YQLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2023] AATA 2216

YQLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2216 (26 July 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3275

Re:YQLH

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:26 July 2023

Place:Sydney

The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s BS Partner (Migrant) visa.

..............................[SGD]..........................................

Senior Member Kira Raif

CATCHWORDS

MIGRATION – mandatory cancellation of visa – failure to pass character test – whether there is another reason why visa cancellation should be revoked – Ministerial Direction 99 – protection of Australian Community – nature and seriousness of applicant’s conduct – risk to Australian community – whether conduct engaged in by applicant constituted family violence – strength, nature and ties to Australia – best interests of minor children in Australia – expectations of Australian Community – legal consequences – impediments to removal – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCAFC 185
Pearson v Minister for Home Affairs [2022] FCAFC 203
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 99 – Visa Refusal and Cancellation under s. 501 and Revocation of a Mandatory Cancellation of a Visa under s. 501CA

REASONS FOR DECISION

Senior Member K Raif

26 July 2023

BACKGROUND

1. This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BS Subclass 801 Partner visa previously held by the Applicant.

2. The Applicant was born in 1977 and claims to be stateless. He first travelled to Australia in 1998 as a holder of a Tourist visa. He had made an application for another visa in Australia which was not granted. The Applicant was subsequently granted the Partner visa.

3. Between 2001 and 2021 the Applicant was convicted of multiple offences which are set out below. On 1 June 2021 he was sentenced to an aggregate term of imprisonment of 18 months. On 14 July 2021 the Applicant’s visa was mandatorily cancelled, however it was determined that the applicant was affected by the judgment in the Full Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203.

4. Following the enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), the Applicant’s aggregate sentence was considered to be treated as a term of imprisonment of 12 months or more. That Act provided that the earlier exercise of the cancellation power was valid and the Applicant was again detained in May 2023.

5. On 8 May 2023, a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant is seeking review of that decision.

6. For the following reasons, the Tribunal has concluded that the decision dated 8 May 2023 not to revoke the cancellation of the Applicant’s visa should be affirmed.

   RELEVANT LAW

7. Subsection 501(3A) of the Act relevantly states:

   (3A)  The Minister must cancel a visa that has been granted to a person if:

   (i)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

8. Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.

9. Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:

   (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.

10. Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.

11. The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:

    (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))…

12. Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

13. On 23 January 2023, Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 99’) was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.

14. Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 99 states that:

    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.’

15. The primary considerations which are set out in clause 8 of Part 2 of Direction 99 are:

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

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

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

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

    (5)expectations of the Australian community.

16. The other considerations, which are not exhaustive, are set out of clause 9 of Direction 99:

    a)Legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

17. Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]

    ‘Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply’”[2]

    [1] [2018] FCA 594.

    [2] Ibid, [23].

18. While these comments were made in relation to the earlier Direction, they apply equally in the present case.

19. In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:

    (a)    does the Applicant pass the character test, as defined by section 501 and, if not;

    (b)    is there another reason why the original decision should be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

20. The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

21. Information before the Tribunal indicates that the Applicant had been convicted of the following offences:

22/11/01	·     Use unregistered vehicle on road area ·     Use uninsured motor vehicle ·     Drive on road while license suspended	Fine $400 Fine $400 Fine $1000, disqualification 12 months
17/06/09	·    Break and enter building (steal) value <= $15,000	s. 9 bond 2 years
22/01/19	·   Destroy or damage property <= 2000 (DV) ·   Stalk / intimidate intend fear physical etc harm (domestic) ·   Enter enclosed land not presc. premises without lawful excuse	Conditional release order 18 months s. 10A conviction
01/06/21	·     Assault occasioning actual bodily harm (DV) ·     Contravene prohibition / restriction in AVO ·     Aggravated B&E commit serious indictable offence	(earlier offences called up) - Imprisonment (aggregate) 18 months

1. The Tribunal finds that in June 2021 the Applicant has been sentenced to a term of imprisonment of 18 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.

   IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

2. The Applicant told the Tribunal that he wants to apologise for everything he has done, and he understands the pain and sorrow he has caused to the people that he loves and to the community. He states that he is ashamed of what he did and hopes to be given a second chance to enable him to improve himself. The Applicant states that he has been working on himself while in custody and will continue to do that. He refers to the time he has spent in Australia.

3. The Respondent submits that the Applicant does not pass the character test. The Respondent submits that there remains an unacceptable risk of the Applicant committing further domestic violence offences, noting that family violence related offences are serious offences. The Respondent acknowledges that some factors weigh in favour of the revocation but submits that other considerations should be given greater weight. The Respondent submits that considerations that favour the non-revocation outweigh other considerations.

