.

8. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[29]

   [29] See Migration Act s 501CA(4)(b)(i).

   SHOULD THE DISCRETION TO REFUSE THE VISA BE EXERCISED?

9. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, the discretion in s 501(1) of the Migration Act to refuse the visa should be exercised.

10. The Applicant argued that discretion should be exercised so that his application for the Visa is not refused under s 501(1) of the Migration Act. The Applicant submitted that the visa should not be refused because the offending was not serious and did not involve violence, he regrets the offending and he will not reoffend. In his statement of reasons for seeking review he noted:[30]

    After being received the failed decison for the visa refusal i would like to reappeal for AAT to know the actual cause and i believe the decision was wrong and its not fair because i have explained everything from my end and i have already being guilty and leared lesson from my mistakes being in jail for one year. Currently am in detention for over a year and at the end of the day am a human being, mistakes can happen and i believe i deserve another chance to be in the community with the family and friends again to start a new life.

    (Errors in original.)

    [30] R1, G24, page 276.

11. He submitted that he deserved a second chance and that he wanted to be a productive member of the community. He stressed he has been in Australia for a significant period and wishes to stay and build a life here. He claimed he could not return to Lebanon. He submitted these factors weighed in favour of not exercising the discretion to refuse the visa. In submissions to the delegate the Applicant stated that:[31]

    [31] R1, G16, page 152.

    Iam very sorry for what i did and i know it was a huge mistake and totally unacceptable.

    I was under a lot of pressure and I was without work and my house burned down - as recorded in my file - and i lost everything and at the same time was waiting for a court day for my visa applicaton in the Federal court so everything came at the sametime and I was not thinging as well at that time

    I was imprisoned for a year and now am at the detention centre for a year, simply wasted two years of my life because of a mistake i made and that gave me a good lesson and taught me not to make any more mistakes again

    Iam a human being at the end of the day and i make mistakes

    But i lears from my mistakes and not do them again. I am really sorry about what happpened and very sorry for the problem i caused with the ex-partner and i just want to start a new life and new hope and work and pay tax and be a good citizen in the community like everyone else, and i feel so bad staying in detention centre and it costing immigration and the Australian Community a lot of money.

    I know immigration spend lot of money on me while am here so i want to be in community and pay tax and if i have the rights to work, besides that i have families and friends they can help and support me. about the 2 small packs of unknown white crystalline substance packed in silver foil was located during the property inspection.

    It was not mine and i did not have any idea about those, one of the boys in detention, he asked me if i can send a delivery on my name cause he is getting a lot of deliveries every week and he cannot get any more on his name. I can provide you his name if you want.

    I do not even know the sender and have no connection with him at all and i even told Serco about it.

    Again am really sorry about everything i did, i just want to start a new life and move on with a good life and positive thoughts with out any problems and respect the law and do not break it any more

    I learned a good and useful lesson from my mistakes and i completely honesT

    (Errors in original.)

12. The Respondent submitted that the Applicant had engaged in various serious family violence against his former partner. He has unmet treatment needs and remains a significant risk to the community. The expectations of the community are that the visa should be refused. The Respondent submitted that the Applicant’s ties to Australia weighed only slightly in his favour having regard to the lack of evidence from claimed family members in Australia and the fact the Applicant arrived as an adult. The Applicant’s protection claims had been addressed and reviewed and no protection obligation arose with respect to him, therefore non-refoulement obligations did not arise as an issue on the refusal of the visa. While he would face some impediments on removal, these were not such as to prevent resettlement and this factor weighed only slightly in the Applicant’s favour.  The Respondent contended that the considerations weighing in favour of the exercise of the discretion to refuse the visa outweighed those against. The Respondent submitted the discretion to refuse the visa should be exercised.

    The Applicant’s conduct

13. As noted above, on 17 March 2022, the Applicant was convicted in the Bankstown Local Court in NSW of ‘Contravene probation/restriction in AVO (Domestic)’[32] following a guilty plea. He was sentenced to a term of 12 months’ imprisonment with a non-parole period of eight months, commencing 30 June 2021.[33] 

    [32] R1, G4, page 36.

    [33] R1, G4. page 36.

14. This conviction for contravention of an Apprehended Violence Order (Domestic) (AVO) followed a number other earlier convictions for a range of offences between 2020 and 2021.  According to the nationally coordinated criminal history ‘Check Results Report’ issued through the Australian Criminal Intelligence Commission on 20 February 2023 and the NSW Police Force ‘Criminal History – Bail report’ created 24 May 2023, the Applicant’s offending history is as follows:[34]

    [34] R1, G4 and R3, TB5, page 629.

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	18 November 2020	Bankstown Local Court	Drive vehicle, illicit drug present in blood etc – first offence	30 June 2020	$1,000 fine Disqualification of driver’s licence for six months
2.	19 November 2020	Liverpool Local Court	Travel or attempt to travel without valid ticket – adult	14 October 2020	Section 10A conviction with no other penalty[35]
3.	19 November 2020	Liverpool Local Court	Possess prohibited drug	14 October 2020	$100 fine
4.	19 November 2020	Liverpool Local Court	Never licensed person drive vehicle on road - first offence	25 September 2020	$200 fine
5.	17 February 2021	Fairfield Local Court	Stalk/intimidate intend fear physical etc harm (domestic)-T2	3 February 2021	Community Correction order for two years, commencing 17 February 2021 and concluding 16 February 2023
6.	17 February 2021	Fairfield Local Court	Stalk/intimidate intend fear physical etc harm (domestic) -T2	3 February 2021	Community Correction order for two years, commencing 17 February 2021 and concluding 16 February 2023
7.	17 February 2021	Fairfield Local Court	Contravene prohibition/restriction in AVO (Domestic)	3 February 2021 – 6 February 2021	Community Correction order for two years, commencing 17 February 2021 and concluding 16 February 2023
8.	12 March 2021	Fairfield Local Court	Contravene prohibition/restriction in AVO (Domestic)	1 March 2021	Intensive Correction Order (Aggregate) for 12 months, commencing 12 March 2021 and concluding 11 March 2022
9.	12 March 2021	Fairfield Local Court	Contravene prohibition/restriction in AVO (Domestic)	1 March 2021	Intensive Correction Order (Aggregate) for 12 months, commencing 12 March 2021 and concluding 11 March 2022
10.	12 March 2021	Fairfield Local Court	Common assault (DV) -T2	3 March 2021	Intensive Correction Order (Aggregate) for 12 months, commencing 12 March 2021 and concluding 11 March 2022
11.	12 March 2021	Fairfield Local Court	Stalk/intimidate intend fear physical etc harm (domestic) -T2	1 March 2021	Intensive Correction Order (Aggregate) for 12 months, commencing 12 March 2021 and concluding 11 March 2022
12.	12 March 2021	Fairfield Local Court	Stalk/intimidate intend fear physical etc harm (domestic) -T2 (Call up – breach)	3 February 2021	Intensive Correction Order (Aggregate) for 12 months, commencing 12 March 2021 and concluding 11 March 2022
13.	12 March 2021	Fairfield Local Court	Stalk/intimidate intend fear physical etc harm (domestic) -T2 (Call up – breach)	3 February 2021	Intensive Correction Order (Aggregate) for 12 months, commencing 12 March 2021 and concluding 11 March 2022
14.	30 March 2021	Fairfield Local Court	Common assault (DV) -T2	30 March 2021	$800 fine Community Correction Order for 12 months commencing 30 March 2021 and concluding 29 March 2022
15.	30 March 2021	Fairfield Local Court	Contravene prohibition/restriction in AVO (Domestic)	30 March 2021	$800 fine Community Correction Order for 12 months commencing 30 March 2021 and concluding 29 March 2022
16.	3 May 2021	Fairfield Local Court	Contravene prohibition/restriction in AVO (Domestic)	4 April 2021	$500 fine
17.	24 June 2021	Liverpool Local Court	Contravene prohibition/restriction in AVO (Domestic)	23 June 2021	$600 fine
18.	24 June 2021	Liverpool Local Court	Custody of knife in public place – first offence	23 June 2021	$600 fine
19.	17 March 2022	Bankstown Local Court	Contravene prohibition/restriction in AVO (Domestic)	29 June 2021	12 months’ imprisonment commencing 30 June 2021 and concluding 29 June 2022 Non parole period with conditions for eight months commencing 30 June 2021 and concluding 28 February 2022

[35] Section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

1. According to records before the Tribunal, the Applicant has had a number of AVO’s issued against him for the protection of his former partner, Ms L. A provisional AVO was issued on 9 December 2020.[36] According to police records, a final order was made on 11 December 2020 expiring 10 December 2021.[37]  A further AVO (Domestic) was issued on 16 February 2021 with the final order made on 30 March 2021 for two years, expiring on 29 March 2023.[38] A number of the Applicant’s recorded offences relate to breaches of those AVOs or offences which occurred in the context of breaching the AVOs, including two convictions for ‘Common Assault (DV)’. A Statement of Facts from March 2021 noted that there have been some five or six reported AVO breaches since December 2020.[39]

   [36] R3, TB5, page 616-623 (provisional).

   [37] R3, TB5, page 665.  A copy of the final order was not before the Tribunal.

   [38] R3, TB5, pages 614-616 and 624-625.

   [39] R1, G5.

2. According to the material before the Tribunal, the Applicant and Ms L were in a relationship for six to seven months, prior to residing together. The Applicant’s residence burnt down, and Ms L allowed him to reside with her. Their relationship deteriorated during their cohabitation, leading to the first AVO being issued on 11 December 2020 to protect Ms L. Their relationship ended in sometime between January and March 2021.[40]

   [40] R1, G6, page 52; -G11, page 88

3. On 17 February 2021 the Applicant was convicted of two counts of ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’ and ‘Contravene prohibition/restriction in AVO (Domestic).’ The Applicant plead guilty to the offences. According to the Statement of Material Facts, he attended Ms L’s residence after the relationship ceased, causing a scene by yelling at her and calling her names. Ms L requested that he leave but he refused. On 3 or 4 February 2021 he knocked on Ms L’s door and began yelling, calling her names, and threatened to kill her. She did not allow him to enter and he eventually left. On 5 February 2021, he attended the residence and spoke to Ms L through a closed door. He pleaded with her to drop the AVO and Ms L told him to leave. On 6 February 2021, he returned and began to bang on her front door. Ms L said she would call the police if he did not leave. He refused to leave, yelled profanities at her, and threatened to put her in gaol. Ms L called the police who attended a short time later, but they could not locate the Applicant. He received a Community Correction Order (the Community Correction Order) with respect to the contravention of the AVO with supervision for a period of two years, 200 hours of community service work, supervision conditions and an order not to be within 100 of where Ms L lived or worked. The Community Correction Order was in place for two years from 17 February 2021 to 16 February 2023.[41]

   [41] R3, TB7, pages 853-854; R3, TB10, pages 1120-1123..

4. On 12 March 2021 the Applicant was convicted of one count of ‘Stalk/intimidate intend fear physical etc harm (Domestic) T2’, two counts of ‘Stalk/intimidate intend fear physical etc harm (Domestic) (Call up - breach)’ and 2 counts of ‘Contravene prohibition/restriction in AVO (Domestic)’ and ‘Common Assault (DV) -T2.’ Those convictions arose from incidents in March 2021 when the Applicant attended Ms L’s residence and began to bang on her front door, yelling for her to come out so he could speak to her. Ms L remained in her bedroom. The Applicant left and returned later and again banged on her door. Ms L ignored him. Ms L later went out walking. The Applicant approached her and began shouting that he wanted to talk to her. Ms L walked to the Fairfield hotel as she was reportedly aware that the Applicant had been barred from entering the hotel.  The Applicant waited outside of the hotel. Ms L exited the hotel when she could no longer see the Applicant, however, after exiting she saw him behind her so she walked to Fairfield Police Station to report the incident. Ms L reported to the police that the Applicant was stalking her as he followed her for several streets.[42]

   [42] R1, G10.

5. Several days later, Ms L returned to her unit to find the Applicant lying in front of the door. The Applicant complained he was homeless and pleaded with Ms L to allow him inside so he could sleep. Ms L refused and stepped around the Applicant to try to enter her unit, however, the Applicant held the door to prevent it from shutting and continued to plead with her. She refused and he spat in her face. Ms L forced the door shut and washed her face. Approximately 10 minutes, later Ms L walked out from her block of units and saw the Applicant standing outside wearing one of her towels around his head and neck. He began to blame Ms L for his predicament and for losing his job. Ms L ignored him, and he eventually wandered away from her. Shortly after Ms L saw the Applicant in a lane and he began to yell at her. Ms L walked to the police station, and the Applicant followed her in, and police separated them. The Applicant admitted he was at Ms L’s residence in the morning but he was invited there, and he denied spitting on her. The Applicant was arrested, and he declined to be interviewed.[43]

   [43] R1, G10; R3, TB10, pages 1124-1127.

6. With respect to these incidents, on 12 March 2021, the Court ordered that no further action be taken against the Applicant for breaching the Community Correction Order entered on 17 February 2021. However, for the other offences (‘Stalk/intimidate intend fear physical etc harm (Domestic) T2’, ‘Contravene prohibition/restriction in AVO (Domestic) and Common Assault (DV) -T2’) he was sentenced to an aggregate term of imprisonment of 12 months commencing from 12 March 2021 and expiring on 11 March 2022. The term of imprisonment was to be served by way of intensive correction in the community. The 12-month Intensive Correction Order (the Intensive Correction Order), was subject to three months electronic monitoring and evening curfew (12 March 2021 to 11 June 2021), community corrections supervision and a requirement to engage with Community Corrections to address criminogenic needs as necessary.[44]

   [44] R1, G10; R3, TB7.

7. On 30 March 2021, the Applicant, Ms L, and a witness, were at Ms L’s residence. She and the Applicant were in a bedroom when a verbal argument occurred. The argument escalated and the Applicant slapped Ms L to the side of her face. Ms L retaliated striking the Applicant in the face. The witness remained in the lounge area and did not hear or observe the assault. Ms L requested the witness take the Applicant away from the property and police attended a short time later. The police did not observe injuries to Ms L. The police located and apprehended the Applicant in relation to the alleged assault. He was escorted to the police station and declined to participate in an interview.

8. The applicant was charged with one count of ‘Common assault (DV)-T2’, and one count of ‘Contravene prohibition/restriction in AVO (Domestic)’,[45], and bail was refused. He plead guilty to the offences and was sentenced to a 12-month Community Correction Order (the Second Community Correction Order) and supervision. He was also ordered to complete programs for treatment, domestic violence and anger management, and was fined. A two-year AVO was put in place for the protection of Ms L expiring 29 March 2023.[46]

   [45] R1, G9.

