1802717 (Migration)

[2019] AATA 4810

1802717 (Migration) [2019] AATA 4810 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802717

MEMBER:Michael Cooke

DATE:18 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 18 June 2019 at 12:00pm

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) – Subclass 030 (Bridging C) – criminal conduct – spousal application withdrawn – anonymous dob-in – allegation of contrived relationship – not properly notified – jurisdictional error – did not inform Department of relationship breakdown – convictions – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 349
Migration Regulations 1994 (Cth), r 2.43

CASES

Meng v MIAC [2007] FMCA 173

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 29 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa was made out. The prescribed ground set out in r.2.43 of the Regulations (r.2.43(1)(oa) was the relevant ground.

3. The applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsoring partner - [Ms A].

4. The applicant was represented in relation to the review by his registered migration agent.

5. The applicant’s adviser sent a comprehensive submission to the Tribunal addressing the validity of the cancellation and reasons for not cancelling (T1, ff. 36-39). She commented thus:

   The following submissions address firstly the issue of the Department's letter of 20 November 2015 which attached the Bridging Visa C Grant Notice, being the visa the subject of the cancellation. I then set out in some detail the reasons and the factors which weigh in favour of the applicant's visa not being cancelled.

6. The Tribunal observes that the representative’s submission informs that the applicant departed Australia voluntarily. The decision to cancel the applicant’s visa (pursuant to s.116 of the Act) is reviewable by the Tribunal if the applicant was in Australia at both the time of the delegate’s decision and at the time the application for review was made (ss.338(3) and s.347(3)). The decision to cancel the applicant’s visa was made on 29 January 2018. The application for review was lodged on 2 February 2018.The applicant left Australia on 9 February 2018. The Tribunal finds, therefore, that he was in Australia at both times and meets the requirements for jurisdiction.

7. An Invitation to Comment pursuant to s.359A of the Act was sent to the applicant’s authorised recipients as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [Mr B]

   I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 030 (Bridging C) visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·The Department has affixed a S.375A Certificate to the Department file (the Certificate). This Certificate concerns a notification that confidential information is contained on the Department file. It indicates that the Department has information from a confidential informant which cannot be disclosed to the applicant as it would be contrary to the public interest to do so.

   Please see the Certificate attached.

   The Tribunal is satisfied that the Certificate was validly issued to the Administrative Appeals Tribunal.

   You are invited to comment on or respond to:

   oThe validity of the Certificate; and

   oThe particulars of the information outlined above.

   The relevance of the information is that it could lead to a finding that the prescribed ground in s.116(1)(g) has been made out and that if relied upon, this would lead the Tribunal to exercise its discretion to affirm the cancellation of the applicant’s Subclass030 (Bridging C) visa.

   You are invited to give comments on or respond to the above information in writing.

8. The applicant’s representative responded to the Invitation as follows:

   I refer to the Tribunal’s letter dated 28 February 2019 inviting us to comment on or respond to certain information that might be adverse to our client.

   By way of comment and response we advise as follows:

   1. We note the Tribunal is satisfied that the Certificate pursuant to section 375A of the Migration Act 1958 was validly issued to the AAT and we have no legal foundation to challenge the validity of the Certificate.

   2.There is presently no information before us regarding the identity of the informant or the substance or import of the information held at folios 12-20 of the Departmental file (BCC2017/4358098), and it is therefore very difficult to comment in any useful way on that information.

   While we understand it might not be appropriate to disclose to us information as to the identity of the informant, we submit it might be possible for the Tribunal to inform us in general terms of the substance and import of the possibly adverse information. In that event we could make further comment as relevant. 

   3. We make two further comments in this matter:

   a. If the informant referred to in the s.375A Certificate is in fact [Ms A], the applicant’s spouse who at some stage told the Department she no longer supported his application for permanent residence and alleged an assault by the applicant, then the identity of that informant and the adverse information can both be disclosed to us. That is because [Ms A] has subsequently supported the applicant strongly and has in fact given evidence in support of his application to the AAT;

   b. Most importantly, we do not consider that any information from an informant about the applicant or his character could negate or challenge the legal effect and reality of what has occurred in the applicant’s case in respect of his visa. That situation is set out very clearly in our written legal submissions to the Tribunal, and we also addressed those matters in our oral submissions at the hearing before the Tribunal.

   Based on those submissions we argue again that this application for review should be successful and the visa in question should not be cancelled.

9. A further Invitation pursuant to s.359A was sent to the applicant as follows on 15 May 2019:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [Mr B]

   I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 030 (Bridging C) visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   You requested the Tribunal provide further information (the ‘gist’) of the confidential information contained in the s.375A Certificate as you explained below:

   ·There is presently no information before us regarding the identity of the informant or the substance or import of the information held at folios 12-20 of the Departmental file ([number]), and it is therefore very difficult to comment in any useful way on that information.

   ·While we understand it might not be appropriate to disclose to us information as to the identity of the informant, we submit it might be possible for the Tribunal to inform us in general terms of the substance and import of the possibly adverse information. In that event we could make further comment as relevant.

   The particulars of the ‘certain information’ are as follows:

   ·Confidential personal correspondence and an anonymous ‘dob in’ letter’ to the Department along with Departmental correspondence, alleging that you (the applicant) were involved in a contrived relationship with the sponsor for migration purposes. It further alleges that the sponsor was subjected to blackmailing and abuse by you and that you have been fined for driving an unregistered vehicle and have several parking infringements.

   The relevance of this information is that it could be a consideration when exercising the Tribunal’s discretion to cancel the applicant’s Subclass 030 (Bridging C) visa. For instance, the past and present behaviour of the applicant towards the Department could be another discretionary consideration when deciding whether to cancel the applicant’s visa.

   The information is further relevant as it discloses evidence of a disregard for the law by the applicant and of the applicant being a risk to the community.

   These circumstances could be relevant at the time when the Tribunal is deliberating on the discretionary consideration called ‘any other relevant matter’ when deciding whether to cancel the applicant’s visa.

   You are invited to give comments on or respond to the above information in writing.

10. The applicant through his representative responded to the Invitation as follows:

    I confirm I am instructed by [Mr B] in this matter.

    I refer to your letters of 15 May 2019 and 24 May 2019 and submit as follows:

    1. If the confidential personal correspondence which is potentially adverse to the applicant is from [Ms A] then we submit that, given [Ms A] was a witness at the Tribunal hearing, the Tribunal should rely on her later sworn evidence at the hearing to the effect that her relationship with the applicant was not contrived and that she wished to support his application for review very strongly. In my previous written submissions to the Tribunal I noted that despite some difficulties in their relationship, the couple had resolved those matters and [Ms A] supported the application at the hearing.

    2.  In respect of any anonymous 'dob in' letter also alleging the relationship was contrived for migration purposes we submit that an unsworn, anonymous allegation cannot be preferred by the Tribunal over the sworn evidence of [Ms A] and the applicant.

    3. Similarly any allegations of abuse or driving offences alleged to have occurred by an anonymous 'dobber' should be given no weight against the evidence of [Ms A] and the applicant, both of whom gave oral evidence to the Tribunal. Moreover any actual assault or driving offences would have been known to the police, were dealt with by the judicial system and were the subject of my written submissions to the Tribunal They were, in effect, the offences that gave rise to the grounds for cancellation of the visa by the Departmental officer and those matters have been addressed in my submission.

    4.To the extent there are anonymous allegations about matters in addition to these known offences (such as driving an unregistered vehicle or parking infringements) we are instructed that such allegations are without any foundation, have no evidence to support them and represent a clear attempt to discredit the applicant by an unknown person who has a grudge against him. They should be given no weight in the Tribunal's consideration of this case, or in the alternative the evidence of [Ms A] and the applicant should be given greater weight and should be accepted by the Tribunal.

    5. t is submitted that none of these matters have sufficient foundation such that the Tribunal could conclude the applicant might be a risk to the community. To draw such a conclusion on the basis of the 'certain information' now described by the Tribunal would amount to an error of law.

    6. I rely generally on my written submissions given to the Tribunal prior to the hearing.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The case before the Tribunal is the subject of a s.375A Certificate. The Tribunal is satisfied that the Certificate is valid and informed the applicant. The Tribunal discussed the matter with the applicant in the hearing. The Tribunal explained that the information outlined on the Certificate was confidential and it was so to protect the privacy of the source. The applicant was concerned that he was not able to access the confidential information when he was undergoing a legal process. The Tribunal explained to him that informants speak to the Department from time to time and their information forms part of the Department’s visa processing. Their identity cannot be revealed because the information is given in confidence. The Tribunal informed the applicant it did not intend to use the information.

