1834444 (Migration)

1834444 (Migration) [2019] AATA 3955 (17 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1834444
MEMBER:Hugh Sanderson
DATE:17 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Statement made on 17 June 2019 at 2:26pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – risk to safety of individuals or good order of Australian community – criminal charges – family violence – previously sentenced in United States – young children – relationship with sponsor ended – sponsor withdrew sponsorship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 359AA
Migration Regulations 1994 (Cth)

CASES
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.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia was a threat to the health or safety of an individual or individuals and was not satisfied there were reasons not to cancel the visa. The issue in the present case is whether that ground for cancellation is made out and, if it is, whether the visa should be cancelled.
Background
The applicant is a citizen of the United States and is currently [age]. He first entered Australia in 2013 on a [temporary] visa. He then applied for a Partner visa on the basis of his relationship with [Ms A]. They have a child together, [Child 1] who is currently [age]. The applicant was granted a subclass 820 Partner (Temporary) visa on 21 January 2015. He claimed the relationship ended in July 2015 because he believed that Ms [A] was not faithful to him.
The applicant commenced a relationship with [Ms B] in January 2016. They have a child together, [Child 2], who was born in [date]. He claimed that Ms [B] was unfaithful in the relationship and their relationship became characterised by alcohol abuse and conflict.
The Department wrote to the applicant on 6 June 2017 with a Notice of Intention to Consider Cancellation of his visa. The basis of considering cancelling the applicant’s visa was that he had been charged with assaulting [Ms B] [in] February 2017 and had been charged with contravening an Apprehended Violence Order (AVO) [in] February 2017 and [March] 2017. On the basis of this information, it appeared the applicant’s presence in Australia may be, or would or might be, a risk to the health or safety of an individual or individuals.
Various documents were provided as to whether the applicant’s visa should be cancelled. This included the following:
·Statement by the applicant where he claimed that he was remorseful and acknowledged he had made mistakes but would not be a risk to any person in Australia as he has two Australian citizen [children];
·Report from[Mr C], forensic psychologist, dated [in] May 2017 prepared in relation to the criminal charges;
·Pre-sentence report dated [in] May 2017 in respect of the criminal charges;
·Report from [Organisation 1] in respect of supervised contact between the applicant and [Child 1]; and
·Character statements provided on behalf of the applicant.
Information before the Department showed the applicant had been charged with the following offences in the United States:
·[Battery] – sentenced to a one year supervision order;
·[Battery] – stricken off with a right to reinstate;
·[Domestic battery] – sentenced to a one year supervision order;
·[Violation] of a protection order – dismissed;
·[Disorderly] conduct and public intoxication – stricken off;
·[Theft] – charge withdrawn;
·[Domestic battery] – dismissed;
·[Misuse credit card] – sentenced to a one year supervision order; and
·[Violation] of a protection order – sentenced to a one year supervision order.
The applicant was convicted of the following offences in New South Wales:
·[A number of] charges of assault occasioning actual bodily harm; and
·Two charges of contravention of an AVO.
In respect of the charges brought against the applicant in New South Wales, the applicant was convicted [in] July 2017 and sentenced to 24 months’ jail with a non-parole period of 12 months. An appeal against the severity of the sentence to the District Court was dismissed [in] October 2017.
The delegate who considered the application found that the presence of the applicant may be, or would or might be, a risk to an individual or individuals. The delegate noted there was a continuing AVO for the protection of a former partner of the applicant and that he had been convicted of serious offences. Although the clinical psychologist found that the applicant “currently poses a low risk for committing future violent offences” this did not mean that the applicant did not pose a continuing risk to individuals.