4. The Tribunal’s considerations are set out below with regard to Direction 99.

   Primary considerations

   Protection of the Australian Community

5. Paragraph 8.1 of Direction 99 provides in part as follows:

   8.1   Protection of the Australian community

   (1)When considering protection of the Australian community, decision-makers should 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….

   (2)Decision-makers should also give consideration to:

   a)the nature and seriousness of the non-citizen’s conduct to date; and

   b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the Applicant’s conduct to date

6. The Direction provides that violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

7. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

8. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and, where available, the sentencing remarks.

9. The Tribunal has considered the police facts sheet in relation to the December 2018 offences of entering enclosed land without lawful excuse, stalk / intimidate intend fear physical harm (domestic) and destroy / damage property.

10. The following information is recorded in the Police Facts Sheet. The victim has been identified as RS, with whom the Applicant had been in an intimate relationship for 14 years, and is the mother of his two children. Due to the tensions within the relationship, RS decided to reside at her brother’s house: AS. It is stated that in the evening of 26 December 2018, RS and AS were at home and heard the beep of a vehicle. AS asked his sister RS to hide, knowing that the Applicant had previously made threats wanting RS to return home. AS met the Applicant in front of the house and asked him to leave the property, which he refused to do. The Applicant began to bang on the flyscreen door, making dents, and was screaming ‘give me back my f***g wife’.  During this time RS and the children were hiding inside. It is reported that the Applicant gained access to AS’ backyard and was banging on the back door, yelling. He was asked to leave the location and the Applicant left when AS threatened to contact police. It is recorded that  RS and the children were fearful of the Applicant. The Applicant was arrested on 28 December 2018.

11. In his own statement the Applicant describes the circumstances surrounding this offending. He refers to spending Christmas evening with his children and states that the following day, ‘the anger got the better of him’ and ‘he lost his way’. He states that he tried calling his ex-wife’s phone, but she did not answer. He drove to her brother’s house and asked to speak to his family. Her brother locked the door. The Applicant states that he felt that everything he sacrificed and worked hard for was gone.

12. The Respondent refers to the recorded events in August 2003 when it is alleged that the Applicant had made threatening phone calls to a person with whom he was previously in a relationship, and it is alleged that the Applicant had threatened to kill that person and her mother. The Applicant denied having another relationship and having made threats. The Tribunal is mindful that the Applicant had not been convicted of any offences in relation to that conduct. As the offending conduct has not been proven and is denied, the Tribunal does not draw any adverse conclusions from the alleged conduct.

13. There is before the Tribunal the Agreed Statement of Facts in relation to the December 2019 offences of contravening an AVO and assault occasioning actual bodily harm. It is reported that an AVO protecting the Applicant’s former partner RS was issued in January 2019, which prohibited the offender from assaulting, threatening or intimidating the victim and from going within 100 meters of the victim’s home. It is reported that at about 12 am on 13 December 2019 the Applicant attended the home of his former partner RS, walked to the front of the house yelling out to the victim. This was in contravention of the AVO. The Applicant entered the house and demanded to see RS’s phone. He grabbed her phone out of her hand and threw the phone in her direction. The phone struck her in the ear, causing slight bleeding. The Applicant then left the property.

14. The Tribunal has had regard to the sentencing remarks of Judge Ingram made in June 2021 in relation to the December 2018 and December 2019 offences. His Honour referred to the Applicant’s challenging and deprived upbringing and acknowledged that his upbringing and earlier experiences remained ‘an ever-present part of his adult life’. The Court determined that the earlier offences were ‘very serious offences of their type’. His Honour outlined the Applicant’s conduct, noting that the Applicant sought to damage property (the front door) and that his former partner and the two children were present and feared for their safety. The Court noted that these represent serious offenses of their type and are objectively serious. In relation to the second offence, His Honour also found that the circumstances of the offence were objectively serious and constituted domestic violence related offending.

15. The Judge noted that the Applicant attributed his offending to the emotional distress due to the breakdown of his relationship and the excessive intake of alcohol. The Judge noted that the Applicant demonstrated by his past conduct that in the face of serious domestic violence offending in 2018, and having the benefit of a Conditional Release Order, he breached that  order by committing further offences within the period of the original orders.

16. The Department of Corrective Services Case Note Report indicates that the Applicant admitted to persistently breaching the AVO by visiting his former partner. He told the Tribunal that at the time he was thinking like a father and did not understand the law. The Applicant concedes, however, that he was aware that he was not allowed to visit his wife; but he thought seeing his kids was more important. The Applicant also concedes in oral evidence that he had threatened his ex-wife on other occasions. In the Tribunal’s view, that conduct shows the Applicant’s disregard for the law.

