1710983 (Migration)

[2017] AATA 2636

1710983 (Migration) [2017] AATA 2636 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710983

MEMBER:Kira Raif

DATE:28 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 28 November 2017 at 7:41am

CATCHWORDS

Migration – Cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) - Risk to the safety of an individual – Former partner – Family violence – Violence Restraining Order – Assault conviction – Occurrence of family violence disputed by applicant – Severity of family violence – Threshold for invoking s 116(1)(e)(ii) – Ongoing risk to former partner – Best interests of child – Supervised access granted – Ongoing risk to child outweighs hardship – Character references

LEGISLATION

Migration Act 1958, ss 116, 375A

Migration Regulations 1994, Schedule 2

CASES

COT15 v MIBP (No.1) [2015] FCAFC 190

MIBP v Le [2016] FCFAC 120

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated [in] May 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Ethiopia born in [year]. He was granted a Class UK Partner visa [in] May 2015. [In] March 2017 the delegate issued the applicant with the Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act because the delegate formed the view that there were grounds for cancelling the visa held by the applicant under s. 116(1)(e). The applicant provided his response on and his visa was subsequently cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 30 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a number of the applicant’s friends. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review by his registered migration agent. The Tribunal informed the applicant of the existence of the s. 375a certificate and gave him a copy of the document.  For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

   Does the ground for cancellation exist?

6. At the outset, the Tribunal acknowledges the helpful and informative written submissions from the applicant’s migration [agent] of [an organisation].

7. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.[In] December 2015 the [Police] charged the applicant with Aggravated Common Assault against his wife relating to an incident that occurred [in] December 2015. The police Statement of Facts indicates that the applicant’s partner provided a statement alleging that the applicant [assaulted] her on two occasions in the presence of their [child]. ([Part of the] allegation was subsequently withdrawn).

   b.The applicant was convicted of this charge [in] November 2016 and sentenced to a Conditional Release Order for [a number of months] [in] 2016 with a [financial] undertaking and a spent conviction. (In his submission to the Tribunal the applicant argues the delegate did not give sufficient weight to that fact.)

   c.The police attended the applicant’s home on the evening [in] December 2015 in relation to an incident but did not pursue the matter.

   d.[In] August 2016 the police attended the applicant’s home in relation to a domestic incident. The police issued the applicant with a 24 hour police order to leave the house.

   e.[In] September 2016 the applicant’s wife made an application for a Violence Restraining Order (VRO) against the applicant. The grounds for application included physical, emotional, sexual and psychological abuse, threat to kill, physical and verbal abuse to the wife and their child (the applicant denies these allegations). The [Magistrates Court] made an interim VRO [in] September 2016 to protect the wife and the child. That order was served upon the applicant [in] October 2016.

8. In his response to the NOICC and in his written submission to the Tribunal of 21 September 2017 the applicant outlined the nature of his relationship with his wife and the emotional and psychological abuse which he claims his partner perpetrated. The applicant claims that he initially had a committed relationship with the sponsor which later deteriorated, he claims he cared for their [child] and was concerned about [the child’s] welfare but he claims the second [child] is not his child and he has not met that child.

9. With respect to the incident that resulted in the VRO being issued, the applicant stated that it was a verbal argument and there was no physical abuse. He has not returned to the family home since. The applicant claims he was not given a copy of the grounds relating to the VRO application and states it was used as a means to remove him from the house and from the child and he denied that he was a perpetrator of family violence against his partner and [child]. The applicant reiterated in his evidence to the Tribunal that the incidents that are described in the application for the VRO did not occur.

10. In his written submission the applicant claims he did not object to the VRO application as he thought the VRO would afford him protection from his wife as he had been a victim of family violence and the wife’s allegations were not tested in court. The applicant claims that the VRO cannot be taken as evidence of him perpetrating family violence. In oral evidence the applicant suggested that he did present his case to court in relation to the permanent VRO, and had legal representation, but his evidence was not accepted. The applicant notes that he has not been charged with breaching the VRO.