In considering whether the visa should be cancelled, the delegate noted the following issues:
·The purpose of the applicant’s stay in Australia was as the partner of his sponsor for the Partner visa, Ms [A], however, his relationship with the sponsor had ended;
·There was no evidence that the applicant had not complied with the conditions of his visa;
·The AVO against the applicant included [Child 2], indicating that he would be having limited contact with him in the future;
·The applicant has had limited contact with [Child 1];
·Due to the breakdown of his relationship with his family in the United States, the applicant has limited family support networks in the United States;
·The applicant had a dysfunctional upbringing by his family and was sexually abused as a child;
·The assault that the applicant committed on Ms [B] took place in front of the parties’ child, [Child 2];
·The mothers of the applicant’s children have been able to care for the children whilst he has been incarcerated and if the applicant returned to the United States he would be able to maintain electronic communication with them and possibly visit them once any period of exclusion has expired;
·When Ms [A] advised the Department she was withdrawing the sponsorship of the applicant, she cited the fact that she had suffered family violence committed by the applicant although no criminal proceedings had been taken;
·The applicant had been convicted of criminal offences while in the United States, including contravening protection orders; and
·Despite claiming that the applicant’s former partner, Ms [B], had been trying to contact the applicant which led to the contravention of the AVO, there was no credible evidence to support this claim.
Taking all these matters into account, the delegate was not satisfied that they provided compelling reasons which would outweigh the grounds for the cancellation of the applicant’s visa. Accordingly, the Department cancelled the applicant’s visa.
Information to the Tribunal
The applicant applied for a review of the decision to cancel his visa. That application came before the Tribunal (differently constituted) and a decision was issued on 30 November 2017 affirming the decision to cancel the applicant’s Partner visa. That decision was appealed to the Federal Circuit Court and a decision was issued [in] October 2018 setting aside the decision of the Tribunal and remitting the matter to the Tribunal for reconsideration.
The applicant provided further material to the Tribunal including the following:
·Details of his mother’s criminal convictions in the United States;
·Press clipping providing details of the death of his stepfather in 1996;
·Photos of the applicant with his children;
·Character references by various friends and associates of the applicant;
·Statement of the applicant dated 16 December 2016 claiming he had suffered family violence committed by the sponsor of his Partner visa application;
·Clinical records from the [Organisation 2] provided to the applicant while he was in immigration detention;
·Reports provided to the Local Court and District Court in respect of the sentencing of the applicant in relation to his assault on [Ms B];
·Media report as to violence in the City of Chicago; and
·Article by Joshua A Krisch entitled “The Science of Dad and the ‘Father Effect’”.
The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [D], a friend of the applicant.
The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite him to comment on or respond to the information. If he required more time, he could request an adjournment.
The Tribunal noted the applicant had requested the Tribunal obtain information in respect of court proceedings in [Court], however, had not provided details of those proceedings which would allow the Tribunal to obtain that information. The applicant said that it was in relation to [a number of] serious charges that the sponsor had brought against him for assault. He said that it was not necessary to obtain those documents, but the fact that these charges had been brought against him were significant in the circumstances leading up to his assault of [Ms B].
The applicant said that if he were released from detention and allowed to remain in Australia he would stay with Ms [D] and get work with his former employer.
The applicant said that he was not having any current contact with [Child 1]. He said there were current proceedings before the court and he was seeking an order that he have joint parental responsibility for the care of [Child 1]. He said that he did not mind if [Child 1] stayed living with his mother, but he wanted regular contact with him and to have joint parental responsibility. He said the last time he saw [Child 1] was [in] March 2017 before he was placed in jail when the sponsor brought [Child 1] to spend time with [him]. He said that he had seen [Child 1] during three or four supervised contact visits which had been arranged. He said that he was meant to have seen him two or three times per week.
The applicant said that his relationship with [Ms B] had ended before he went to jail. He said that he has not seen [Child 2], since he was sent to jail. He understands that [Ms B] is in a relationship with another person. He said that he has not taken any court proceedings to have any contact with [Child 2]. He has talked about it to a lawyer, but it is too expensive and difficult to do at this stage. He said that [Ms B] has spoken to him on about two occasions over the phone after he was placed in detention and that he used this opportunity to speak to [Child 2].
The Tribunal referred to the process under s.359AA of the Act set out above. The Tribunal referred to the criminal charges provided in the information from the FBI which indicated he had been found guilty of various assault and domestic violence charges even though no conviction had been recorded. This was relevant as it indicated he had been previously involved in situations where he had been violent towards other people and the charges indicate that he may be a risk to the safety of an individual or individuals or the good order of the Australian community.
The applicant denied that he had ever been found guilty of any crimes of violence. He said that in America the court systems are different. He said that although allegations had been made against him he was not found guilty. He said that he did not have the money to defend any charges and so he did not contest the charges. He said that he did not admit the charges, but did not defend them.
The Tribunal noted that the records indicated the judge found him guilty of some of the offence but may not have recorded a conviction against him and still placed him under a one-year supervision order. The applicant denied that he had ever been found guilty. He said that the judge had told him that yelling at someone was not a crime. He said that he had arguments with his partner and the police were called and charged him. He said that this happened a few times. He said that a neighbour where they lived called the police every time you raised your voice. He said that you shouldn’t yell at people and he accepted responsibility for it. He said that he got into multiple arguments with his then partner ([Ms E]) because he would get upset and yell and then the neighbours would call the police. He said that he made the wrong choices being with certain people. He said that he did not blame anyone for the situation because he was just as responsible. He said that he had a few incidents with his partner and he reacted the wrong way which led to them both yelling at each other. He said that when the police came they said they found a scared girl and me yelling at her, but then she testified that he had done nothing to her. He said that if he is passionate about something he is loud.
The applicant said that he had nothing if he was required to return to the United States. He said that he was in the last year at university studying to be a [Occupation 1] when he left the United States. He said that he could not return to those studies as he had been away from university for too long. He said that he had no idea where he would go and live if he were required to return to the United States. He said his only close relative, his grandmother, died at the end of 2017. He has no relationship with his mother who has only recently been released from jail. He referred to his “rough upbringing”.
The applicant said that he had bad relationship skills back then and would get into relationships that were not good. He said that this was because he never had anyone in his life. He said that from the age of 17 he was not capable of being on his own and got into some bad relationships.
The Tribunal noted that even if he had not been convicted of any crimes of violence, there appeared to have been multiple occasions of allegations of violence made against him by various partners he had leading up to his assault of Ms [B]. The applicant said that he smacked Ms [B] three or four times but had never done it before, despite the numerous allegations against him and he never did any of those things which had been alleged. He said that he had never been violent towards them. He said that he was fighting the stereotype of an angry black man and he did not like violence. He claimed that he had been abused by his sponsor for four years.
The Tribunal referred to the process under s.359AA of the Act and allegations that have been made to the Department that he had been violent towards other women. The applicant said that these allegations would have been made by the sponsor and she was behind the allegations because she wanted him out of Australia.
The applicant said that he was not a violent person. The applicant said that he needed to stay in Australia to be able to be a father for his two children. He said that if he were required to return to the United States he would not know where he would live or be able to work. He said that he could not provide any support for his children and would not be able to have an input in their lives.
Ms [D] gave evidence in support of the applicant. She said that she had known him for six years. She has been visiting him every month whilst he has been in detention. She said that she had agreed that if he were released from detention he would be able to stay with her until he found a place for himself. He said that she would find a two bedroom unit so that they could share a place together.
Ms [D] said she was aware of the applicant’s conviction for the assault of Ms [B] and the reasons why the Department had taken steps to cancel his visa. Ms [D] said the applicant was never violent and was a very easygoing person. She said that both the sponsor and Ms [B] used to turn little things into arguments with the applicant. She said that they would make small remarks to him to provoke him. She said that when this happened she remembers telling the sponsor to calm down and then everybody would leave any function they were attending.
Ms [D] believed the applicant was a great father and got along very well with his children. She said that she had seen the applicant with his children on a few occasions soon after their births, but not since then.
The applicant was given further time to comment on the police record provided by the FBI and also provide details of any court orders or future court proceedings in respect of his contact with [Child 1].
The applicant provided submissions where he made the following claims:
·He is extremely remorseful for what he has done and would not break any further laws in Australia;
·He faced prejudice in the United States because he dated white women and was labelled as “an angry black man”;
·He has sought treatment both before and after he was placed in detention;
·He does not want to be part of the cycle of fatherless children and is desperate to be able to stay in Australia to be close to his children; and
·He is pleading for a second chance.
No further submissions were provided in relation to the police record provided by the FBI.
The applicant provided a number of orders from the Federal Circuit Court in relation to the application commenced by his former sponsor for orders relating to their child, [Child 1]. Those orders are dated from [March] 2016 to [August] 2017. The last orders, dated [August] 2017, adjourned the matter to [December] 2017. Copies of those later orders were not provided. No information was provided as to any further proceedings before the Federal Circuit Court in relation to [Child 1] and no current orders were provided which allowed the applicant to have any time with [Child 1].
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
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].
The basis of the Department’s decision to cancel the applicant’s visa was on the basis that he had been charged with assaulting his then partner, [Ms B], and then further charged with contravening an AVO on two occasions. The applicant was subsequently convicted of these offences and sentenced to a period of imprisonment of 24 months with a non-parole period of 12 months. An appeal against the severity of the sentence to the District Court was dismissed. He was released after 12 months on parole.

The fact that the applicant was sentenced to a significant period of imprisonment is a reflection of the seriousness of the offence with which the Local Court Magistrate, who initially sentenced the applicant, and the District Court Judge, who dismissed the severity appeal, considered the offence in light of all the information put before them.
A report tended in those criminal proceedings described the applicant as having a “low risk for committing future violent offences”. The Tribunal takes into account the assessment made in that report, however, the issue that must be considered by the Tribunal is whether the applicant is or may be, or would or might be, a risk to an individual or individuals. It is a low threshold. The description of the applicant as being a “low risk for committing future violent offences” does not mean that he is no risk of committing future violent offences.
The applicant explained the circumstances that led to the assault charge as being one where he slapped the victim three or four times because she had been feeding their son alcohol. The Tribunal accepts that there were other circumstances and issues affecting the parties at the time, however, the fact that the applicant resorted to physical violence against the victim indicates a complete loss of control and unacceptable behaviour. As stated above, the sentence the applicant received as a result of his actions is indicative of the level of violence the applicant used against the victim. That he could react in such a way to such claimed provocation by the victim gives the Tribunal significant concern that the applicant may again lose all rational control with any person he is in a relationship with.
The applicant was also charged with contravening an AVO on two occasions. The applicant explained these contraventions by claiming that it was the victim who had encouraged him to contact her and that by doing so he was no threat to her at all and she did not perceive his presence as a threat. The fact is, however, that it was the responsibility of the applicant to ensure he not have any further contact with the victim, regardless of the circumstances or any statement made to him by the victim. That the applicant was convicted of contravening the AVO on two occasions indicates that he was willing to ignore the legal requirements imposed on him and disrespect for the law.
The applicant has been subject to criminal prosecution in the United States. His record provided from the Federal Bureau of Investigation, a copy of which was provided to the applicant, refers to the following charges:
·Battery/Makes Physical Contact, charged [date] and [date] sentenced to a one-year supervision order;
·Battery/Makes Physical Contact, charged [date] and on [date] the charge was stricken off with leave to reinstate;
·Domestic Battery/bodily harm, charged [date], charge reduced to Battery and on [date] sentenced to a one-year supervision order;
·Violate Order Protection, charged [date] and on [date] sentenced to a one-year supervision order.
The applicant was also charged with other offences including Violate Order Protection on [date], theft of his partner’s credit card on [date], and domestic battery on [date]. In relation to these charges the prosecution was either withdrawn or he was found not guilty.
The applicant claimed that he had never been convicted of any offences. When referring to the charges, he claimed that no conviction was recorded and that he pleaded no contest to the charges. The fact that the applicant was subject to [a number of] supervision orders as a result of charges being brought against him indicates the court found him guilty of the offence even if the applicant did not contest the charge or the court did not proceed to a conviction.
The applicant minimised his behaviour in being brought before the court for various assault charges. He claimed that American society was prejudiced against him as a black man having a relationship with white women. He claimed that he was stereotyped as “an angry black man” and that any argument with his partner would lead to him being charged. He claimed that when he is passionate about something he is loud. He claimed that when he would raise his voice neighbours would call the police but that a judge had told him that yelling at someone was not a crime. He claimed that he made the wrong choices of people to be with.
The fact that the applicant has been placed under [separate] supervision orders as a result of him being charged with assaults which appear to be associated with domestic relationships raises serious concerns as to whether the applicant may be, or would or might be, a risk to any future person he is in a relationship with. The last supervision order as a result of the applicant being found guilty of violating a protection order was made a year and a half before he entered Australia. Although he claimed that he had made the wrong choices of people to be with in America, the two relationships he has had with partners in Australia have both ended with allegations of violence and in acrimonious situations.
Both the applicant and his sponsor made allegations against each other of having been the victims of family violence. The court proceedings which were taken out against the applicant were dismissed by the Local Court. Although the Tribunal places no weight on the allegations made by the sponsor against the applicant, it is clear that the relationship between the applicant and the sponsor ended in acrimony with both parties making allegations of violence against the other.
The applicant has sought out treatment both before he was sentenced to jail and since he has been in detention. He provided the clinical records of his counselling while in detention.
The counselling records, which the applicant provided to the Tribunal, report the various discussions he had with various counsellors. On 10 January 2019 he is reported as describing his sponsor as “very controlling and possessive of him”. He says that the sponsor “went nuts” when he left her and then when he started a relationship with another woman she “was worse than his ex-wife”.
On 28 March 2019 the applicant is reported as having discussed being a victim of domestic violence when the perpetrator is a woman and the victim as a man. He discussed how the system protects women versus men when it comes to domestic violence and equality and double standards. His risk harm assessment to himself and others is generally rated as low.
The Tribunal accepts the applicant has been having counselling while in detention in relation to psychological issues he has had to deal with since his childhood. There is no indication that if he were released from detention he would be able or willing to continue any counselling or address the issues identified during that counselling or that he would receive continuing assistance when encountering stressful or confrontational situations.
The Tribunal finds that the fact the applicant has been convicted in Australia of assaulting his then partner and contravening an AVO on two occasions means that he is or may be, or would or might be, a risk to the health and safety of an individual or individuals being any previous or future partner the applicant may have. The Tribunal accepts the applicant has undergone counselling to help him address anger management issues. However, the fact that the applicant has been the subject of [separate] supervision orders arising from allegations of violence in America, the last one being in 2012, provide support to the finding that the relationship issues that led to him being convicted of an assault in Australia may be repeated. Although the applicant promises not to be involved in any circumstances that would be a threat to anybody, the Tribunal finds that if the applicant were involved in a further relationship which became dysfunctional that he may again resort to violence.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Purpose of the visa applicant’s stay in Australia
The purpose of the grant of the Subclass 820 Partner (Temporary) visa was to enable the applicant to live in Australia with his sponsor. The evidence of the applicant is that the relationship has ended. Allegations were made by both the applicant and the sponsor that they had been the victims of family violence committed by the other person. The proceedings commenced on behalf of the sponsor against the applicant have been dismissed in the Local Court. The allegations made by the applicant against the sponsor are not supported by any judicial finding that he did suffer relevant family violence or by other relevant evidence to be able to establish a claim of relevant family violence under the Regulations.
The Tribunal notes that the applicant has a child from his relationship with the sponsoring partner. As such, he may meet the criteria for the grant of a Subclass 801 Partner (Residence) visa on the basis that he has a child with the sponsor and there are orders in place in respect of that child, irrespective of the fact that his relationship with the sponsor has now ended.
The Tribunal has considered the applicant’s relationship with his child from the sponsor and the child from his other relationship below.
Compliance with visa conditions
There is no information before the Tribunal which would indicate the applicant has not complied with his visa conditions.
Degree of hardship that may be caused
The applicant has argued that if his visa is cancelled and he is required to return to the United States he will face significant hardship. It is claimed that he has no family there and no support network. It is claimed that the United States is inherently racist and the police and other official organisations are prejudiced against people of African heritage. It is claimed that gun crimes and murder, particularly in Chicago, are of such a level that it would be dangerous to return to the United States.
The applicant suffered a very difficult childhood. He has had no relationship with his biological father since the age of two when his parents separated. He had a positive relationship with his stepfather who died in a [accident] in 1996 when the applicant was [young]. He has described his mother as “evil” and reports being physically, emotionally and sexually abused by her. She was sentenced to a lengthy period of imprisonment after being convicted of various sexual assault charges that occurred in 2002 when the applicant was [a certain age]. He has no continuing relationship with her. He has a [sibling] who lives in the United States, but has no continuing relationship with her.
The only family the applicant has in Australia is his two children. His relationship with the mothers of those children appears at best distant and possibly dysfunctional and completely severed. The issue with regard to any separation of the applicant to his two children is discussed below.
The applicant has shown himself to have a personality which allows him to develop friendships and respect from people quickly. The applicant provided a number of statements from associates and friends he has in Australia attesting to his good character. He also provided a statement from a friend in the United States, [attesting] to his good character. If the applicant were required to return to the United States the Tribunal finds the applicant would be able to reinitiate contact with friends he had previously in the United States and would be able to develop the same support network that he has been able to develop in Australia and had previously in the United States.
The applicant has been promised employment in Australia. The applicant previously had employment in the United States and was able to enrol in a college to [study]. Although the applicant claims that he would not be able to find employment in the United States, the Tribunal is not satisfied that the lack of opportunities for employment the applicant would face in the United States would be any different to those he would face in Australia. Although the applicant claimed that he had “given up everything to come to Australia”, the Tribunal is not satisfied that the financial and personal circumstances the applicant would face in the United States would create any significantly greater hardship than he would face if he continued to live in Australia.
The Tribunal acknowledges that gun crime in America is considered by many to be a significant problem. Reports indicate that Chicago, where the applicant is likely to base himself and where he was previously living, has one of the highest homicide rates in the United States. Although many of the victims of the gun crimes are innocent bystanders, as is reported in Fox News in the documents provided by the applicant, the majority of gun victims are targeted killings with the report quoting the police as saying that “most murders are tied to street gangs that fight for territory in the city or retaliate against rival gang members”. The report also states that the number of shootings fell 14% in 2018 compared to the same time in 2017.
The Tribunal does not accept that the level of gun crime in the United States and in Chicago in particular would provide any particular danger to the applicant if he is not involved in gang activity. Authorities in America recognise the issue and have allocated resources to try to address the problem. The Tribunal places little weight on this claim when considering whether the applicant’s visa should be cancelled.
The applicant has raised the claim that America is an inherently racist country with their institutions, particularly the police, prejudiced against people of African heritage. The issue of racism has always been an issue in the United States (and unfortunately in most other countries) for the whole of its existence. At the time the founding fathers of the United States were declaring that “all men are created equal”, the authors of that declaration held many men and women as property with no rights as slaves. The circumstances of people of African heritage have changed considerably since that time with the people of the United States electing a president of African-American heritage in two elections. This is not to say that prejudice is still not evident in American society as is highlighted in the “Black Lives Matter” movement.
Unfortunately, it may be argued that similar prejudices are found in Australian society. Allegations are made by people in authority indicating prejudice against various racial and other groups, whether they be Indigenous Australians, people of African heritage, different religious beliefs and differing cultural backgrounds.
Although the Tribunal recognises the issue of discrimination and racial tensions within the United States, particularly against people of African-American heritage, the Tribunal places little weight on this when considering whether the applicant’s visa should be cancelled. The Tribunal does not accept that the fact the applicant is of African heritage would cause any significant problem for him being able to return to and live in the United States.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose as a result of the applicant being charged with assault of his then partner and his contravening an AVO on two occasions which was taken out by the police for the protection of his former partner.
The particular circumstances of the events leading to the assault have been detailed in the fact provided in the criminal prosecution of the applicant. The explanation the applicant gave for his assault on his former partner was that she was giving their child alcohol to make him sleep. In the report of [Mr C], forensic psychologist, dated 29 May 2017, a copy of which the applicant gave to the Tribunal, the applicant is reported as saying that the victim was breastfeeding their [child] after having consumed a large amount of alcohol and that “he became very upset and angry when being told the victim had in fact breast fed their [child], rather than feeding him expressed milk he had asked her to use”.
Regardless of the particular circumstances that led to the assault, the violence the applicant used against the victim was totally disproportionate to any provocation and indicates a lack of control and abusive behaviour from the applicant. That he claims that he was protecting his [child] in assaulting the victim in this manner is not plausible nor is it acceptable. It is more likely that the applicant was reacting to the victim not complying with his demands and the applicant asserting his perceived authority and control over her.
The reports provided in relation to the sentencing in the criminal matters and the counselling notes which were provided by the applicant to the Tribunal reflect the tragic childhood of the applicant and the substantial trauma that the applicant has suffered during his life. He has been diagnosed as suffering from post-traumatic stress disorder. He has also been diagnosed as suffering from persistent depressive disorder of moderate severity. At the time, he was involved in litigation with his former partner (the sponsor) in relation to contact with his child. He remains in dispute with his sponsor in respect to his contact with his [child] at this time. All these factors would have placed additional strain on the applicant and on his behaviour. The Tribunal places some weight on these factors when considering the circumstances in which the ground of cancellation arose and whether the Tribunal should exercise its discretion in not cancelling the visa.
Applicant’s behaviour towards the Department
There is no information before the Tribunal that the applicant has not complied with his visa or properly responded to any requests from the Department.
Consequential cancellations
There are no persons in Australia whose visa will be subject to cancellation under s.140 of the Act if the applicant’s visa is cancelled.
Mandatory legal consequences
If the applicant’s visa is cancelled he will have no legal right to remain in Australia. If he were to remain in Australia he would be an unlawful non-citizen. He is currently in detention and it is likely that he would remain in detention until he left Australia and returned to the United States where he is a citizen.
The applicant is likely to face an exclusion period where he would not be able to apply for a further visa to enter or remain in Australia. This would cause ongoing problems for the applicant in trying to spend any time with his children in Australia, including being able to visit them temporarily.
International obligations including non-refoulement
As set out above, the applicant has raised concerns as to lack of employment, crime and inherent racism within the United States. The Tribunal does not accept that on the information before it that these would give rise to Australia’s protection obligations. No application for a Protection visa has been made by the applicant and if such application was made the claims made by the applicant would then be able to be fully assessed. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation of the applicant’s visa.
Family, business and other ties to Australia
The most significant factor to take into account when considering whether the applicant’s visa should be cancelled is the fact that he has two children who are Australian citizens and reside with their mothers in Australia. If the applicant’s visa is cancelled, this will lead to the physical separation of the applicant from his children and deprive the children of having that physical contact with their biological father.

The applicant provided a paper by Joshua Krisch entitled “The Science of Dad and the ‘Father Effect’”. This paper emphasises the importance of why children with involved fathers are more likely to have better lives than those without involved fathers. In that paper, it is recognised that particularly with divorced parents “there needs to be a minimum amount of time spent together, but the quality of time is more important than the quantity of time”. For children whose parents are absent, for whatever reason, they face additional challenges.
The Tribunal accepts that it would be in the best interests of the applicant’s children if he and their mothers were able to have a positive relationship with each other and that he would be able to be engaged in their lives in a positive manner. Unfortunately, this does not seem to be the situation with regard to the relationship the applicant has with the mothers of his children.
The applicant is currently engaged in litigation with the sponsor in respect of his involvement in the life of [Child 1]. Prior to his incarceration, the applicant was having limited supervised contact with [Child 1]. Since then, he does not appear to have had any direct contact with [Child 1]. The applicant has provided only limited information as to the current proceedings before the Federal Circuit Court. An independent children’s lawyer has been appointed for [Child 1]. The proceedings were initiated by [Child 1]’s mother, the sponsor. The applicant did not provide to the Tribunal the most recent orders made in respect of that application or any indication as to when the matter would be finally heard.
The current circumstances with regard to [Child 1], including with whom he is living, if the sponsor has re-partnered and is now living with another man, and where [Child 1] is living has not been provided. Any report as to [Child 1]’s psychological state or development provided in the family law proceedings has not been provided. There is no information before the Tribunal that the sponsor is not taking appropriate care of [Child 1] and he is not developing as would be expected. The basis on which the orders were made prior to the applicant’s incarceration, that he have supervised contact with [Child 1] have not been provided.
Similarly, there is little information as to the applicant’s second [child] [Child 2]. He has had no direct physical contact with [Child 2] since he was incarcerated. The applicant indicated the only contact he has had with [Child 2] is when [Child 2]’s mother, the victim of the applicant’s assault, had telephoned him and the applicant had the opportunity to speak to [Child 2] over the phone at that time.
The applicant has not initiated any court proceedings to ensure that he has a continuing relationship with [Child 2]. The only information about [Child 2]’s circumstances which the applicant is aware of is that [Child 2]’s mother has re-partnered and is living with another person.
As indicated above, the Tribunal accepts that it is important for children to be able to maintain good relationships with both their parents. This is even in circumstances where the parents are separated for whatever reason. The level of cooperation between the applicant and the mothers of his children appears limited. Neither mother has considered that it would be of benefit to their child to visit or spend any time with the applicant whilst he has been in immigration detention. There is nothing to indicate that the children have developed any emotional bond with the applicant since he was arrested. There is nothing to indicate that the mothers of the children have not been appropriately caring for their children. At least [Child 2] appears to be in a household with his mother and his mother’s new partner who may be described as his stepfather. It is noted that the applicant reported that the closest relationship he had with any family member was with his stepfather who proved a positive role model.
The reality is that if the applicant’s visa is cancelled the applicant will have limited opportunity to participate in the upbringing of his children and their development. In light of difficulties in exercising contact with his children, this may affect the level of financial contribution he can make towards their support. The absence of their father is likely to have an adverse effect on his children which must be balanced against any possible conflict that would be present in the relationship between the applicant and the mothers of the children which would also have an adverse effect on the development. As stated above, there is little information before the Tribunal of the actual relationship between the applicant and his children apart from the fact that he has had little contact with either of them since the assault on his second child’s mother.
Overall assessment
The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. The circumstances that led to the ground for cancellation arising are significant. The applicant was sentenced to a significant period of imprisonment as a result of his assault on the mother of his second child and breaching the AVO on two occasions. The sentence given to the applicant is a reflection of the seriousness of his criminal actions. The Tribunal also takes into account the fact that the applicant has been previously sentenced in the United States in relation to what appears to be domestic violence incidents. The Tribunal takes into account the explanation the applicant has given as to why these charges were brought against him and that he did not plead guilty to these charges, but pleaded no contest to the charges which led to the guilty finding by the courts.
The applicant has provided a number of statements from friends and workmates attesting to his good character. A friend attended with him at the hearing before the Tribunal to give evidence and has also provided a statement. The circumstances the applicant would face in the United States are not of such adverse significance that the Tribunal places much weight on them when considering whether the applicant’s visa should be cancelled. As indicated above, the most significant factor is the adverse effect on the applicant’s children in Australia should the applicant be required to return to the United States.
Taking into account the seriousness of the criminal offences for which the applicant was convicted, the limited contact the applicant has had with his children since February 2017 when those offences occurred and all the other circumstances faced by the applicant, the Tribunal is not satisfied that the weight of evidence supports the exercise of the discretion not to cancel the visa. Accordingly, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Hugh Sanderson
Member

[2019] AATA 3955

17 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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