17. The Tribunal has been provided with a copy of the sentencing bundle relating to the above offence. This includes a letter of apology in which the Applicant expresses regret and shame about his action and has undertaken never to drink again. There are a number of character references.

18. The Tribunal has had regard to Facts Sheet relating to the 2004 ‘break and enter’ offence. It is reported that the Applicant received a call from another person and there was a discussion about the Applicant driving a van to pick up some boxes. The Applicant drove the van and another person loaded some boxes into the van. When the Applicant saw a set of headlights enter the driveway where he was parked, the Applicant ran from the van. The Applicant was apprehended and admits to giving a false name to the police. He was taken to the police station where he made admission to being a driver of the van and having knowledge of the offence committed.

19. Information before the Tribunal indicates that the Applicant has been issued with traffic infringement notices in August 2020 and May 2023 (for driving a motor vehicle in excess of the speed limit), March 2023 (for driving across a dividing lane to do a U-Turn) and it is noted that in May 2023 the Applicant failed to give way while changing lanes on the motorway. The police notes indicate that when the Applicant was detained in May 2023, he was found to be in possession of white powder, believed to be illicit drugs. The police decided not to prosecute so as not to delay the Applicant’s deportation. The Applicant told the Tribunal that he does not take drugs and does not drink, and he had been tested while in detention with no drugs being detected. The Applicant denied that he was in possession of illicit drugs. The Tribunal is mindful that the Applicant had not been charged, nor convicted of any drug-related offences and does not draw any adverse conclusions from that alleged conduct. However, the Applicant’s disregard for the road rules does support the Tribunal view that the Applicant has a general disregard for the law. This is particularly problematic, in the Tribunal’s view, as the conduct occurred after the Applicant’s previous convictions and after the Applicant was released from detention when he would have appreciated that his offending and disregard for the law may result in his visa being cancelled.

1. The Tribunal finds that some of the offending involved violence and threats of violence in the context of domestic relationships. As noted above, the Direction provides that violent crimes against women are to be viewed very seriously. The Tribunal also notes that the offending involved multiple instances and occurred over a lengthy period of time. The fact that the Applicant was given a custodial sentence reflects the serious nature of his more recent offending.

2. The Tribunal has formed the view that the offending was very serious, as it involved violence or threats of violence towards a woman.

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

3. The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that 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 of the 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.

4. Paragraph 8.1.2(2) provides that 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;

   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 non-citizen 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; and

5. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.

6. In this case, the offending involved violence and threats of violence in relation to his former partner. It is recorded that the children were present and observed the offensive behaviour towards their mother during the December 2018 incident. It is reported that the children were also present, albeit asleep, during the December 2019 incident.

7. The Tribunal is of the view that there would be significant harm to women experiencing family violence and significant harm to children who are either victims of such violence, or who observe violence perpetrated by or against their parents. The Tribunal finds that, should the Applicant engage in further criminal or other serious conduct of the same nature, the harm to others could be significant.

8. The Tribunal has considered the risk of the Applicant reoffending and the evidence of rehabilitation achieved.

9. The Tribunal has had regard to the report prepared by Mr Sweeny, Community Corrections Officer, dated 31 May 2021. Mr Sweeny refers to the minimal criminal history involving minor driving matters and a break and enter and, more recently, a number of domestic violence charges stemming from the Applicant’s relationship with his ex-wife. It is noted that these matters represent an escalation in his pattern of offending. It is reported that the Applicant had attributed his offending behaviour to his desperation and desire to maintain the family unit. He reports to having lived through a difficult and traumatic childhood and did not want it repeated for his daughters. It is noted that the Applicant acknowledged his role in the offences.  It is stated that the Applicant reported that he began drinking to excess on most days when his marriage broke down (in 2018) and he identified being more likely to be aggressive when he has been drinking. He reported severe depression following the breakup of his marriage and is seeking counselling.

10. Mr Sweeney reports that the Applicant has expressed increased insight into his offending and has expressed willingness to continue with the counselling. The report  indicates that the Applicant has been assessed at a medium – low risk of reoffending.

