1906853 (Migration)

1906853 (Migration) [2019] AATA 6807 (30 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1906853
MEMBER:Hugh Sanderson
DATE:30 September 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 30 September 2019 at 11:30am

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – risk to safety of Australian community or individual – convicted of common assault (domestic violence) – pending charge for breach of an Apprehended Violence Order (AVO) – consideration of discretion – purpose of visa grant – sponsorship withdrawn – circumstances giving rise to non-compliance – Australia’s international obligations – civil and political situation in Sudan – Australian citizen child – best interest of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA, 359A, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 100.221
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to 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 13 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s continued presence in Australia may pose a risk to the safety of an individual in the Australian community, namely his spouse and former sponsor, [Ms A]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Sudan and is currently [age] years old. He was sponsored for the grant of a subclass 309 Partner (Temporary) visa by his wife, [Ms A]. They claim to have first met each other in [Country 1] in 1998 before [Ms A] came to Australia in 2004. After [Ms A] divorced her first husband in January 2014 she and the applicant regained contact with each other and committed to a relationship. They were married in Khartoum [in] April 2015.
The applicant was granted the Subclass 309 Partner (Temporary) visa and entered Australia [in] December 2015. [Ms A] gave birth to their son, [Child B], on [date]. At the time of this decision, the applicant had not been assessed for or granted the Subclass 100 Partner (Residence) visa.
On 5 October 2018 the applicant was charged by the NSW Police with one charge of common assault (domestic violence) and one charge of stalk/intimidate intend fear physical harm (domestic violence). The alleged victim of the offences was [Ms A].
The Police Facts Sheet outlines the allegations made against the applicant as follows[1]:
[1] In the fact sheet, the name of the applicant has been replaced with “the applicant”, the name of the wife has been replaced with “the sponsor” and the name of the witness has been replaced by “the sponsor’s sister”.
On the morning of Wednesday, 27 June 2018, the applicant and the sponsor were in the lounge room of the sponsor’s sister’s house in [Suburb 1]. The sponsor borrowed the applicant’s mobile phone to watch a video on Youtube. Whilst the sponsor was searching for her video to watch she observed in the search bar history ‘minors sex videos’. An argument ensued about the search history and the applicant slapped the sponsor with his right hand hitting the sponsors left cheek. The applicant has pushed the sponsor onto the armrest of the couch in the lounge room. The applicant has used his right hand and grabbed the sponsor around the throat. Whilst this was occurring the sponsor’s nephew was in the lounge room and has run to get the sponsor’s sister.
The sponsor’s sister has run in and observed the applicant’s right hand around the sponsor’s throat. The sponsor’s sister has stepped in and removed the applicant’s hands away from the sponsor’s neck.
Once the sponsor stood up, the applicant has pushed the sponsor with both hands and she has fallen back onto the couch. The applicant has then began to slap the sponsor several more times, and has pinched the sponsor around her jaw and cheek.
The sponsor has pushed the applicant away, got off the couch and started to walk away, the applicant has then pushed the sponsor as her back was turned away and the sponsor has fallen into a cupboard causing the back of the head to hit it.
Shortly after, the sponsor contacted her mother who lives in [Suburb 2] and informed her as to what occurred. The sponsor and her son have then left to go to the sponsor’s mother’s house to stay for the night.
When they arrived the applicant was there waiting, an argument ensued and the sponsor tried to open the front door of the house to get in. The applicant has grabbed the sponsor’s arms and pulled it away from the door handle. The applicant and the sponsor continued to argue, and the sponsor’s sister stepped in to move the sponsor into the house.
About 5:00pm on 10 July 2018, the applicant and the sponsor were in their bedroom at the sponsor’s sister’s house discussing the applicant’s visa documents. They then began to argue over the sponsor refusing to sign the papers.
The applicant said; “If you don’t do my papers, then I’m going to kill you!”
The sponsor said; “You know what. I’m going to tell the Police on you.”
The applicant said; “First thing. I’m going to take your son and you’re never gonna to see him again. Second thing, even after you call Police now, until the time the police arrive then it’s going to be too late for you. If you don’t do my papers then I’m going to kill you!”
