1804847 (Migration)

[2018] AATA 5796

1804847 (Migration) [2018] AATA 5796 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804847

MEMBER:Linda Holub

DATE:3 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 03 December 2018 at 3:25pm

CATCHWORDS

MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – risk to the health and safety of an individual in Australia – applicant charged with assault on husband – Apprehended Violence Order – applicant overstayed visa for 6 years – applicant used her sister’s passport – born again Christian – completing the term of her bond – grounds for cancellation beyond the visa holder’s control – decision under review set aside         

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 2 cls 100.221; Schedule 4 Public Interest Criterion 4013; Schedule 8 Condition 8202

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 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 15 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).  A copy of the Decision Record was provided by the applicant to the Tribunal.

2. The applicant is a national of Columbia, born in [year]. She applied for a Partner visa on the basis of the sponsorship by her then partner. The delegate cancelled the applicant’s visa under s.116(1)(e) after she had been charged with an offense while onshore which indicates that her presence in Australia may present a risk to the health and safety of an individual in the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 September and 20 November 2018 to give evidence and present arguments. At the second hearing the Tribunal also received oral evidence from the applicant’s sister, brother-in-law, a cousin and a number of her friends (two of whom provided evidence by telephone).  The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

4. The applicant was represented in relation to the review by her registered migration agent who attended both hearings.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)ii). 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.

Evidence before the Department

1. The applicant provided the Department with:

   a.A submission dated 7 February 2018 which was a Response to the Intention to Consider Cancellation of Subclass 309 Visa.

   b.A Court Attendance Notice in respect of the applicant’s attendance on 9 March 2018 at [Court 1].  It included a NSW Police Facts Sheet.

   c.A copy of a Provisional Domestic Violence Order dated 7 October 2017.

   d.A copy of a Certificate from [Agency 1] dated 8 December 2017 stating that the applicant had completed a Six Week [rehabilitation] Group Program and a Progress Report from the same organisation in relation to the applicant’s participation in the program.

   e.A copy of a Certificate from [Agency 2] dated 16 February 2018 stating that the applicant had completed a [personal development] Program for Individuals.

2. Evidence before the Tribunal

   a.Two copies of a medical certificate dated 9 October 2017 stating the applicant had “a bruised lateral to the outer left eye socket sustained while grappling with her husband over a wallet during an argument at their home early morning on the 7 October 2017”[1].

   b.A copy of a Bond To Comply with Conditions dated [in] March 2018 stating that the offender was found guilty but the matter did not proceed to a conviction and that she was directed to enter in a good behaviour bond for 2 years commencing [in] March 2018.

   c.A copy of a Final Apprehended Domestic Violence Order against the applicant in respect of her former sponsor.  It is in place until [March] 2018.

   d.Submissions provided by her migration representative, dated 11 September and 19 November 2018 the latter of which, included a copy of a Form 1010 – Statutory Declaration for Family Violence Claim.

   e.A Statutory Declaration from the applicant’s clinical psychologist dated 14 February 2018 and a report from a clinical psychologist dated 5 September 2018.

   f.Statutory Declarations in support of the applicant from her sister, a second cousin and a number of friends.

   [1] AAT file, folio 9 and 68 page 2.

Does the ground for cancellation exist?

s.116(1)(e) - risk to Australian community or individual

1. A visa may be cancelled under s.116(1)(e) if the Minister 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. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

10) The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

11) The Decision Record outlines the circumstances which gave rise to the cancellation of the applicant’s 309 visa.  It explains that the visa applicant allegedly assaulted her then partner in an act of domestic violence.  The NSW Police laid charges and initiated an Apprehended Violence Order against her, naming [her former partner] as the person in need of protection.

12) The applicant appeared in [Court 1].  The Court Order dated [March] 2018 states:

“The offender is found guilty but without proceeding to conviction is directed to enter without proceeding to enter in a good behaviour bond for 2 years pursuant to Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to commence [in] March 2018 and accept the following conditions: The offender must be of good behaviour and appear before the court and accept the bod term if required”[2].

[2] AAT file, folio 26.

13) The Final Apprehended Domestic Violence Order is in place against her until [March] 2019.

14) At hearing the Tribunal referred to a submission provided by the applicant’s migration representative. The applicant confirmed that she pleaded guilty to the charges of assault.  She gave evidence that on the day of her scheduled court appearance agreement was reached that if she pleaded guilty to one of the two charges the other would be dropped.  She confirmed that the those legal proceedings resulting from the assault charges had been finalised.  The applicant confirmed that she is currently subject to a good behaviour bond until [March] 2020.

15) The applicant stated that she and her husband are separated and that the last time she saw him was [in] March 2018 at the court but they were in separate rooms.  She confirmed that he had withdrawn his sponsorship of her Partner visa application.

16) Based on the oral and written evidence the Tribunal accepts that the applicant was charged and found guilty of an assault charge against her husband and former sponsor.  The Tribunal accepts that she is the subject of both an Apprehended Violence Order and a Good Behaviour Bond.

17) For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(e)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

18) There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant as well matters referred to in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ and discussed each of those matters with the applicant at her hearings and has also taken account of written submissions and written and oral witness statements.

19) The Tribunal heard that the applicant has one sister in Australia who is married and has a son and daughter.  The applicant is close to her family and also to her brother in law’s family and has lots of friends here.  The applicant has been living with her sister since October 2017 and after she completed an employment contract with [her employer] she has focussed on preparing for the review of her visa cancellation. 

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.

20) The applicant confirmed that most recently she came to Australia after marrying her husband in Colombia.  She was asked about her reason for remaining in Australia now that she is not in a relationship with him.  She responded that her intention was to be with her husband and when they were living together it was a genuine relationship; one in which they shared expenses and got on with life as a couple.  At some point, he became emotionally abusive of her culminating the night of the assault incident during which he hit her on left side of her face.  It then escalated and led to her being charged with assault.  The applicant stated that she did not come to Australia only to be with her husband but also to work and to undertake a Master’s degree.  The Tribunal put it to her that she could do that in Colombia, to which she responded, yes, that’s true.  

21) The Tribunal is prepared to accept that the applicant came to Australia for a number of reasons including to be with her husband and to work and study.  The Tribunal does not accept that the visa applicant has a compelling need to remain in Australia and consequently the Tribunal finds that her reasons for being in Australia are not a reason to exercise discretion not to cancel the applicant’s visa.

The extent of compliance with visa conditions.

22) The Tribunal referred to the submission provided to the Tribunal stating that the applicant has “no adverse history in relation to any immigration matters” and asked the applicant if that statement is correct.  She responded that it is not correct but asked for clarification of ‘adverse’.  The Tribunal responded that ‘adverse’ could be taken to mean something negative. The applicant then referred to overstaying on a previous visa.  The Tribunal put it to the applicant that the Department’s decision states that she overstayed her visa for almost 6 years.  When asked why she had done so the applicant responded that it was because at the time she had a good job and by remaining in Australia she could have a quiet life and could support herself without relying on anyone.  The Tribunal put it to her that her explanation explains why she wanted to stay here but does not explain why she remained illegally.  The applicant explained that she went to see some migration lawyers and they were only able to offer her one option but she did not fit the criteria.  She also referred to having to obtain sponsorship in the construction sector and needing to go to a remote area.

23) The Tribunal put it to her that it considers her breach of her previous visa conditions as a serious matter. To which she responded that it happened a long time.  The Tribunal indicated that it would take that into account but also expressed its concern that the written submission to the Tribunal appears to provide false information in relation to her migration history.  The applicant’s migration representative asked if he could respond on the basis that he wrote the submission. 

24) The migration representative submitted that the fact that the applicant had been granted a 309 visa subsequent to her previous illegal stay in Australia, demonstrates that the applicant is starting afresh.  He also submitted that taking into account her past non-compliance was a qualitative assessment and that since 2014 there was nothing adverse in her migration history.  The Tribunal put it to the applicant that the statement in the written submission that “the applicant has no adverse history in relation to her immigration” can only be deemed to accurately the facts if the words ‘since 2014’ had been added.  Furthermore the Tribunal again noted its concern that the written submission provides a misleading picture of the applicant’s migration history.

25) The Tribunal referred to the Department’s Decision Record which states that the applicant departed Australia using her sister’s passport and subsequently was refused immigration clearance upon arrival, was detained and removed from Australia and asked the applicant what the circumstances that led to this situation.  The applicant gave evidence that at the time no one knew about her illegal status and as she could not find a way of leaving and returning to Australia, she used her sister’s passport (behind her sister’s back) to leave in November 2014.

26) The Tribunal explained to the applicant that it considers her actions in this regard to be very serious because it appears she may have committed migration fraud.  She responded that there is nothing in life that you can hide and has learnt her lesson.  She stated that she has been forgiven by her family, especially by her sister even though it has had ongoing repercussions for her sister.  She stated that when she applied for the Partner visa and was interviewed in Colombia it was made  clear to her that her previous history was in the past and she thought it would remain in the past but it continues to be very present.

27) The Tribunal expressed concern that her behaviour shows that she is prepared to do whatever it takes to remain in Australia and that it reflects poorly on her.  The applicant responded that she is no longer the same person and that she has no reason to lie.  The Tribunal explained that it is not suggesting she is lying but that she is still be motivated to obtain a particular migration outcome. 

28) Following the first hearing, the Tribunal received an email from the applicant’s migration agent dated 18 September 2018 making further submissions on these issues.  It states:

“At the hearing, the Member drew attention to the review applicant’s submission that she did not have an adverse immigration history.  The Member appeared to intimate that was misleading.  However, respectfully, and as clarified at the hearing, an adverse history is a qualitative assessment.  In the context of the review applicant being granted a subclass 309 visa, after a delegate interviewed her about her previous history in Australia and conduct, she has started afresh in Australia.  It is in that context that the submission was made.  There is no intention to mislead.  Her history is stated in the decision record, given to the Tribunal.  She has had a compliant immigration history in relation to her subclass 309 application (in which these issues were raised) and subsequent to the granting of the visa, such that it is, respectfully, not adverse.

Furthermore, she has been forthright to the Tribunal in relation to her evidence and her past.  She has reformed, as a born again Christian.  Her previous life is in the past, and that was when she did not observe Australia’s immigration laws.  That is why the substance of her evidence in part was that she is no longer the person she was before.  She has moved on to be a better person”[3].

[3] AAT file, folio 57.

29) A further submission dated 19 November 2018 was received by the Tribunal again referring to the comments in the submission of 11 September 2018 and the email of 18 September 2018 referred to above.  It goes on to say that the evidence before the Tribunal shows that the applicant was a victim of family violence by her former sponsor and argues that while her conduct cannot be condoned, the applicant’s inflicting harm on her former sponsor should not be viewed in isolation of the relationship as a whole, which was affected with violence.  The submission states that this is relevant because it was isolated and directed at the applicant’s former sponsor.  The applicant has no history of violence towards any other person, she is on a good behaviour bond, has complied with the bond conditions, has had no contact with her former sponsor. 

30) At the conclusion of the applicant’s second hearing the applicant’s migration representative made further oral submissions. He referred to pulling back from his original submission that the applicant did not have an adverse immigration history and noted that he may have been a little overzealous. The Tribunal accepts that in stating in the submission of 11 September 2018 that “the applicant has no adverse history in relation to her immigration status”, there was no intention to mislead.  Regardless of the intention, the statement is accurate only if the review applicant’s recent history is considered.  Furthermore, the Tribunal considers that it is not unreasonable in making its decision that an applicant's entire history is considered and not only that part which best suits an applicant.  The Tribunal accepts that the review applicant has been forthright in her evidence to the Tribunal and that she has reformed as a born again Christian and that she has put considerable effort into making changes to be a better person.

31) The Tribunal is concerned about the applicant’s previous non-compliance with her visa conditions and most particularly of the use of her sister’s passport.  While the Tribunal acknowledges that the applicant felt she had no other options available to her, her behaviour reflects poorly on her.  Consequently the Tribunal gave negative weight to her  previous non-compliance and use of her sister’s passport in its consideration of whether its discretion should be exercised that the applicant’s visa not be cancelled.

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

32) The Tribunal explained to the applicant that it can take into account the degree of financial, psychological, emotional or other hardship that may be caused if her visa would to be cancelled and provided her with an opportunity to comment.  The applicant stated that she believes it would be very difficult for her financially. She stated that he is alone again and has to borrow money to pay solicitors and to pay her debts. 

33) In relation to emotional hardship, the applicant stated that she has lived in Australia for the past 10-12 years.  She stated that she fits in culturally and is a person who works and contributes.  It would be difficult or her to return to Colombia where she has not lived for some time.  She referred to leaving her sister and niece and nephew and that she has developed strong friendships here.  She stated that her lifestyle will be easier for her here than in Colombia and that she will be able to develop professionally quicker here.  In the last three years she has found a Christian community her and would like to continue with the group and that she wants to develop spiritually here.  The Tribunal asked her why she would be unable to do that in Colombia.  She responded that she could do so.

34) On a psychological level, the applicant referred to her ongoing consultations with her clinical psychologist for almost a year.  She stated that it would be difficult for her to stop because it is helping get her on with her life.  The Tribunal acknowledged that a disruption with her counselling is not ideal but put it to her that she could continue to work with a clinical psychologist in Columbia.  She responded that no one in Colombia will know what’s it like to be an immigrant or to suffer emotional abuse by a husband.

35) In relation to being separated from her sister and her family, the Tribunal notes that the applicant’s parents and brother are in Colombia.  She stated that she is in contact with them every day.  The Tribunal put it to her she could be in in contact with her sister on a daily basis and while it would be different to her current contact with her sister, it is not dissimilar to the manner in which she has contact with her parents and brother.

36) In relation to undertaking her master’s degree, the Tribunal put it to applicant that she could undertake further studies in Colombia.  She did not disagree.  The Tribunal asked her how her professional development would be faster in Australia.  She responded that it is easier to find work opportunities here while undertaking her masters. 

37) The Tribunal indicated to the applicant that while she may have a preference in relation to an Australian lifestyle not having access to a preferred lifestyle did not necessarily indicate hardship.  In the context, the Tribunal noted that she had been living in Colombia from 2014 until 2017 after she was deported from Australia.

38) The Tribunal noted at hearing that it had regard to comments made in the written submission that there will be difficulties for the applicant in attempting to enter other countries and an associated stigma and a warning to other countries that she is a risk to the safety of the community. It states that the cancellation will affect your work and travel for the rest of your life.  The Tribunal asked her if she wished to add anything further.  The applicant responded that if she travels elsewhere those charges will come to light. However, if she was given the opportunity to complete the term of the bond, she can show Australia she can comply.  She added that this is her first offence in Australia and that she wants to show everyone that she’s not that kind of person, that’s in the past, and that she has never had issues with the police previously.  She made a mistake but now she is very committed to abide by the law and she fully agrees to abide by the two year bond and the AVO. 

39) The written submission of 11 September 2018 states that the applicant has already suffered as a result of the cancellation as she is now “merely the holder of a Class WE visa, she cannot travel, and she does not hold a subclass 309 visa, despite being an applicant for a subclass 100 visa …”[4].  The submission goes on to state that as result of the provisions of subclause 100.221(4) the sublass 100 visa cannot be granted and therefore can be considered hardship as the applicant will not be able to avail herself of the family violence provisions. 

[4] AAT file, folio 40/2.

40) The Tribunal accepts that the applicant’s the financial position would be less favourable if she were to return to Colombia and that she would have to establish a relationship with a new psychologist.  However, the Tribunal does not consider these issues to be of such significance that the applicant does not have the capacity to overcome them, given she has family in Colombia and lived there as recently as recently as 2017.  The Tribunal is prepared to accept that her career may progress faster in Australia but does not consiser that she will suffer hardship with a slower career progression.  The Tribunal also accepts that and that she may face difficulties gaining entry into another country and that there may be an associated stigma, but considers that these are consequences of a decision to cancel and are not reasons not to exercise discretion not to cancel.

Past and present behaviour of the visa holder towards the department.

41) The Department’s Decision Record provided to the Tribunal by the applicant records that the applicant has been cooperative in regard to the cancellation consideration and goes on to refer to the issues associated with the applicant’s previous overstay and use of her sister’s passport. 

42) The applicant was asked whether she wished to make any comments in regards to her past and present behaviour towards the department.  The applicant responded that she has paid for the mistakes.  She said that in using her sister’s passport she made it very difficult for her parents.  She said that she has received the forgiveness of her family and her brother-in-law and had been given another opportunity. She said that at the time she used her sister’s passport to leave Australia, it was a time of despair and that she did it to hide something she was no longer able to hide.  She said they have forgiven her for that to the point that she lives with her sister and has access to her home.  They trust her to look after the house and their children.  The applicant became emotional in describing this and she was offered an adjournment.  She declined but took a few moments to compose herself.

43) As the Tribunal has no other evidence regarding the applicant’s behaviour towards the Department, it has also focussed its consideration of this factor in the context of her previous actions overstaying her visa and using her sister’s passport and has regard to the delegate’s comment about her more recent co-operation with the Department.  The Tribunal has already noted that it considers her previous actions extremely seriously and they reflect poorly on the applicant and  cannot be given favourable consideration in a decision not to cancel her visa.

Whether there would be consequential cancellations under s.140.

44) The Tribunal noted at hearing that from the evidence before it, it did not appear there would be any consequential cancellations under s.140.  The applicant confirmed that this was correct.  The Tribunal gave this no weight in its consideration.

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.

45) The applicant was asked if she wish to make any comment.  She confirmed that these matters were not issues in her case.

46) The written submission refers to concerns that she will be subject to a three year ban on most temporary visas for Australia, given that public interest criterion 4013 would apply to her. 

47) The Tribunal has had regard to this concern and at hearing, indicated to the applicant that this is an intended consequence of the cancellation and it is not a reason not to cancel her visa.  The applicant was asked if she wished to make any comment on that on that proposition.  She responded that she had no comment.  The Tribunal gave this no weight in its consideration.

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.

48) The Tribunal noted that from the evidence it did not appear any of these factors were relevant to her and asked the applicant if she wished to to comment. She said she had no comment.  The Tribunal gave this no weight in its consideration.

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

49) The applicant’s sister, brother-in-law and their two children reside in Australia.  The Tribunal heard that the applicant has lived with the family since 2017 and that she is very close to the family, including her niece and nephew.  The Tribunal also heard that the applicant is close to her parents and brother who are in Colombia and that she misses them and is in contact with them every day.  The Tribunal put it to her she could be in in contact with her sister’s family on a daily basis and while it would be different to her current contact with her sister, it is not dissimilar to the manner in which she has contact with her other close relatives.  She did not disagree.

50) It was apparent that the applicant has a close friendship group from the attendance of a number of them at her two hearings and in the provision of Statutory Declarations.  No evidence was put before the Tribunal in regards to any business or other interests.

51) The Tribunal accepts the applicant is close to her sister and her sister’s family and a number of friends.  The Tribunal is of the view that she can maintain that closeness with that group of people in the same way in which she currently maintains a close connection with her family in Colombia.  Therefore, the Tribunal did not give the applicant’s family and friendship ties significant weight as a reason not to cancel 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.

52) The Tribunal invited the applicant to describe the situation that arose with her husband noting that she returned to Australia in April 2017 and the assault occurred just 6 months in October 2017.  She stated they were adjusting to being together again following her return to Australia.  She said there had been 3-4 incidents when there was some tension between them. She stated that in the last week of September, she found it very hard to communicate with her husband.  He was blaming her for everything.  He had been abusive before.  She stated that some days they were happy and good but on other days he was explosive and put her down.  She found these changes in his attitude and behaviour very stressful because she never knew where she stood.  She felt he was provoking her but she tried to stay calm.  He knew she liked to spend time with her friends and family and niece and nephew but he didn’t like her doing this.  He said that she should remember who is providing the money.  He felt she wasn’t contributing to their costs and he did not want her to invite her family to visit.  She stated that in the last week prior to the incident he wasn’t talking to her.  That day they were out and enjoying being with family and friends.  Then he snapped and made her feel like she shouldn’t be. She said there was an issue with his phone - always saying she “not allowed to” like she’s a little kid.

53) The Tribunal put to the applicant information under s.359AA of the Migration Act referring to the Police Fact Sheet which refers to an electronically recorded interview during which the applicant referred to grabbing hold of the victim’s collar and following him down [a named] Road. The Tribunal put it her that her statement to police indicates that she left the apartment and pursued her husband after he had left and as a result the altercation between them continued. The Tribunal noted that it seemed that this exacerbated the situation.

54) The applicant responded that although the altercation started in the apartment she was actually trying to stop him from doing something silly or from going somewhere.  When asked why she tried to do that, she responded that her husband had threatened to go to the police so she said let’s go.  If he was going to the police, she wanted to go but she was barefooted.  She said she crossed the road and moved forward a little bit but did not have the strength to run and she did not know where the police station was.  She acknowledged that both she and her husband had consumed alcohol earlier that evening.

55) When asked if there anything else she want to say about the relationship or the breakdown of the relationship, the applicant stated that it was a genuine relationship in which they wanted to be a couple but that he used his power over her in relation to money. He always threatened her with the visa issue and started to separate her from the rest of the family.  She said that he abused his power in the relationship and made her feel vulnerable and frightened.  She tried to manage the situation herself because he complained about how much contact she had with her family and friends but on the night in question because they had been drinking the situation escalated.

56) The submission made to the Tribunal refers to the domestic violence being isolated to the relationship the applicant had at the time with her sponsor and refers to a medical certificate also submitted to the Tribunal that the applicant suffered an injury to her eye socket during the argument with her sponsor.  It states that no other offense has occurred with the sponsor or with any other person.  It submits that the applicant has been in the community continuously since her arrest (subject to a temporary and then a final ADVO) and the cancellation of her visa and there has been no infringement of the law by the applicant.  It argues that this weighs in favour of a finding that the applicant is a person would not infringe in future.

57) In relation to the evidence provided that the applicant had undertaken a Six week [rehabilitation] Group Program at [Agency 1] and a [personal development] Program with [Agency 2], the applicant stated that she undertook those programs at the suggestion of the solicitor she had at the time of the criminal charges.  She had been advised that by undertaking them she would get over the problems quicker and they would help with the legal proceedings.  The applicant stated that the programs helped her to overcome the grief of losing her marriage and to move on as she had been depressed because of the burden of criminal charges. This program gave her the strength of to accept personal responsibility for the criminal charges.

58) The Tribunal referred to the report that was provided to the Tribunal from the applicant’s clinical psychologist.  The applicant stated that initially she saw the clinical psychologist every week but that since the March 2018 court case she saw her every two to three weeks.  She stated that the sessions helped to return her self-confidence, to overcome grief and the trauma in relation to her ex-husband and to get on with her life.  The clinical psychologist had also helped her realise the relationship between her and her husband was very tumultuous and that she did not have to stay in such relationship.  She and the psychologist also did some work on the issue of alcohol which made her realise that alcohol was an issue within the relationship.  She claimed that she had not been a person who drank alcohol but when she was with her husband the only way for them to be nice and relaxed was to drink alcohol.  However, over the past 11 months she found that she does not need to drink any alcohol and she feels very well.  The applicant stated that she intends to continue attending the sessions with the psychologist because she needs to continue to empower herself as a woman and get over the issues of the past.

59) The Tribunal has had regard to the reports of the applicant’s clinical psychologist.  The report of 5 September 2018 refers to the psychological treatment provided to the applicant and notes that the applicant has attended her appointments.  It states that there is no other history of past offences and there is no forensic history in Colombia and neither is there a presence of any antisocial personality traits in the applicant’s personality profile.  The report states that the applicant’s “current state of mental health is normal, she has progressively become more stable.  Her thought form is sequential and logical, and she has good judgement. [The applicant] is always alert and well oriented.  The cognitive functions are well conserved”[5].  The report concludes that that the applicant’s mental health has improved and states that she has no addictions and is therefore not at risk of reoffending.

[5] AAT file, folio 50, page 2.

60) The Tribunal has had regard to the evidence before it including witness statements in relation to the circumstances in which ground of cancellation arose and accepts that the relationship between the applicant and her sponsor deteriorated and subsequently ended.  The written and oral evidence indicates that family violence did occur with the visa applicant sustained an injury to her eye socket and was charged with and found guilty of assault.  The Tribunal is concerned about the applicant’s behaviour on the night of the assault incident but accepts that there were extenuating circumstances involved.  On that basis, the Tribunal gave those circumstances significant positive weight and that finds they provide sufficient reason not to cancel the applicant’s visa.

Evidence of witnesses

61) In the context of the numerous Statutory Declarations provided to the Tribunal, the applicant was asked whether the declarants are aware of her previous overstay and fraudulent use of her sister’s passport.  She said her friends do know that she overstayed her previous visa and that her sister and brother in law know about the use of her sister’s passport but most of her friends don’t know.  However, she stated that their statements are about whether she is a violent person.  The Tribunal pointed out to her that some of the declarants make statements such as she is “responsible, and acts with integrity”.  The applicant responded that she is embarrassed that she did so and therefore it was not easy to tell everyone and she has already paid for what she did.  She added that people were not affected by the passport issue and they know her as responsible, trustworthy and living with integrity.

62) At the applicant’s second hearing, the Tribunal took evidence from the review applicant’s sister, her brother-in-law, her second cousin and seven of her friends.  They consistently remarked on her positive and happy pre-disposition, her generosity, the support she provides family and friends and referred to her being trustworthy and has a strong family and Christian values.  Similarly the witnesses acknowledged that the review applicant had made mistakes in the past, some of them referring to her migration history.  The Tribunal heard that the relationship between the review applicant and her former sponsor became very difficult at the end.  One or two comments were made about small signs of the treatment of the applicant by her husband.  The witnesses referred to the gradual withdrawal of the review applicant from various outings and celebrations as her husband increasingly put pressure on her.  Reference was also made to the change in the review applicant’s behaviour over time as she became more anxious, was less enthusiastic, less positive and more withdrawn.

63) The witnesses also consistently argued that the applicant’s presence in Australia is not and would not be a risk to the health or safety of an individual or individuals.  Comments were made that there has never been any history or any indication in the review applicant’s previous behaviour that would remotely raise concern about any violent tendencies.  One friend commented that while he understands and respects the process which has led to the assessment by the Department, he considers such an assessment of the review applicant as ‘laughable’.

64) The Tribunal heard consistent evidence from the applicant’s sister and brother-in-law that the review applicant has been living with them since the incident occurred with her husband.  They both indicated that they absolutely trust her in their home and also to care for their two children, with whom the applicant is very close.  They stated that they would not under any circumstances allow her to be with their children if they believed there was any element of risk.  They both expressed their deep regret for not appreciating how the situation between the applicant and her husband had deteriorated until it was too late and that they had not intervened earlier to support her.  One of the other witnesses also talked about her reliance on the applicant to care for her children and that she would not do so if she had any concerns about any aggressive tendencies.  Another witness described having employed the applicant at events and in bars, where she had worked as a manager.  He said it was inconceivable for him to have done so if there was the remotest possibility that she was a risk to the safety and security of anyone.

65) The Tribunal heard consistent evidence from the applicant and one of the witnesses who is a friend of hers and the leader of the [specified group] group [within a named] Church.  The witness described their long term relationship and their involvement in the [named] Church and their attendance at services and bible study group.  She described the applicant as being humble and always trying to get on with people and that she has a beautiful character.  She said that things became difficult for the applicant within her relationship with her husband and it was apparent that that she was becoming sad and depressed and that less and less she was spending time with her friends.  She explained that it was difficult for her friends to intervene at the time because the applicant was attempting to deal with the circumstances she faced herself and trying hard to make things work.  She emphasised that the applicant has never displayed any violent or aggressive tendencies and that she is not a risk to the safety or security of anyone.

66) Another witness commented that the applicant had been under mental and emotional stress in her relationship and how she reacted on the night of the incident was totally isolated and in no way reflective of her personality.  He applauded the efforts she had undertaken since that time and saw her as a role model of someone who can pick themselves up and very determinedly engage in positive and rehabilitative activities through the church, her employment, the counselling sessions to cope with a very difficult situation.

Any other relevant matters.

67) The applicant’s written submission to the Tribunal highlights that the grant of the Bridging Visa (Class WE), pending this review, was granted subject to Condition 8564.  That condition requires that the visa holder must not engage in criminal conduct.  The submission argues that by virtue of the delegate granting the Bridging visa, the delegate was satisfied that she would comply with that condition.  In the light of this claim, the Tribunal put to her the proposition that as she is subject to a good behaviour bond that in itself has provided some incentive for her not to engage in any further criminal behaviour.  She responded that yes, it is easy for comply with the requirements of the bond not only for two years because, she has never displayed any previous violent behaviour and that it was completely out of character.

68) The applicant was provided with an opportunity to refer to any further matters she would like the Tribunal to consider.  She stated that she had previously made mistakes but is now a new person and that she is committed to the Christian community as a person of Christ.  She stated that the situation with police was unfavourable for her but said that she was also injured.  She stated that her husband ran to the police and the situation was turned against her.  She stated that she is not a risk to the Australian community.  In the last year she had abided by the law, she does not want the situation to be made any bigger because it’s very painful already 

69) At the conclusion of the applicant’s second hearing, the applicant stated that she understands the reason for cancellation following the incident with her former sponsor which was reported to police and subsequently to the Department of Immigration.  She stated that she is a very good person and loves her family.  She stated that her friends support her (better than her husband ever did).  She stated that she is growing spiritually, is more mature after that the incident with her former sponsor.  The applicant stated that she is not a risk to Australia.  Rather, she is very hard working and tries to give the best in every situation.  She reiterated that what happened that day was an isolated incident because she was under pressure and alcohol was involved.  She knows that her migration history must be considered.  She acknowledged she overstayed and she used her sister’s passport.  She has already suffered as a result because she had a bar placed on her and has sought and been granted forgiveness of her family.  Since returning from Colombia has decided to do things properly.  Her interview in Bogota led her to believe that the she had already been through the consequences of those actions and that she is going to have a fresh start to be with her husband.  She is not an aggressive person and is not a threat to society.

70) In addition to oral submissions made by the applicant’s migration representative in respect of the applicant’s previous migration history made at the conclusion of the second hearing, he also referred to the applicant’s volatile relationship with her sponsor and stated that it was isolated to that individual.  He stated that as noted in the 19 November 2018 submission the applicant’s behaviour was not condoned that it is not an uncommon reaction for someone being abused.  He stated that reactions to abuse range from people walking away from relationships or at the other extreme killing the perpetrator of the abuse.  He referred to the evidence of the witnesses (detailed below) that the applicant’s reaction on the night of the assault was out of character, that she is trusted with children and as an employee in a position of trust.  He again emphasised that taking account of the applicant’s previous migration history is a qualitative assessment for the Tribunal to make, that the relationship between the applicant and her sponsor disintegrated, that she has been on a good behaviour bond since March and not seen her sponsor since the incident, that she has no other offences and that she has been in the community since she visa cancelled.  He stated the applicant accepts that alcohol was involved and she has been dry since then and she has attended counselling.  The representative submitted that that the applicant is not a risk, the incident was isolated after she was provoked and requested the Tribunal to exercise its discretion not to cancel the visa.

Overall findings

71) The Tribunal was concerned about the review applicant’s previous visa and passport violations but based on the evident regret, the consequences which have already applied to her and the changes that the applicant has instituted in her life, the Tribunal is prepared to accept that she has a greater respect for Australia’s migration law and will not repeat those actions.  Further, the Tribunal does not consider that those violations signify that her presence in Australia means that she is, may be, or would be or might be a risk to the health and safety of an individual or individuals.

72) The Tribunal has had regard to the evidence regarding the breakdown of the applicant’s marriage.  The Tribunal is prepared to accept that the applicant felt her previous sponsor was abusing his power over her and that she felt under extreme pressure to manage the relationship.  While of concern, the Tribunal is also prepared to accept on the evidence presented that the applicant reacted violently on the evening of the assault and that this was an isolated incident.  The Tribunal put weight on the medical evidence from the applicant’s GP that the applicant suffered an injury to her eye socket while grappling with her husband and also on the written evidence from the applicant’s psychologist regarding her history, the assessment of her mental health, the nature of the applicant’s relationship with her former sponsor and the counselling treatment the applicant has received. The Tribunal has also had regard to the two programs the applicant has undertaken which helped her deal the consequences of the relationship, its deterioration and the assault charge.  The Tribunal was impressed by the presence of the significant number of witnesses at the two long hearings and the evidence presented by them as well as the written support witnesses provided.  The Tribunal has had regard to the guidance in the Department’s policy that a “visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control” and considers that the evidence before the Tribunal supports a finding that the applicant was not solely in control of the circumstances which led to the cancellation.

73) Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

74) The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Linda Holub
Member