11. The Tribunal has also had regard to the Forensic Psychology Report dated 29 May 2021 prepared by Dr Donald Rowe. Dr Rowe refers to the Applicant’s background and states that the environment in which the Applicant was raised would have had a negative effect upon his social and psychological development while the lack of role modelling and / or dysfunctional role modelling would have had a negative impact on his own development as an adult. Dr Rowe has expressed the view that the Applicant had most likely suffered from a level of undiagnosed depression during his adult life, noting that his dysfunctional and traumatic upbringing would have resulted in social relationship difficulties and low self-esteem. Dr Rowe refers to the breakup of the Applicant’s relationship, which was unexpected for him, resulting in a more extreme and acute reaction to the separation. Dr Rowe refers to the Applicant developing and adjustment disorder with depressed mood and the 2020 suicide attempt. Dr Rowe suggests the cumulative stressors led to an exacerbation of the Applicant’s mental health vulnerabilities, an acute episode of depression and anxiety leading up to the offences, resulting in a decline in executive functions and an associated impairment in his judgement and reasoning and resultant offences. Dr Rowe states that the Applicant’s arrest and subsequent incarceration has had the positive effect on the Applicant however it is noted that he returned to drinking upon release from prison. It is noted that the Applicant reported being abstinent from alcohol since August 2020 when he was discharged from hospital and his engagement in counselling and other therapies. Dr Rowe has expressed the view that, given the Applicant’s recent insight and his awareness of his negative behaviours and problems, and his ongoing motivation to seek treatment, if he were to continue with the full treatment program, the likelihood of relapse or reoffending would be significantly reduced and, in all likelihood, become increasingly negligible. 

12. There is also before the Tribunal an updated forensic psychology report dated 10 June 2021, also prepared by Dr Rowe. Dr Rowe states that the Applicant has ‘done well’ to rehabilitate and improve his mental wellbeing by seeking and complying with treatment and becoming abstinent from alcohol. It is stated that he has been law abiding for the past 18 months since being released from prior incarceration in December 2019 and his lack of relapse reflects his ongoing treatment and improved mental state. Dr Rowe refers to the June 2021 incarceration as a ‘shock’ to the Applicant who reported that ‘inadvertently due to his poor mental state’ he had previously failed to respect the law and follow the rules. Dr Rowe has expressed the view that the Applicant did not appear to be of any current danger to the victim if he was to be released, given his good track record in the past 18 months and his wish to continue with the treatment plan.

13. The Tribunal has also considered a psychological report prepared by Charmaine Mubarak dated 23 June 2023. Ms Mubarak states that the Applicant’s ex-wife made statements against him that imposed on his permanent residence, and he records an ongoing manipulation by his ex-wife that created adverse circumstances to his residence and his relationship with his daughters. Ms Mubarak in her oral evidence to the Tribunal stated that this was based on the Applicant’s self-reporting and the Applicant told her that his ex-wife and her brother had fabricated a ‘story’ leading to the AVO. It is of some concern to the Tribunal if the Applicant believes that the circumstances leading to the cancellation of his visa were the result of his ex-wife’s manipulation rather than his own conduct. If that is the case, the Tribunal does not agree with the Applicant’s and Dr Rowe’s assertions that the Applicant had gained insight into his conduct.

14. Ms Mubarak states that the Applicant had no recorded offences since 2018 where this was contextualised by the family issues and the threat of not being able to see his children triggered his actions. (Notably, this is not factually correct as the most recent offending occurred after 2018.) Ms Mubarak refers to the Applicant’s ongoing participation in treatment and states that he is compliant and has presented with a motivation to restore his life with the hopes of remaining in the country.

15. In oral evidence Ms Mubarak suggested that she does not see the Applicant as being a threat or harmful. Ms Mubarak told the Tribunal that she had been provided with a previous psychological report and her assessment is mainly based on self-reporting. Ms Mubarak agrees that her assessment of the Applicant presented as low risk is based on his self-reporting as psychological assessments relating to the risk of reoffending could not be completed while the Applicant was in detention.

16. The Tribunal considers Ms Mubarak’s report to be of limited probative value, given that it is based to a large degree on self-reporting (according to Ms Mubarak), did not involve any psychological assessments relating to the risk of reoffending and that Ms Mubarak does not seem fully aware of the full scope of the Applicant’s offending (believing the most recent offending occurred in 2018). 

17. The Applicant presented to the Tribunal a report prepared by Dr Momartin, a STARTTS psychologist. The report outlines the Applicant’s background, personal and criminal history. It is reported that the Applicant presents with features of anxiety, depression and sleep disturbance related to traumatic events that transpired as a result of his wife’s threats not to let him see his children. The report refers to the attempted suicide, noting that the discovery of God and love for his children will act as protective factors against further self-harm. Dr Momartin recommends further monitoring.