13. With the permission of the Tribunal the representative addressed her client and explained to him what she had discovered in the Department file. She explained that she had reviewed the whole file but certain information was confidential by law and he should accept that. The applicant accepted that the Tribunal was unable to reveal information covered by the Certificate for privacy reasons. The Tribunal has since presented the s.375A Certificate to the applicant for comment (see above) including the ‘gist’ of the information covered by the Certificate.

14. As was stated to the applicant in the hearing, the Tribunal has chosen not to utilize the s.375A Certificate adverse information in its decision. The information available to it from the Department’s decision record (found on the Tribunal file) is sufficient basis to finalize the review. The s.375A information concerns the applicant’s relationship and other allegations. The Tribunal finds this information is not relevant to the issue at hand which is the conviction of the applicant for various offences against NSW State law. This information was readily available from the delegate’s decision record (on the Tribunal file). The Tribunal is charged with considering whether his visa should be cancelled as a result of those ‘prescribed grounds’ (the convictions outlined in the decision record) pursuant to s.116(1)(g).

15. The Tribunal then outlined to the applicant the principal themes in his case and which his representative had included in her lengthy submission to the Tribunal. The Tribunal then elaborated on these themes during the hearing.

16. 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)(g). 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.

    Particulars of the ground for cancellation:

17. The circumstances that arose in the applicant’s case that led to the cancellation are that - pursuant to Section 116(1) and subject to subsections (2) and (3) - the Minister may cancel a visa if he or she is satisfied that:

    (g) a prescribed ground for cancelling a visa applies to the holder.

    Reg. 2.430 — Prescribed ground

    For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

    ·r.2.43(1)(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa) — that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

18. It is a matter of record (see decision record on Tribunal file) that whilst onshore the applicant was convicted of the following offences in the state of New South Wales:

    ·On 10 November 2017 in the Newtown Local Court he was convicted of one count of Common Assault (DV).

    ·On 21 September 2017 in the Burwood Local Court he was convicted of one count of Contravene Prohibition/Restriction in AVO (Domestic).

    ·On 04 September 2017 in the Downing Centre District Court he was convicted of one count of Drive with Middle Range PCA — First offence

    ·On 04 September 2017 in the Downing Centre District Court he was convicted of one count of Drive Motor Vehicle while suspended — First offence

19. The Tribunal finds that under such circumstances the applicant’s visa may be cancelled under section 116(1)(g) relying on prescribed ground in Reg. 2.43(1)(oa).

    Applicant’s Submission

20. The applicant’s representative has addressed various issues in the applicant’s case and submits that:

    1. As I put to the Department in my brief submissions of 31 January 2018, the letter to the applicant dated 20 November 2015 attaching the Bridging Visa C Grant Notice was clearly sent to an incorrect e-mail address. The address to which that letter was apparently sent is "[details deteled]". That is not the applicant's correct e-mail address and I am instructed was not the address given by the applicant in respect of his application for a partner visa or any other visa applications. The spelling of the applicant's name is clearly an error.

    2. As a consequence of that error we say that neither the letter of 20 November 2015 nor the attached Bridging Visa Grant Notice was ever received by the applicant or his authorised recipient. Nor could it have ever been received by him given the error in the e-mail address.

    3. That position is entirely consistent with the fact that the applicant has always maintained that he did not receive any letter from the Department dated 20 November 2015 and never knew about the purported issuing of a Bridging Visa C Grant Notice. It is noted that the document provided recently by the Department indicates that it was intended that visa would be issue with a "no-work" (8101) condition. That is important because the applicant has also always maintained that he continued to hold permission to work pursuant to the Bridging Visa A Grant Notice of 5 April 2014 and/or subsequent bridging visas which allowed him to work.

    4. The fact of the error in the letter of 5 March 2015 is accepted by the Department in its e-mail of 1 March 2018. The Department concedes the grant notice was sent to an incorrect e-mail address and that therefore the applicant was not properly notified, but concludes simply without further reasons that "the fact that your client was not properly notified of the BVC grant does not in itself give rise to a jurisdictional error…”

    5. However it is submitted that the legal effect of the error in the applicant's address is of much greater legal and practical significance. We say that as a consequence the notification to the applicant was so defective that the grant of the Bridging Visa C failed entirely. If that is accepted, then the cancellation of that visa must also be defective and of no legal effect because there was no Bridging Visa C granted on that date which could be subsequently cancelled. The cancellation would be, in effect, void ab initio.

