1831540 (Migration)

[2020] AATA 5585

1831540 (Migration) [2020] AATA 5585 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831540

MEMBER:Nicholas McGowan

DATE:20 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on August 20, 2020 at 1:52pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – risk to individuals – physical and psychological abuse against wife and child – criminal charge and intervention order – discretion to cancel visa – further allegations by wife – applicant’s compliance with order, completion of behaviour change program and attempts at reconciliation – likely hardships if visa cancelled – mental health and treatment – best interests of child given little weight – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(ii), 359A, 363, 366(1), 376

CASE
Gong v MIBP [2016] FCCA 561

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.

REVIEW

1. On 22 October 2018 a delegate of the Minister for Home Affairs cancelled the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116(1)(e)(ii) of the Migration Act 1958.

2. 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 this Tribunal in a public hearing in Melbourne on Wednesday 11 September 2019, 2 October 2019 (and later, throughout resumed hearings in 2020) to give evidence and present arguments. Throughout, the applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116 as stated above. 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.

   Written submissions provided by the applicant’s representative

5. The Tribunal has read and had regard to the following submissions provided by the applicant’s representative dated (other correspondence, including material for consideration which might also be viewed as submissions were also considered as part of this review, and have been catalogued in the Tribunal’s electronic ‘casemate’ database for matter 1831540):

   ·     6 August 2018

   ·     2 October 2018

   ·     16 May 2019

   ·     6 June 2019

   ·     4 September 2019

   ·     9 September 2019

   ·     10 September 2019

   ·     1 October 2019

   ·     7 December 2019

   ·     12 May 2020

   ·     27 May 2020

   ·     3 June 2020

   ·     10 June 2020

   ·     12 August 2020

   ·     18 August 2020

   Does the ground for cancellation exist?

   s.116(1)(e)(ii) - risk to an individual

6. A visa may be cancelled under s.116(1)(e)(ii) 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 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].

7. The applicant (visa holder) first arrived in Australia [in] September 2017 as the holder of a Partner (provisional) (temporary) subclass 309 visa on the basis of his relationship with his sponsor (wife) [Ms A]. The applicant and sponsor claim a child of their relationship, a daughter [Ms B] born [Date].

8. According to the cancellation decision, which the applicant has provided to this Tribunal, [in] May 2018 the applicant had an Interim Intervention Order issued against him (the Final Intervention Order was later made on[in] June 2018). The persons protected by that Order were his sponsor (wife) and their daughter ([Ms B]). The Order required the applicant not to be at their home in [Suburb 1] and not commit family violence against his wife or daughter, including emotional, psychological and threatening behaviour.

9. The Order was issued by a Magistrate, who in the applicant’s case made a finding that the applicant’s victims were unsafe and in need of protecting immediately. This Final Order satisfies the Tribunal that the behaviour of the applicant poses a risk to the safety of his wife and their child of the relationship.

10. The Tribunal further notes in regards to the risk posed by the applicant, a report referred to in the Minister’s delegate’s decision, provided to the immigration department from [a] Hospital (department folio 25), which outlines that the sponsor of the applicant (his wife) presented at the Emergency Department ([March] 2018) and stated a complaint by the applicant’s  partner that the applicant had hit her [multiple] [times], and was sexually assaulted by him on five occasions. The applicant’s agent has also provided a near-mirror document (though not exactly) to this Tribunal - insofar as the Medical notes are recorded – in the form of an ED Medical e-notes extract of the Emergency Department  presentation of the sponsor’s wife at [the] Hospital, as part of the applicant’s submission received 10 June 2020 as annexure 1. Notwithstanding, as the information (in totality) at folio 25 had not been provided by the applicant, the Tribunal put the information in folio 25 to the applicant formally under section 395A consistent with the requirements of the Act.

11. The Tribunal notes a medical referral (department folio 29) by [Dr C] dated 3 January 2018 referring the applicant’s wife to a psychologist and notating in that referral under the heading ‘Presenting Problem’, “…family disfunction, psychological abuse by husband…”.

12. The Tribunal notes a medical letter (department folio 31) from [Dr C] dated Sunday 24 June 2018 detailing the applicant’s wife’s account of psychological and financial abuse, including a summary of the claimed abuse (physical and psychological).

