Younes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 4430
•21 December 2023
Younes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4430 (21 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/7189
Re:Mahmoud Younes
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:21 December 2023
Date of written reasons: 30 January 2024
Place:Sydney
The Tribunal decides that the reviewable decision, made on 28 September 2023, not to exercise the discretion under subsection 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's Class BC Subclass 100 Partner visa, is set aside. In substitution, it is decided that the mandatory cancellation of the Applicant's visa is revoked.
..............................[SGD]..........................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – Applicant citizen of Lebanon - visa mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – Sexually touch another person without consent-T2 and Take etc person intend commit serious indictable offence-SI (Attempt) - review of decision to refuse to revoke mandatory cancellation under section 501CA(4) - where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds - Direction no. 99 considered – reviewable decision set aside and substituted.
LEGISLATION
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)
Migration Act 1958 (Cth)
CASES
Dharma and Minister for home Affairs [2018] AATA 2757
FYBR v Minister for Home Affairs [2019] FCAFC 185
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
30 January 2024
INTRODUCTION
Mahmoud Younes (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 28 September 2023 to refuse to revoke the mandatory cancellation of his Class BC Subclass 100 Partner visa (the visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1]
[1] Applicant’s Statement of Facts, Issues and contentions, [3].
On 24 June 2022, the Applicant was convicted in the District Court of New South Wales at Parramatta of Sexually touch another person without consent-T2 and Take etc person intend commit serious indictable offence-SI (Attempt). He was sentenced to an aggregate term of imprisonment of 4 years, commencing 1 December 2020 and concluding 30 November 2024, with a non-parole period of 2 years and 6 months.[2]
[2] G-documents, G2, p. 47 – 50.
On 6 September 2022, the Applicant’s visa was mandatorily cancelled pursuant to section 501(3A) of the Act because he had a ‘substantial criminal record’.[3] The Applicant made representations requesting revocation of the cancellation decision on 9 September 2022.[4] On 28 September 2023, a delegate of the Respondent decided not to revoke the cancellation decision.[5]
[3] Ibid, G2, p. 133 – 134.
[4] Applicant’s Statement of Facts, Issues and contentions, [3].
[5] Ibid, [4].
On 30 September 2023, the Applicant applied to the Administrative Appeals Tribunal for review of the non-revocation decision.[6] For the reasons that follow, the decision of the delegate will be set aside.
BACKGROUND AND EVIDENCE
[6] G-documents, G1, p. 1 – 6.
The Applicant’s evidence
The Applicant is currently 27 years old. He was born in Lebanon and is a citizen of that country. [7] In 2016, the Applicant married Hanadi Imad Faytrouni in Lebanon.[8] The couple had known each other for many years. In June 2017, the couple’s first child was born in Australia.[9] On 12 December 2017, the Applicant arrived in Australia as holder of a subclass 309 partner (provisional) visa.[10]
[7] Applicant’s Statement of Facts, Issues and contentions, [1].
[8] G-documents, G2, p. 115.
[9] Ibid, G2, p. 116.
[10] Ibid, G2, p. 132.
In January 2019 the Applicant’s second child was born.[11] On 9 October 2020, the Applicant was granted the visa which is the subject of the reviewable decision.[12] Around this time the Applicant and Ms Faytrouni’s relationship began to deteriorate, and in September or October 2020 Ms Faytrouni decided to end their marriage.[13]
[11] Ibid, G2, p. 115.
[12] Ibid, G2, p. 133.
[13] Ibid, G2, p. 104.
The Applicant told Ms Faytrouni she could stay in the family home with their children and he would find somewhere else to live. Soon after, the Applicant returned home to find that Ms Faytrouni and the children had left the house and moved in with her brother. Ms Faytrouni subsequently informed the Applicant she had been pregnant with their child and had terminated the pregnancy.
Despite the breakdown of their relationship, the Applicant and Ms Faytrouni continued to cooperate and maintain a civil relationship for the benefit of their children. The Applicant spent time with his children every other day in addition to the one day each week when he was not working. The Applicant and Ms Faytrouni had pickup and drop-off arrangements in place which facilitated this regular contact.
In October or November 2020 the Applicant began residing with his brother.[14]
[14] Ibid, G2, p. 37.