    6. It is submitted that at the very least the factual foundation for the cancellation was so incorrect and misconceived that it must give rise to both a factual and legal error in the decision itself. We therefore submit that the cancellation decision, if not void ab initio, is still affected by jurisdictional error. If the Tribunal were to affirm the cancellation decision it would similarly fall into jurisdictional error.

    7. In addition the Bridging Visa C the subject of the cancellation was said to be issued subject to a "no work condition". If the letter and notice had been sent to the applicant's correct e-mail address he would have been aware of that condition, but as it is he had no knowledge of that condition. That much is in effect accepted, or impliedly accepted, in the Department's e-mail of 1 March 2018 in response to my submissions on the defects in the notification letter and the defects attaching to the grant of the visa. That response post-dates, of course, the cancellation decision. However the decision-maker clearly makes a "finding of fact" that the applicant breached that condition because he admitted to working. However if my submissions above are accepted, then that is not the case because the Department failed to properly notify the applicant of the grant of the visa as well as its conditions so that the notice was legally ineffective. The applicant had no knowledge of the condition.

    8. Nonetheless the decision-maker clearly considers the purported breach of the "no work" condition to be a relevant factor to take into account when considering the extent of his compliance with visa conditions (see page 4 of the decision). He takes this alleged breach into account and weighs it against the applicant when he decides to give it "no weight" in the applicant's favour. In doing so the decision-maker errs not only in taking into account an irrelevant consideration but fails to consider at all the "relevant consideration" of the extent to which the applicant previously complied with the conditions of his many visas (including not working when he did not have permission to work).

    9. Furthermore the alleged breach was clearly adverse information and 'relevant information' that should have been put to the applicant for comment prior to the cancellation decision, in accordance with section 120 of the Migration Act 1958. The applicant clearly had no knowledge of it. If that had occurred then the Departmental error would have come to light, submissions could have been made and a proper consideration of the facts may have occurred.

    10. In summary the cancellation decision is wrong in law and affected by jurisdictional error on several grounds. The decision-maker was selective as to the facts and evidence he relied on to the detriment of the applicant, the factual foundation on which he relied was incorrect, he therefore took into account an irrelevant consideration and failed to take in account other relevant considerations and history, and finally he failed to accord procedural fairness. Taken together, these matters lead to the conclusion that the decision is affected by legal error and cannot stand.

    11. It is submitted further that in exercising its powers under section 349 of the Migration Act 1958 (the Act) the Tribunal must consider the factual circumstances as at the date of its own decision, including any changes in circumstances. After making the Application for Review the applicant departed Australia, and therefore any Bridging Visa C he might have held ceased and was no longer of legal effect when he departed. In those circumstances it is arguable that the Tribunal may not now be able to make a decision to cancel a visa that does not exist as a matter of fact and law.

    12. However the Tribunal's power to overturn the cancellation decision clearly continues, as is apparent from many decisions of the Federal Court of Australia. If that were not the case then the Tribunal's powers and place within the review system would come to nought. The balance of these submissions addresses the grounds for the cancellation and the reasons and factors which weigh in favour of overturning the cancellation decision.

    13. The applicant concedes that the statement of offences set out in the Notice of Intention to Consider Cancellation under Section 116 of the Migration Act 1958 (the Notice) is a correct record. Those offences would seem to amount to a "prescribed ground" for the purposes of section 116(1)(g) of the Act and Regulation 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations). They then give rise to the Minister's consideration of whether the visa should in fact be cancelled, which is clearly a discretionary power to be exercised with due care and taking into account all relevant considerations. That is now also the decision before this Tribunal.

    14. In my submissions to the Department I argued that as a matter of fact and law if the applicant's visa is cancelled it is very likely that he would not be granted a substantive visa and would be required to leave Australia as a matter of urgency. It was submitted that the consequences of such a decision are of a most significant and serious nature, so that the decision must not be taken lightly or without due consideration of all the applicant's circumstances and his legal rights, limited though they might be. While the applicant chose to depart Australia voluntarily, those comments remain relevant to the decision to be made by the Tribunal.

    15. The applicant seeks to clear his name as a matter of principle and to have the cancellation decision overturned as a matter of justice. He has continued with this Application for Review because the outcome will continue to have a direct effect on his chances of returning to Australia on any basis. It adversely affects his immigration history in a most substantial and significant way.

1. The Tribunal has examined the representative’s submission and makes the following observations.

2. The applicant’s submissions raise a number of issues relevant to the exercise of discretion under s.116 of the Act. At [3] and [8]-[10] the applicant’s representative submits that the applicant was not notified of the grant of the visa, therefore, he was unaware that the visa was subject to the 8101 ‘no work’ condition. Further, at [11], the applicant’s representative correctly contends that, in accordance with s.349 of the Act, the Tribunal must consider the factual circumstances at the date of its decision, including any change in circumstances.

   Does the ground for cancellation exist?

   s.116(1)(g) - prescribed ground

3. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant because the applicant has a number of criminal convictions.

4. The applicant’s representative has contended that the delegate’s decision was void ab initio. The Tribunal observes that section 66 of the Migration Act 1958 (the Act) sets out the procedure for notification of a decision. Subsection (4) provides that ‘failure to give notification of a decision does not affect the validity of the decision’. Accordingly, while the applicant may not have received the Bridging Visa Grant Notice dated 20 November 2015, the decision to grant the applicant a Bridging C (Class WC) visa is nonetheless valid. The representative contends that, in the alternative ‘if not void ab initio, [the cancellation decision] is still affected by jurisdictional error’ and if the Tribunal affirms the decision, the Tribunal would also fall into error (at [6]).

5. The Court in Meng v MIAC [2007] FMCA 173 held that a visa may be cancelled even if the visa was not validly granted. The Court at [15] endorsed the decision in Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 which held that the effect of s.69 of the Act is that once a visa is granted, it continues to be valid unless or until it is set aside. At [16] the Court in Meng stated: ‘The cancellation powers set out in that Division are applicable to all visas, including visas where the decision to grant the visa was, or may have been, affected by a jurisdictional error.´

6. Paragraph [9]-[10] of the applicant’s submissions particularise other jurisdictional errors said to have been committed by the delegate. For the reasons set out in Meng the submissions on this point are of no consequence as the Tribunal may review a decision that is affected by jurisdictional error. However, the Tribunal notes that errors identified may be relevant when considering the exercise of the discretion under s.116 of the Act. The Tribunal has confined its decision to s.116(1)(g) and has not considered the breach of condition 8101.

7. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

8. 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’.

   Discussion and consideration of any relevant factors, including the Departmental guidelines and matters raised by the applicant. Departmental guidelines cover such matters as:

   ·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

9. The applicant entered Australia initially on Visitor and Student visas. He was refused a further Visitor visa. He had been pursuing a long-distance relationship with [Ms A] over a number of years, both in Greece and Australia, which culminated in a Partner visa application being lodged on 19 May 2014. This allowed the applicant to be granted a Bridging A visa with work rights. This visa was refused on 6 August 2015 and a subsequent Bridging C visa was granted (without work rights) pursuant to his subsequent Federal Circuit Court appeal. The applicant (via his representative) has argued that he was unaware that his work rights had ceased (see par 9 submission evidence above).

10. This Court appeal was based on a No Jurisdiction decision by the Tribunal when he lodged his appeal against the refusal of his Partner visa application at the AAT (MRD Division). The Federal Circuit Court hearing was finalised on 8 February 2018 in the Minister’s/Tribunal’s favour. The applicant has claimed his de facto partner relationship is still on foot but he departed for Greece on 9 February 2018. The Tribunal gives this latter event significant weight against the claims of the applicant that he has a compelling need to remain in Australia.

    ·the extent of compliance with visa conditions

11. The applicant has informed that he was working in Australia despite having Condition 8101 ‘No Work’ attached to his present Bridging C visa. The Tribunal gives this consideration no weight. Self-evidently the applicant had never been correctly informed of this situation by the Department due to a misaddressed email notification (see par 9 submission evidence above).

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

12. The applicant has claimed financial hardship will be caused to him by the cancellation. The applicant claimed he would suffer hardship if he were compelled to return to Greece because of the economic conditions in that country. Yet since February 2018 he has voluntarily chosen to live in Greece which negates this claim.

13. The sponsor is herself financially independent of the applicant. There is no evidence that she would be suffering economic hardship caused by the return of the applicant to Greece as she previously lived with her daughter in her own home and has travelled to Greece. The Tribunal gives any consideration of financial hardship little weight.

14. The applicant’s representative has said that:

    It is submitted more generally that serious hardship would flow to the applicant, to [Ms A] and to the applicant's teenage son in Greece if his visa is cancelled.

15. The fractious history of the relationship between the parties has been revealed and canvassed along with his convictions for assault on his former girlfriend in the decision record (on the Tribunal file). The applicant has further claimed that he is suffering psychologically from separation hardship from his partner ([Ms A]) due to his return to Greece.

16. The sponsor appeared and gave oral evidence that she had forgiven the applicant and wished to reunite with him. Despite these claims the Tribunal is satisfied (from the cumulative evidence of the relationship on the Tribunal file and given orally) that claims made by him that he and/or his partner would suffer psychological or emotional hardship are extremely doubtful. This includes claims that they have reunited following the end of the applicant’s relationship with the woman who took out the successful AVO applications against him. This reconciliation claim has been negated (in the Tribunal’s view) by his decision to return, voluntarily, to Greece. The Tribunal gives this hardship consideration (and the possibility that his son might not be able to join him in Australia) little weight in favour of not cancelling the visa.

    ·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

17. The applicant has submitted that the offences for which he was convicted occurred during a period when he was having a relationship with [Ms C]. The incidents which led to the convictions arose primarily due to excessive alcohol consumption - it is claimed. The applicant claimed in mitigation (in oral evidence) that he committed the driving offence as a by-product of trying to prevent [Ms C] from driving a car while seriously intoxicated herself.

18. He has submitted through his representative the following pleas in mitigation:

    The applicant concedes that on 10 November 2017 he was convicted of one count of common assault, being domestic violence. However he says that the matter was heard and determined in Waverly Local Court and not in Newtown Local Court, but that difference is not material. The Bond to Comply with Conditions confirms the Orders were issued at Waverley Court. The date of the actual offence is not stated, but the applicant tells me the incident occurred in early 2017.

    By order of the Court the applicant was convicted but granted a good behaviour bond for 12 months from the date of the Order, with a fine of $750.00. I am instructed that the applicant has respected that Order and there has been no breach. It is submitted that although the incident apparently involved some level of physical assault and that is of concern, the penalty by way of a 12 month good behaviour bond suggests that the Magistrate did not consider it a most serious offence.

    The applicant is indeed apologetic and remorseful about the fact of the incident as well as the outcome.

    In early 2017, during a brief period of separation from [Ms A], the applicant began a relationship with [Ms C]. The applicant now realises he was very stupid to let himself become involved with her, and says that she was a serious alcoholic and gambler. He claims that on an occasion when she was very drunk, [Ms C] accused him of "assault" and phoned the police. He says she initially alleged he pushed her and slapped her on the face, but she was later remorseful and wanted to withdraw the allegation. I am instructed that the police told her it was out of her hands, and the prosecution proceeded.

    That relationship has now ended and the applicant has been rebuilding his relationship with [Ms A].

    The second offence and conviction relates to an Order by the Magistrate at Burwood Court on 21 September 2017 in respect of a contravention of an AVO (Domestic) Order that also related to [Ms C]. It appears that the AVO order which was contravened was issued by Waverley Court and ran for 12 months from 9 April 2017. The Orders were to the effect that the applicant must not approach [Ms C] or be in her company for at least 12 hours after drinking alcohol or taking illicit drugs. I am instructed that the breach again occurred in a situation where [Ms C] allowed and encouraged the applicant to be with her but then became very drunk and called the police.

    The Magistrate at Burwood Court found the applicant guilty of breaching the AVO but granted a good behaviour bond for 6 months from the date of the Order. While the applicant's conduct is unacceptable, we submit that the good behaviour bond is a fairly lenient outcome and suggests the Magistrate did not consider the offence to be very serious.

    As explained above, the relationship with [Ms C] has been ended and there is very little chance of the applicant re-offending. The available evidence suggests that this relationship was an unfortunate aberration, and there is no evidence that before that time the applicant was ever violent. There are no previous convictions either in Greece or in Australia. Since that time the applicant has been rebuilding his relationship with [Ms A].

    The third offence involved driving with a middle range PCA, which resulted in on the spot suspension of licence. The fourth offence was factually related, in that it occurred the day after the suspension when the applicant stupidly returned to pick up his car simply to drive it home. He says that he was unaware he could not even do that, as that is not the law in Greece.

    The applicant instructs me that the circumstances in which he drove under the influence of alcohol are that he and [Ms C] were at a friend's place in July 2017 when she again became so drunk that she collapsed. While the applicant admits he had drunk a few glasses of Greek spirits, he did not think he was over the limit. He felt he had to drive [Ms C] home, which he then did. Again the applicant now recognises the real stupidity of his actions, but says he was only trying to help [Ms C].

    I am instructed that both these matters were heard together initially in the Local Court, but the applicant then appealed the severity of the court order to the District Court. The outcome was that the initial sentence of 18 months suspension of licence and a fine of $1,800.00 was significantly reduced to a 6 months suspension of licence with a fine of $300.00.

    It is relevant that both these offences were noted by the Court as being first offences. While these two events were very unfortunate and stupid, they did not involve injury to any person and it is clear from the outcome that they were not viewed by the District Court Judge as of a truly serious nature.

19. The Tribunal regards the applicant’s behaviour as significant. It involves convictions and a number of incidents involving violence and dangerous driving behaviour. The Tribunal is aware that the incidents which occurred to [Ms C] took place while the visa holder was in an ongoing relationship with her. The applicant was also driving a vehicle while intoxicated beyond the legal driving limit and thus he placed the wider community at risk.

20. Despite this he has continued with his judicial review matter in regard to his Partner visa application with [Ms A]. [Ms A] attended the hearing and gave oral evidence of the affection she had for the applicant and the forgiveness she had given him. She desired for them to be re-united despite all the (heretofore mentioned) non-exclusive behaviour by the applicant with [Ms C] and the domestic violence incident.

21. The Tribunal has read the submission but rejects the contention of his representative that:

    Taken together, it is submitted that these offences do not demonstrate that the applicant is any real threat to the people around him or to the Australian community more generally. They were all stupid, thoughtless acts from which the applicant has learned his lesson. Prior to these offences the applicant had a clean police record in both Greece and Australia, and he is now committed to ensuring he is not involved in any misdemeanours or any other offences in the future. It is submitted the risk of the applicant re-offending is very low, and he should be given another chance.

22. The Tribunal has weighed in the fact that the applicant has indicated he feels remorse for his actions and has tried to explain the reasons for it happening. However, the Tribunal finds in regard to this consideration that the number of incidents is very significant. The Tribunal does not accept the claim ‘that the offences do not demonstrate that the applicant is any real threat to the people around him or to the Australian community more generally’. Thus the Tribunal give the applicant’s behaviour great weight in favour of cancelling his visa.

    ·past and present behaviour of the visa holder towards the Department

23. The applicant has remained engaged with the Department regarding his visa matters. However, the Tribunal observes that he did not inform the Department about the relationship breakdowns between himself and [Ms A]. The delegate’s decision record (on the Tribunal file) indicates he failed to inform the Department about a relationship breakdown with the sponsor which occurred in 2015.

24. In regard to this consideration the Tribunal gives this evidence further weight in favour of cancelling his visa.

    ·whether there would be consequential cancellations under s.140

25. Not relevant.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

26. The Tribunal notes that normally a visa cancellation may result in the applicant being detained under s189 and removed from Australia under s189 of the Migration Act 1958 because he would no longer hold a valid visa. The applicant may also be subject to section 48 of the Migration Act 1956 that may prevent him from applying for further visas while in Australia. However, the applicant has already relocated to Greece 9 on February 2018. The hearing with the applicant was conducted by telephone.

27. In the event of the cancellation being upheld the applicant would be affected by Public Interest Criterion (PIC) 4013 thus limiting the granting to him of a further temporary visa for a specified period. However, he could seek a waiver of the PIC.

28. The Tribunal considers this legal consequence as not unreasonable. The applicant is subject to administrative sanctions as a result of being convicted of offences within an Australian State or Territory. The consequence of this is the imposition by the authorities of PIC4013.

29. The Tribunal gives this consideration some weight in favour of not cancelling the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

30. Not relevant.

    ·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties in Australia

31. Not relevant.

    ·any other relevant matters.

32. None.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Michael Cooke
    Senior Member