Whilst this argument was occurring, the sponsor’s sister was in the next room and overheard what was said. The sponsor has then run to the sponsor’s sister to tell her what had happened.
When the applicant was interviewed by the police he acknowledged that he had been in the lounge room with the sponsor arguing and he slapped her once. He acknowledged that he pushed her onto the sofa, but denied grabbing her around the neck. He denied threatening the sponsor and stated they were arguing over family affairs and the visa papers.
The Department wrote to the applicant on 10 January 2019 (incorrectly dating the letter 10 January 2018) with this information noting there were grounds to cancel his Partner visa. When the applicant’s agent noted the incorrect date on the Notice of Intention to Consider Cancellation a second notification was sent on 29 January 2019.
The applicant’s agent responded on 4 February 2019 making the following submissions:
·Although acknowledging the incident as indicated by the Department had happened, it was claimed the allegations were “not even close to the intensity described in your letter nor as described by the police”;
·The applicant was incredibly stressed that a common argument between two adults in their home can be translated so wrong;
·There was no explanation as to why it took so long for the police to charge the applicant or why the sponsor continued to live with him;
·The applicant fears returning to Sudan as the country is embroiled in violence and this may have made him angry being reminded that his fate was hanging by a word from his wife;
·The applicant would not be violent against any woman, let alone his wife;
·The sponsor had gone to the police to ask that the charges against the applicant be dropped, but the police refused to do so;
·The applicant is the father of a young child with whom he helps care for and who is emotionally and financially dependent upon him as is the sponsor;
·It is important for the applicant’s child that he not be separated from his father; and
·If the applicant’s visa is cancelled he would be required to return to Sudan which is currently suffering unrest politically and otherwise.
[In] January 2019 the applicant was convicted of common assault (domestic violence) and sentenced to an 18 month community correction and supervision order. The charge of stalk/intimidate intend for physical harm was withdrawn. The Court also made an Apprehended Violence Order (AVO) for the protection of the sponsor from the applicant for a period of two years.
The delegate who considered the application found that based on the fact the applicant had been charged with two offences, the alleged domestic violence behaviour indicated the applicant’s continued presence in Australia may pose a risk to the safety of an individual in the Australian community, namely his sponsor. It was noted that information before the Department indicated the parties were no longer living together and the sponsor had withdrawn her sponsorship of the application. Although the applicant downplayed the severity of the allegations, his behaviour indicated there was a risk to the sponsor. The fact that he had been convicted of the assault charge and the fact that an AVO had been issued emphasised the risk the applicant posed to the sponsor. The delegate found this was the basis for cancelling the applicant’s visa.
In considering whether to cancel the applicant’s visa, the delegate noted the following issues:
·The purpose of the grant of the visa was to enable the applicant to live with the sponsor, however, their relationship has ended and the sponsor had withdrawn her sponsorship of the application;
·It would become more difficult for the applicant to provide financial support to the sponsor and his child if his visa were cancelled and he would be separated from his son;
·Although denying he would ever be violent to women, the fact that he had been convicted of an offence indicates he was violent towards the sponsor;
·There is no information that the applicant has not complied with his visa or complied with Australian laws;
·It is unlikely that the applicant would be able to apply for a visa to return to Australia if his visa is cancelled;
·It is not preferable for the applicant’s child to be separated from his father;
·The incidence of family violence occurred in front of the child and the sponsor could continue a relationship with his child whilst he was overseas; and
·Although there is current civil and political unrest in Sudan, the applicant has not lodged any Protection visa application.
Taking these matters into account, the delegate found the grounds for cancelling the visa outweighed the reasons not to cancel the visa. Accordingly, the applicant’s visa was cancelled.
Information to the Tribunal
The applicant provided a statement where he made the following claims:
·He and the sponsor started having problems in their relationship after the birth of their son at the end of [year];
·The sponsor started treating the applicant with disrespect and once threw a glass object at him;
·During one incident in July 2018 the sponsor was yelling in his face and provoking him and she pushed him so he pushed her back and she fell/sat on a couch behind her and then when she slapped him he slapped her back and held her by the clothes and said that she could not hit him again;
·The applicant left the home after that but they reconciled in September 2018;
·It was only in October 2018 that the applicant became aware the sponsor had reported him to the police and he was shocked by the untrue allegations that had been made by the sponsor;
·The sponsor tried to withdraw the charges and the applicant pleaded not guilty to the charges;
·On the third occasion he went to court, the AVO remained in place;
·The applicant and the sponsor remained living together until the end of June 2019 when the sponsor would stay with her sister occasionally, taking their child with her;
·The sponsor’s attitude towards the applicant changed at that time and she would try to create a fight with him;
·On 3 July 2019 the sponsor came to the applicant’s home and cooked food for the applicant which he found “was simply a soup that was tasteless”;
·The applicant believed she made tasteless food for him so that she would try to pick a fight and when she did the same thing on 4 July 2019 he told her it was her responsibility to do the cooking for him;
·The sponsor then told him she was ringing the police;
·Although he waited for the police outside the home and told them what had happened he was still charged with breaching the AVO;
·The applicant has not seen the sponsor since 4 July 2019 and has only seen his son on 10 August 2019 at the sponsor’s sister’s home;
·As he took a photo of himself and his son together, the sponsor has now said that she will not let him see their son; and
·The applicant works with the sponsor’s brothers and they all like him.
The applicant appeared before the Tribunal on 13 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s agent arranged for a lawyer from her firm to attend the hearing with the applicant.
The Tribunal explained to the applicant the process under s.359AA of the Act. The Tribunal explained that it would be putting information to the applicant 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 the applicant to comment on or respond to the information. If he required more time he could request an adjournment.
The Tribunal raised the issue of the certificate pursuant to s.375A of the Act on the Department’s file. No comment was made in respect of the certificate. The Tribunal noted that the documents included the AVO which had been served on the applicant and did not believe the certificate to be valid.
The applicant said that he was currently living in a share house. He said that he was working in [Industry 1] and was working with some of the brothers of the sponsor. He said that he had not had any contact with the sponsor since 4 July 2019. He said that he saw his son on 10 August 2019 after the sponsor’s sister took his son to another sister’s place. This was by arrangement with the sponsor. Since then, the sponsor has not allowed the applicant to see his son. He said that he is planning to see a lawyer soon to get orders to see his son. He is currently paying child support at the rate of $340 per month.
The Tribunal tried to obtain information from the applicant as to the criminal charges that were brought against him and were determined by the court [in] January 2019. The applicant was evasive when providing answers to the questions of the Tribunal. He finally advised that he was convicted of one charge after the judge had listened to what he had to say but found he was guilty of the charge.
He said that as a result of the incident on 4 July 2019 he has been charged with breaching the AVO. He said that no other charge was associated with this. That charge has been adjourned [until] October 2019.
The applicant said that the fight in July 2018 started because the sponsor had looked at his phone without his permission and looked at a video that was on that phone. He claimed the video showed a wedding in Sudan of family members and they were singing and dancing and there were some girls at the wedding. He claimed the sponsor was jealous of the girls, saying that she did not want him to talk to the girls. The Tribunal indicated it was not plausible that the sponsor would be upset by a video of a wedding of family members of the applicant in Sudan. The applicant claimed that one of the girls in the video had been a person who had expected to marry him but he did not want to marry her.
The Tribunal referred to the process under s.359AA of the Act referred to above. The Tribunal referred to the police statement of facts in relation to the various charges he was facing. The Tribunal noted the information in that statement said the sponsor had become upset when she searched the history of the videos he had been looking at on his mobile phone and found he had been searching ‘minor sex videos’. This was inconsistent with the information provided by the applicant and undermined his credibility.
The applicant said there was no evidence to support the claim that he was watching such a thing. He said that the incident happened a month before the sponsor reported him to the police and the video was only about a wedding in Sudan.
The applicant said that his parents were separated. His father lives with his stepmother and [number of stepsiblings] in Khartoum. He said that his mother lives with his brother and grandmother in Khartoum. They do not have any problems in Sudan.
The Tribunal referred to the process under s.359A of the Act referred to above. The Tribunal referred to the notification by the sponsor to the Department dated 6 February 2019 withdrawing her sponsorship of the application and stating that she was no longer in a relationship with the applicant. This was inconsistent with the claims made by the applicant that he was in a continuing relationship with her at that time. The letter also indicated the sponsor was concerned the applicant would take their child out of Australia.
The applicant denied that he and the sponsor had separated at that time. He claimed they lived in the same house until the end of June 2019 when the sponsor moved to stay at her sister’s place with their son. He claimed she would still come over to cook dinner for him. He said that it was her sister who was trying to make the sponsor leave him.
The applicant was given further time to provide further information to the Tribunal, including a statement from the sponsor’s brother claiming the relationship was continuing and genuine. No further information was provided by the applicant to the Tribunal after the hearing.
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(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
Section 116(1)(e) - risk to Australian community or individual
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 expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held at [94] that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

The basis on which the Department took steps to cancel the applicant’s visa was that he had been charged with two offences relating to allegations he had assaulted his wife who sponsored him for his visa. An interim AVO was also made against the applicant for the protection of the sponsor. The applicant was subsequently convicted of one of the charges against him and a final AVO was made against the applicant for the protection of the sponsor for a two-year period.
The applicant admitted to the Department that an argument had occurred between himself and the sponsor but denied the “intensity” of the allegations made. The applicant has also acknowledged that he is no longer in a continuing relationship with the sponsor. The sponsor has withdrawn her sponsorship of the applicant.
The applicant has disputed the claims made by the sponsor to the police and the basis on which he was convicted of assault and an AVO was granted for the protection of the sponsor. The applicant in his statement dated 9 September 2019 states “Yes, I slapped her, pushed her and held her from her clothes, but that was only after she pushed me and slapped me first”. The sponsor has not had an opportunity to respond to the allegation that she assaulted the applicant first. It is noted that in the police statement of facts the sponsor claimed that the applicant hit her when she confronted him after finding on his mobile phone search history “minors sex videos”. The applicant denied this, claiming the sponsor became upset after finding a family video of a wedding held in Sudan including a girl who he was expected to marry but did not want to marry.
Although the issues are in dispute, the applicant has acknowledged that he assaulted his wife. He was convicted of that offence. The concern the Court held for the sponsor was such that the AVO that had been issued was made final for a period of two years. He has subsequently been charged with breaching that AVO.
The fact that the applicant has been convicted of assaulting the sponsor, that the Court concluded that for the protection of the sponsor from the applicant that the AVO should be extended for a period of two years and that it is now alleged that the applicant has breached that AVO, leads the Tribunal to conclude that the applicant’s continued presence in Australia may pose a risk to the safety of an individual in the Australian community, namely his sponsor.
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 applicant’s travel and stay in Australia
The applicant was granted the Subclass 309 Partner (Temporary) visa on the basis that he was the spouse of his sponsor. That relationship has ended and the sponsor has withdrawn her sponsorship of the applicant.
Although his relationship with the sponsor has ended, if the applicant’s Subclass 309 Partner (Temporary) visa is not cancelled the applicant may still meet the criteria for the grant of a Subclass 100 Partner (Residence) visa on the basis that there is a child of the relationship and he may meet the criteria in cl.100.221(4)(c)(ii). The fact that the applicant has an Australian citizen child is discussed below.
Compliance with visa conditions
There is no information which would indicate the applicant has not complied with any visa conditions over any period when he was in Australia.
Degree of hardship that may be caused
The relationship between the applicant and the sponsor has ended and there is no indication, despite the applicant claiming that he was working with the sponsor’s brothers, that it is likely that the relationship between the applicant and the sponsor will be reconciled or that the sponsor wants anything further to do with the applicant. The fact that the relationship has broken down means that there is no emotional or other hardship that would be suffered if the applicant were not able to remain living in Australia as far as that relationship is concerned or that the parties could not live together.
The Tribunal notes that the applicant has an Australian citizen child from his relationship with the sponsor. This issue is discussed below.
If the applicant’s visa is cancelled it is likely that he will face some financial difficulties in having to return to Sudan. It is unlikely that he would be able to earn a comparable income in Sudan as he does in Australia and he may face other hardships living in Sudan. As the applicant’s immediate family continue to live in Sudan it is likely that he would be able to re-establish himself in Sudan without any significant hardship. Despite this, the difficulties the applicant would face if his visa were cancelled does weigh in favour of the applicant remaining in Australia.
Circumstances in which the ground of cancellation arose
The grounds for cancellation arose as a result of allegations made by the sponsor of violent behaviour by the applicant against her. The applicant was subsequently charged and convicted of an assault against the sponsor and an AVO was made for the protection of the sponsor for a period of two years.
Although the applicant alleged the sponsor was violent towards him, those allegations have not been established or tested in any way. The sponsor has not had an opportunity to respond to those allegations. The applicant has also alleged that he has been provoked by the sponsor by a variety of different means, including her cooking him meals which were “totally tasteless” and he believed that “she made the food this way so we can have a fight”.
The fact that the applicant was charged and subsequently convicted of an assault on the sponsor must be given significant weight when considering whether the applicant’s visa should be cancelled. The fact that the applicant was subject to a two-year AVO and he has been subsequently charged with breaching that order must also be given significant weight.
The Tribunal does not accept the explanations the applicant has provided for any violence that he has acknowledged he committed against the sponsor provides any justification for his actions, even if they are as limited as he claims. Similarly, the Tribunal does not accept the allegations that the sponsor was “trying to create a fight” with the applicant again provides any justification for the actions of the applicant or his behaviour.
Overall, the circumstances in which the ground of cancellation arose according to the applicant have no merit. The Tribunal places significant weight on the circumstances leading to the charge for which the applicant was convicted and the issuing of the AVO when considering whether the applicant’s visa should be cancelled.
Past and present behaviour towards the Department
There is no information which would indicate the applicant has been anything other than cooperative with the Department. The applicant responded through his agent to the initial notice of intention to consider cancelling his visa and has participated in the hearing before the Tribunal appropriately.
Consequential cancellations under s.140
There is no information which would indicate that there would be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.
Legal consequences of cancellation
If the applicant’s visa were cancelled it is likely the applicant would lose his right to reside in and work in Australia. If he did not depart Australia, it is possible that he would be detained in immigration detention. The opportunities for him to apply to reside in Australia, either temporarily or permanently, will be limited.
Australia’s international obligations
The applicant has claimed the civil and political situation in Sudan would create problems if he were not able to remain in Australia and was required to return to Sudan. No information has been provided by the applicant to support this claim. The Tribunal recognises recent unrest in Sudan including protests carried out by members of the public and the reaction by authorities to those protests. More recently, there have been few reports of public disturbances with a compromise agreement being reached between the military and people supporting democratic reform.
In his evidence, the applicant said that his parents (who are separated) and his siblings who continue to live in Sudan do not have any problems there. There is no information which would indicate that if the applicant were required to return to Sudan he would face any persecution for any reason or that he would be targeted by any individual or authority for any reason. The applicant has not applied for a Protection visa or outlined any claims which would indicate that he was not able to return to Sudan. The Tribunal finds that if the applicant were required to return to Sudan this would not breach any of Australia’s international obligations affecting any claim of refugee status.
Family ties in Australia
The applicant’s parents and siblings (including stepsiblings) continue to reside in Sudan. Apart from the relationship he has with his son, which is discussed below, the applicant has no strong family ties in Australia. He claims to have a relationship with the brothers of the sponsor, however, little information has been provided to support this claim. There is no information which would indicate the applicant has any business or other ties in Australia.
Circumstances of the applicant’s son
The applicant has a child from his relationship with the sponsor, a son, who is almost [age] years old. The Tribunal has considered how the cancellation of the applicant’s visa will affect the applicant’s relationship with his son and the effect any separation from the applicant will have on his son.
The Convention on the Rights of the Child recognises that it is generally in the best interests of a child to remain within their family unit. The support of the child’s mother and father, both emotionally and financially, assists in the development of the child and provides them with both a male and female role model. The interactions between a child’s mother and father are an important indicator as to the development of that child and that child’s future behaviour.
The sponsor has applied for Child Support and the applicant is currently providing financial support for his son through the Child Support Agency. If his visa were cancelled, it is unlikely that the applicant would be in a position to provide continuing financial support to his child. Any obligation of the applicant to contribute to the financial support of his son is unlikely to be able to be enforced if the applicant returns to Sudan.
The applicant claimed since he stopped living with the sponsor in early July 2019 the only time he has seen his son was on 10 August 2019 at the sponsor’s sister’s house. He claimed that the sponsor has refused to allow him any further contact with his son. At the hearing, he said that he had not done anything at this stage to commence proceedings to ensure he had any contact with his son. He claimed that he was “going to see a family lawyer soon to be able to see (his) son soon through the court”. There is no information before the Tribunal that he has actually taken this step.
As was stated in the Department’s decision, a copy of which the applicant provided to the Tribunal, family violence has a devastating effect on a family. This is not just on the immediate victim and the perpetrator of the violence but also on children who witness violence. They experience emotional distress and are also more likely to experience or use violence in future relationships.
The violence which the applicant was alleged to have committed against the sponsor and for which he was convicted occurred in front of the sponsor’s nephew with his son present in the house. This would have been an extremely distressful situation for the sponsor’s nephew and his son with the sponsor’s nephew running to get his mother so that she could protect the sponsor. This behaviour, in front of a young child, shows a lack of control and understanding of how his behaviour would adversely affect that child.
The sponsor alleged the applicant made threats against her by claiming that he was going to take her son and she would never see him again. She has made allegations that the applicant intends to take her son out of Australia and she would lose him. The applicant has also alleged that the sponsor has said that she will not let him see his child again. The Tribunal makes no finding about the allegations made by both the applicant and the sponsor. It certainly indicates that the parents are not placing the best interests of the child as their primary consideration when engaged in their dispute with each other.
If the applicant’s visa was cancelled and he returned to Sudan, he may still be able to maintain a relationship with his son through technological processes. This includes telephoning his son and also visual contact through the internet. This continuing contact would, however, be to some extent dependent upon the cooperation of the sponsor. In light of the allegations that have been made by both the applicant and the sponsor, it is questionable whether the parties would be able to show the maturity to ensure that this contact between the applicant and his son would be able to take place. It appears, however, that the applicant maintains a good relationship with the sponsor’s brothers and they may be able to assist in facilitating contact between the applicant and his son which would be in the best interests of the applicant’s son.
Overall assessment
The Tribunal has considered all the circumstances of the applicant and any person who is affected by the cancellation of his visa both individually and cumulatively. The most significant aspect when considering the cancellation of the applicant’s visa is the applicant’s relationship with his son.
As set out above, the Tribunal recognises the importance of the integrity of the family unit and the advantages that are gained by a child having a positive relationship with both their mother and father. Against this the Tribunal has taken into account the effect family violence has on a child from that relationship and the attitude the applicant has displayed regarding his continuing relationship with his son since the applicant ceased living with the sponsor and their son.
Weighing against the applicant in the consideration of whether his visa should be cancelled are the circumstances that led to the applicant being charged with criminal offences and the issuing of the AVO. Further to this, is the fact that the applicant has subsequently been charged with breaching the AVO.
Although finely balanced, the Tribunal finds that the weight of evidence supports a finding that the applicant’s visa should be cancelled. The fact that the applicant has been convicted of assaulting the sponsor and has subsequently been accused of breaching the AVO shows a pattern of behaviour that indicates the applicant considers himself above the law. Although the cancellation will place significant difficulties on the applicant’s relationship with his son these can, to some extent, be overcome through modern technology.
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 309 (Spouse (Provisional)) visa.
Hugh Sanderson
Member

[2019] AATA 6807

30 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies