1915828 and 1919704 (Migration)

1915828 and 1919704 (Migration) [2020] AATA 6190 (22 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1915828
1919704

MEMBER:Justin Owen
DATE:22 June 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 22 June 2020 at 4:16pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa – Subclass 010 (Bridging A) visa –applicant’s presence in Australia ‘is or may be’ a risk to the safety of an individual or individuals – domestic violence– criminal conviction – issuance of a two-year Final Order Apprehended Violence Order – relationship with the sponsor has ceased – applicant provided false and misleading information in his Partner visa application in relation to his relationship status – no evidence of a formal Mental Health Plan in the applicant’s name – no compelling need to remain in Australia – mental and psychological health – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Migration Act 1958, ss 116, 359, 376
Migration Regulations 1994
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
APPLICATIONS FOR REVIEW

This is an application for review of both a decision dated 10 June 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act); and a decision dated 10 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Act.
The delegate cancelled each of the visas under s.116(1)(e) on the basis that the presence of the applicant in Australia may be, or would or might be, a risk to the health or safety of an individual or individuals. The Department had received information that the applicant had been charged with a number of criminal offences pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and the Crimes Act 1900 (NSW).
The charges were stalk/intimidate intend fear physical harm (Domestic) T2 and eight separate Common Assault (DV)(T2) offences. The alleged victims in these matters were either the sponsor of the applicant’s visa or one of his sponsor’s children.
The issue in each case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant has two separate reviews before the Tribunal pertaining to the cancellation of his Partner visa and the cancellation of his Bridging visa. Given the ground for the cancellation of each visa was essentially identical, on 11 March 2020 the Tribunal wrote to the applicant inviting him to update the Tribunal on the outcome of the criminal charges he was facing and to comment on whether he would be happy to schedule a combined hearing to hear both matters concurrently. The applicant did not respond to the Tribunal’s correspondence. The Tribunal wrote to the applicant again on 18 March 2020. The applicant did not respond.
On 24 April 2020 the Tribunal wrote to the applicant under s.359A of the Act. The Tribunal wrote to the applicant stating that in conducting the review, it was required by the Act to invite him to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The Tribunal informed the applicant that the particulars of the information from the Departmental file from his Partner visa application were:
·     That he was still married to his claimed previous wife [Ms A] in Egypt and his relationship with her was continuous.
·     That he entered into a relationship with his former sponsor so he could secure a permanent visa and bring his previous wife [Ms A] and his daughter to Australia.
·     That his relationship with the sponsor had ceased.
·     That he had an Apprehended Violence Order (AVO) taken out against him by his former sponsor in December 2018 at [Suburb 1] Police Station.
·     That he had made inquiries into the submission of a fraudulent protection visa based on fabricated information and/or documentation to remain in Australia if his Partner visa was cancelled.
·     That he had physically assaulted both his former sponsor and her daughter on multiple occasions.
The Tribunal wrote to the applicant that the information was relevant because it disclosed that he may have entered into a contrived relationship for migration purposes. The information was relevant because it suggested he was never in a genuine and continuing relationship with the sponsor, or he was no longer in a relationship with the sponsor now, at the time the Tribunal was considering the cancellation. The information was relevant because it suggested he may have engaged in behaviour to deliberately deceive the Department in relation to his personal situation. The information was relevant because it suggested the grounds for cancellation of his visa may exist on the basis that his presence in Australia is or may be, or would or might be, a risk to the health or safety of an individuals or individuals including his former sponsor and her child.
The Tribunal wrote to the applicant that the consequence of this information being relied upon in making its decision, it would lead to a finding that the ground for cancelling his visa exists and the Tribunal, after taking into account his response and the considerations as to whether to cancel his visa, would be satisfied that the reasons for cancelling his visa outweighed the reasons not to cancel his visa.
The applicant was invited to give comments on or respond to the above information in writing. The applicant was informed that his comments or response should be received by 8 May 2020. The applicant was informed that if he could not provide his written comments or response by 8 May 2020 then he could request an extension of time in which to provide the comments or response. The Tribunal pointed out that if he was making such a request then it must be received by the Tribunal before 8 May 2020 and he must state the reason why the extension of time is required.
A certificate had been issued by the delegate under s.376 of the Act purportedly restricting the Tribunal from disclosing certain information in the Departmental file [from] his Partner visa application on the basis that disclosure of the material would be contrary and injurious to the public interest because disclosure would enable a person to ascertain the existence or identity of a confidential source of information. Furthermore, the information was provided in-confidence and the provider has not consented to the disclosure of the information to the applicant.
The certificate noted that the referral information specifically named the source and provides their address. Notwithstanding the fact the information was not expressly marked ‘in-confidence’, the Tribunal considers it can be implied that it was communicated by the source in-confidence under an implied understanding that the communication be kept confidential.
The Tribunal considered that the certificate contained a valid ground of public interest immunity not to disclose the information. Under s.376 the Tribunal has a discretion to disclose the information on the file.
On 24 April 2020 the Tribunal wrote to the applicant informing them of the existence of the s.376 certificate on the Departmental file of his Partner visa application. A copy of the certificate was provided with the Tribunal’s correspondence.
The Tribunal provided the gist of the information that is subject to the s.376 certificate. The applicant was invited in the Tribunal’s correspondence of 24 April 2020 to comment on or make submissions on the validity of the certificate and also to seek a favourable exercise of the Tribunal’s discretion to disclose the material by 8 May 2020.
On 6 May 2020 the applicant through his representative wrote to the Tribunal requesting an extension of time to respond to the Tribunal’s s.359A and s.376 correspondence of 24 April 2020. The Tribunal agreed to the request.
On 8 May 2020 the applicant agreed in writing to have the Tribunal’s review and hearing for Partner visa cancellation Case Number 1915828 heard concurrently with his Bridging visa cancellation Case Number 1919704.
On 15 May 2020 the applicant responded in writing to the Tribunal’s correspondence and provided a copy of an application for divorce with the sponsor that had been filed with the Registrar of the Federal Circuit Court [in] April 2020.
In relation to the s.376 certificate information, the applicant did not specifically respond to the Tribunal’s invitation to comment on or make submissions as to the validity of the certificate. It did not seek a favourable exercise of the Tribunal’s discretion to disclose the material.
On 18 May 2020 the applicant was invited to appear by telephone at a hearing to give evidence and present arguments relating to the issues in his case on 3 June 2020.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant did not respond in writing to the invitation to hearing.
On 3 June 2020 the applicant’s representative submitted a range of documents to the Tribunal purportedly in relation to the applicant’s review.
The applicant appeared before the Tribunal by telephone on 3 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visas 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?
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 Tribunal notes from the decision records for both decisions the applicant provided that the applicant had been charged with [number of] separate offences, all of which it considered serious and involve alleged violent behaviour towards individuals in a domestic violence sense. The alleged behaviour pertained to the applicant’s sponsor and her children during 2018. The Department had also been informed that the applicant was the respondent in an enforceable Apprehended Violence Order that named his former spouse (the sponsor) and her children as protected persons.
The applicant in his responses to the Department submitted that it would be prejudicial to him if the Department were to punish him by cancelling his visa on the basis of unproven allegations. He disputed the apprehended violence order. The applicant submitted he was planning to plead not guilty to the charges and he intended to defend himself against them. Cancellation of his visa would deprive him of the opportunity to present his case in Court.
The delegate in both decisions considered that the fact the applicant had been charged with these offences which related to domestic violence indicated that he may have held a propensity for violent and dangerous behaviour and may have held a general disregard for Australian laws and values regarding violence.
The delegate considered that whilst the applicant ‘has only been charged with these offences, the allegation of behaviour that causes or threatens harm, irrespective of the severity, which is caused to an individual that is coupled with the issuance of an apprehended violence order and the laying of formal charges, is sufficient to satisfy me that the visa holder [the applicant] may be a risk to the individuals names as the aggrieved and protected persons in the violence order.’
The delegate noted that the charges represented allegations of behaviour that were untested in a court. The delegate nevertheless found that the alleged behaviour, and the harm, alleged or otherwise and irrespective of the severity that was caused in a domestic violence context, coupled with the laying of formal charges and the existence of a domestic violence order, provisional or otherwise, was sufficient to satisfy him that the applicant may be a risk to the individuals – the sponsor and her children – named in the domestic violence order. The delegate was therefore satisfied in both cases that there were grounds to cancel the applicant’s visa under s.116(1)(e)(ii) of the Act.
On 15 May 2020 the applicant provided the Tribunal with an update as to the outcome of these criminal charges and provided a range of relevant documentation.
On [date] September 2019 the applicant had been found convicted in the [Suburb 1] Local Court of four of the [total] charges: 2,4,7 and 8. These convictions were for:
·     common assault (DV) charge 2: [details deleted].
·     common assault (DV) charge 4: [details deleted]..
·     common assault (DV) charge 7: [details deleted].
·     common assault (DV) charge 8: [details deleted]..
The Local Court’s Conditional Release Order stated that the applicant was convicted of these four offences and directed to enter into a Conditional Release Order for 12 months pursuant to s.9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on [date] September 2019. The Order was subject to the standard conditions that the applicant not commit any offences; and he must appear before the Court if he was called to do so during the term of the order.
The applicant also provided the Tribunal with a copy of a further Conditional Release Order from the [Suburb 1] Local Court dated [date] September 2019 for a further offence: Contravene prohibition/restriction in AVO (Domestic).
The Order noted that the applicant was found guilty but without proceeding to conviction. The applicant was directed to enter into a Conditional Release Order for 12 months pursuant to s.9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on [date] September 2019. The Order was subject to the standard conditions that the applicant not commit any offences; and he must appear before the Court if he was called to do so during the term of the order.
A copy of a Final Order Apprehended Violence Order was also provided to the Tribunal by the applicant. The Final Order, that the applicant informed the Tribunal at hearing was made for a two-year period, states it was put in place to protect the sponsor and her [children] who are all named.
The Order states that the applicant must not assault or threaten; stalk, harass or intimidate; and intentionally or recklessly destroy or damage property that belongs to or is in the possession of his former spouse and her [children]. The applicant was ordered not to approach or contact his former sponsor and her [children] other than through a lawyer. He was ordered not to approach his former sponsor and her children at any place in person and he was not to go within 100 metres of where his former sponsor and [children] live or work. The Order expires on [date] September 2021.
The Tribunal discussed the grounds for the visa cancellations with the applicant in significant detail at the hearing on 3 June 2020. The applicant was anxious to raise his explanation of the events that led to his convictions and the Final Order AVO.
The applicant explained that he met the sponsor through [social media] whilst he lived and worked in [Country 1] at the end of 2015. He said that they met in [Country 2] in February 2016 where there was a marriage proposal. He stated they married in March 2018 in [a specified suburb in Australia]. Various photographs have been provided of the event.
The applicant stated his former wife lived in Egypt. He stated that until recently their [daughter] had lived with her. Due to the fact he was not supporting his daughter financially, he stated that about two months earlier she had dropped their daughter off to live with his parents.
The applicant in great and sometimes somewhat baffling detail over a significant time at the Tribunal hearing explained what he claims is the background and essentially the cause of his criminal convictions. Essentially, he claims he is the victim of a complicated conspiracy of the sponsor, the sponsor’s mother, the sponsor’s former husband and his own former wife in Egypt in manufacturing allegations that have destroyed his life. The applicant denies he committed any of the actions for which he was charged, pleaded guilty to and was convicted of.
The applicant made various claims at the hearing to suggest that he had not committed the actions for which he was convicted. He also made numerous allegations concerning his former sponsor and her motivations towards himself. He made a number of claims that he essentially asserted supported his submission that the assaults for which he was charged had never occurred and he was not a risk to the health or safety of the sponsor and her children.
The applicant for instance stated that his then sponsor had submitted the application for the applicant’s Partner visa a month after she claimed to the Police that he had threatened her in April 2018. He claimed that the sponsor would not have proceeded with the application if he had made such a threat. The Tribunal accepts the applicant was not convicted of this specific charge. Nevertheless, the Tribunal does not accept the argument that the subsequent lodgement of the Partner visa application consequentially meant that there were not serious problems in the relationship and the applicant was not a risk to the health and safety of the sponsor and her children at that time. The Tribunal has considered the totality of the evidence before it concerning the applicant, his convictions and whether in its opinion he is a risk to the health or safety of the sponsor and her children.

The Tribunal was perplexed at what might motivate the sponsor, her family and his former wife to fabricate a conspiracy against the applicant. The applicant made various claims about his former mother-in-law and her involvement in allegedly manufacturing serious complaints against himself. He claimed that the sponsor, a Christian, had told her family that he, a Muslim, would convert to their faith. He stated to the Tribunal that when he told his mother-in-law that he was not in fact planning to do so the sponsor’s family turned on him. There is no corroborative evidence before the Tribunal to verify such a claim.
The applicant accused the sponsor of engaging in a similar malicious campaign against her former husband. He provided the Tribunal a letter the sponsor purportedly sent to the head of her own church in Australia on [date] October 2016 seeking the support [in] cancelling her marriage to her former husband. The sponsor provided a variety of reasons and allegations why she wished to have the marriage annulled. The applicant claimed the sponsor had now concocted similar unfounded allegations against him. The Tribunal has considered his claim but gives it no weight. The Tribunal does not accept that the fact the sponsor and her former husband had challenges in their own relationship – and the sponsor made a number of allegations against her former husband – means that those claims that were subsequently made concerning the applicant are fabricated. The Tribunal notes that the claims made against the applicant were tested in a Court, and he both pleaded guilty and was convicted of four of those charges. A Court furthermore saw fit to impose a two-year final order Apprehended Violence Order against the applicant which names the sponsor and her children. The issue before the Tribunal is if the applicant is a risk to the health and safety of the sponsor and her children, and if he is, to consider the reasons for not cancelling his visas. The Tribunal does not accept the sponsor’s previous claims concerning her former husband are evidence that the claims made against him were concocted. The Tribunal furthermore notes the applicant’s further allegation that the sponsor has in fact now reunited with her former husband.
The applicant claimed to the Tribunal that the fact that the sponsor made various allegations to the Police in relation to his behaviour whilst he was offshore in Egypt spoke to the falsity of such accusations. The applicant departed for Egypt in December 2018. He was originally due to return in February 2019. He claims the reason he went to Egypt was on the advice of the sponsor. He claims that she had told him the Department needed a new divorce certificate from him in relation to his former marriage. He stated that for administrative reasons he had to remarry his former wife in Egypt before divorcing again. No adequate explanation was made as to why he was unable to obtain a new divorce certificate without going to the extent of remarrying and divorcing again. The applicant also claimed in his correspondence to the Tribunal received 15 May 2020 that he travelled to Egypt because the sponsor had told him that her ex-husband had lodged an AVO against him with the claim he hit the sponsor and ex-husband’s daughter. He stated that the sponsor had told him that based on legal advice, it was best that the applicant travelled to Egypt for a month or so ‘so that everything with the courts calmed down’ and the applicant was not taken to prison. He said the sponsor did not want to lose him. At the hearing he repeated this claim, the applicant stating he was warned by the sponsor and others not to return to Australia due to this AVO taken out by the sponsor’s former husband. He states he subsequently discovered the AVO was taken out instead by the sponsor.
The applicant claims the fact the sponsor waited until he had departed Australia to lodge her complaints to the Police about his behaviour is evidence that the claims are false. He claims the fact that she lodged a Partner visa application in May 2018, which is after the timing of her first allegation against the applicant (April 2018), is evidence that the allegations that led to the charges were somehow concocted. Similarly, he points towards messenger conversations where she was supportive of the applicant before he departed Australia as well as cordial conversations between them whilst he was in Egypt in early 2019. He also raised evidence of cordial conversations between the sponsor and his own sister. The Tribunal does not accept this inference of the applicant that this is somehow evidence the allegations of domestic violence were entirely concocted by the sponsor and her family. The Tribunal considers it plausible that the sponsor only felt safe enough for the sake of herself and her family to make her complaints after the applicant had departed Australia. The Tribunal furthermore notes that a Court has subsequently convicted the applicant of four charges of Common Assault (DV), there is a two-year Final Order AVO against the applicant and he was found guilty (with no conviction recorded) of making contact with the sponsor in breach of an AVO.
The applicant told the Tribunal that when he flew into Sydney he was taken from the airport to [a] Police Station where he was interviewed by the Police. He said the Police asked him if he wanted legal representation. He said yes and was provided a Legal Aid solicitor over the telephone. The applicant said there was an interpreter for the interview. The applicant said at the interview he only said that he denied the various allegations of common assault (DV) that had been made by the sponsor. The applicant received Police bail and was told to report to the station every day and told he could not contact the sponsor and her children.
The applicant claims that the sponsor is continuing to attempt to cause him trouble through actions such as sending a [social media] friend request. He states she is taking advice from her former husband and she contacts him to try and get the applicant in trouble with the Police. He claims she contacts his friends and tries to get the applicant to contact her. The applicant presented at the day of the hearing a number of largely undated messenger transcripts and [social media] print outs. In relation to the Tribunal’s task at hand, the Tribunal gives them little weight as evidence of a conspiracy against the applicant and more importantly, as evidence the applicant is not a risk to the health or safety of the sponsor and her children.
At the hearing the applicant claimed his former sponsor was being assisted by his former wife in Egypt in the making of false allegations against himself. He stated the former sponsor was working to help his former wife come to Australia The Tribunal found this allegation perplexing. In the applicant’s written response to the Tribunal’s s.359A letter he claimed that he had only returned to Egypt in December 2018 because the sponsor said he needed a new divorce certificate from his former wife for his Partner visa application. He claimed he remarried his former wife in Egypt at the instigation of the sponsor. He claimed the sponsor contacted his former wife asking her to agree to remarry and then divorce the sponsor, which he says she agreed to. The applicant claims he is not in a relationship with his former wife today. The Tribunal notes the applicant’s comments and the transcripts of messenger conversations between his former sponsor and his sister as well as the applicant and a friend ‘[name deleted]’ that he purports to hold as suggesting such a conspiracy. The Tribunal does not accept the veracity of the applicant’s allegations which, in some instances, it finds incoherent. The Tribunal appreciates the contention that these allegations are held out as proof by the applicant that the sponsor and her family concocted the charges that led to his visa being cancelled under s.116(1)(e). The Tribunal on the evidence before it does not accept this contention.
The applicant repeated a number of his allegations concerning the sponsor and her family at the hearing.
The applicant claims that he has never had any adverse interaction with the law in either Egypt or [Country 1]. He claims to have faced no other charges pressed by the Police in Australia or elsewhere. There is no evidence before the Tribunal to suggest otherwise. The Tribunal accepts this statement and bears it in mind in its considerations as to whether he is a risk to the health or safety of the sponsor and her children and in fact other Australians.
The applicant also raised in his oral testimony the statements attesting to his good character from a number of friends in Australia. The Tribunal recognises the statutory declarations provided by his [friends]. The Tribunal accepts that these statements are genuine attestations as to the good relationship they have with the applicant. The applicant provided copies of his [qualification] and stated this was evidence he was an educated individual. The Tribunal accepts the applicant is an educated individual who has spent a significant time in gainful employment and notes the support of his former employer. The applicant also provided a number of email receipts of offers he has made to assist in volunteering that includes [an organisation]. The inference is this speaks to his good character. The Tribunal notes the offers that were made but notes there is no evidence of any volunteering work undertaken. Nevertheless, the Tribunal notes the issue before it is whether the applicant is a risk to the health or safety of the sponsor and her children. The Tribunal gives little positive weight to offers of volunteering in this regard.