   [46] R1, G8 & G9, 61-71; this appears to have been done by way of varying the order made on 16 February 2021 R3, TB5, page 624

1. On 4 April 2021, the centralised monitoring unit made contact with Fairfield Police Station alerting them that the Applicant was breaching his AVO by being detected to be within 100 metres of Ms L’s residence, for approximately 16 minutes. Police located the Applicant a few blocks away from his home address and he stated he was unaware he had breached his AVO. He claimed his friend had drove him to the area, but he thought he was 100m away. The Applicant was arrested and charged, and his bail was refused by police as it was determined there was unacceptable risk that if he was released from custody it will endanger Ms L, an individual or the community.[47] On 3 May 2021, the Court ordered no action be recorded with respect to the breach of the order.[48]  The Applicant was fined for the breach.[49]

   [47] R1, G8.

   [48] R1, G9.

   [49] R1, G4.

2. On 24 June 2021, the Applicant was convicted for a further contravention of the AVO and for ‘Custody of knife in public place - first Offence’. The Applicant plead guilty to the offence.  The circumstances of the offence were that on 23 June 2021, the Applicant and Ms L were travelling together and were approached by police at a train station. When police asked for their train tickets, Ms L provided police with false names, and the Applicant stated he had just met Ms L. Ms L eventually admitted her real identity and maintained that it was a coincidence that they were together. The Applicant was arrested for breaching the AVO, and following a search, police located a razor blade under the inner sole of his shoe and a scalpel handle in his bag (with the blade being able to be inserted into the handle).[50] The was the knife which was the subject of the conviction. When questioned by police the Applicant denied knowledge of the blade being there, and the razor blade was seized.[51]

   [50] R1, G7. page 58.

   [51] R1, G7.

3. On 30 June 2021 the Applicant was taken into police custody. This followed events on 29 June 2021 when the Applicant attended Ms L’s house in contravention of an order and threatened to kill Ms L’s new partner. Ms L left through the rear entrance of the building and again contacted the police. The Applicant saw Ms L leave, and followed her, yelling profanities. Ms L filmed the incident. The Applicant was in short distance from Ms L when she alleged he threatened to burn her with oil. At the police interview, Ms L expressed she was fearful of the Applicant, stating that he continued to breach the AVO, he is erratic and she is afraid he will follow through with his threats. Ms L provided the police with the footage she had recorded.  He was arrested and was refused bail by police on the basis he posed a significant risk to Ms L. It was noted that:[52]

   The nature of the offence is of the lower end of offending however demonstrates a consistent patterns [sic] of harassment of the victim considering the previous charges.

   [52] R1, G8.

4. The Applicant was initially refused bail by police on 30 June 2021.  Orders refusing bail and remanding the Applicant into custody were made by Bankstown Local Court on 1 and 7 July 2021.[53]

   [53] R3, TB9, pages 907, 911.

5. On 17 March 2022, the Applicant was convicted of contravening the AVO. Again, he plead guilty to the charge. He was sentenced to a term of imprisonment of 12 months, with a non-parole period of eight months for this offence.[54] An order was made that he not contact or approach Ms L. He was released into immigration detention on 17 March 2022 with parole effective from 28 February 2022.[55] He has not been in the community since that date.

   [54] R3, TB9, page 912.

   [55] R3, TB9, page 915

6. In relation to the offences against Ms L, the Applicant had plead guilty to those offences in the courts, however before the Tribunal he denied elements of some of the offences, including denying the ‘Common Assault’ charge involving slapping Ms L noting the witness who was in the flat at the time had not observed an assault.[56] The Applicant was asked if he had seen the Statements of Material Facts before he plead guilty and he said that he had but that his Legal Aid lawyer told him to plead guilty so the matter would be dealt with quickly. The Applicant also drew attention to the fact there was no physical violence involved in his offending, and contended on this basis that they were not as serious, and that Ms L had been violent towards him.[57] The Tribunal notes there was no evidence in relation to any offences committed by Ms L before the Tribunal. The Applicant claimed the AVOs resulted from normal arguments between a couple. He testified that the breaches had often arisen when Ms L called him or invited him to come to her home.

   [56] Transcript, page 26.

   [57] R1, G17, page 156.

7. The Tribunal is mindful of the authorities relating to the inability of the Tribunal to ‘go behind’ a conviction, particularly where it gives rise to the exercise of power (in this instance the 17 March 2022 conviction for ‘Contravene probation/restriction in AVO (Domestic)’.[58] While the factual basis of a conviction may be more open to challenge where the Applicant has plead guilty and/or the conviction is not the basis for the exercise of power by the Tribunal,[59]  the Tribunal considers the authorities establish there is a heavy onus on an Applicant to establish a basis for going behind the facts leading to a conviction.[60] In this case the Applicant offered no countervailing evidence to support his assertions that he did not commit offences to which he plead guilty and fell short of establishing any basis on which to question the factual basis for the convictions.

   [58] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [77]). See also the survey of Bromberg J HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP).  

   [59] Bromberg J in HZCP at [78] and Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [43].

   [60] Branson J in Ali at [43].

8. The seriousness of the Applicant’s offending with respect to Ms L is considered further below. The Tribunal accepts that in terms of the individual offences they are at the lower end of offending of that kind.  However, the frequent and persistent nature of the offending, particularly the continued breaches of orders put in place to protect Ms L and avoid further instances of harm significantly increased the seriousness of the offending. This is the case notwithstanding Ms L may have instigated contact with the Applicant on some occasions. As the orders made it clear this was not an excuse for contravention.[61]

   [61] See R3, TB5, page 624.

9. The Applicant also has convictions for minor drug possession offences, driving offences (including a conviction for driving under the influence of an illicit drug) and a weapons offence (for the incident where a blade was found in his shoe).

10. These matters are addressed further below.

    Protection of the Australian Community

11. The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[62]

    [62] See also Direction No 99 para 8(1).

12. Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13. The Applicant submitted that his offending was not violent and arose in the context of domestic disputes and drug use.  He regretted his offending and submitted he had ceased taking drugs several months ago.  He submitted that Ms L recognised her role in the offending and supported his being granted the visa. In submissions to the delegate, he provided an account of ‘my side of the story and what really happened regarding the details of my charges relating to Restraining Order and common assault’ stating that:[63]

    My partner and i broke up because she was giving me really hard time and it put me to stress due to my work and it broke my heart, I was not thinking straight as i was being controlled by my emotions

    What happened was we used to have some verbal arguements. During this whole time I never physically assaulted her, the breaches were about me seeing her and talking to her. I took responsibility for my actions and immediately pleaded guilty to all charges as i was very sorry for this. I want to tell you that the Restraining Order expired on 29/03/2023 and my Ex-Partner [Ms L] has just made contact with me by calling me on my mobile number, she actually apologised to me for her part in the break up and court stuff, She said sorry to me and told me she wants me to help me in any way she did for me to get a bridging visa, while i wait for my court hearing so she can see me again in the community. Her mobile number…and she said she will provide any information that you need to help me get a visa. She said she will write you a statement explaining what happened and that there was no violence you can call her if you want to or she can write you a letter, but if she is going to write a letter i may need a bit more time…

    (Errors in original.)

    [63] R1, G17, page 156.

14. He later indicated he did not need more time to provide a statement from Ms L and would ‘Just leave as it’s [sic]’.[64] No statement from Ms L was before the Tribunal.

    [64] R1, G17, page 157.

15. The Respondent submitted that the Applicant’s offending was objectively serious having regard to the nature of the offences as family violence, the sentences imposed, and the increasing seriousness and cumulative effect of the offending.  The Respondent submitted that the nature of the harm which would occur if the Applicant reoffended included serious physical and psychological harm.  The Respondent also submitted that having regard to the Applicant’s lack of insight into his offending, previous drug use and unmet treatment needs and lack of prosocial support, there is a likelihood of reoffending. Taking into account these factors, the Respondent submitted the protection of the Australian community weighed heavily in favour of exercising the discretion to refuse the visa.[65]

    [65] RSFIC, pages 5-9.