11. In oral evidence, the applicant said that his wife alleged him to be a threat. The applicant said that when he was in a relationship, he had a lot of problems. His wife did not allow him to go outside or go to work or do anything. The applicant said that his ex-partner said he was a risk to her and that he might try to kill her and the Magistrate believed her. The applicant said his wife did not discuss the matter with him before making the allegations. The applicant’s suggestion is that there were no argument between him and his ex-wife and the VRO was only issued to remove him from the family home.

12. With respect to the assault, the applicant claims that following the charges, he was granted bail and remained living in the family home and complied with bail conditions. The applicant notes that he is pursuing an application for a Parenting order in relation to the [child] and has abided by all orders preventing his contact with his wife and [child]. In his written submission to the Tribunal of 22 November 2017 the applicant notes that the incident occurred in December 2015, he was charged in December 2016 and convicted [in] November 2016. The applicant states that between December 2015 and November 2015 his bail was renewed [a number of] times and he attended on each occasion but one.

13. The Tribunal considers the applicant’s arguments unpersuasive. Although the applicant claims he has never harmed his wife and is incapable of doing so, the applicant has been convicted of assault in relation to his partner and the conviction is itself is sufficient to establish that the offence had been committed. The Tribunal accepts that there is a spent conviction and that the conduct was considered to be at a lower scale but a conviction for assault implies, in the Tribunal’s view, criminal conduct by the applicant in relation to his former partner.

14. The applicant is also the subject of a VRO. The applicant claims he did not defend the temporary Order it and conceded to it because he believed it would protect him against his wife. However, the applicant has been named as the perpetrator and not the victim on the relevant VRO. The applicant told the Tribunal in oral evidence that he had applied for the VRO in relation to his partner and was granted around September 2016. He said his wife did not defend the Order.

15. The VRO with respect to the applicant was issued to protect the partner against the applicant. It is unclear how being named the perpetrator on the VRO would have offered protection to the applicant and the Tribunal does not accept that he did not defend the allegations for that reason. The Tribunal does not accept that the applicant would concede the basis for the VRO (even though he claims not to have seen the application) simply because it was easier to do so. It is a serious matter with significant repercussions and the Tribunal is of the view that the applicant would have taken it more seriously than what he now suggests. Notably, in his oral evidence to the Tribunal the applicant said that he did defend the final VRO and had legal representation before the court. He said that he put his case before the court but he was not successful. That is, despite the applicant’s denial of the allegations, the Court preferred the evidence of his spouse and, having heard the evidence of both, the court had issued the final VRO to protect the partner and the child against the applicant.

16. The applicant claims he has been a victim and not the perpetrator of family violence and that he had been abused in various ways by his wife. In oral evidence, the applicant confirmed that he had been subjected to family violence and said that he had proof. The existence of the VRO and the conviction for assault identify the applicant as the perpetrator and even if the applicant did obtain a VRO in relation to his wife, the existence of such a VRO and the claim of family violence against the applicant do not negate the possibility of such violence by the applicant towards his partner.

17. The applicant told the Tribunal that the VRO required him not to approach his wife and [child] and not to contact them by any means. The applicant claims that he had not breached the VRO or his bail conditions and there has been no repetition of him offending and the risk of future reoffending is low.

18. The Tribunal acknowledges that the applicant did not have a prior criminal record and has participated in counselling. The Tribunal also acknowledges that when sentencing the applicant, it was considered that the offence was at a low end of the scale. The Tribunal has had regard to the sentencing remarks and accepts that [part of the charges] had been withdrawn, there appeared to have been no physical injuries as a result of the altercation and the conduct was considered at a lower scale, as reflected in the sentence. A spent conviction was considered appropriate. The Tribunal acknowledges that on the other occasions to which the NOICC refers, in December 2015 and August 2016, there is no evidence of violence perpetrated by the applicant against his partner or child and the Tribunal does not consider that these two incidents give rise, or contribute in any way, to any risk that the applicant’s presence may involve.

19. Nevertheless, the Tribunal notes that the applicant has been convicted of a serious crime of assault, albeit at a lower scale. The response to the NOICC indicates that the applicant has been prohibited from seeing his wife and child. He has been issued with a protection order because the Court found that there was a need to protect the applicant’s wife and child and the information in the primary decision record indicates that a final VRO was issued in October 2016 and remains in effect until [October] 2018. In the Tribunal’s view, the fact that after the applicant’s evidence was heard in court, the protection order was issued for a period of two years and remains in place, offers strong indication that the applicant was assessed as being a risk to the safety of his former wife and [child].

20. The Tribunal has considered the applicant’s claims and acknowledges his evidence that the violence was perpetrated in relation to him and not by him. The Tribunal finds that this is not supported by independent and probative evidence. In the Tribunal’s view, such evidence – particularly the issuance of the final VRO for a period of two years and the conviction for assault – indicate that despite the applicant’s denials, there was at least some form of violence against the wife and that the applicant’s wife and child were assessed as being in need of protection. Whether the wife perpetrated any violence against the applicant, as he claims, does not detract from this fact.

21. In his written submission to the Tribunal of 21 September 2017 the applicant notes that the bail condition did not refer to physical violence as there was no belief that the applicant had a propensity to act violently towards his wife. It was also known as part of the bail process that the applicant would continue to live at the same premises as his wife, suggesting there was no fear of violence. In his post-hearing submission the applicant reiterates that he had been granted bail on several occasions and complied with bail conditions. The Tribunal accepts that evidence but notes, firstly, that the considerations for granting bail are quite different to those relevant to establishing a breach under s. 116(1)(e) which, in the Tribunal’s view, provides for a lower threshold. It is sufficient to establish that there ‘may be’ or ‘might be’ a risk. Secondly, the Tribunal has formed the view that the grounds for cancellation in s. 116(1)(e) are not limited to physical violence as the applicant appears to suggest. The ground is broader than that and refers to health or safety or good order. If a presence of a visa holder may result in emotional, psychological, sexual or other forms of abuse but not necessarily physical violence, such factors may also pose a risk to health or safety or an individual and form the ground for cancellation. Thus, the fact that the applicant was granted bail and permitted to remain in the same household as his wife is not in itself sufficient to negate the potential existence of risk.

22. The Tribunal has also considered the applicant’s claim that the VRO was issued as a means of excluding him from the house, which was his wife’s aim. The applicant argues that the grounds which formed the basis of the VRO were not credible and contradict his character and principles and he denies that the conduct took place. The Tribunal acknowledges the applicant’s denial of the conduct, however the Tribunal is mindful that the matter has been heard in court before the final VRO was issued. The applicant claims the final VRO was issued as a consequence of agreement between the parties to have mutual VROs and the wife did not attend the court. (In his subsequent submission to the Tribunal of 22 November 2017 the applicant indicated there were no mutual VROs issued at the time.) The applicant’s evidence to the Tribunal is that he presented his case in court, with the assistance of a lawyer, but the court accepted the evidence of his wife. The applicant claims he decided not to oppose the application made by his former partner but if he claims her claims were entirely untrue, the applicant had the opportunity to present his case in court and to establish that the grounds were not credible and that the conduct alleged in the application for the VRO did not occur. The applicant either did not do that (which implies that he agreed to the allegations) or was unsuccessful in his opposition to the allegations. Contrary to the applicant’s submission, the Tribunal considers that the fact that, after having heard the matter and after giving the applicant the opportunity to present his case, the VRO was issued must be taken as evidence that following judicial consideration of the matter, it was established that there was a need to afford formal protection to the wife and child through the issuance of the VRO. It is not sufficient to now state that the basis for the VRO is not credible or that the circumstances were entirely made up. The opportunity to establish that was during the VRO process and the applicant failed to do that.

23. Neither is it helpful to state, as the applicant does in his submission of 22 November 2017, that the threshold for invoking the operation of s. 116(1)(ii) is “unjust” or involves an ‘absurdly low threshold of satisfaction’. In the Tribunal’s view, that is intentionally so. The wording of that provision – that the presence is or may be or would or might be does intentionally impose a very low threshold of satisfaction. Further, a conviction for an offence involving some form of violence – even which the applicant considers insignificant – and the issuance of a VRO – are not, in the Tribunal’s view, reflective of an ‘absurdly low’ threshold of satisfaction. The fact that the applicant was given a spent conviction with no custodial or financial penalty, or that the offence was regarded at the lower end of the scale, does not detract from the fact that the conviction has been made in response to the applicant’s conduct and the applicant penalised through a financial undertaking.

24. The applicant’s submission to the Tribunal is that he has not seen his wife for about a year, has no intention of seeing her and whatever domestic disputes occurred in 2015 and 2016 which resulted in police attendance, will not occur again. The applicant argues that in that context, he is not a risk to his wife and an risk is minimised by the passage of time. The Tribunal acknowledges that evidence but it is not sufficient. The applicant will have the opportunity to approach and interact with his wife and child in the future, even if he has not done so for over a year.

25. Having regard to all these circumstances, the Tribunal finds that the applicant did engage in conduct that involved violence, or a threat of violence, towards his wife. The Tribunal places weight on the fact that the applicant had been convicted of assault and the issuance of the VRO. The Tribunal has formed the view that the presence may be or might be a risk to the safety of the applicant’s partner and child. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The purpose of a Partner visa is to enable the visa holder to remain in Australia with his partner. The applicant’s evidence is that his relationship with his partner around mid-2016 ended and the present VRO prevents the applicant from seeing or having contact with his partner. In his written submission to the Tribunal the applicant explains that the relationship with the sponsor deteriorated about four months after his arrival in Australia, in June 2015, when the sponsor asked him to leave the family home, which he refused to do.

2. The Tribunal is of the view that the applicant is no longer able to fulfil the purpose of his travel to and stay in Australia because he is no longer in a relationship with the sponsoring spouse, although the Tribunal acknowledges that an applicant may still be entitled to the grant of the permanent Partner visa if certain requirements are met, including family violence and parental responsibilities towards a common child, irrespective of the breakdown of the relationship.

3. The applicant stated in oral evidence that he wants to be with his [child], who is [age] years old. The applicant referred to paying Child Support. He claims there is a compelling need for him to remain in Australia. The Tribunal accepts that the presence of a minor child in Australia may constitute a compelling reason for the applicant to remain in Australia.

   The extent of compliance with visa conditions

4. There is no evidence before the Tribunal to indicate that the applicant failed to comply with visa conditions.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

5. The applicant claims that he has a close relationship with his [child] and is pursuing legal rights with respect to the child. The applicant claims that his absence from Australia will cause considerable hardship to the child. The Tribunal is mindful, however, that at present there is a VRO in place the purpose of which is to protect the child. The applicant’s evidence in response to the NOICC is that he is not permitted to see the child and although the applicant claims he wants to have a right to see the child, he is required to obtain permission to do that. The applicant’s oral evidence to the Tribunal is that the Family Court issued orders in [2017] allowing him supervised weekly access to the child and they are yet to arrange a meeting. Following the hearing the applicant provided to the Tribunal a copy of the Family Law order granting him supervised access.  The Tribunal accepts the applicant has such access.

6. The applicant also argues that he will not be able to pursue the family law action in relation to his child, if he is required to leave Australia and, given the exclusion period, it would be difficult for him to maintain a relationship with his [child]. The applicant notes that if his visa is cancelled, he may be subjected to the exclusion period in PIC 4013, although the Tribunal is mindful that it may not apply to all visa categories.

7. The applicant also told the Tribunal that he had given up many things to come to Australia. He had given up his job [and] he is not sure whether he can get another job. The applicant has not presented any evidence of having applied for jobs and having been denied employment in Ethiopia and even if it may be difficult for the applicant to obtain [employment], whether because he has been out of work or due to any psychological issues, the Tribunal is not satisfied that the applicant will be unable to obtain employment and support himself. The applicant also told the Tribunal that his parents and siblings are in Ethiopia and the Tribunal is of the view that the applicant will have access to family support.