The Applicant’s offending
On 24 June 2022, the Applicant was convicted of Take etc person intend commit serious indictable offence-SI (Attempt) and Sexually touch another person without consent-T2. He was sentenced to an aggregate term of 4 years imprisonment, commencing 1 December 2020 and, a non-parole period of 2 years and 6 months concluding 31 May 2023.[15]
[15] Ibid, G2, p. 47 – 50.
The Applicant does not dispute the offending which was described in detail by His Honour Judge Craigie in the District Court of New South Wales during sentencing:
A little before 11.00pm on 1 December 2020 the offender was in the area adjoining a 7-Eleven petrol station at [suburb]. He had some interaction with the staff at the 7-Eleven as did shortly thereafter the complainant. I refer to her as CS...
She also was at the 7-Eleven. After she had purchased some cigarettes, she walked out of the petrol station that encompassed the 7-Eleven … At some point the offender chose to drive alongside her as she was on the footpath. As she was walking, she saw that the window of the offender's vehicle was wound down. The offender held out his mobile phone. On it he exhibited to the complainant what was playing on the phone, being a pornographic video. The offender said to the complainant, "I want to do this with you". The complainant said "No", saying that she had a boyfriend.
The offender persisted. He said that he would give her $500 and that he wanted sex. The complainant responded … by simply saying "No" and she continued to walk away. She approached the corner of another street… The offender then persisted in trying to make contact with her, shouting out "Wait, listen". The complainant replied, "No, I have a boyfriend". She then crossed the street and continued quickly walking away.
…
The complainant looked at her right prior to crossing the street and again saw the offender in his vehicle parked …
The offender flashed his headlights a number of times as the complainant crossed the road. She continued walking … she approached the intersection … There she saw the offender's vehicle … It performed a U-turn and drove in the opposite direction from its initial position. The complainant was scared. She anticipated that, as she continued, she would encounter the offender at a next intersection.
As she approached … she saw the offender's vehicle again. The offender had parked. She saw him leave the vehicle and step out on to the street.
The offender then approached the complainant and placed both his hands on her upper arms, saying "Half an hour, I'll pay you, your body is beautiful". He began ushering the complainant towards his vehicle. The complainant said "No, I have to go". The offender however insisted "Just get in my car, half an hour please". Using his hands, he then picked the complainant up, holding her around her stomach, as described in the Agreed Statement, "holding her in the air", which I take to mean that lifting her to a degree that her feet were no longer on the ground. The complainant told him not to pick her up.
The offender walked a short distance towards his vehicle, still holding the complainant in his arms, then released her. She walked away from him, the offender followed and touched her buttocks and said, "Oh it's very nice", saying, "You're beautiful". He again picked her up, however, and walked her towards his vehicle. The front passenger door was already open. The offender placed the complainant in the front passenger seat and repeated, "Stay there, just half an hour''. The complainant's wish, unsurprisingly, was that she wanted to leave the vehicle, she was prevented from doing so by the offender, whose hands remained underneath her thighs. He touched her buttocks once more, pushing her shorts up briefly touching her buttocks', skin to skin. He unzipped the complainant's jacket and touched both her breasts.
He squatted in the open doorway of the front passenger door preventing her from leaving the vehicle, again saying "You're beautiful, what is this, let's go, just wait". The complainant said, I am satisfied in order to placate him, "Yeah okay, yeah okay". There is no suggestion that this conveyed any consent, either to what had happened or what might then happen.
The offender locked and closed the front door and walked around the front of the vehicle. While he was walking around the car, however, the complainant opened the front passenger door and ran from the vehicle to a nearby street light. The offender then ran back around the vehicle, he reached the passenger side and followed the complainant onto the footpath. On approaching, the complainant again was kissed on the lips and touched on her buttocks by the offender. She said "No" and began to walk away. The offender followed saying "Wait". The complainant again repeated the word "No". The offender returned to his vehicle and drove away.[16]
[16] Ibid, G2, p. 30 – 33.
The Applicant gave evidence of being in a ‘bad place’ emotionally at the time of the offending. He explained he was upset about the breakdown of his marriage and Ms Faytrouni’s decision to terminate her pregnancy. On the night of the offending he was sat in his vehicle after speaking with his mother on the phone. He claimed to be experiencing a lot of stress and described hearing someone talking to him. He recalled the victim of his offending smiling at him, which he interpreted as an indication she wanted to interact with him. When the offending ended, the Applicant described feeling like he had suddenly ‘woken up’, and becoming aware that what he had done was wrong.
Though the Applicant accepts his offending, he does not recall aspects of what took place, including showing the victim pornography on his phone and telling her ‘I want to do this to you’. He gave evidence that he remembered offering the victim money, but did not recall saying it was for sex.
The Applicant gave evidence he has used the time he was in prison to reflect on his behaviour. Should he be released back into the community, he plans to live with his sister, her husband and their children. He anticipates that the arrangement will enable his own children to stay with him.
The Applicant also plans to resume his work as a chef at the restaurant of which he is part owner. Prior to his imprisonment, the Applicant worked at the restaurant six days a week.
Evidence of Hanadi Faytrouni
Hanadi Faytrouni is the Applicant’s former wife and the mother of his two children. She provided a statement dated 30 November 2023 in support of the Applicant and gave oral evidence at the hearing.
Ms Faytrouni has known the Applicant since 2005 and confirmed they married in Lebanon in September 2016.[17] After they married Ms Faytrouni became pregnant with their first child and returned to Australia. The Applicant joined her in December 2017 after he had been granted a visa.[18]
[17] Ibid, G2, p. 115
[18] Ibid, G2, p. 132
Ms Faytrouni confirmed she and the Applicant separated approximately two months prior to his offending.[19] After separating, she found out she was pregnant with the Applicant’s child and terminated the pregnancy without his knowledge. She confirmed having told the Applicant about the pregnancy and the termination during a phone call made after the fact.
[19] Ibid, G2, p. 40.
Ms Faytrouni stated the Applicant is an excellent father who is loved by his children. She confirmed that after their separation the Applicant visited their children every two days and was flexible in working with her to ensure he was able to spend as much time as possible with his children.
Ms Faytrouni believes the three years her children have been without their father has been detrimental to their health. She stated both children were attached to the Applicant, were notably distressed by his absence following his arrest and continue to long for and ask after him. Both children have been referred to a child psychologist to deal with the consequences of their separation from the Applicant.
While the Applicant was in prison, he and Ms Faytrouni attempted to reconcile their relationship in the interests of their children. However, they were unsuccessful and remain separated.[20]
[20] Ibid, G2, p. 18.
Evidence of Daad Younes, the Applicant’s sister
Daad Younes provided a statement dated 2 December 2023 and gave evidence in support of the Applicant at the hearing. In her statement, Ms Younes writes that, for the ‘over 4 years’ she was a single parent, the Applicant had supported her ‘emotionally and financially’ as she had been unable to support herself and her children. She recalled that when she was ‘struggling’, the Applicant ‘opened his home for me, he helped with debt, with kid's needs, he was my only support … My kids love him very much, he was like a dad figure…”[21]
[21] Applicant’s Tender Bundle, Statement of Daad Younes, Dated 2 December 2023.
At the hearing, Ms Younes clarified that she had been single between 2016 and 2019. In 2019 her husband returned, and they began living together again. Ms Younes said that her husband now contributes financially to running the household and the needs of their children.
Ms Younes confirmed that she had not visited the Applicant in prison or detention. This was primarily on account of her not meeting the COVID-19 vaccination requirements for visitors.
Evidence of Younis Younis, the Applicant’s brother
Mr Younis provided a statement to the Tribunal and gave oral evidence at the hearing. Mr Younis lived with the Applicant when he first came to Australia. He understands the Applicant is genuinely remorseful for his offending and believes not having access to his children has been deeply hurtful for him.
Mr Younis observed that the Applicant’s children have a strong affection for their father and love him.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if ‘the person has been sentenced to a term of 12 months imprisonment or more’.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction No. 99 — Migration Act 1958 — Direction under section 499
Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 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) (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 measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[22]
[22] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
The Applicant has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more, being the sentence of 4 years’ imprisonment imposed by the Parramatta District Court on 24 June 2022.[23]
[23] G-Documents, G2 p. 47 – 50.
I am satisfied that the Applicant does not pass the character test under paragraph 501(6)(a) of the Act. This is not disputed by the parties.
As the Applicant does not pass the character test, the sole issue for determination is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
In considering the nature and seriousness of the Applicant’s conduct I am required to have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
The Respondent contends that the nature of the Applicant’s conduct is inherently serious, as the Applicant sexually assaulted a woman and, in the process, physically restrained her. The Direction specifies that conduct comprised of sexual crimes and crimes of a violent nature against women are to be considered very serious. The Respondent also notes the sentencing remarks of his honour Justice Craigie who described the offending as ‘inexcusable’ and ‘almost obscene’.[24]
[24] G-Documents, G2, p.15, p. 45 – 46.
The court regarded the offending as being sufficiently serious to impose an aggregate sentence of 4 years imprisonment. When considering the seriousness of the Applicant’s offending, I note the observation of Senior Member Poljak in PNLB and Minister for Immigration and Border Protection who explained:
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[25]
[25] [2018] AATA 162 at [22].
For these reasons, the Applicant’s offending is considered very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Reoffending by the Applicant could be expected to cause significant harm to the Australian community including physical and psychological harm to vulnerable individuals.
When considering the risk of reoffending by the Applicant, the Respondent acknowledges that the Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, the degree of risk that may be acceptable is ‘inversely related’ to both the likelihood or reoffending and the apprehended significance of the harm that may be caused by such further offending. [26]
[26] Dharma and Minister for home Affairs [2018] AATA 2757, [26].
Direction 99 introduces the notion of an ‘unacceptable risk’ that the community should not be required to tolerate regardless of other considerations. The Respondent submits that the potential harm that would be caused if the Applicant’s offending were to be repeated is so serious that any risk it may be repeated is unacceptable.
The sentencing remarks refer to a Sentencing Assessment Report prepared in October 2021.[27] The full report is not before the Tribunal but it is recorded that the Applicant attributed his offending to his poor mental health at the time of the offence. He indicated to the author that he was lonely after his wife left him and that her termination of the pregnancy led him to seek ‘retaliation’ on her.[28]
[27] G-Documents, G2, p. 36 – 41.
[28] Ibid, G2, p. 38.
The report stated that the Applicant maintained that a negative mindset ‘impacted on his decision making’ but ‘[n]onetheless, he accepted some responsibility for the offence, recognising that his actions were wrong, despite what he was thinking or personally experiencing at the time’.[29] The author also noted that the Applicant’s ‘poor emotional regulation combined with opportunity appears to have enabled his offending’.[30]
[29] Ibid, G2, p. 38 – 39.
[30] Ibid, G2, p. 39.
The report concluded that the Applicant was of a low risk of reoffending having applied the Level of Service Inventory – revised.[31] However, the sentencing remarks state ‘Community Corrections overrode that risk assessment and replaced it with one whereby the offender was assessed as being at above average risk, according to application of the well-known Static-99R instrument’.[32]
[31] Ibid, G2, p. 39.
[32] Ibid, G2, p. 39.
The sentencing remarks also refer to a Justice Health Psychiatric Report by forensic psychiatrist Dr Gordon Elliot prepared in June 2022.[33] Dr Elliot accepted that the difficulties the Applicant experienced with his marriage in the six weeks prior to the offending caused him ‘considerable distress’.[34] He reported that the symptoms described by the Applicant suggested a depressive illness in the weeks prior to his arrest and following the breakdown of his marriage. Dr Elliot wrote in part:
The description of his offending behaviour does not suggest a person suffering a depressive illness, however, very broadly speaking he may have been experiencing a degree of hopelessness and lack of regard for potential consequences for his actions. He did appear remorseful on this assessment. [35]
[33] Ibid, G2, p. 41.
[34] Ibid, G2, p. 42.
[35] Ibid, G2, p. 44.
The Applicant submits that the risk of reoffending is mitigated by his access to protective factors that would assist him to remain ‘crime-free’.[36] Primary amongst these factors are the ongoing support of Ms Faytrouni, his children and his family. Though these protective factors were present at the time of the offending, the Applicant’s family now has a better understanding of his need for support. For his part, the Applicant is more open to seeking help than he was previously.
[36] Applicant’s Statement of Facts, Issues and contentions, [52].
Since offending the Applicant has completed the Real Understanding of Self-Help (RUSH) program to address anti-social attitudes and beliefs, poor self-control, impulsivity, difficulties with self-management and lack of interpersonal skills.[37]
[37] Applicant’s Statement of Facts, Issues and contentions, [48].
He has participated in the EQUIPS Foundation program which he submits has helped him to develop skills in thinking, linking and reflecting on his choices and behaviour. He has also engaged in SMART Recovery, but I note he has completed less than the recommended sessions.[38]
[38] Ibid, [49] – [50].
In oral evidence the Applicant claimed he would have completed more courses and rehabilitation programs but had limited opportunity to do so as he was held as a maximum-security inmate prior to being sentenced in June 2022.
NSW Department of Corrective Services records that the Applicant had been involved in a ‘fight or other physical combat’.[39] At the hearing he explained that the incident which the report relates to occurred after an altercation with another inmate who was ‘targeting’ him, and that both were punished equally.
[39] G-Documents, G2, p. 52.
PRIMARY CONSIDERATION 1 - CONCLUSION
The Applicant’s offending is very serious. As I have outlined, the evidence regarding the risk that he may reoffend is inconsistent in parts and I do not have access to the reports referred to in the sentencing remarks. That said, I accept that the Applicant has been chastened by the experience of having been imprisoned, having his visa cancelled and being separated from his children. When assessing the risk of reoffending I am mindful that there were unique circumstances – such as the separation from his wife - which existed at the time and the evidence strongly suggests contributed to his offending. I also take into account that this was his first and only offence. In the circumstances, I accept the Applicant’s contention that he is at low risk of reoffending.
For these reasons, the protection of the Australian community weighs against revocation of the visa cancellation and is afforded medium weight.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence.
As there is no evidence that the Applicant has engaged in conduct that constitutes ‘family violence’, this consideration weighs neither for or against revocation.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.
Although the Applicant did not spend his formative years in Australia, he has substantial ties to the Australian community through his siblings, nephews, nieces, cousins, uncles and aunts. He claims to maintain regular contact with all his family members and continues to have a positive relationship with Ms Faytrouni, despite their separation.
Having arrived in Australia in December 2017, the Applicant has spent almost half the six years he has been in Australia in prison or immigration detention and his time in the community is limited. The Respondent submits there is limited evidence of the Applicant having engaged within the community more broadly ‘through such activities as sport, community clubs and organisations, or voluntary work’. I accept this submission taking into account the Applicant’s extensive family and work commitments prior to his arrest. I also take into consideration that the Applicant’s brother Mr Younis is currently the holder of a bridging visa.
Based on the evidence of the Applicant and his family members, I am satisfied that he has extensive family ties in the Australian community, and it is in their interests that the visa cancellation be revoked.
Overall, this primary consideration is afforded considerable weight in favour of revocation.
PRIMARY CONSIDERATION 4 – BEST INTERESTS OF MINOR CHILDREN AFFECTED BY THE DECISION
Direction 99 requires the Tribunal to make a determination about whether refusal to revoke the cancellation of the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out several factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant has two young children – a 6-year-old daughter and a 5-year-old son.[40] Until he and Ms Faytrouni separated, she cared for the children and the Applicant maintained full time employment to support the family. The children continue to be cared for by Ms Faytrouni and rely on the Applicant for emotional support and guidance.
[40] Applicant’s Statement of Facts, Issues and Contentions, [68].
Prior to his incarceration the Applicant was actively involved in the lives of both children and played a significant parental role. Ms Faytrouni gave compelling evidence that both children miss the Applicant and his absence has been distressing for them. I accept that he plays a positive role in their development.
The Applicant’s two nephews are currently 9 and 11 years old.[41] In an undated personal circumstances form, the Applicant stated that he loved his nephews and would take them and his own children out regularly.[42] Ms Younes has written that the Applicant provided both emotional and financial support for her children.[43] The Applicant has maintained a relationship with his nephews throughout his time in prison and detention.[44] I accept that the Applicant played an important role in raising his nephews when Ms Younes was a single parent. However, the return of the boys’ father suggests the Applicant will have a lesser, but not insubstantial role, in the lives of his nephews should he return to the community.
[41] G-Documents, G2, p. 20.
[42] G-Documents, G2, p. 108.
[43] Applicant’s Tender Bundle, Statement of Daad Younes, Dated 2 December 2023.
[44] Applicant’s Statement of Facts, Issues and Contentions, [64].
The Respondent acknowledges that it is in the best interests of the minor children affected by the decision for the decision to be revoked.[45] While Ms Faytrouni has been fulfilling the parental role for both the Applicant’s children, I accept that the Applicant had played a central role in raising his children which he anticipates resuming if he is released from detention.
[45] G-Documents, G2, p. 22.
The evidence supports a finding that the best interests of the minor children are served by having the cancellation of the Applicant’s visa revoked. I afford this consideration significant weight.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration.[46] That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.
[46] [2019] FCAFC 185, [75].
The Direction lists specific conduct which the Australian community, as a whole, expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that the Applicant’s criminal conduct is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.
Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Legal consequences of the decision
I am required to consider the legal consequences of the decision having regard to Australia’s non-refoulment obligations. A ‘non-refoulement obligation’ is an ‘obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’. Should the Applicant’s visa remain cancelled, by operation of subsections 189 and 198 of the Act, he will be liable for removal from Australia as soon as reasonably practicable.[47] Paragraph 9.1(1) of Direction 99 provides that the Tribunal should be mindful that s 197(C)(1) has the effect that non-refoulment obligations are irrelevant for the purposes of s 198.
[47] Respondent’s Statement of Facts, Issues and contentions, [63].
The Applicant does not contend non-refoulement obligations apply to him, but asserts he is fearful of returning to Lebanon. I have taken these concerns into account when considering the impediments the Applicant may face should he return to Lebanon.
Considering the specific nature of the concerns expressed by the Applicant, and that he does not contend that non-refoulement obligations are owed to him, this consideration weighs neutrally.
The extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in Lebanon in the context of what is generally available to other citizens of that country. In doing so I am to take into consideration the Applicant’s age and health, whether there are substantial lingual or cultural barriers, and any social, medical and/or economic support available to him in Lebanon.
The Applicant left Lebanon when he was 20 years old and has lived in Australia since.[48] The Applicant does not have any health issues and is unlikely to face any health, cultural or linguistic barriers in Lebanon. He also has family in Lebanon including four brothers and one sister.
[48] Applicant’s Statement of Facts, Issues and Contentions, [87].
The Applicant is concerned that Lebanon is ‘very dangerous, people are killing each other because there’s no food to eat, no roof on top of their head, bombs everywhere, and guns, people going around with guns shooting’.[49]
[49] G-Documents, G2, p. 113.
The Applicant also fears that he will be unable to secure employment in Lebanon. A June 2023 DFAT Country Report for Lebanon confirms Lebanon is ‘experiencing severe economic depression’ and unemployment has been rising sharply. The poor economy is also limiting the supply of basic goods including medicines, food and fuel. The Applicant submits that should he return to Lebanon, he would not be able to provide financially for his children or assist in paying for his father’s medical treatment.[50]
[50] G-Documents, G2, p. 109.
Paragraph 9.2(1) of Direction 99 requires that the Tribunal assess any impediments the Applicant may face in the context of what is generally available to other citizens of that country. I accept the Respondent’s submission that the economic and security impediments which the Applicant would be expected to encounter would be no different from that experienced by other citizens of Lebanon. That said, the Applicant has not resided in Lebanon for over six years. He has limited work history in that country and would be expected to find it more difficult to re-establish himself absent local work experience and contacts.
The Applicant submits he would be required to contribute financially to his father’s medical expenses and it would not be possible to do so if he is in Lebanon. The Respondent notes it is unlikely the Applicant has been providing for his family members with financial support throughout the period he has been in custody or immigration detention. Given the absence of evidence to the contrary, the Respondent’s submission that they are likely to be able to proceed without the Applicant’s financial support is accepted.
Overall, I find there are impediments to the Applicant being returned to Lebanon and this consideration weighs in favour of revoking the cancellation decision.
CONCLUSION
Having considered the evidence I am required to balance the considerations. The primary considerations of the protection of the Australian community and the expectations of the Australian community both weigh heavily in favour of not revoking the cancellation of the Applicant’s visa. The considerations of the best interests of minor children in Australia, the strength, nature and duration of the Applicant’s ties to Australia, and the extent of impediments he would face if removed, weigh in favour of revocation. The best interests of the Applicant’s two young children are afforded significant weight in favour of revocation.
On balance, having weighed the primary and other considerations, I am satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Member S Evans
The reviewable decision, made on 28 September 2023, not to exercise the discretion under subsection 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's Class BC Subclass 100 Partner visa, is set aside. In substitution, it is decided that the mandatory cancellation of the Applicant's visa is revoked.
...........................[SGD]....................................
Associate
Dated: 30 January 2024
Date(s) of hearing: 11 and 14 December 2023 Solicitors for the Applicant: M. Al-Fadhli, On Track Migration Solicitors for the Respondent: L. Hargrave, Clayton Utz
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