    Nature and seriousness of the conduct

16. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[66]

    [66] See also Direction No 99 para 8.1(2)(a).

    a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    i. violent and/or sexual crimes;

    ii.crimes of a violent nature against women or children, regardless of the sentence imposed;

    iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

    iv. where the non-citizen is in Australia, 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    e)the cumulative effect of repeated offending;

    f)whether the non-citizen has provided false or misleading information to the Department, including by 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

17. The Applicant’s offences are detailed above. He has been convicted of 14 family violence offences, including seven contraventions of domestic AVOs, five stalking offences and two common assaults. The Applicant has also been convicted of minor drug possession offences and driving offences including driving under the influence of an illicit drug.  He has been convicted of one minor weapons offence (carrying a blade in his shoe).[67]

    [67] R1, G4.

18. While the Applicant conceded his offences against Ms L did not involve physical violence, the Tribunal considers they were clearly offences of family violence including stalking, intimidation and assault of his former partner and numerous breaches of orders put in place to protect her from such behaviour.  In the Tribunal’s view the fact that most of these incidents did not involve physical violence (with the exception of the assault which involved a slap to Ms L’s face) does not mean those acts did not constitute ‘family violence’.  In the Tribunal’s view there can be no doubt that they do and that accordingly, the Applicant’s offending comes within the types of crimes or conduct that Direction No 99 states should be “viewed very seriously”.[68]

    [68] Paragraph 8.1.1(1)(a)(iii) of Direction No 99.

19. As noted earlier, the Tribunal considers that most of the Applicant’s offences, when considered individually, are at the lower end of the spectrum for offending of that kind. However, as noted above, the Tribunal considers the repeated and frequent nature of those family violence offences and the repeated failure of the Applicant to abide by the conditions of orders put in place to protect his former partner from further harm, or from an escalation of harm, contribute to the overall assessment of that conduct and offending as being serious.

20. Further, while the Tribunal considers the Applicant’s traffic offences to be relatively minor,  road traffic laws are in place to protect the community, including innocent road users and pedestrians from harm. There is significant potential to lose control of a motor vehicle whilst driving under the influence of drugs, or at the very least for a driver’s judgment and reflexes to be impaired. This can result in road traffic accidents, which can have very serious consequences for other innocent road users and pedestrians, including injury or death. However, while the Tribunal does not consider such offending to be trivial, it does not consider that the traffic or drug possession offences add to the overall assessment of the Applicant’s conduct or offending as being serious.

21. Considering the sentences imposed by the courts,[69] while the Applicant initially received fines, disqualification and community-based orders for his offences, his repeated breach of orders resulted in him receiving a sentence of imprisonment of 12 months for breach of the last AVO.

    [69] Paragraph 8.1.1(1)(c) of Direction No 99.

22. In the Tribunal’s view, the imposition of a custodial sentence in the Applicant’s case indicates that his offending was serious. Sentences of imprisonment are the last resort in the sentencing hierarchy.[70] In the Tribunal’s view, the sentencing of the Applicant to imprisonment indicates that the Court regarded the offending as being serious enough to warrant a custodial sentence and reflects the Applicant’s failure to abide by orders allowing him to service his sentence in the community. This is reflected in the reports of Community Corrections officers recommending the Intensive Corrections Order allowing the Applicant to serve his sentence in the community be revoked.[71]

    [70] RSFIC at [29.3]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].

    [71] Pages 1102-1104;  1106-1109; 1112-1114;

23. Considering whether there is any trend of increasing seriousness,[72] the Tribunal noted earlier that the Applicant’s family violence offending was frequent and persistent. In the Tribunal’s view, the breach of community-based orders which lead to his imprisonment indicated an escalation of that offending, reflected in the denial of bail. The Applicant’s family violence offences occurred over a relatively short period from late 2020 to late 2021. During that period police were frequently called regarding breaches of AVOs and related offences by the Applicant against Ms L. This culminated with the Applicant being detained and imprisoned. There is a trend of increasing seriousness in his family violence offences due to their repeat nature and reflected in the eventual imposition of a sentence of imprisonment.  

    [72] Paragraph 8.1.1(1)(d) of Direction No 99

24. There is a cumulative effect of repeat offending given the number of family violence offences, numerous court attendances, breaches of community orders and the sentence of imprisonment imposed. Such repeat offending, in contravention of orders designed to prevent such behaviour, imposes a burden on the resources of police, the courts, and corrective services.[73]  

    [73] Paragraph 8.1.1(1)(e) of Direction No 99

25. Paragraph 8.1.1(1)(f) of Direction No 99 indicated the Tribunal should consider whether the Applicant has provided false or misleading information to the Department of Home Affairs (the Department), including not disclosing prior criminal offending. In his application for the visa, the Applicant ticked the box marked ‘no’ in response to a question as to whether he had ‘been convicted of an offence in any country’. At that time, 25 January 2023, the Applicant had been convicted of multiple offences and had been sentenced to a term of imprisonment.[74] He did indicate he had been the subject of a domestic violence order, given a date of 30 July 2021, for the ‘date order raised’.[75]

    [74] R1, G12, page 93.

    [75] R1, G12, page 94.

26. The Tribunal notes there is no information before it that the Applicant had previously received any formal or other written warnings that further offending may affect his migration status. The Applicant’s offending did not occur in another country and so paragraph 8.1.1(1)(h) of Direction No 99 is not relevant.

27. There was also evidence before the Tribunal that the Applicant has consumed illicit drugs while in detention and tested positive for these during medical treatment.[76] This was admitted by the Applicant at the hearing.[77] This conduct reflects poorly on the Applicant and demonstrates an ongoing disregard for the laws regarding illicit drug use which are in place for the protection of individuals and the community.

    [76] R2, TB4, pages 49, 184.

    [77] Transcript, pages 14-19.

1. The Tribunal notes the delegate’s decision includes a reference to client incident reports from immigration detention in 2022 including concerning contraband material.[78]  The Applicant denied any knowledge of contraband, including material mailed to him which he said was meant for another detainee.[79] Given no charges were laid in relation to these allegations and the Applicant denies wrongdoing the Tribunal does not place any weight on them in assessing the overall seriousness of the Applicant’s conduct.   

   [78] R1, G3, pages 25-26; G13.

   [79] R1, G16, page 152.

2. In summary, although some of the Applicant’s offences, when viewed individually, can be regarded as being on the lower end of the scale, he has also committed repeated family violence offences including breaches of orders made by the courts. The Applicant’s offending and conduct is frequent and there is a trend of increasing seriousness resulting in his imprisonment. Given the number and frequency of offending there is a cumulative effect of his repeat offending.

   Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

3. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[80]

   (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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 assessing the risk that may be posed by the non-citizen 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:

   i.       information and evidence on the risk of the non­citizen re-offending; and

   ii.      evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

   [80] See also Direction No 99 para 8.1(2)(b).

4. Relevant to this application, where the issue is whether to refuse to grant the non-citizen a visa, Paragraph 8.1.2(2)(c) of Direction No 99 states that an assessment of the risk that may be posed by the non-citizen to the Australian community involves the following cumulative consideration:

   c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

5. The Applicant submitted that he does not present a risk of reoffending because he has learnt his lesson and regrets the offending.