18. In his submission in support of the revocation request the Applicant refers to his ‘complicated’ upbringing, stating that  the familial instability caused him ongoing mental and emotional harm and impaired his understanding of the nuclear familial relationship. He refers to being a stateless person. The Applicant states that his criminal history is largely related to the breakdown in relationship with his de facto partner as he was unable to come to terms with the failing relationship but has since done so. The Tribunal is mindful that some of the offending occurred before the breakdown of the relationship in 2018 and, in the Tribunal’s view, cannot be contributed to the trauma of the relationship breakdown.

19. In his statement to the Tribunal dated 7 June 2023 the Applicant has expressed his sincere remorse and regret for the mistakes he had made, and he has asked to be given a second chance. The Applicant refers to the efforts he has made to address the causes of his previous behaviour and the ‘positive changes’ he had made. The Applicant refers to his participation in rehabilitation programs such as counselling, therapy and anger management courses (he provided evidence of having completed several courses in his revocation request and evidence of course completion and attendance at Uniting counselling to the Tribunal). The Applicant refers to his to his community involvement, volunteering for charitable organisations and projects. He refers to his education and employment and personal development. The Applicant states that throughout his time in custody, he was always in minimum security and ‘never made any trouble’ and followed the rules. He also helped others. The Applicant refers to the strong support network of family, friends and mentors and future employment opportunities. The Applicant repeated these claims in his oral evidence to the Tribunal.

20. The Tribunal has been provided with the Department of Corrective Services Case note report. The record of the phone interview with the Applicant dated 26 August 2021 indicate that the Applicant refuted all charges and claimed his former partner and her police officer brother had orchestrated the offences and he was too naïve to fight these in court. The Applicant referred to his ex-wife resorting to lies and defamation due to her being “money hungry”. Similarly, in his revocation request made in 2021 the Applicant stated that he was innocent and to his ex-wife ‘playing victim and wanting money’ that he did not give. The Applicant states that  his ex-wife stated that she would have him thrown in jail. He states that no injuries were ever caused to his ex-wife. The Applicant explained to the Tribunal that these representations were made when he first went to jail and that jail was a ‘wake up’ call for him. However, as noted above, in her recent report Ms Mubarak refers to the Applicant’s ex-wife ‘unfortunately’ making statement against him affecting his visa and the Applicant reporting his ex-wife’s ‘ongoing manipulation’. This suggests that despite the claimed acknowledgement of his wrong-doing and rehabilitation, the Applicant continues to blame others for his conduct. In his written submissions and oral evidence, the Applicant repeatedly apologised for his conduct, however the Tribunal is concerned that the Applicant is willing to make any statements that he believes would further his case.

21. The Applicant presented character references from his employer and friends. There is before the Tribunal a statement from the Applicant’s claimed de facto partner, who refers to the ‘charges’ against the Applicant and expresses belief that these were ‘unfortunate lapses in judgement’ and do not define the Applicant’s character or his potential for future actions.

22. The Applicant provided to the Tribunal evidence of having completed various courses. The Tribunal accepts that the Applicant has completed a number of courses and the Tribunal is prepared to accept that the Applicant genuinely believes he had learned from his mistakes and has reformed. However, the Tribunal does not consider the Applicant’s claims in that regard to be persuasive. The Tribunal is of the view that the Applicant has shown persistent disregard for the Australian law. He engaged in repeated offending, as evidenced by the convictions and his conceded breaches of the AVO, and engaged in other anti-social conduct as evidenced by the recent driving offences. The Tribunal is concerned that the Applicant continues to blame others for his incarceration and visa issues (as is evident from Ms Mubarak’s recent report). Consequently, the Tribunal has formed the view that the Applicant has been less than truthful in his evidence, for example, when describing his relationship with MS (addressed more fully below). The Tribunal has also formed the view that the Applicant has shown a general disregard for the law by engaging in criminal or other antisocial conduct and by previously providing what he now claims to be inaccurate information to Immigration in relation to his first visa application onshore (addressed below). The Tribunal finds that the Applicant had shown his disregard for the law persistently and over a lengthy period of time.

23. As noted above, the Applicant had previously made an application for another visa which was not successful. The Applicant told the Tribunal that his application was prepared by friends, and he agreed with everything they said but he did not have any help and did not understand English. He claims he only recently read the papers relating to the application and he concedes that the information in that application was not true. The Applicant stated he did not recall clearly attending the RRT hearing and did not understand the questions posed to him. The Tribunal does not accept that explanation. The RRT decision record indicates that the Applicant was represented by RACS in those proceedings and the Tribunal does not accept that the Applicant had no understanding of his application, including at the time of his giving evidence to the RRT. The Tribunal has formed the view that the Applicant has not been truthful in his present evidence and the Applicant’s willingness to provide misleading information in his earlier visa process, as well as untruthful evidence to the present Tribunal, supports the Tribunal’s view that the Applicant does not have any regard for the Australian law.