8. Nevertheless, the Tribunal accepts that the applicant has been living in Australia for a number of years and that he has a child in Australia. The Tribunal accepts that the cancellation of the visa will result in considerable hardship to the applicant.

   Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

9. The applicant claims he had been subjected to family violence. However, the ground for cancellation arises not because of the relationship breakdown but because the Tribunal has formed the view that the applicant’s presence in Australia may be or might be a risk to another person or persons. The applicant had been convicted of aggravated common assault and had been issued with a VRO to protect his partner and child and that Order remains active. The Tribunal acknowledges that the applicant has also made the application for the VRO in relation to his partner and his claims of family violence.

   Past and present conduct of the visa holder towards the department

10. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The applicant reiterates in his written submission to the Tribunal that he has been cooperative with the Department and notified about the breakdown of his relationship with the sponsor and the Tribunal accepts that evidence.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

11. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. He may be subjected to an exclusion period in relation to some, but not all, future applications. The Tribunal also accepts that if the applicant is not a holder of the Subclass 820 visa, he may be ineligible to be granted the subclass 801 visa. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

12. There are no persons in Australia whose visas will be subject to cancellation under s. 140 of the Act.

    Whether any international obligations would be breached as a result of the cancellation

13. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant told the Tribunal that he would have no problems in his country, other than psychological problems associated with being separated from his [child]. The applicant suggested that he could find it difficult to get a job but for the reasons stated elsewhere, the Tribunal does not accept that evidence. In any case, the Tribunal notes that if the applicant does believe Australia has protection obligations, he is entitled to seek a protection visa (see COT15 v MIBP (No.1) [2015] FCAFC 190 and MIBP v Le [2016] FCFAC 120).

14. The applicant and the sponsoring spouse have a common child. The sponsor gave birth to a second child but the applicant claims in his response to the NOICC that the child is not his and he confirmed to the Tribunal that he has never seen that child. The applicant’s evidence is that he wants to be with his [child], that he is pursuing parental orders in relation to the child and that the child would be adversely affected if his visa is cancelled.

15. The Tribunal notes that a protection order was issued in relation to the child and remains in place. The applicant’s evidence to the Tribunal is that the Family Court has now granted him supervised access, which is yet to commence. The applicant’s explanation to the Tribunal is that his ex-wife tried to send him back to his country and she tried everything to do that and that is the reason for the allegations. The applicant said that he asked the Magistrate not to include the [child] in the VRO but that was not done. The Tribunal is of the view that the fact that the Court found there was a need for a formal order to protect the child suggests that there were some concerns about the child’s safety, particularly if the applicant expressly asked for the child not to be included but the child was included in the VRO.

16. The information cited above suggests that when the applicant committed assault against his wife (although the applicant claims nothing happened and there was a misunderstanding, he had been convicted of an assault arising from an incident in December 2015), he did so in the presence of his child and the applicant confirmed that in oral evidence to the Tribunal. In such circumstances, the Tribunal is not convinced that it is in the best interests of the child to remain with the applicant if there is any risk, even a small risk, of violent behaviour. In particular, the Tribunal is not convinced by the applicant’s suggestion that the child will experience hardship as a result of the separation. The Tribunal reaches this conclusion while acknowledging that the applicant has been allowed to have ongoing supervised contact with his [child].

17. The applicant also told the Tribunal that he has been [an occupation] and has a strong connection with the church and he is not a person who is likely to cause any harm. The Tribunal is not satisfied that having connections with the church necessarily implies that the applicant is incapable of committing a crime or causing harm or being a risk. The Tribunal is mindful that the applicant has been convicted of an offence.

    Any other relevant matters.

18. Several of the applicant’s friends spoke to the Tribunal about the applicant’s personality and his relationship with his former wife. The evidence is that the applicant has a close connection with the church, participates in various activities and is generally a person of good character. As noted above, the Tribunal is not convinced that connection with the church necessarily establishes one’s inability to engage in threatening or harmful conduct but the Tribunal accepts that the applicant’s friends believe him to be a person of good character incapable of violence and not a threat but a victim of family violence.  However, the Tribunal places greater weight on the fact that there is a conviction for assault and a VRO in place in relation to the applicant.

19. Overall, the Tribunal has formed the view that the applicant’s presence in Australia is or may be or would or might be a risk to the safety of an individual, being the applicant’s former partner and potentially his child and the Tribunal has found that there are grounds for cancelling his visa. The Tribunal acknowledges the applicant’s evidence and submissions from his friends, that nothing happened, that he is a person of good character with strong values and close connection to the church. The Tribunal accepts that the applicant’s friends believe him to be a person of good character incapable of causing harm. The Tribunal also acknowledges the applicant’s evidence that the allegations against him have been made up, that he was the victim of family violence and that the information was made up by his former wife to make him leave the family home.

20. The applicant claims that he has been convicted on the basis of false allegations. The applicant argues that his former partner applied for the VRO for the purpose of removing him from the family home and that the basis for her application are “demonstrably discreditable“. The Tribunal’s observations are based on objective evidence, such as the issuance of the VRO, rather than the applicant’s belief in what his partner’s motivations may have been or what her reaction should have been in response to the alleged conduct. It is not appropriate, the Tribunal’s view, to find that because his partner did not respond in the way the applicant believed to be appropriate or adequate, her claims cannot be believed. Neither is it sufficient to state that such conduct is not ‘within the applicant’s character’. That is a very nebulous concept. The Tribunal is mindful that these matters have been addressed by the court in the process of the criminal proceedings and the VRO process. The Tribunal has formed the view that the conviction for the assault and the issuance of the VRO after the matter has been heard in court can be taken as evidence that the applicant had engaged in conduct that formed the basis of the conviction and the VRO. That is, the applicant had been convicted of an assault and the issuance of the VRO implies that the court determined there was a need for formal protection order in relation to the applicant’s former partner and child. The Tribunal acknowledges that the conviction is a spent conviction and the Tribunal also acknowledges the comments of the sentencing judge expressed the view that the conduct was at the lower scale. The Tribunal also acknowledges the applicant’s evidence that the allegations that formed the basis of the VRO could not have happened (because there was no direct contact between the parties after August 2016) and the sponsor did not mention the allegations earlier. However, as noted elsewhere, the Tribunal considers that the fact that the final VRO has been issued, after the applicant had the opportunity to present his case and was legally represented in doing so, and after his evidence was heard, cannot be disregarded. It is probative evidence, in the Tribunal’s view, that the ex-wife has been assessed as being in need of protection from the applicant.

21. The Tribunal acknowledges the applicant’s evidence that he has not breached the VRO and has not made any attempt to harm his partner and child and had no contact with them for over a year. The Tribunal acknowledges that the applicant has been granted supervised access to his [child] and is pursuing further orders.

22. The Tribunal accepts that considerable hardship may be caused to the applicant if his visa is cancelled. The Tribunal also accepts that if the visa is cancelled and unless he is granted another visa, the applicant may have few opportunities to see his [child], although the Tribunal is also mindful that the applicant may have opportunities to apply for other visas. The Tribunal has placed significant weight on the fact that the cancellation of the visa may result in the applicant being separated from his child. The Tribunal has considered the best interests of the child but, for the reasons set out above, the Tribunal is not satisfied that the best interests of the child will necessarily be best served if the visa is not cancelled. This is so because the applicant has been convicted of an assault in relation to the child’s mother and the applicant’s own evidence, the altercation occurred in the presence of the child. Nevertheless, the Tribunal accepts that hardship may be caused as a result of the cancellation.

23. The Tribunal considers the nature of the offence (aggravated assault) to be significant as it involves violence or a threat of against another person, even if the applicant claims it was due to a misunderstanding. The Tribunal also places weight on the fact that the VRO has been issued and remains in place. In the Tribunal’s view, the nature and the circumstances of the offence outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

24. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member