6. The Respondent submitted that this is a case where the risk of harm is so serious that any risk of reoffending is unacceptable[81] It was submitted that if the Applicant were to reoffend by committing further violent offences, the nature of the harm that may result includes significant physical and psychological harm. It was also submitted that there remained a likelihood of the Applicant reoffending given unmet treatment needs, including with respect to illicit drug use which was a factor in past offending and the lack of a pro social network as a protective factor against reoffending.

   [81] Paragraph 8.1.2(1) of Direction 99.

   Nature of the harm

7. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[82]

   [82] Direction No 99 para 8.1.2(2)(a).

8. The Applicant has engaged in repeated instances of threatening or intimidatory behaviour towards his former partner including stalking and repeated breaches of orders put in place for her protection. He has committed assaults against her. While individually these offences were at the lower end of the scale the Tribunal considers that were the Applicant to reoffend against Ms L or a future partner psychological and physical harm would result. In that regard, the Tribunal notes the observation from Community Corrections that the Applicant’s possession of a knife in a public place placed the community, as well as the victim, at risk.[83] Further, the Australian community would bear the financial and resourcing costs of repeated police, court and community corrections service interventions caused by repeated breaches of AVO and community-based orders. The Tribunal considers the cumulative harm caused by such offending to be serious.

   [83] R3, TB10, page 1113.

9. The Applicant has also committed illicit drug related offending including driving under the influence of an illicit substance. If the Applicant was to commit further drug related driving offences, the consequences could be potentially very serious.  Prohibitions against driving under the influence of drugs exist to ensure that drivers are not unsafe to themselves and others by driving when they are impaired which can increase the risk of road traffic accidents occurring. The nature of the harm if the Applicant were to commit further drug possession offences is varied. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes as well as mental and other health issues for drug users.

   Likelihood of the non-citizen engaging in further criminal or serious conduct

10. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[84]

    [84] Direction No 99 para 8.1.2(2)(b).

11. The Respondent contends that there remains an ongoing and unacceptable risk of the Applicant reoffending highlighting that:[85]

    ·The Applicant appears to lack insight into his offending and to deny responsibility for family violence offending.[86]

    ·The Applicant has breached domestic violence orders including when subject to electronic monitoring.

    ·There is no expert evidence on the risk of the Applicant reoffending and police assessed the Applicant presented an unacceptable risk in denying bail.[87]

    ·Illicit drug and alcohol use appears to have been an underlying or contributing factor in the Applicant’s offending. The Applicant has not provided evidence he has undertaken rehabilitation courses addressing drug use and there is evidence the Applicant has used drugs while in detention as recently as December 2022.[88]

    ·The Applicant has not presented evidence of rehabilitation to address causes of his offending.

    ·There is no evidence to support the Applicant’s claims regarding his family network in Australia, including evidence which indicates the Applicant was not visited by family while in custody.[89]

    [85] RSFIC, pages 8-9.

    [86] R1, G17, page 156.

    [87] R1, G8.

    [88] R2, TB4, pages 49 and 184.

    [89] R1, G18.

12. The Applicant submitted that he had made mistakes, but he was asking for another chance.[90] He submitted that he had stopped using drugs[91] and that he had undertaken voluntary drug rehabilitation in prison but had been told specific rehabilitation programs including with respect to family violence were not available to him in prison or immigration detention.[92] He said he had learned from is mistakes and after three years in prison or detention he would not repeat them. [93] He said he wanted to be a ‘useful person for the community’ and would love to do domestic violence and drug courses.[94]  He submitted that he was on drugs when he offended but now he had been clean for six or seven months and could see himself better than before and would not go back to drugs. He said he wanted to get a job and make a new family.[95] The Tribunal had concerns regarding the Applicant’s claimed insight into his offending and his claimed rehabilitation from drug and alcohol use.  Central to this concern was the fact the Applicant admitted to continuing to use drugs while in immigration detention, though he denied ever taking cocaine. He also denied any access to or use of alcohol in detention. In this regard, he initially claimed he had been clean for about a year and had used drugs in detention in NSW, prior to being moved to Western Australia. When it was put to him that he had tested positive for illicit drugs including methamphetamine and cocaine when admitted to hospital in Perth in December 2022, he conceded he had used drugs in immigration detention more recently than twelve months prior but that he had been clean for six or seven months.[96]

    [90] Transcript, pages 10-11.

    [91] Transcript, pages 17-18.

    [92] Transcript, pages 34-35, 38.

    [93] Transcript, pages 52-53.

    [94] Transcript, page 53.

    [95] Transcript, page 53.

    [96] Transcript, pages 17-20.

13. Although there was limited information before the Tribunal regarding any voluntary drug programs undertaken in prison, the Tribunal accepts the Applicant attended one Addictions support group session and one Narcotics Anonymous session.[97] He also undertook a Driver Knowledge Test.[98] That is in the Applicant’s favour. However, by his own admission he has used drugs subsequent to this attempt at rehabilitation which suggests that the impact of these sessions was limited. Given the inconsistencies in the Applicant’s evidence regarding when he ceased using drugs, the Tribunal has significant concerns regarding his commitment to remain drug free and in particular his capacity to maintain this commitment in the community where it remains untested.

    [97] R1, G18, page 161; R3, TB10, page 1044.

    [98]R3, TB10, page 1043.

14. By his own admission the Applicant’s offending was associated with drug use. Some of the offending directly related to drug use. The Tribunal considers there remains a significant likelihood of the Applicant using drugs in the community and of him reoffending in a similar manner associated with such drug use. 

15. Further, the Applicant has not undertaken any other rehabilitation including with respect to family violence which has been a significant factor in his offending history. While no evidence of current risk assessment was available to the Tribunal, assessment reports appear in the context of community-based orders being made or revoked.  In the context of the February 2021 community-based order he was assessed to be low risk of reoffending by Community Corrections.[99]

    [99] R3, TB10, page 1111.

16. In the later Breach Report for the Intensive Correction Order, dated 29 June 2021, the officer who made the February 2021 recommendation noted: “[the Applicant’s] most recent convictions are related to his risk factors of domestic violence and intimidating behaviour. [The Applicant] has continued contravening his Apprehended Violence Order, and it is especially concerning that he was in possession of a knife”.[100]  Community Corrections noted he had “minimally benefitted” from community-based orders and demonstrated a “lack of willingness to address his offending despite being given numerous opportunities to do so”.[101] In supporting the recommendation the Intensive Correction Order be revoked, a Unit Leader noted:[102]

    [The Applicant’s] demonstrated lack of regard for his DV related obligations and his possession of an offensive weapon have not only engendered minimal confidence in his further willingness to abide by a lawful community life but also increased his risk of re-offending’.

    [100] R3, TB10, page 1113.

    [101] R3, TB10, page 1113.

    [102] R3, TB10, page 1114.

17. Information regarding the community-based orders and corrections reports suggests the Applicant has been assessed to have criminogenic needs with respect to family violence rehabilitation which he was directed to undertake.[103]  A referral had been made for him to attend a program with Relationships Australia,[104] however he confirmed he did not undertake that program due to his imprisonment.[105] The lack of any rehabilitation or education with respect to family violence presents an ongoing risk factor with respect to the Applicant reoffending. The Applicant displayed a lack of insight into the nature and risks of his offending, describing his offences as arising from relationship disputes which he characterised as ‘normal’. He pointed to Ms L’s own drug use and behaviours as a factor in his offending. He indicated he was protecting her by not telling police about these factors.[106]  While the Tribunal accepts the dynamics of the relationsip may have been a factor in the offences, in the Tribunal’s view the Applicant struggles to acknowledge his own responsibility for the offending, including with respect to repeated breaches of orders in place to prevent ongoing incidents. 

    [103] R3, TB10, page 1113.

    [104] R3, TB10, page 1128.

    [105] Transcript, page 37.

    [106] Transcript, page 36.

18. The Tribunal also considers that the Applicant’s account of his circumstances during the period of offending indicated a lack of stability in his housing and employment arrangements. There is no information before the Tribunal suggesting his circumstances would be different were he to remain in the community.  Further, while the Tribunal accepts the Applicant has family in Australia, there is no evidence to suggest they would be able to provide the Applicant with a prosocial network such as to provide a protective factor against reoffending. 

19. In the Tribunal’s assessment, the Applicant’s lack of insight into his offending and lack of family violence education or treatment and history of poor compliance with Court orders means the risk that he will reoffend in a similar manner against Ms L or against a further partner cannot be discounted. 

    Visa considerations going to risk of harm

20. Whether the risk of harm may be affected by the duration and purpose of the Applicant’s intended stay, the type of visa being applied for and whether there are strong or compassionate reasons for granting the visa, are particular matters the Tribunal must have regard to when considering whether to refuse to grant the Applicant a visa.[107]

    [107] Direction No 99 para 8.1.2(2)(c).

21. The Respondent submitted that the Applicant’s visa history and potential future visa pathways were relevant considerations for the Tribunal in assessing the likelihood of the Applicant reoffending. The Respondent submitted that even if the Tribunal were to set aside the Reviewable Decision and find the visa should not be refused pursuant to s 501 of the Act, it is unlikely that the current visa application would be granted. This is because the Applicant’s application was for a Bridging Visa E on judicial review grounds, and there are currently no judicial review proceedings which are ongoing with respect to the Applicant, the FCFCA having refused his application for an extension of time to seek review of the IAA’s decision affirming the refusal of his protection visa application.

22. The Respondent noted that the Applicant is subject to a bar pursuant to ss 48 and 48A of the Migration Act, limiting his potential future visa pathways whilst he remains onshore. It was submitted that the effect of those bars is that if the Tribunal were to set aside the delegate’s decision to refuse the visa, the Applicant would still be able to apply for another visa of a kind specified in reg 2.12 of the Migration Regulations 1994 (Cth) (the Regulations) (other than a protection visa). It was submitted that as the risk of harm to the community is not an immediate consequence of a decision to refuse the visa, the Tribunal should still assess the potential risk to the community which may result from its decision. That risk involves the potential that the Applicant is granted a further bridging visa or substantive visa specified in reg 2.12 of the Regulations.

23. At the hearing the Tribunal noted the Applicant’s status as an unauthorised maritime arrival and queried whether the Applicant would be subject to any further bars arising from that designation under the Migration Act.[108] The Respondent confirmed the Applicant would also be subject to the operation of s 46A of the Migration Act, which would restrict him making any further visa applications without Ministerial intervention. This would include a further protection visa application or an application for a bridging visa.

    [108] As the Applicant arrived by sea at an excised offshore place (Christmas Island) after that place was excised (in the case of Christmas Island 2001) the Applicant is an unauthorised maritime arrival (s 5AA) for the purposes of s 46A of the Act. Under s 46A of the Act, if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister. This includes a further bridging visa.

24. The Tribunal has considered the impact of the matters detailed in Direction No 99 para 8.1.2(2)(c) on the Applicant’s circumstances. The Tribunal accepts the submission that the Applicant may no longer meet the criteria for the visa on be basis that he no longer has any judicial review applications pending.[109] However, the issue before the Tribunal is whether the visa should be refused on character grounds, and the Tribunal considers the question of whether he meets other criteria for the visa does not directly impact the question of whether there is a risk to the community, though the temporary nature of the visa does impact the assessment of risk. In that regard, the Tribunal notes that though a Bridging E visa is a temporary stay visa, the Applicant has expressed the desire and intention to remain indefinitely. The Tribunal notes that during the 10 years he has been in Australia he has only ever held temporary stay or bridging visas and that he held no visa at the time of the offending.  As such the Tribunal considers that although, if granted, a bridging visa would only provide for a temporary stay, the risk of reoffending on such a visa remains, particularly if the Applicant is unable to maintain his commitment not to use illicit drugs if permitted to stay in the community.

    [109] See Clause 050.221 of the Migration Regulations 1994 (Cth).

25. The Applicant did not suggest there were any strong or compassionate reasons for granting him the visa other than that he wants to be part of the community and considers he cannot return to Lebanon due to claimed risks to him there. Those matters are considered further below.  However, for the reasons outlined below the Tribunal does not consider there would be strong or compassionate reasons for granting the Applicant a bridging visa in circumstances where it appears the Applicant’s options for permanent stay are limited and the expectation would be that he would depart Australia at some point in the foreseeable future.

26. The Tribunal considers that the fact the Applicant will otherwise remain in detention until arrangements can be made for his return to Lebanon on a voluntary or involuntary basis carries some weight as a compassionate ground for granting the visa.  However, given that the timing of the Applicant’s departure is a matter which, on the material before the Tribunal, appears to be driven by a decision on his part not to leave, the Tribunal does not consider this would amount to a compassionate ground for the granting of the visa.

1. The Tribunal considered whether any other issues raised by the Applicant in the context of this application may give rise to a non-refoulement obligation.  With respect to harm from the Applicant’s brother, the Tribunal notes the evidence was that he is currently in prison and that he had moved to another part of Lebanon from his siblings. There was no evidence that he has harmed or threatened to harm the siblings remaining in Lebanon since the Applicant left Lebanon, and the Tribunal does not accept that he has done so. The Tribunal finds there is no real chance the Applicant would be seriously or significantly harmed by this brother on return to Lebanon.

2. The Tribunal notes the Applicant has had health issues including a diagnosis of type 2 diabetes, treatment for pancreatitis, recurrent ear infections and post-traumatic stress disorder (PTSD).[167]  He also has a history of illicit drug use though he claims to be ‘clean’ and did not make any claims to fear harm on return to Lebanon on that basis. The Tribunal notes that on the basis of supporting evidence, the Departmental delegate and the IAA did not accept the Applicant’s claims to suffer mental health issues. However, the Tribunal accepts on the current information that he has suffered PTSD and depression which has been ‘exacerbated by the stresses of detention’.[168] Evidence of those conditions is recent (predominately arising in 2023 medical records).  In this regard the Tribunal notes the DFAT 2023 Report records:[169]

   Mental illnesses, including anxiety, depression and PTSD, are common in Lebanon, and have reportedly worsened as a result of multiple nationwide crises.  Mental health services are scarce, especially outside Beirut.  The economic crisis has led to a mass exodus of mental health professionals from Lebanon. In-country sources report that people with a mental illness have traditionally been subject to considerable stigma, especially those with more noticeable symptoms, who are perceived as ‘incompetent, aggressive, violent’ and unable to participate in the community.  In-country sources told DFAT there is a widespread belief that the mentally ill should simply ‘snap out of it,’ however, also reported that the considerable stresses of the August 2020 port blast had led to an increased openness around mental illness, especially anxiety and depression.

   [167] Generally the medical records contained in R2, see for example R2, TB4, pages 49, 113, 201-205, 355, 380, 385, 450, 460.

   [168] R2, TB4, page 450.

   [169] DFAT 2023 Report at [2.17].

3. The Tribunal finds this information does not support a claim that the Applicant would face a real chance or a real risk of serious or significant harm on the basis of his mental health issues on return to Lebanon or in the foreseeable future.

4. Further, while country information suggests medical treatments are limited, it does not suggest that the lack of medical treatment in Lebanon is persecutory in nature. Nor is the Tribunal satisfied that the Applicant’s own medical issues would give rise to a real chance of significant harm as defined under the Migration Act, noting the requirement for an identifiable agent of harm with respect to complementary protection assessments. In any event, the Tribunal considers the Applicant’s medical conditions while requiring ongoing medical management and treatment are recorded as well-controlled and have been successfully improved through modifications in behaviour. Further, his sister is a trained nurse and may be able to assist with lifestyle management of his condition in the event his access to medical treatment is limited.

5. Even if the Tribunal were to accept, which it does not, that the Applicant’s family members would be unable to offer him any support resettling in Lebanon, it is not satisfied that the harm the Applicant fears is serious or significant harm such as may give rise to a non-refoulement obligation under refugee or complementary protection assessments.

6. Under the refugee criteria, a person’s fear of persecution must be for reasons of their race, religion, nationality, membership of a particular social group or political opinion.[170] One or more of these reasons must be the essential and significant reason for the persecution, which must also involve systematic and discriminatory conduct.[171] The evidence before the Tribunal does not indicate that any of the reasons in s 5J(1)(a) is the essential and significant reason for the challenges the Applicant claims he might face as a result of economic or medical issues he would have in Lebanon.

   [170] Migration Act s 5J(1)(a)

   [171] Migration Act s 5J(4)(a) and (c).

7. The Tribunal is not satisfied on the information before it that the Applicant’s race, nationality or political opinion, whether imputed or expressed, are essential and significant reasons for the difficulties he might encounter in this regard. Similarly, the Tribunal does not consider that it would be the Applicant’s membership of any particular social group, including persons with health issues and/or mental health issues in Lebanon and any combination of these groups, which would be the essential and significant reason for the position he might find himself in Lebanon. As noted earlier, the Tribunal also does not accept the Applicant’s earlier claims that he would face harm for reasons of his ethnicity or real or imputed political opinion. Having regard to prior consideration of his claims against the criteria for protection in the Migration Act and the information before it, the Tribunal does not accept that there is a real chance that the Applicant would face persecution in Lebanon for the reason of his race, religion, nationality, political opinion or membership of any particular social group.

8. With regard to complementary protection, what constitutes significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Migration Act. A person will suffer ‘significant harm’ if:

   ·they will be arbitrarily deprived of their life;

   ·the death penalty will be carried out on them; or

   ·they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.

9. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Migration Act. The definition of torture requires an element of intent. It is ‘an act or omission by which severe pain or suffering … is intentionally inflicted on a person’ for a specified purpose or reason. There are similar requirements of intention in the definitions of ‘cruel or inhuman  treatment or punishment’ and ‘degrading treatment or punishment’.

10. The Tribunal does not accept on the evidence before it that the circumstances the Applicant might find himself in should he be removed to Lebanon would be ‘intentionally inflicted’ as required by the definition of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection 5(1) of the Migration Act. The Tribunal does not accept that there is a real risk that the Applicant would face significant harm as a necessary and foreseeable consequence of being removed to Lebanon.

11. Under s 36(2B)(c) of the Migration Act, there is taken not to be a real risk that an Applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. To the extent the issues of generalised insecurity, the poor living conditions and the hardship referred to are issues not arising or not addressed in the prior decisions on the Applicant’s protection visa application, the Tribunal is satisfied those are issues faced by the population generally and not by the Applicant personally. The Tribunal finds that there is no real risk that the Applicant will suffer significant harm in Lebanon as a result of generalised insecurity, difficult financial and living conditions, and any consequential hardship.

12. Having regard to the Applicant’s claims and available country information, the Tribunal accepts that health services are limited in Lebanon, economic circumstances are difficult and there is generalised insecurity. However, the Tribunal does not accept that non-refoulement issues arise as a consequence of a decision to exercise the discretion to refuse to grant the Applicant the visa.

13. The Applicant has been found not to be a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) or the Migration Act and there is no information before the Tribunal to suggest any other non-refoulment obligation with respect to him arises and would be breached by his return to Lebanon. There is no suggestion that non-refoulement obligations arise with respect to him outside of those provided for under refugee and complementary protection assessments. He has been found not to be a person with respect to whom Australia has protection obligations therefore the prospect of his return to Lebanon does not give rise to an issue of a breach of Australia’s non-refoulement obligations.

14. There  is no information to suggest the Applicant would be detained indefinitely.  However, having regard to the fact the Departmental delegate’s decision finds the Applicant is a Lebanese citizen as claimed, but that he does not hold a current passport, having had it confiscated by people smugglers, the Tribunal accepts that his return to Lebanon may take some time and that he will likely be detained while arrangements can be made for documentation facilitating his removal. The Tribunal accepts this will cause him hardship, noting his medical issues including diabetes, a history of pancreatitis and depression. The Tribunal notes these issues appear to have been successfully treated and managed in detention however the Tribunal acknowledges that the Applicant’s physical and mental health may be adversely affected if his detention is prolonged. 

15. On that basis of the information before it, the Tribunal finds this consideration weighs slightly against exercising the discretion to refuse the visa.

    Extent of impediments if removed

16. Paragraph 9.2 of Direction No 99 provides that the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of Lebanon, that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c). The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:

    ·The Applicant’s age and health;

    ·Whether there are substantial language or cultural barriers; and

    ·Any social, medical and/or economic support available to the Applicant in their country.

17. The Applicant is a citizen of Lebanon.[172]  He spent his formative years in his home country and left as an adult.  He speaks Arabic and is a Sunni Muslim.  He has family members in Lebanon with whom he has lived previously and with whom he remains in contact. While he has spent over 10 years in Australia, the Tribunal considers he would not face any substantial language or cultural barriers on return to Lebanon.

    [172] R1, G16.

18. The Applicant is 36 years old. In his Personal Circumstances form, he indicated he did not suffer from any diagnosed medical or psychological conditions.[173] However, detention records indicate was diagnosed with diabetes mellitus (type 2) in late 2022.  Medical records indicate that his condition is currently ‘well controlled’ with treatment including lifestyle modifications and medication.[174] In addition, he suffered from pancreatitis in December 2022 which appeared to be associated with his diabetes diagnosis. There is no information he currently suffers from pancreatitis, however he gave evidence that he has been told it is likely to reoccur. He has also recently seen a psychiatrist in detention and has a diagnosis of PTSD recorded.[175]  There was evidence that on entry to prison he had been identified as a harm risk based on a self-identified prior incident of self-harm in 2015.[176]  There was no evidence self-harm had arisen as an issue in prison or detention including in the context of psychiatric treatment in detention. Records indicate the Applicant denied any thoughts of self-harm when his detention arrangements were reviewed in prison and was reassessed for group detention.[177] While there was no indication that thoughts of self-harm were a current issue for the Applicant, the Tribunal accepts he may have had such thoughts in the past and may have attempted self-harm in 2015. 

    [173] R1, G16, pages 149-150.

    [174] R2, TB4, pages 6, 282-283, 430.

    [175] R2, TB4, page 204.

    [176] R3, TB10, page 1030.

    [177] R3, TB10, page 1007.