24. Having regard to all these matters, and while acknowledging the various professional reports that are before the Tribunal, the Tribunal is of the view that there remains a risk of reoffending. That risk may be minimised as a result of the Applicant’s detention or imprisonment and the risk of losing his visa, but the Tribunal does not consider that the risk has ceased to exist. The Tribunal has formed the view that the risk of reoffending remains, and that risk is a real risk; it is not an insignificant risk.

25. Having regard to the nature of the Applicant’s past convictions involving violence in the context of a domestic relationship, as well as other offending, and the Tribunal’s view that there remains a real risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.

    Whether the conduct engaged in constituted family violence

26. Paragraph 8.2 of the Direction provides:

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen

27. The Applicant had been convicted of offending that involved domestic violence.  The Tribunal finds that the conduct engaged in constitutes family violence. This factor also weighs heavily against the revocation.

    The strength, nature, and duration of ties to Australia

28. Paragraph 8.3 of the Direction provides:

    (1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    (3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.  

29. The Applicant had been residing in Australia since 1998.  He has two children who live in Australia and claims to have another relationship. He had been employed and ran a business and has formed a network of friends, many of whom provided character references for him.  In his revocation request the Applicant refers to having made donations and to his support for his daughter’s sporting team.

30. The Applicant refers to having a de facto relationship with MS and states that  it commenced around 2020. He states that his partner has been very supportive and he is ‘blessed’ to have that relationship.  The Applicant’s de facto partner MS provided a declaration to the Tribunal, stating that they met in December 2019 and were living together on a full-time basis by February 2023. This contradicts MS’s oral evidence when she suggested that prior to 2023 they saw each other on weekends and make a couple of visits through the week and in 2023 they were seeing each other daily but were not living together. The Tribunal notes that in his Personal Particulars form completed in 2021 the Applicant stated that he was in a de facto relationship and mentioned his former partner but failed to mention MS (he claims to have misunderstood the question). In the Tribunal’s view, if the Applicant was in a relationship with MS by 2021, as they now suggest, the Applicant would have mentioned that relationship in the Personal Particular Form and in his submission to the delegate in support of the revocation request when the Applicant refers to his relationship with his children but completely fails to mention his relationship with MS. Further, in his oral evidence the Applicant initially told the Tribunal that after being released from detention, he lived in a hotel and then with friends and he told the Tribunal that he has not lived with MS on a full-time basis. This contradicts the information in the MS’s written declaration who, as noted above, claims to have been living with the Applicant from February 2023. When this discrepancy was pointed out, the Applicant changed his evidence and told the Tribunal that although he had ‘not moved his fridge’, he and MS did live together. The Tribunal has formed the view that the Applicant was not truthful in that evidence. MS was also not aware where the Applicant lived when he was released from detention and was unclear about his periods of imprisonment. In the Tribunal’s view, that also does not support the claim that she and the Applicant had been in a relationship since 2020.

1. The Tribunal has formed the view that the Applicant and MS had not been truthful in describing the nature of their relationship. The Tribunal does not accept the evidence that they are, and had been for a number of years, in a committed de facto relationship and intend to be married. The Tribunal is of the view that the Applicant and MS had sought to exaggerate the nature of their relationship. In that regard, the Tribunal found the Applicant not to be a witness of truth.

2. The Tribunal received oral evidence from the applicant’s older daughter. She refers to the ‘substantial’ emotional toll should the Applicant be removed from Australia and the impact it would have on her mental health. The Tribunal is prepared to accept that evidence.

3. The Tribunal accepts that the Applicant has strong and long-term social, family and business links with Australian citizens or permanent residents. The Tribunal has formed the view that this consideration weighs heavily in favour of revocation.

   The best interests of minor children in Australia

4. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.

5. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

6. The Applicant has two minor children residing in Australia, aged 16 and 17. Mr Sweeny in his report dated 7 May 2021 indicates that the Applicant presently has no contact with the children who reside with their mother. In his statements to the Tribunal the Applicant refers to his love and hope for his daughters. In his revocation request the Applicant also refers to having a good relationship with his two children prior to his incarceration, stating that he protected and provided for them. The Applicant stated that he is ‘in the middle of a custody agreement’ for when he is released. The Applicant states that he needs to stay in Australia to be with his children as he wants to be there for their milestones. The Applicant states that his children need a father figure in their lives to support and protect them. He states that his leaving would affect their lives.

7. In his submission to the delegate the Applicant provided a copy of the Federal Circuit and Family Court Orders made in 2022 that relate to property settlement, but he told the Tribunal that he was not aware of formal custody orders in relation to children.

8. The Applicant’s elder daughter provided a declaration to the Tribunal outlining her relationship with her father and her need for his ongoing support and care. She refers to the length of time the Applicant has spent in Australia, his relationship with the new partner and claims that he should have the opportunity to remain in Australia. In oral evidence she reiterated the statement provided in her written declaration  about the support the Applicant provides for her and her need to have her father’s ongoing care and support. She further spoke to the difficulties of not having her father and not being able to see him regularly and the effect on her mental health. She said she did not know why her parents had separated and does not recall her father ever being aggressive. There is little information before the Tribunal concerning the Applicant’s interactions with his younger daughter.

9. The Respondent contends that there is limited evidence about the nature and duration of the relationship between the Applicant and his daughters and notes that the Applicant is not likely to play a positive parental role in the circumstances where previous family violence occurred in the presence of his children and where the children will soon turn 18. The Respondent submits that the children’s mother has been fulfilling a parental role in relation to the children with minimal input from the Applicant for some time and there is nothing to suggest the children cannot maintain electronic or other contact with the Applicant.

10. Having regard to the evidence of the Applicant and his daughter, the Tribunal accepts that the Applicant has a meaningful relationship with his children. The Tribunal accepts that he had provided them with financial support in the past  and the Tribunal also accepts that the Applicant wants to maintain that relationship.

11. Overall, the Tribunal has formed the view that it is in the best interests of the Applicant’s two children to maintain a close relationship with the Applicant. The Tribunal accepts that it is in the best interests of the Applicant’s two children if the cancellation of the Applicant’s visa is revoked. That consideration weighs heavily in favour of the revocation.

    Expectation of the Australian Community

12. Sub-clause 8.5 of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:

    ‘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.’

13. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

14. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

15. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[3] which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]

    [3] [2019] FCAFC 185 (‘FYBR’)

    [4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

16. Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

17. The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, the community expectations would weigh heavily against the revocation.

    Other considerations

    Legal consequences of the decision

18. The Tribunal notes that the Applicant had previously made the application for, and was refused, a protection visa. That finding was affirmed by the then RRT. There is nothing before the Tribunal to indicate that the Applicant has been found to be owed protection obligations.

19. The Applicant states that as a Palestinian refugee, he is not entitled to hold a Lebanese passport and would be considered stateless. The Applicant refers to his fear of harm and discrimination as a result of his status and the possibility of lengthy detention, given that he would need to make an application for a visa to return to Lebanon.  In his revocation request the Applicant states that he faced considerable trauma as a result of being raised amidst war and conflict. He states that Australia has been his home for over 20 years and any deportation would cause him to be alienated from his family in Australia and contravene Australia’s non-refoulement obligations.

20. The Respondent notes that the Applicant may apply for a visa to travel to Lebanon but it is speculative that the visa may be granted. The other options available to end detention are whether the Applicant can be safely removed to another country, or if the bar on future applications is lifted. The Respondent acknowledges that if the cancellation is not revoked, the Applicant may be subject to ongoing detention. The Respondent acknowledges, by reference to the DFAT report on Lebanon, that the Lebanese authorities are reluctant for persons with the Applicant’s profile to reside in Lebanon.

21. The Tribunal accepts that if the Applicant is not able to successfully obtain a visa to travel to another country, he may remain in Australia and is likely to remain in detention as an unlawful non-citizen. That is, there is a real prospect of the Applicant remaining in detention for a lengthy or even indefinite period.

22. The STARTTS report refers to the Applicant’s mental health and the effects of detention. The Respondent submits, by reference to the mental health records from IHMS, that the Applicant’s health has been monitored and that treatment is available in detention. However, it is not sufficient, in the Tribunal’s view, to state that the Applicant would have access to mental health services while remaining in indefinite detention. The Tribunal accepts that the ongoing detention may adversely affect the Applicant and his health.

23. This consideration weighs heavily in favour of the revocation.

    Extent of impediments if removed

24. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)the non-citizen’s age and health;

    b)whether there are any substantial language or cultural barriers; and

    c)any social, medical and/or economic support available to that non-citizen in that country.

25. The Applicant is 46 years of age. The report of Dr Rowe and other evidence indicates that he suffers from depression and anxiety and has been prescribed medication and in his revocation request the Applicant states that he was diagnosed with depression and anxiety in 2018 and has been prescribed medication. The Tribunal accepts that the Applicant has health issues.

26. The Applicant submits that any deportation would negatively impact his emotional and mental well-being and cause similar effect on his dependent children. He claims that deportation and resultant separation from his daughters would cut his ties to the community and would cause him significant mental and emotional harm.

27. It is not apparent that the Applicant would experience any substantial language or cultural barriers, should he return to Lebanon where he lived prior to his travel to Australia.

28. In his revocation request made to the delegate the Applicant stated that he had lived in Australia for over 20 years and had established himself over here. He states that his parents have passed away and he has a brother in France. The Applicant refers to his two children living in Australia and states that he has a great relationship with his daughters and provides for them through his business. The Applicant refers to having a house and a mortgage (his evidence to the Tribunal is that the house had been sold as part of the divorce agreement). He states that his whole life is in Australia and he has nowhere else to go. He does not want to leave his children behind as they need him.

29. The Applicant states that would be homeless and had not established himself anywhere other than Australia where he has lived for over 20 years. The Respondent concedes that the Applicant, as a stateless Palestinian living in Lebanon, will face difficulties in accessing health and other services, including in relation to mental health care.

30. The Tribunal acknowledges that there is not a high likelihood of the Applicant being removed given his stateless status and the need for him to obtain a via or residence permit before he can enter another country. However, the Tribunal accepts that if the Applicant was removed from Australia, there would be significant hardship, particularly given his health issues and the length of time he has spent in Australia. The Tribunal finds that these considerations weigh heavily in favour of the revocation.

    Impact on victims

31. Paragraph 9.3 of the Direction directs a decision-maker to take into account 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.

32. There is no evidence before the Tribunal concerning the impact on victim. This consideration is neutral.

    Impact on Australian business interests

33. Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:

    (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.’

34. There is no evidence before the Tribunal concerning any business interests. This consideration is neutral.

    CONCLUSION

35. The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.

36. The Tribunal has formed the view that the Applicant has committed serious offences, being repeated offending against a woman in the context of family violence. The offending occurred in the presence of his children. The Applicant admits to having persistently breached the AVO to visit his ex-partner. There are other offences and breaches of the law as set out above. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community.

37. Despite the Applicant’s claims that he is now rehabilitated, the Tribunal is not satisfied that is the case. The Tribunal places some weight on the fact that the Applicant continues to blame his partner for the offending and as recently as in his communication with Ms Mubarak in June 2023 the Applicant referred to his ex-partner’s manipulation and blames her for causing visa problems for him. This is consistent with the remarks made in 2021 and, in the Tribunal’s view, shows that the Applicant has failed to gain insight and recognise the consequences of his offending. The Tribunal has formed the view that the Applicant had shown a general disregard for the law. The Tribunal has found that there remains a real risk of reoffending.

38. The Tribunal has formed the view that the protection of the Australian community and the expectations of the Australian community weigh heavily against the revocation. The fact that the Applicant had engaged in family violence also weighs strongly against revocation.

39. The Tribunal places significant weight on the best interests of the Applicant’s two minor children. The Tribunal accepts the evidence that the Applicant wants to maintain a relationship with his children and the evidence of his daughter about their existing relationship and the support she receives and needs to receive from her father. The Tribunal accepts that if the cancellation is not revoked, there will be very limited opportunities for the Applicant to maintain a meaningful relationship with his children. The Tribunal accepts that it is in the best interests of the Applicant’s two minor children if the cancellation of the Applicant’s visa is revoked. That weighs strongly in favour of the revocation.

40. Another factor that weighs in favour of the revocation is the extent of the Applicant’s ties to Australia. The Applicant’s two children live in Australia. He claims to be in a de facto relationship, and while the Tribunal is not satisfied that a de facto relationship exists, the Tribunal acknowledges there may be some form of relationship between the Applicant and MS. The Applicant has been living in Australia for close to 25 years and has formed social, family and employment ties. The Tribunal has formed the view that the extent and duration of the Applicant’s ties to Australia weigh strongly in favour of the revocation. The Applicant refers to mental health issues and the Tribunal acknowledges that the Applicant may have very limited, if any, links with his country of former residence, Lebanon. The Tribunal accepts that there may be considerable impediment to the Applicant if he is removed. This weighs in favour of the revocation.

41. Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that  some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations. 

42. The Tribunal has decided that the decision under review should be affirmed.

    DECISION

43. The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s BS Partner (Migrant) visa.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kira Raif

............................[SGD]............................................

Associate

Dated: 26 July 2023

Date(s) of hearing:	18 July 2023
Applicant:	YQLH, (Self-Represented)
Solicitors for the Respondent:	Mr Cormac Burke, Sparke Helmore Lawyers