13. This Tribunal also notes a letter from a Senior Child Protection Practitioner of the Department of Human Services (department folio 66) in the State of Victoria dated 26 July 2018 regarding the sponsor and applicant’s daughter, following concerns the applicant had perpetrated family violence against the sponsor (his wife) which raised “significant protective concerns for the child’s immediate safety and well-being”, according to the letter. The Senior Child Protection Practitioner’s letter refers to a report made on 27 March 2018 which raised the concerns around family violence reportedly escalating (perpetrated by the applicant against his sponsor (and wife)) since the birth of their daughter. The violence, recalled in the Senior Child Protection Practitioner’s letter, was reported to be physical, assaults, rape and threats. According to this letter, “During further investigation, it was established family violence involved financial control, controlling her [sponsor’s] movement, psychological abuse, threatening to throw acid on her [sponsor’s] face, threatening to kidnap the child and take her interstate, assaulting whilst holding the baby, subjected to marital rape”. The Senior Child Protection Practitioner’s recorded in the letter that the applicant denied the protective concerns around family violence and took no responsibility for his actions. The applicant, according to this Senior Child Protection Practitioner’s letter, blamed the sponsor (his wife) for his actions. Despite the denials by the applicant, the letter observes the applicant agreed to engage in a Men’s Behaviour Change program. The letter additionally observes they [the Department of Human Services] have been advised that the applicant did not follow through with the appointments although the applicant did reschedule a couple of times and later disengaged. The Senior Child Protection Practitioner notes the applicant has not sought to seek contact with his daughter. The letter states the sponsor reported that the applicant’s wife believes the applicant has “…used her to obtain a visa to come to Australia” (this aspect was discussed with the applicant during the final resumed hearing) The letter concluded, “Child Protection has substantiated the protective concerns and [the applicant] has been assessed as responsible for the harm under the Children Youth and Families Act 2005 S162(c) and (e). At this point of time will have concerns if [the applicant] is to have unsupervised contact with the child prior to addressing the protective concerns.”

14. The Tribunal also had regard to a statement from the applicant’s wife dated 29 May 2018. This statement is referred to by Department in their refusal decision (albeit they cite the incorrect month of June – and not May). Nonetheless, a copy of this document has also been provided to the Tribunal. The applicant’s agent advised she had provided a copy of the statement as part of their response to the NOIC. In that document the applicant’s wife details her complaints against the applicant at that time, including (among other details), the following:

    “I told him many times that he is not allowed to stay at the address due to the Intervention Order in place. He would always get angry and start to threaten me, he would call me fat and ugly woman, he would call me a cow. He would also say that he would burn my face with oil and acid. He would tell me that he would cut the brakes on the car, so if I was to cash the Police would think it’s an accident. He said if I didn’t stop talking he would kill me. He doesn’t care or believe that child protection would take my daughter and he doesn’t care about Police either. He said if he ever does to jail he will take revenge once he comes out, no matter how long it is. When the daughter was born he made me name our daughter after his mum’s name [Given name 1]. Recently I asked him to change our daughter’s name to [Given name 2], first he agreed then he disagreed and said only when I cancel the Intervention Order against him he will sign the papers to do the name change.” 

    Public hearing - 11 September 2019

15. The applicant told this Tribunal he was sorry, and regretted what he had done. He told this Tribunal he has changed a lot, and has worked on himself to change his attitude and enrolled in many courses. He said he probably acted in that way when he came to Australia because he was not familiar with Australian culture and law and customs which he says are different from Lebanon. He said he gave this Tribunal his word he would not commit or repeat any of the actions he’s done in the past as he now has a better understanding of the rule and legislation in Australia. In addition, the applicant said he and his wife are working together to come to a mutual and better understanding, and when they have differences, they try to find solutions to their problems in a clam way. The applicant said he promised to be a role model, an idol for his daughter. He says he gave an undertaking at the time he received the bridging visa E and said he’d “comply with the conditions” and “not do any offence.” The applicant expressed the hope this Tribunal gives him the chance for him to become a role model, idol and good father for his daughter, and explained he just needed a second opportunity. The Tribunal put it to the applicant that while he claimed he didn’t understand Australian law, when the law was explained to him in the form of the Intervention Order, the applicant proceeded to breach that Order. In other words, this Tribunal must consider the genuineness of the applicant’s claim that his actions against his wife are the result of him not being familiar with Australian law and customs, even were it to accept the behaviour exhibited by the applicant previously is permitted in Lebanon, which it is not, and this Tribunal does not accept any implication that it is.

16. The applicant said he really regretted and feels sorry for what he has done in the past. The applicant said he understands what he did was not the right thing. The applicant asked for this Tribunal to look at his case and grant him the visa back as it would have a “bad” impact on his family. The applicant said the cancellation would have a negative impact on his family as he is the breadwinner for the family. The applicant says he’s responsible for his family and they have nobody else to look after them. The applicant asked for a second chance to show he’s changed his ways. The Tribunal asked whether his wife had family in Australia. The applicant told this Tribunal his wife has family in Australia, but that she was not on good terms with her siblings, or they don’t have a strong relationship together.

17. The applicant told this Tribunal he is working in [Job sector] part-time, and is enrolled in a course “to get a certificate in [Subject] to get a full-time job”. The applicant told this Tribunal he earns between $700 and $800 per week, and has been employed earning this amount for around one year. The applicant indicated he had a tax return to evidence his claimed wage. This Tribunal asked whether he or the sponsor receive any Centrelink or other financial support from any other source. The applicant says his sponsor (wife) told him she receives $500 fortnightly from Centrelink. The applicant told this Tribunal their present home is rented by them for $1100 per month. This Tribunal enquired as to whether the applicant had any financial obligations. The applicant said the only loan or money he owed was in relation to lawyer and agent fees and costs. The applicant says this is covered by a personal loan for the sum of $10,000 provided by a friend (here in Australia).

18. This Tribunal asked about the applicant’s health. The applicant told this Tribunal his general health is fine, although he has some pain in his [Body parts]. He says he has an appointment with a specialist coming up. When asked what specialist, the applicant said he didn’t know, but that he’d been referred by a GP and the doctor would check his [Body parts]. The applicant told this Tribunal he was on ‘sick leave’ for the past two weeks. This Tribunal asked whether he still gets paid. The applicant told this Tribunal his boss still pays him weekly, as his boss “understands” his situation. The applicant told this Tribunal he has not been receiving the full wage during his sick leave, and has received around $200 per week. The applicant says he is using his savings (in the order of $3,000) to pay for expenses. This Tribunal asked why that money had not been used to repay his friend (in-part) who the applicant has previously stated he owes $10,000. The applicant told this Tribunal he was saving this money (around $3,000) for rainy days or contingencies. The applicant told this Tribunal he saved his wages when he was separated from his wife as he felt he needed to save money during that time for all kinds of emergencies or contingencies.

19. This Tribunal asked about the applicant’s daughter, including her age and whereabouts. The applicant told this Tribunal his daughter is [Age]. The applicant said he’d left her sleeping at home today (the day of this hearing). The Tribunal asked why his wife wasn’t with him today. The applicant said she did not feel like coming, especially as they are in the stage of improving their relationship and this hearing would add to those stresses, and in addition their child was sleeping.

20. This Tribunal asked, should the applicant be required to return to Lebanon, what impact that would have on him. The applicant told this Tribunal “it would be very hard” for him to return to Lebanon, and it would also be hard for his wife and child. The applicant told this Tribunal that their community in Lebanon “would not have mercy on him”, they would view him as being a total failure, and not being able to look after his wife and child. The applicant said it would also be very hard to find a job. In addition, the applicant said the political and security situation is unpredictable there, particularly as they are located close to the [Country] border. This Tribunal asked if there was a specific threat to the applicant. The applicant told this Tribunal, “Yes”. The applicant said he was at risk, and that the threats toward him are very specific because he is afraid he maybe kidnapped or tortured, or forced to go with the [Country] militias or armed parties who keep crossing the border between Lebanon and [Country]. This Tribunal asked for the applicant and his agent to provide any supportive or corroborative evidence that a specific threat exists against the applicant’s wellbeing. This Tribunal asked when was the last time the applicant was in Lebanon. The applicant told this Tribunal the last time was in 2017 (prior to his departure to Australia later that same year).

21. The Tribunal asked whether the applicant had any remaining relatives in Lebanon. The applicant told this Tribunal his father and [siblings] live in Lebanon. 

22. At this stage in the public hearing the interpreter made it known to the Tribunal that she was unable to continue as the time allotted to her had expired. This Tribunal apologised to the applicant and his agent, and advised another hearing would be arranged at an agreeable time (which was later set for 2 October 2019). The Tribunal also agreed to provide the applicant particulars of a section 376 certificate applied to his Department of Immigration file. The Tribunal also advised the applicant it would like to take oral evidence from his wife should she be available at the continued hearing.

23. On 24 September 2019 this Tribunal sent to the applicant via his agent a copy of the Department of Immigration section 376 certificate and all six folios covered by that certificate (with redactions).

    Resumed public hearing (including a further occasion via telephone: under Section 366(1))

24. The Tribunal received a pre-hearing submission (in advance of its resumed hearing) from the applicant’s agent dated 1 October 2019.

25. As part of the (above) submission this Tribunal notes the following in respect to the applicant’s relationship with his wife:

    7. The Review Applicant’s relationship with his wife is having difficulties and he does not feel that his wife is supportive long-term of them remaining in the relationship which is evidenced by the fact that she has chosen not to attend the hearing. He feels that unless he works towards reconciling. He will lose his opportunity to be with his child. As such he continues to work with his wife in regards to reconciling and living in the same household in the interest of his child. He appreciates that it is an unusual circumstance that his wife is not at the hearing but he feels it is better to be honest and upfront with the Tribunal as to the current status of the relationship. To make it clear, it is not that they have separated at this stage but the relationship is still a work in progress in terms of long-term reconciliation. He fears that if his visa cancellation is not set aside, he will be prevented from seeing his daughter or having any contact her with if he goes back to Lebanon. He is trying his hardest to be a good husband, good father and has not, as previously addressed, committed any further incidences other than what the Tribunal is already aware of.

    8. The Review Applicant also wishes to provide the Tribunal with the Section 601 certificates for Family Dispute resolution. This is enclosed at annexure 2. The Certificate confirms that the Family Dispute Resolution could not take place as the review Applicant’s wife failed to attend the mediation.

26. At the commencement of the resumed hearing) it was apparent that the applicant’s wife was in attendance (with their daughter), notwithstanding the submission made the day prior.

1. As part of the applicant’s agent’s submission of 1 October 2019 the applicant has provided a psychological report dated 26 September 2019 (pertaining to the applicant) authored by psychologist [Ms D]; a Department of Justice Discharge Report dated 20 August 2019; and a Certificate of Family Dispute Resolution Practitioner dated 12 December 2018. This Tribunal has considered these documents in this decision.

2. At the commencement of the resumed hearing the Tribunal asked the applicant’s agent whether there were any matters remaining (outstanding) from the consideration of the various factors this Tribunal is to have regard to in coming to a decision whether to the visa should be cancelled. The applicant’s agent expressed the view she thought the previous hearing had covered all the factors and stated nothing has changed since that time. This Tribunal indicated it would ask a number of questions in regards to the reports and submission dated 1 October 2019, including the psychologist report, provided to this Tribunal. This Tribunal would then provide an indication to the applicant (and his agent) of any concerns it may have in relation to his case, and then seek to speak to his wife.

3. The Tribunal asked whether the applicant wanted to add any oral evidence to the psychologist’s report. The applicant answered, “No”. This Tribunal read aloud a section of the report (contained at point 50 on page 9 of that report) under the heading of Assessment Summary which states (in-part), …“The results of the SARA show a low to moderate risk of further violence towards his partner if you were to isolate the risk factors on their own without taking into account his personal circumstances.” This Tribunal asked whether the applicant wished to respond to that aspect of his report. The applicant answered, “No”.

4. This Tribunal pointed out to the applicant the part of his submission (dated 1 October 2019) made by his agent, and asked whether he was still of the view articulated in that submission at point 7, which states “…he (the applicant) does not feel that his wife is supportive long-term of them remaining in the relationship…”. The applicant told this Tribunal that his aim was to make everything improved, and he had been working to provide everything asked of him and aiming to make the relationship improve, and become a good husband and model father. The applicant told this Tribunal he would continue to do everything possible and prove to her that he would be an ideal husband, stating he does not want to lose her, and does not want to lose his daughter. The applicant told this Tribunal he has had some hard times in his relationship, and says he’s showing his wife more care, more interest, and working on his way of dealing with his wife, and stated he has his daughter in common with his wife, and said that can bring them together. He says he continues to show interest in his wife and daughter and doing everything they would ask for and hoping things will improved, adding he is committed to working on that into the future.

5. This Tribunal drew the applicant’s attention to the Department of Health and Human Services (DHHS) letter dated 26 July 2018 (contained on the Tribunal’s folio 125) released by this Tribunal to the applicant (partially redacted) which indicated his wife had made a number of complaints against the applicant. This Tribunal read aloud the section which reads: “During further investigation it was established, family violence involved financial control, controlling her movement, psychological abuse, threatening to throw acid on her face, threatening to kidnap the child and take her interstate, assaulting whilst holding the baby, subjected to marital rape.” This Tribunal also referred to [the] Hospital report, which although mostly redacted, provides additional evidence in the Department’s Cancellation decision which outlined the applicant’s wife was sent to the emergency department of the Hospital by [Suburb 2] Police station following alleged sexual and physical assault by the applicant. This Tribunal asked the applicant whether the submission dated 1 October 2019 wherein it states (point 4, page 2) that he denies he committed any physical or sexual assault against his wife is accurate. The applicant said “Yes”. To be certain, this Tribunal repeated the question to the applicant, and the applicant again denied he had physically or sexually assaulted his wife. The applicant responded by telling this Tribunal what had happened impacted him very badly, and it was a very good chance for him to learn many things, to learn right from wrong, gave him the chance to learn more about Australia’s laws and regulations, and some of the things about how to control himself. The applicant said he would not be able to prove to the Tribunal he will be a better person, but takes this chance to speak honestly. The applicant added that when these problems took place he hired a lawyer and behaved according to the law, stating that when the Judge assessed his case he took his subsequent behaviour into account. The applicant stated he should have behaved in a better way, and shown more patience, and complied with what the judge said, and said he regretted that a lot. The applicant asked this Tribunal to take this matter into consideration and look at it from a father’s perspective as someone who doesn’t want to lose his child.

6. The applicant submitted that the Child Protection practitioner letter should be disregarded. The Tribunal accepted many of the concerns the applicant raised about that letter, as it was in part on a report not available to either the applicant or the Tribunal, and drawing from an interview with the applicant’s wife where she made additional allegations against the applicant that she had earlier made to the police, but that have not been tested. However, the Tribunal found these concerns did not undermine the professional ability of the Child Protection practitioner when considering all of the information available to the practitioner to assess the risk of the applicant’s wife and daughter being exposed to family violence. This led the Tribunal to accept the key finding of the practitioner that Child Protection at the date of the report had significant concerns that the applicant could commit further family violence.

7. This Tribunal then read to the applicant another part of the letter from the DHHS which states: “During the Child Protection involvement, [the applicant] denied the protective concerns around family violence, did not acknowledge or took responsibility for his actions and blamed [Ms A] which was even more concerning for Child Protection.” This Tribunal then informed the applicant that notwithstanding his remorse and apology as expressed during the hearing, this Tribunal would reflect upon the applicant’s continued denial (as cited in the letter and during the Tribunal’s hearing), that he perpetrated family violence including threats, physical and sexual assault.  At this point the applicant’s agent interjected in the proceedings. The applicant’s agent stated her client did not deny the “threats”. It is evident to this Tribunal that given the above statement, and the question asked, the applicant clearly stated in his response to this Tribunal’s question in relation to the part of the letter from DHHS referred to in paragraph 31 of these reasons, that the applicant specifically denied any family violence. Part of the section of the letter read to the applicant by this Tribunal were the alleged abuses, “…threatening to throw acid on her face, threatening to kidnap the child and take her interstate…”. The applicant’s agent then stated she wished to subpoena the person behind the letter if this Tribunal is going to rely upon it. The applicant’s agent said she would like to have the opportunity to have that person questioned. The Tribunal considered this, having regard to its powers under section 363 of the Act. This Tribunal also clarified that in addition to referring to the section read aloud (as stated above), the preceding sentence also reads: “The family violence was reported to be physical violence, assaults, rape and threats.” This Tribunal has made clear to the applicant and his agent (since that time, and during the resumed final hearing) that the Tribunal was referring to the physical and sexually abuse and all the related documents.

8. This Tribunal asked the applicant whether he’d read or gone through the submission to this Tribunal dated 1 October 2019. The applicant acknowledged that he had. This Tribunal referred to the Men’s Behaviour Change program and asked the applicant if he wanted to add any further information to his submission. The applicant outlined his involvement in, and ultimate completion of, the program.

9. This Tribunal enquired about the current living arrangements of the applicant and his wife. The applicant told this Tribunal he has lived with his wife and child (alone) for the past six months. This Tribunal asked whether any of the applicant’s circumstances had changed since the Tribunal commenced the hearing part of his review in September. The applicant told this Tribunal his parents in Lebanon had been suffering a lot, protests, robberies, burglaries and the kidnapping of children have become widespread in Lebanon. The applicant said next week he will go back to work, and envisages changing what he does for work. The applicant said he was not working at the moment because he has pain in his [Body parts], added to that the situation around his visa has caused him feeling of anxiousness, fear and worry as it is his fate and future being decided. The applicant has been considering how he might be able to prove he can get a second chance to be a good husband and father. He recalled that when the Judge made his sentence it kept him away from his daughter for one year, and said that impacted him very hard. The applicant said he thinks all the time of his daughter, and doesn’t want his daughter to have the chance to call anybody else dad, and wants to stay with her and sacrifice his time to be with his daughter and provide everything and anything he can for her sake.

10. This Tribunal indicated to the applicant’s agent that if there were no further questions the agent would like this Tribunal to ask of her client, it would proceed to receive any oral evidence or argument from the applicant’s wife who was waiting outside the hearing room.

11. At this point the applicant’s agent asked the Tribunal for an adjournment to the review explaining that should the Tribunal seek to question the applicant’s wife about the DHHS letter, they are not agreeable to the wife being called at this stage (without access to the report dated 27 March 2016 which the agent contests forms the basis for the letter). The agent reiterated she would seek to subpoena that report if this Tribunal sought to rely on the contents of the DHHS letter. The agent submitted that the complexity of the case and the fact it involves a child justify the adjournment. The applicant’s agent, referring broadly to the relationship between the applicant and his wife including the uncertainty around the applicant’s wife appearance at this Tribunal’s hearing (that day) stated the view that if the applicant’s wife was to be a “hostile” witness based on that report, then the agent would have concerns calling her without that document.

12. Initially the Tribunal considered whether it was possible to avail itself of the opportunity to speak with the applicant’s wife, and not mention the DHHS letter (and defer that discussion for another time). However, as the claims contained in the DHHS letter are an important part of this Tribunal’s consideration, it could not fully conduct an enquiry of the applicant’s wife as a witness without discussing the alleged abuses (including those detailed in the letter). In addition, it is this Tribunal’s responsibility to provide a fair hearing, and in circumstances where the agent has indicated one of their own witnesses could become “hostile” to her client, it is fair to grant the adjournment and allow the applicant and his agent to seek any further evidence and continue the review at a later time. For these reasons, the Tribunal adjourned the review for a second time, apologised to the applicant as the matter is prolonged, but agreed to the adjournment at his own agent’s request.

13. The Tribunal conducted the final resumed hearing into this matter on 3 June 2020, during which additional time was granted to the applicant to make any further submission and provide any further evidence or argument. A submission and annexures were received from the applicant on 10 June 2020. During the second resumed hearing, the Tribunal invited the applicant to provide any update as to his personal circumstances. The Tribunal was also able to work through a number of folios [from the Department’s file] with the applicant’s agent which had been provided to the applicant (with some redactions), and ensure where possible the Tribunal gave as full as particulars as it felt appropriate, given the folios are subject to a section 376 certificate. Significantly more information was provided to the applicant during this process, at this resumed (and final) hearing. The certificate’s validity was also discussed, and while submissions were made (during the second resumed hearing and as part of the applicant’s post-hearing (and other) submissions) that some aspects of the document(s) content had been known to the applicant and might therefore allow the provider of the documentation to be known to the applicant. The rationale nonetheless for the Minister’s application of the certificate – to protect that person or organisation, was viewed by this Tribunal to be a valid reason, and having considered all aspects of the certificate itself, considers the certificate validly issued. These matters were examined and discussed during the final resumed hearing. The applicant’s submission that the redactions by this Tribunal’s registry do not conceal some of the information for which the certificate was applied, may be correct, but this determination by the Tribunal does not invalidate the certificate, or the reasons for its existence. The Tribunal may under law use its discretion to share, where it appropriate to do so, as much of that information, which it has done so, and indeed, provided significant further explanation of each document during the final resumed hearing. The Tribunal was also able to follow-up on an indication by the applicant’s agent that she sought to provide a tax return as evidence, which it did. The Tribunal also indicated to the applicant that he had a further opportunity to provide any evidence which might support his claim that he faces a threat to his well-being in Lebanon. The Tribunal indicated to the applicant in this regard that a statement by the applicant’s wife may also be provided to clarify or add further evidence in respect to any or all of the claims. Accordingly, time was granted for any evidence to be submitted (as discussed above).

14. During this matter, the applicant’s agent has submitted that the applicant has not re-offended; the applicant has not breached the Intervention Order (other than pertaining to the finding of guilt); the parties have reconciled (“albeit it’s early days in the reconciliation”); the applicant and his sponsor are living in the same household; and the applicant has complied with his bridging visa ‘e’ which also includes a condition that if he engages in criminal conduct the visa would be subject to cancellation (which he’s held since 4 December 2018). The applicant’s agent observes the Department of Immigration has assessed the applicant’s ability to be granted a bridging visa ‘e’ which is why the applicant is not in detention, and is a factor which indicates he is not a risk to the individual. Further, the applicant’s agent contends that the applicant’s Intervention Order is also in effect for a further year (12 months) irrespective of the CCO conditions (they are two separate processes), and that this is another protective factor; in addition to which the applicant is remorseful for his actions and now understands the importance of controlling his behaviour, a fact reinforced by his having an Australian citizen child. The applicant’s agent asserts the applicant is not a risk to the health or safety of an individual, but acknowledges he has offended and pled guilty to a family violence related criminal charge, but pointed out the other charges against the applicant were dismissed.

15. This Tribunal refers to the applicant’s own psychologist’s report. Contained at point 50 on page 9 of that report from the applicant, under the heading of Assessment Summary, the report states (in-part)…“The results of the SARA show a low to moderate risk of further violence towards his partner if you were to isolate the risk factors on their own without taking into account his personal circumstances.”

16. The Tribunal notes that the applicant is the respondent to an FVO where his wife is named as the protected person and this order of the Magistrate’s Court was obtained by the Police. This indicates to the Tribunal that both the court and the Police thought that the risk the applicant may harm his wife was significant enough to justify the Police seeking the order and significant enough that the court saw fit to issue the Order, which on the applicant’s evidence remains current.

17. The Tribunal notes that the Federal Circuit Court of Australia decision in Gong[1] establishes that the possibility that something has occurred in the past is relevant to the Tribunal assessing, as it is required to do by s.116(1)(e), whether there may be a risk of certain conduct occurring in the future and this possibility of something having occurred in the past can be supported by the filing of criminal charges.

    [1] Gong v Minister for Immigration & Anor [2016] FCCA 561

18. Judge Smith explained the relevant law in the following terms:

    42.While some might disagree with the scope of [s.116(1)(e)], there is no challenge in these proceedings to the power of the Parliament to enact it, and I find that that is the effect of the plain and ordinary meaning of the words in their context and so is the construction required by the correct approach to the issue: Theiss v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

    43.… The applicant contended that, if sub-s.116(1)(e) were construed so as to be engaged by the laying of charges, the common law right of the presumption of innocence would be abrogated. There was some debate about the precise scope of the common law right in question. However, I do not need to resolve that issue.

    …

    45.The difficulty with the applicant’s argument is that, even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of the prosecution’s onus of proof: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20; R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8. There is no requirement in it that there be a determination, one way or another, of the guilt of a visa holder and there is no requirement that the visa holder be compelled to give any evidence.

    …

    51.[It was] also argued … that the Tribunal wrongly focussed on the past whereas the statute focusses on the future. I disagree with the submission that this reveals error. What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future. Similarly, where the statute asks whether there “may be a risk”, the possibility that something occurred in the past may have some logical bearing on the answer to that question.

1. Judge Smith in Gong was careful to distinguish that the filing of criminal charges, while able to support a possibility that some event occurred in the past, does not justify a finding by the Tribunal that there is a reasonable basis for the charges. The Tribunal does not make such a finding in this review.

2. This Tribunal has considered all of the matters, circumstances and evidence submitted as part of this case. The law (relevantly), as it applies in this case, makes it plain that under s.116(1)(e)(ii), 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 or safety of an individual or individuals, the Minister may cancel the visa.

3. The Tribunal finds that there is a ground for cancelling the applicant’s Bridging visa under s.116(1)(e)(ii) because the issuing and currency of the FVO and the filing of criminal charges against the applicant indicates to the Tribunal that there is a possibility the applicant behaved in the past toward his wife in a manner that was a risk to her health and safety such that the Tribunal is of the view that the applicant may be a risk to the health and safety of his wife in the future.

4. At a minimum, the Tribunal accepts that evidence, and finds accordingly, that as per the law, the presence of the applicant, is or may be, or would or might be, a risk to the health or safety of an individual or individuals, namely in this matter the applicant’s wife and child.

5. As the Tribunal has made clear above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(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

6. 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, and matters in the Department’s Procedural Instructions ‘General visa cancellation powers’.

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

7. The applicant is in Australia on a temporary partner visa. The Tribunal accepts that the applicant has a compelling reason to remain in Australia to maintain a parental relationship with his claimed daughter. This consideration weighs against the cancellation of the applicant’s visa, but in the applicant’s circumstances of having perpetrated family violence the Tribunal gives this consideration less weight than it otherwise may have. In the applicant’s circumstances the Tribunal gave this consideration some weight against cancelling the visa.

   The extent of the applicant’s compliance with the visa conditions

8. As there are no conditions attached to the visa holder’s temporary partner Subclass 309 visa, though the applicant is presently on a Bridging Visa, and the applicant’s evidence is he has not breached any conditions. As compliance with all visa condition(s) are an expected minimum level of behaviour when granted a visa, the Tribunal finds that this consideration does not weigh either in support or against the cancellation of the applicant’s visa.

   The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

9. The Tribunal has considered the applicant’s circumstances in this regard, including the evidence concerning the applicant’s mental and physical health (including having regard to the letter of [Health services provider] dated 4 December 2019). In relation to the applicant’s child, the Tribunal refers to its remarks below in its discussion of the CRC. Overall, in respect to the applicant’s health, the evidence before the Tribunal is that the applicant is ordinarily able to manage his health needs.

10. The Tribunal notes the applicant has claimed to have reconciled with his wife and to be living together again. The applicant’s wife has also provided numerous statements, which confirm the reconciliation.

11. The Tribunal has weighed the above consideration, and notwithstanding some hardships are likely to flow from a decision to cancel the applicant’s visa (including in relation to the child), the violent behaviour of the applicant, and the fact he broke Australia law and breached a court order, leads the Tribunal to find the behaviour by the applicant, albeit some time has passed since, and its seriousness (committed against his own partner), ultimately outweighs the anticipated hardship to both the applicant and his family of his visa being cancelled. Accordingly, the Tribunal gives these considerations little weight against cancelling the visa. In coming to this, the Tribunal has had regard all the evidence, considering each submission including the confidential psychologist report dated 26 September 2019 and a letter from a clinical social worker/counsellor dated 18 December 2018, and recent letter from a psychologist dated 9 August 2020. Relevantly, while the applicant has claimed (in his submission dated 18 August 2020) that the psychologist letter of 9 August 2020 is evidence of a diagnosis of depression and anxiety, even were the Tribunal to accept the psychologist letter as proof of such, the applicant has not provided evidence to support the claim that such a diagnosis cannot be treated in Lebanon, except to say so. It would be nonsensical for the Tribunal to accept treatment for depression and anxiety cannot be accessed, or is severely restricted throughout Lebanon as claimed without verifiable evidence to support the claim, even while acknowledging the recent events in Beirut in particular (and Lebanon more broadly), including ongoing economic, political, medical  and pandemic (SARS-Cov-2) upheaval. The Tribunal has also noted the variation of the order dated 21 January 2019 which allows the applicant to have contact with, and reside, with his wife and daughter.

    The circumstances in which the ground for cancellation arose

12. The Tribunal has considered the circumstances in which the grounds for the cancellation arose, in particular the applicant’s serious violent conduct and his failure to obey a court order (of a protective nature). The Tribunal acknowledges that the applicant has undergone counselling, has reflected upon his behaviour has the support of his wife (most recently). What is inescapable however are the serious nature of the applicant’s violent acts, and when combined with his disregard for a protective order of a court even after having the significance of such explained to him by the Court, under such circumstances, the Tribunal has given this consideration significant weight in favour of cancelling the applicant’s visa.

    The past and present behaviour of the applicant towards the Department

13. There is no information before the Tribunal that indicates the applicant has been uncooperative with the Department. The Tribunal finds this consideration weighs against cancelling the applicant’s visa and gives it some weight.

    Any consequential cancellations that may result

14. There is no information to indicate to the Tribunal that cancellation of the applicant’s visa would result in the consequential cancellation of any dependent visa holders. It follows, this consideration has been given no weight for or against the cancellation of the visa.

    Mandatory legal consequences of a decision to cancel the visa

15. If the applicant visa is cancelled, he would become an unlawful non-citizen under s.189 of the Act and be liable to be detained and could be deported from Australia under s.190 of the Act.

16. Cancellation of the applicant’s visa would also mean that s.48 of the Act applies which would prevent him from applying for some visas.

17. Visa cancellation in these circumstances means that Public Interest Criterion 4013 will apply to the visa holder and that he may not meet the requirement for grant of certain visa applications for a three-year period.

18. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration that would be breached as a result of the visa cancellation

19. As the applicant is Lebanese-born, and is a citizen of Lebanon, and there is no information before the Tribunal that indicates the visa cancellation would impact Australia’s international legal obligations or place Australia in breach of its non-refoulement obligations, this consideration has been given no weight in favour or against cancellation of the visa.

20. As a Convention on the Rights of the Child (CRC) Australia has an obligation to ensure in all actions involving children, the best interest of each child is the primary consideration. This requires the best interest of the applicant’s young daughter, who is Australian by virtue of her mother’s citizenship, to be the primary consideration.

21. The current status of the relationship between the applicant and his wife is that they continue to reconcile their differences, and state they have recommenced their relationship. Child Protection services have been involved due to welfare concerns for the child including a Final Order of the court for her protection (from the applicant).

22. The Tribunal accepts the applicant and his wife may continue some form of relationship, even were they to separate, as they share a child. The Tribunal has considered that if the applicant were required to depart Australia, his wife and child may be deprived of the opportunity to see him on a regular basis, particularly in circumstances where they chose not to depart with him.

23. As a Court deemed it necessary to make an Order for the protection of the Child from her father, the Tribunal must consider this. The Tribunal acknowledges the general positive influence of fathers have on the wellbeing of their children (or child), but it is greatly troubled by the applicant’s parenting in this case as it has not always been in the best interests of his child. Accordingly, the Tribunal places little weight against cancelling the visa for this reason.  

    Other considerations

24. The applicant has provided information (including DFAT country advice and numerous media articles and other pertinent reading matter) in respect to the safety and including broader concerns (including civil unrest, corruption, food scarcity, economic uncertainty, political upheaval, access and availability to appropriate medical treatment, and the recent explosion in Beirut on 5 August 2020, among other matters) in Lebanon, and specifically the applicant’s claim his well-being would be at risk should he be required to return. The Tribunal has on a number of occasions asked the applicant for information that indicates the applicant himself (or a family member) face a specific threat. The applicant has not provided any evidence that he (or anybody else) faces a specific threat. While the Tribunal accepts that from time-to-time the situation in parts of Lebanon may include acts of criminality and public disorder, and that these acts vary in terms of severity, the Tribunal has not been satisfied that the applicant, or his wife or daughter’s welfare or well-being would actually be under threat should his family travel to Lebanon, and should the applicant be required to do so. Ultimately, this consideration weighs against the cancellation of the applicant’s visa, but for the reasons stated above, the Tribunal gives it little weight.

    Compliance with s.359A

25. To ensure compliance with s.359A of the Act, on 29 July 2020 the Tribunal wrote to the applicant and provide particulars in respect to information found at folios 25, 29, 31, 33, 66 and 67 of the Department file [Number]. The applicant was invited to comment on or respond to the information outlined by 12 August 2020. The Tribunal has incorporated consideration of the applicant’s representative’s submission of 12 August 2020 and 18 August 2020 in the above decision.

    Conclusion

26. In considering the applicant’s circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

27. The Tribunal has determined that the consideration that weighs most in favour of the cancellation of the applicant’s visa, being the circumstances in which the cancellation arose, outweighs the considerations that weigh against the cancellation of the visa, including the purpose of his travel to and stay in Australia, the degree of hardship that cancellation may cause the applicant and his family, and the mandatory legal consequences, including having considered the rights of the child.

    DECISION

28. The Tribunal affirms the decision to cancel the applicant’s subclass 309 Partner Provisional visa.