19. The Tribunal notes DFAT country information regarding the limited availability of healthcare in Lebanon.[178] That information suggests there is a public/private healthcare system in Lebanon but that the economic crisis has severely impacted access to services and forced more people into the public system. Access to medication is limited by cost and significant supply constraints. This was supported by the Applicant’s evidence before the Tribunal.  The Applicant described his issues with the healthcare system in Lebanon as follows:[179]

    TPFQ:  First of all, [the Respondent’s lawyer] said about the health care in Lebanon. There is no health care in Lebanon. There is no free medicine. There is no – it is not like here. You do not even have a Medicare in Lebanon. You have money, you can get your medicine. You do not have money, you can get nothing. There is no health care. I do not know where he get this information from, but there is nothing can help in Lebanon unless if you have money for it. Even if you – whatever you want to do like medical things, you have to pay for everything.  The Government never help you with anything. That is first of all. 

    SENIOR MEMBER:    I think what [the Respondent’s lawyer] was saying was that the country information suggests that you are right, there is limited health care availability, but that in relation to that, you would not be in any different situation to other citizens of Lebanon. What would you say about that?

    TPFQ:  Yes, exactly, that is right. I would not be different to any other, but the other people in Lebanon as well, they can’t get medication. They can’t get nothing. Because there is no help from the Government and especially – especially now. There is no Government, there is no president, there is nothing. And he said like my sister, she works as a nurse, she can help me with – my sister she is not working at the moment and even if she is nurse, she can’t give me health care or help or anything like that, because – because she just – she just employed like as a – like anyone else. 

    [178] R4, at [2.15]-[2.16].

    [179] Transcript, page 52.

20. The Applicant accepted he would have the same access to medical care as other citizens of Lebanon but suggested that healthcare is only available to those who can pay for it. The Tribunal accepts on country information that there is limited access to healthcare in Lebanon and that this will likely impact the Applicant’s access to such services on return. 

21. The Tribunal notes that with respect to his diabetes, the Applicant has had access to health support and education on lifestyle to assist in self-managing this condition this while in Australia. His pancreatitis is noted in medical reports to be linked to his diabetes. He also has a sister who is medically trained and may be able to assist him with maintaining lifestyle modification in Lebanon. These factors indicate the Applicant may have some capacity to manage his health issues if his access to services is limited.  However, the Applicant indicated that his family members have their own families and can’t support him but thought that maybe they could support him for the short term on his arrival, ‘for like a week or two weeks or maybe a month’.[180] Further, treatment records suggests that while lifestyle changes have assisted improving the Applicant’s condition, ongoing monitoring and adjustments been needed to manage the Applicant’s diabetes since his diagnosis.  The Tribunal accepts the Applicant’s health issues will present a significant challenge in Lebanon, particularly if he does not maintain lifestyle strategies for managing his diabetes. 

    [180] Transcript, page 45.

22. The Tribunal notes the general economic and security challenges prevailing in Lebanon, as detailed in the Applicant’s evidence and relevant country information, and accepts that the circumstances in Lebanon will make resettlement more challenging for the Applicant.  While the Tribunal considers his family members would offer him some support in resettling it accepts their capacity to do so will likely be limited by their own economic circumstances. The Tribunal considers the Applicant’s age and experience working in Lebanon will assist him to achieve basic living standards in the context of standards available to other citizens of Lebanon.

23. As noted above, there is evidence the Applicant has used illicit drugs and alcohol in the past. He admits to using alcohol and claims to have been clean for six to seven months. As he has not had any treatment for illicit drug addiction, the Tribunal considers there is a risk he will return to using drugs in the future including if returned to Lebanon.  The Tribunal considers that given limited health care available in Lebanon, were the Applicant to use drugs in that country this would have a negative impact on his physical and mental wellbeing. The Tribunal also considers that the Applicant’s diagnosed mental health issues will be likely to continue, or be exacerbated by the stressors of return to Lebanon. While the Applicant’s treatment notes include information that he has been provided with strategies for managing his mental health which he may be able to maintain on his own, like mindfulness practice, the Tribunal accepts that he will find it more difficult to manage his mental health without clinical support. This will make it more challenging for him to resettle in Lebanon.

24. The Tribunal considers the Applicant will face a range of impediments on return to Lebanon.  The most significant of these will be managing health issues connected to his diabetes.  However, given evidence that lifestyle modifications can assist to manage his condition, as they have in the period since his diagnosis in December 2022, the Tribunal considers this to be significant but not insurmountable. The Applicant will also face potentially significant issues managing his addiction and mental health issues.

25. The Tribunal also considers the economic situation in Lebanon will present a significant challenge to the Applicant in re-establishing himself and maintaining himself there. Again, the Tribunal does not consider those challenges to be insurmountable in the longer term having regard to the Applicant’s relatively young age, employment experience and family connections in Lebanon. While not insurmountable, these factors all weigh against refusing the visa.

26. Having considered the extent of the impediments if the Applicant is removed to Lebanon, Tribunal affords this consideration heavy weight against exercising the discretion to refuse the visa.

    Impact on victims

27. Paragraph 9.3 of Direction No 99 states:

    (1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

1. There was no information before the Tribunal regarding the impact of the decision on members of the Australian community including the victim, Ms L.  In information submitted to the delegate, the Applicant claimed Ms L was supportive of him remaining in Australia and being granted the visa, however no evidence from Ms L was offered in support of this contention and the Tribunal does not place any weight on it.

2. Having regard to the information before it the Tribunal considers this consideration weighs neutrally in the Applicant’s case.

   Impact on Australian business interests

3. Paragraph 9.4 of Direction No 99 states:

   (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

4. There was no information before the Tribunal regarding the impact of the decision on Australian business interests.

5. Having regard to the information before it the Tribunal considers this consideration weighs neutrally in the Applicant’s case.

   CONCLUSION

6. The Tribunal considers that the Applicant does not pass the character test as defined in s 501(6)(a) for the reasons set out earlier [at 40 and 41]. This enlivens the discretion under s 501(1) of the Migration Act to refuse the Applicant’s protection visa application, taking into account the primary and other considerations set out in Direction No 99.

7. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.

8. In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and in accordance with the guidance provided by Direction No 99.

9. For the reasons set out above, the Tribunal considers that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of exercising the discretion to refuse the visa. 

10. The primary consideration of family violence committed by the Applicant also weighs heavily in favour of exercising the discretion to refuse the visa.  

11. The primary consideration of the expectations of the Australian community also weighs heavily in favour of exercising the discretion to refuse the visa. 

12. The primary consideration of the strength, nature and duration of the Applicant’s ties to Australia weighs slightly against exercising the discretion to refuse the visa.

13. There was no evidence that the best interests of minor children were impacted by a decision in the Applicant’s case and that consideration weighed neutrally.

14. With regard to the other considerations that were relevant, the legal consequences of the decision weighs slightly against exercising the discretion to refuse the visa.

15. The extent of impediments the Applicant faces if removed to Lebanon weighs heavily against exercising the discretion to refuse the visa. 

16. The considerations of the impact on victims and the impact on Australian businesses were given neutral weight.

17. Having taken account of the Applicant’s circumstances and weighed the considerations, the Tribunal considers that the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community, which all weigh heavily in favour of exercising the discretion to refuse the Applicant the visa, outweigh the other primary consideration of the strength, nature and duration of ties to Australia and the other relevant consideration of the impediments the Applicant would face on return to Lebanon and the legal consequences of the decision.

18. Having regard to the primary and other relevant considerations in Direction No 99, the Tribunal that the discretion under s 501(1) of the Migration Act to refuse to grant the Applicant the visa should be exercised. Therefore, the correct or preferable decision is to affirm Reviewable Decision.

    DECISION

19. The decision of the delegate of the Respondent dated 13 April 2023 to refuse to grant the Applicant a Bridging E (Class WE) visa is affirmed.

I certify that the preceding 226 (two hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

........................................................................

Associate

Dated: 21 July 2023

Date of hearing:	3 July 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers