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MIGRATION - refusal of combined visa application - citizen of Lebanon - whether Visa Applicant passes character test - past criminal offending in Lebanon - Ministerial Direction No. 110 - Primary Considerations - protection of the Australian community from criminal or other serious conduct - low risk of re-offending - strength, nature and duration of ties to Australia - best interest of minor children - expectation of the Australian community - Other Considerations - whether discretion should be exercised to refuse the grant of the visa under section 501(1) of the Migration Act 1958 (Cth) - decision under review set aside and substituted.

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

FYBR v Minister for Home Affairs [2019] FCAFC1 185

Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

1. Review is sought by the Applicant ('Review Applicant') on behalf of her husband Omar Mehiach ('Visa Applicant') of a decision made 29 November 2024 refusing a combined application Partner (Provisional) (Class UF) and Partner (Migrant) (Subclass 100) visa ('Visa'). The review is pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) ('the Act').
2. The 39 year old Lebanese national Visa Applicant lives in Tripoli, Lebanon, and was married to the 43 year old Australian citizen Review Applicant in Lebanon in June 2018. They have an Australian citizen daughter (GM) born in April 2019.

1. The Tribunal has considered the documentary evidence before it comprising exhibits A1 to A5[1], together with the testimony of the Visa Applicant (who was cross examined) and the Review Applicant, and the written and oral submissions of the parties. The Visa Applicant gave his testimony through an interpreter.
2. The Tribunal is to determine:

(a) If the Visa Applicant passes the character test as defined by s 501(6)(d)(i) of the Act; and, if not; > > (b) Whether it should exercise its discretion under s 501(1) of the Act to refuse to grant the Visa, after applying Direction 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('Direction 110').

1. The character test is defined in s 501(6) of the Act. Relevantly, a person will not pass the character test in circumstances where:

(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

1. The Respondent submitted[2] and the Tribunal accepts that:

14 Clause 6(2) of the annexure to Direction 110 states that the grounds in s 501(6)(d) are enlivened if "there is evidence suggesting that there is more than a minimal or remote chance" of the relevant conduct in question occurring.

15 The clear legislative intention is that the threshold is whether there is 'a' risk. The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word 'significant' from s 501(6)(d) leaving it as 'a' risk. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):

The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.

1. In determining if "more than a minimal or remote chance" exists, the Tribunal has considered the evidence relating to the Visa Applicant's past criminal offending, the analysis of which is as discussed in paragraphs 8 to 17 below. Despite the mitigating aspects highlighted, in light of the Visa Applicant having been found guilty of the offending of 17 June 2004, 10 July 2008, 21 December 2009 and 11 February 2015, the Tribunal is satisfied that there is more than a minimal or remote chance that the Visa Applicant may engage in criminal conduct in the future in Australia, if permitted to live here. The Tribunal finds that he does not fall within such a low threshold.

1. Paragraph 8.1(2) of the Direction requires Decision-makers to 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.

Nature and seriousness of the non-citizen's conduct to date

1. In considering Primary Consideration 1 under Direction 110 concerning the protection of the Australian community from criminal or other serious conduct the Tribunal first looks to the nature and seriousness of the Visa Applicant's conduct to date. In 2004, aged 18, he was found guilty of "hitting and harming" upon intervening in a dispute between his father (who had then just had heart surgery) and a customer, over a parking spot at his father's car park business. He was fined 100,000LBP with no prison sentence being imposed. Whilst this violent offending is serious, in the circumstances where the customer was pushed twice without more, it is at the lower end of this type of offending. Further, regarding risk of repeat offending the Tribunal notes the Visa Applicant's young age at the time and the remorse he has expressed.
2. In 2008, another parking spot altercation at his father's car park business led to the Visa Applicant pushing a customer, who had parked in the wrong space. Upon sentencing he was detained for about 5 days until he paid the 500,000LBP fine. Although his second offence of this type, the Tribunal notes it was his last and again he expressed his remorse for acting in a violent manner. The Tribunal again finds this offending to be in the lower range and accepts the Visa Applicant's testimony as to his remorse and understanding that this is not the way to deal with disputes.
3. In 2009 he transported his military weapon (from national service) without a permit and fired it in the air to celebrate at a wedding in Lebanon. Evidence before the Tribunal establishes that there was (at least then if not presently) a cultural behaviour in Lebanon involving some men firing guns in mid air to mark celebratory events, amongst significant community events. It is also apparent that some efforts have been made to rein in this type of behaviour in Lebanon and the dangers associated with it. Obviously, such behaviour in Australia is totally unacceptable and equally access to military grade or any type of gun is strictly restricted here. Such offending is not strictly a crime of violence, however the Tribunal finds that this type of offending is nonetheless serious because of the potential danger to the public as a consequence. The Visa Applicant served one month in prison for this offending.
4. In 2015 he committed a similar offence but in very different circumstances. Life in Tripoli, both then and now, is somewhat chaotic at times and not as regulated and well policed as Australian life usually is. Significant civil unrest occurs and police resources and protections are limited. His evidence was that this offending occurred because at the time he was deterring others, envious of his successful fruit shop, who were wanting to take that business from him. He indicated that he had no choice but to fire his gun into the air to get such individuals to move on, hence defending his fruit shop. He served about 5 months of a nine month sentence.
5. In 2016, unfortunately a further attempt was made to force him out of his fruit shop, which escalated in a different direction. This time, those involved lodged a complaint against his business for not having the necessary permits, which must have been the case. He was found guilty of trespassing and promptly paid the 700,000LBP fine, without any other sentencing. The Tribunal considers this particular type of offending to be the lowest on the criminal scale and more akin to civil offending, in failing to have requisite government permits for a shop.
6. In 2019 the Visa Applicant was involved in an incident at his fruit shop. The Tribunal notes he subsequently closed that shop in 2023 due to on going problems from others wanting to disrupt his successful business. An individual had entered the shop and demanded free goods which the Visa Applicant refused to provide. As a consequence, that individual fired shots in public outside the fruit shop and then lodged a complaint accusing the Visa Applicant of being the culprit. A Court subsequently determined that, since the Review Applicant had already been detained for a couple of days, that was sufficient and no penalty was otherwise imposed. The Tribunal does not place any significant weight on this incident.

The risk to the Australian community should the Visa Applicant commit further offences or engage in other serious misconduct

1. So far as risk to the Australian community apropos of re-offending is concerned, the Tribunal accepts that he was only 18 years old when the 2004 offence occurred. The second and only other offending involving violence, albeit at the lower end of the range, occurred in 2008. The Visa Applicant has expressed his remorse for such offending respectively 21 and 17 years ago and has not committed any other violent offending since that earlier period in his life.
2. The 2009 and 2015 gun related offending, whilst not crimes of violence per se, each occurred in Lebanon where access to guns is relatively unregulated and a different culture as to the use of firearms exists. In Australia, guns are not freely available and the Tribunal is satisfied that it is unlikely the Visa Applicant would behave in a similar way again and, even less likely to commit an offence of this nature in Australia, as the gun culture or lack thereof is completely different, as is the access to guns. It is also apparent from the evidence that he now appreciates the dangers of firing a gun into mid air and appreciates that such a practice is dangerous. He accepts that there are alternate ways to behave and his conduct generally since 2015, nearly 10 years ago, is consistent with that. The 2019 incident took place nearly 6 years ago.
3. Viewing the offending overall the Tribunal is not satisfied that it represents an escalating pattern of violent offending per Direction 110 nor that the Visa Applicant has a "propensity to use firearms in populated places without regard for the safety of others" as submitted by the Respondent.
4. The Visa Applicant declared on 7 October 2024[3]:

I acknowledge my past mistakes, but I do not believe they define me. My actions were not crimes against the community; I am simply a man trying to take care of my family and protect my livelihood in a country where police protection is often unavailable. While I fully accept responsibility for my actions and understand that I made mistakes.

His testimony was consistent with this and the Tribunal finds that the nature of offending considered in context and generally is in the lower range and taking into account the protective factors discussed below, the Tribunal is satisfied that there is a low risk of him repeating such offending in Australia should he be permitted to permanently live here. Therefore, Primary Consideration 1 weighs just slightly in favour of visa refusal.

1. There is no evidence that the Visa Applicant has been associated with any family violence, hence this Primary Consideration is given neutral weight.

The strength, nature and duration of ties to Australia

1. To date the Visa Applicant has not lived in Australia and has not had the opportunity to contribute to the Australian community through employment or otherwise. However, he has a strong and enduring relationship with his wife since 2018, an Australian citizen since 2008 and as importantly a developing and crucial role as father to his Australian citizen daughter born in April 2019. The evidence, in particular from the Review Applicant, is compelling as to the distress and potential harm the Visa Applicant's absence from the family life of his wife and daughter is causing. There is no suggestion from the Respondent or in the evidence before the Tribunal that the marriage and relationship between the Visa and Review Applicant and their daughter is anything other than genuine. Further, a developing relationship exists between the Visa Applicant and the Review Applicant's 15 year old step son and 3 other step children aged 19, 21 and 22.
2. The Tribunal finds that this Primary Consideration weighs significantly against visa refusal.

Direction 110 sets out a number of 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 wishes 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.

1. The Visa Applicant's daughter is impacted by his absence from Australia and to a lesser extent, his 15 year old step son. Whilst the evidence shows that the Visa Applicant has been able to maintain significant contact through telephone calls and from his daughter's visits with his wife to Lebanon, such is no real substitute to fulfilling the role of a father. The Tribunal accepts that to date the Review Applicant has been able to fulfill the parental role (per Direction 110 para 8.4(4)(d)). Equally, the fact that the Visa Applicant has been absent from Australia to date does not detract from the real incremental benefit the daughter and step son will gain from having the Visa Applicant being permitted to live with them and his wife in Australia. Family life in Australia for the Visa Applicant, if permitted, will also benefit him as a significant protective factor, should he have the ability to live with his wife, daughter, and step children as a family unit, rather than struggling to maintain a semblance of family life remotely from Lebanon.
2. Lebanon is not presently an ideal place to live and apart from the fact that the daughter does not wish to live there, it would not be a safe or practical alternative for the Review Applicant and the daughter (and perhaps the step son) to leave Australia to live in Lebanon.
3. In the circumstances the Tribunal is satisfied that this Primary Consideration weighs significantly against visa refusal.

1. The Australian community expects non-citizens to obey Australian laws while in Australia. That expectation may be informed by conduct overseas by a visa applicant and is so informed in this review application. The expectation is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered (Direction 110 para 8.5(4)). It is not for the Tribunal itself to determine such expectations[5].
2. Consistent with the findings the Tribunal has made in respect of both the character test and Primary Consideration 1 above the Tribunal finds that this Primary Consideration weighs in favour of visa refusal.

1. The other considerations within Direction 110 being legal consequences of decision, extent of impediments if removed and impact on Australian business interests do not apply on the facts before the Tribunal and as a consequence are given neutral weight.

1. The Tribunal has conducted the evaluative exercise of weighing up the considerations to determine whether it is satisfied the available discretion should be exercised to refuse the visa.
2. On balance, having applied the findings above as to the weight respectively to be applied to each of the considerations, the Tribunal is satisfied that those against the visa refusal outweigh the considerations in favour of visa refusal. Therefore, the visa refusal decision should be revoked.

1. The decision under review is set aside and substituted with a decision to revoke the visa refusal.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC

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[1] Documents lodged pursuant to section 501G of the Act ('Exhibit A1'); Supplementary G-Documents lodged on 26 February 2025 ('Exhibit A2'); DFAT Country Information Report - Lebanon, as at 26 June 2023 ('Exhibit A3'); Applicant's submissions lodged 19 February 2025 together with the Applicant's signed Statement dated 17 February 2025 ('Exhibit A4'); Chloe Domat, 'I feel ecstatic when I shoot': Lebanon's problem with gunfire celebrations', Middle East Eye (Online, 28 September 2017) ('Exhibit A5').

[2] The Respondent's Statement of Facts, Issues and Contentions dated 27 February 2025 ('RSFIC'), [14]-[15].

[3] Applicant's Statutory Declaration dated 7 October 2024, [12].

[5] See also FYBR v Minister for Home Affairs [2019] at [66]-[67], [91], [101] and [104].