The applicant denies he committed any of the events for which he was charged and convicted. The applicant pleaded guilty to his four convictions and claimed this was based upon advice from his Legal Aid solicitor who, he says, warned him to plead guilty to some charges so others would be dropped, and the applicant would avoid incarceration. There is no evidence before the Tribunal to confirm this beyond the testimony and claims of the applicant. The Tribunal accepts that individuals facing criminal charges may sometimes on advice plead guilty to avoid more serious charges. Nevertheless, in the circumstances of this case, and based on all the evidence before it, the Tribunal does not accept his claim that the events as claimed by the sponsor and found by the Local Court were fabricated.
The applicant addressed the matter of the charge ‘Contravene prohibition/restriction in AVO (Domestic)’ of which he was found guilty but no conviction recorded. The events surrounding this occurred after the delegate cancelled the applicant’s visa. The applicant stated that he was on [social media] and noted, when reviewing his former sponsor’s page that his former sponsor had posted she was in hospital. He said he then sent her roses. His former sponsor subsequently alerted the Police. The applicant claims he had no idea this would be a breach of the Apprehended Violence Order that was in place at that time. He said he explained this to the Magistrate when the charge was heard. He stated that the Magistrate decided not to punish him. There is no evidence before the Tribunal as to the events surrounding the matter beyond the applicant’s oral testimony. The Tribunal accepts that no conviction was recorded. Nevertheless the applicant was found guilty of the offence. The Tribunal furthermore notes that the responsibility remains with the applicant, as the individual named in the AVO, to not breach the conditions imposed. The Tribunal is of the firm opinion that AVOs in NSW plainly and clearly state specific orders as to what the individual subject to the Order is not to do. The Tribunal, whilst giving in the circumstances little weight to this event in its own right, is concerned that it speaks to the applicant’s broader behaviour towards his former sponsor and her children.
The Tribunal discussed the two-year Final Order AVO that was made against the applicant on [date] September 2019. The Tribunal asked the applicant if he opposed the making of the Order. He stated that he did not as he had no intention of seeing the sponsor again. The Tribunal finds it curious that the applicant did not oppose the Order if the claims that had been made against him were demonstrably false and had no veracity. The Tribunal considers the two-year Order is recognition of the seriousness of the applicant’s behaviour and considers it highly relevant to its consideration of whether the applicant is a risk to the health or safety of the sponsor and her young children.
The Tribunal recognises the role of the criminal justice system, not this Tribunal, to make findings as to guilt. The applicant has been before the Court. The Tribunal’s role is to determine whether, based on all the evidence before it, the grounds for cancellation are made out: namely is the applicant a risk to the health or safety of the sponsor and her children. The Tribunal notes that the applicant’s convictions pertain to the committing of domestic violence on a repeated basis over a period of time causing significant physical, mental and emotional distress and harm for the sponsor and her children.
The Tribunal considers these convictions together with the two-year final order AVO strongly suggest the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals being the sponsor and her children.
The Tribunal notes the applicant’s submissions and claims concerning the circumstances of the charges and the subsequent convictions that resulted from some of these charges. The applicant stated that he didn’t get to say everything he wanted to stay. The Tribunal notes that its hearing went for almost five hours with no other witnesses. The applicant was provided ample time to make submissions prior to the hearing. The Tribunal stated it would consider any further submissions he wished to provide up until the time of decision. The Tribunal furthermore notes the applicant only provided submissions – without any context or explanation - an hour prior to the hearing itself. The Tribunal is of the firm view the applicant has been provided with more than adequate opportunity to make his submissions to it.
The Tribunal notes the applicant’s submissions and supporting evidence. The Tribunal does not accept his central claim that the allegations that were made against him are the result of a conspiracy involving the sponsor, her family or his former wife. The Tribunal notes that the applicant’s convictions pertain to multiple incidents of domestic violence towards the sponsor and her child over a significant period of time causing physical, mental and emotional harm. Whilst the Tribunal stresses the matter of criminal guilt is a matter for the criminal justice system, the Tribunal notes the allegations of the sponsor have led to the laying of formal charges by the NSW Police and the subsequent conviction of the applicant of some of those charges. There is also evidence of an enforceable two-year Final Order Apprehended Violence Order that has been issued naming the sponsor and her children as protected persons. The Tribunal finds that the allegations of domestic violence over a period of time together with criminal convictions for common assault (Domestic Violence) and the issuance of a two-year Final Order Apprehended Violence Order are sufficient to satisfy it that the applicant may be a risk to the health or safety of the sponsor and her children.
The Tribunal notes that under s.116(1)(e)(ii) it needs to be satisfied that the applicant’s presence in Australia ‘is or may be’ a risk to the safety of an individual or individuals. The Tribunal notes the level of satisfaction required of ‘may be’ is lower than ‘is’ and consequently the cancellation ground can exist if there is a possibility that the person may be a risk. The Tribunal considers s.116(1)(e)(ii) does not therefore require a finding of guilt or a conviction in order to be enlivened. In the circumstances of this case, the applicant has nevertheless been convicted of criminal charges involving the committing of acts of physical violence in the family home. On the evidence before it, the Tribunal is satisfied that grounds exist to cancel the applicant’s Partner (Subclass 820) visa and the applicant’s Bridging A (Subclass 010) visas under s.116(1)(e)(ii) of the Act. The Tribunal is satisfied that the applicant may be a risk to the sponsor and her children.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists in both cases. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visas should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Migration Regulations 1994 (the 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’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The evidence before the Tribunal indicates that the applicant was granted his Partner (Subclass 820) visa on 7 December 2018. In his application the applicant states he became engaged to the sponsor on [date] February 2016 when they met in [Country 2]. The applicant married the sponsor on [date] March 2018 and applied for his Partner visa on 18 May 2018.
The Tribunal is satisfied that the purpose of the applicant’s travel to and stay in Australia was to remain in Australia permanently.
The Tribunal notes the claims that were put to the applicant under s.359A that he entered into a relationship with his sponsor so he could secure a permanent visa and bring his previous wife [Ms A] and his daughter to Australia, and that he had made inquiries into the submission of a fraudulent protection visa based on fabricated information and/or documentation to remain in Australia if his Partner visa was cancelled. The applicant failed to respond to the Tribunal’s invitation to comment on or respond to this information.
The Tribunal has significant concerns that the applicant provided fraudulent claims in his visa application regarding his relationship to the sponsor and the status of his relationship with his previous wife [Ms A]. The Tribunal holds significant concerns that the applicant provided false and misleading information in his Partner visa application in relation to his relationship status.
The Tribunal gives weight to the evidence before it that the applicant’s relationship with the sponsor has ceased. The Tribunal is satisfied on the evidence before it that the relationship between the applicant and his sponsor has ceased. The cessation of the relationship between the applicant and sponsor was put to the applicant under s.359A. There is no evidence before the Tribunal that the applicant would meet any of the exceptions to still be granted a Partner visa in such circumstances. The Tribunal notes an email from the applicant to the delegate on 28 March 2019 stating the sponsor and her boyfriend and/or ex-husband were terrorising him and threatening him but in the absence of any satisfactory corroborative evidence (the Tribunal does not consider the undated messenger records that the applicant provided on the day of the hearing confirm this claim) gives the claim no weight.
Given the Tribunal is satisfied the applicant’s relationship with the sponsor has ceased, and the lack of corroborative evidence to suggest the applicant would meet any of the exceptions, the Tribunal does not consider the applicant has a compelling need to travel to or remain in Australia, or that this factor otherwise weighs against cancellation. The Tribunal considers the purpose of the applicant’s travel and stay in Australia has ceased with the end of his relationship with the sponsor.

The applicant’s Bridging visa A was granted on 28 May 2018. This visa was granted in association with the applicant’s partner visa application. This visa had an expiry date set until his associated visa application was finally determined or withdrawn. Given the applicant’s evidence that his relationship with the sponsor has ceased and he has made no claims to any of the exceptions for the grant of the partner visa, the Tribunal is of the view that his purpose for holding the Bridging visa and remaining in Australia has also ceased.
The Tribunal accepts the applicant would prefer to remain in Australia. The Tribunal nevertheless is on balance is satisfied that the applicant does not have a compelling need to travel to or remain in Australia. On the evidence before it concerning the purpose of the applicant’s travel and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa.
The extent of compliance with visa conditions
The evidence indicates that the applicant’s Partner and Bridging visas were each cancelled by the delegate due to his concern that the applicant’s presence in Australia ‘is or may be’ a risk to the safety of an individual or individuals, namely the sponsor and her children, and the delegate being satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
The Tribunal notes that there are no conditions attached to the applicant’s Partner and Bridging visas. The Tribunal weighs this factor neither in favour nor against cancelling the visas.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging and Partner visas be cancelled.
The applicant has claimed that he will suffer from hardship and will suffer future hardship if these visa cancellations are not set aside. The Tribunal is satisfied that the cancellation of the applicant’s Bridging Visa A and his Partner visa will impose some hardship upon the applicant.
The applicant raised his mental and psychological health. The Tribunal noted from his submissions and supporting medical evidence that he claimed depression, anxiety and stated he was receiving treatment for this. The applicant claims he doesn’t have ‘anything’ left in Australia and the family he was becoming part of in his new life in Australia no longer existed.
The applicant blames his claimed psychological challenges on the circumstances surrounding the break-up of his relationship with the sponsor and the behaviour of individuals such as the sponsor, her friends and former husband as well as his own former wife in Egypt.
The applicant claims he commenced treatment for his mental health in May 2018 at [a] Hospital. He claims that in Egypt he was also previously diagnosed and provided with anti-depressants, though there is no other evidence before the Tribunal to support this particular claim.
The applicant stated at the hearing the sponsor’s behaviour towards him had had a great adverse impact upon him. He claimed his health was affected in various ways, including insomnia and night terrors. He claimed the damaging impact her claims had had upon him as a law-abiding citizen also affected him.
The Tribunal asked the applicant if he had been provided with a formal Mental Health Plan. He stated he used to attend a psychologist until his Medicare funding for these appointments ran out. He states he last saw the psychologist in September 2019. He also drew the Tribunal’s attention to medical scripts he had been provided with for various pharmaceuticals ostensibly for anxiety and stated that had been his Plan.
The Tribunal, noting the letter from his GP Dr [B] dated 17 May 2019, asked the applicant the names of the pharmaceuticals he had been prescribed by his GP. The applicant was unable to name them. He blamed the fact he couldn’t speak English but claimed he was still taking them. The applicant also claimed at the hearing his GP had been providing him with injections to assist his immune system.
The applicant stated that his GP had referred him to his psychologist Mr [C] in May 2019 after he had been charged with various criminal offences. The Tribunal accepts the applicant visited Mr [C] for a consultation in May 2019. The applicant said he attended five sessions which concluded in September 2019. The applicant was asked at the hearing by the Tribunal to provide corroborative evidence of the five sessions. He claimed he would do so but at the time of decision has still failed to provide any supportive documentation of these five sessions (beyond the correspondence pertaining to the first visit in May). On 10 June 2020 the applicant’s representative wrote stating they would provide the evidence, but the psychologist was on holidays. A one-week extension to provide this documentation was requested. The Tribunal confirmed it would consider all evidence the applicant submitted up until the time it made a decision. At the time of decision, 12 days after the applicant’s representative’s correspondence, the applicant has still not provided evidence of the five sessions nor has he requested a further extension to obtain this information.
The Tribunal has considered the applicant’s claims of hardship in relation to his health and in particular his mental health. On the evidence before it, the Tribunal weighs this factor very slightly against cancelling his visas.
The Tribunal notes that the applicant only sought mental health treatment in May 2019 – after he was charged with a range of serious criminal offences. Whilst the Tribunal accepts that mental illness can be formally undiagnosed sometimes for significant periods, the Tribunal in the circumstances of this case finds it curious that such treatment was only sought immediately after he was charged with these offences.
The Tribunal furthermore notes there is no evidence of a formal Mental Health Plan in the applicant’s name. The Tribunal is not satisfied that such a Plan exists. The Tribunal notes the correspondence from the applicant’s psychologist dated 23 May 2019 which states ‘it appears’ the applicant was suffering from a Depressive Disorder and is receiving various treatment. There is no evidence in this brief correspondence as to how the applicant’s psychologist has reached this conclusion beyond a similar claim in the correspondence from the applicant’s GP four days earlier who refers him to the psychologist Mr [C]. The Tribunal gives the correspondence of both Mr [C] and his GP Dr [B] in such circumstances limited weight.
The Tribunal furthermore notes that, despite claiming to take a range of medications for his claimed anxiety and depression, the applicant was unable to name any of these pharmaceuticals. The Tribunal accepts the applicant’s challenges given his lack of proficiency in English. Nevertheless, the Tribunal is surprised and concerned that the applicant appeared to have no real idea as to the name of medications he claims to take for what he claims is a serious psychological disorder.
The applicant claims in his oral testimony that he was only referred to his psychologist after he was charged with criminal offences. The Tribunal, on the basis of the evidence before it, is of the opinion that the applicant sought to claim he was suffering from psychological and mental health disorders after he was charged with criminal offences. In the absence of more substantive corroborative evidence, the Tribunal is not convinced of the veracity of these claims and considers they have been made in response to the criminal charges and the potential subsequent cancellation of his visas rather than for the treatment of psychological and mental health disorders.
The Tribunal accepts that the applicant is stressed by his current circumstances and the threat of potentially departing Australia. The Tribunal accepts the applicant would prefer to remain in Australia. The Tribunal accepts that the charging and conviction on some matters has been a challenging set of circumstances for the applicant. The Tribunal furthermore understands the applicant’s lack of employment and reliance on the charity and support of others has also been a challenge for him on multiple levels. The Tribunal ultimately weighs the applicant’s claims of hardship in relation to his health and psychological health very slightly against cancellation of his visas. The Tribunal accepts psychological and mental hardship can impact upon the discretions of whether to cancel a visa. The Tribunal quite simply in the circumstances, and on the corroborative evidence before it, gives the applicant’s specific claims in this review limited positive weight. The Tribunal accepts the applicant faces a degree of stress. It does not however accept his claims of significant mental and psychological disorders that would essentially impose an unreasonable degree of hardship upon the applicant should his visas be cancelled.
The applicant also claimed at the hearing he would take his own life when questioned about hardship. There is no evidence of previous suicide ideation in any of the medical evidence before the Tribunal. The Tribunal takes any claim of self-harm seriously but, in the absence of more substantive and credible evidence concerning the applicant’s mental and psychological health, has weighed the claim of psychological and mental hardship only slightly against cancelling the applicant’s visas.
The Tribunal enquired of the applicant if he could receive any treatment he needed in Egypt. The applicant stated he could not. He claimed that treatment for psychological and mental health issues basically did not exist in Egypt and it would be costly. No evidence was provided to support these assertions. The Tribunal accepts that Egypt may not generally be as sophisticated in its assessment and treatment of psychological and mental health disorders as in Australia. Nevertheless, given the Tribunal gives the applicant’s claims in relation to his psychological and mental health limited weight, the Tribunal does not consider this situation will cause the applicant significant hardship should he return to Egypt. The Tribunal weighs the claim of hardship very slightly against cancelling the applicant’s visas.
The applicant stated that he had enjoyed an excellent life working in [Country 1] and had left it behind in favour of the relationship with the sponsor. He complained that he had left it behind for his current unhappy life in Australia. He provided photographs of various sports motor vehicles as evidence of his agreeable lifestyle in [Country 1] where he worked as a [occupation]. The applicant claims he cannot now return to [Country 1]. The Tribunal accepts the applicant was in employment, earning a good income and enjoying his life in [Country 1] before departing for Australia. Ultimately however he made a decision to enter into a relationship with the sponsor and leave [Country 1] for Australia to spend his life with the sponsor. There is no guarantee furthermore that any relationship will be a success or failure. The Tribunal cannot be certain as to the veracity of the applicant’s claim that he cannot return to [Country 1] but whatever the circumstance gives the claim little weight. The Tribunal weighs the claims concerning the hardship generated by the decision to depart his life in [Country 1] for a relationship and life in Australia slightly in favour of cancelling the applicant’s visa.
The applicant claimed financial hardship in relation to the cancellation of his visas. He particularly emphasised this in relation to his decision to depart a good job with excellent pay in [Country 1] for Australia. The Tribunal accepts the applicant departed his job and left behind a lucrative lifestyle when he left [Country 1] for his relationship with the sponsor. The Tribunal however considers this was a decision that was ultimately made by the applicant. He was never compelled to quit his employment and leave [Country 1]. Any financial loss he has suffered since may be a consequence – either directly or indirectly – of departing [Country 1]. The fact remains this was a personal and indeed financial decision that he made. The Tribunal weighs the claim of financial hardship slightly in favour of cancelling the applicant’s visa.
The Tribunal has considered financial hardship and the applicant in relation to the cancellation of his visas. The Tribunal accepts that the cancellation of his visas has precluded him from remaining in employment and he has relied on the financial support and generosity of friends. The Tribunal accepts this has generated a degree of hardship for the applicant. The Tribunal however notes that the applicant has not been in paid employment since the cancellation of his visa and is not earning an income. Given this situation, the Tribunal does not consider the applicant will face any additional financial hardship if he is required to depart Australia due to the cancellation of his visas. Instead he will be able to seek gainful paid employment offshore.
The Tribunal has considered the hardship that might be imposed on the applicant in relation to his relationship with his friends in Australia. The applicant stated he now lives with a woman and her [daughter] who he first met as a lodger at their home after being compelled to move out of his own home due to the Apprehended Violence Order. He states that the relationship is more like a family. Whilst not in a relationship with the woman, he says they and the woman’s daughter share a close bond. There is no further evidence of this bond beyond the applicant’s oral testimony. For the purposes of this review, the Tribunal nevertheless accepts the applicant has a good relationship with his landlady and her daughter. The Tribunal accepts that there will be a degree of emotional hardship for all parties if the applicant is required to depart Australia. It does not however consider this to be an unusual or onerous hardship and in the absence of any further evidence weights this particular matter slightly against cancelling the applicant’s visa.
The Tribunal notes that the applicant previously raised with the delegate the hardship that might be imposed upon his then employer should his Partner visa be cancelled. The applicant at the time had been working in a [workplace] in [Suburb 2]. The applicant stated he had not worked at the business since being granted a Bridging visa after the cancellation of his Partner visa as it did not have work rights. The applicant confirmed at the hearing that the business was still operating. The Tribunal does not consider the applicant’s earlier claims of hardship for the business as a result of his departure from the business hold much veracity. The Tribunal weighs this matter slightly in favour of cancelling the applicant’s visa.

100. The Tribunal has considered hardship to the applicant’s family. He states that his [daughter] is living with his parents in Egypt and has resided there for the last few months after her mother, his former wife, dropped her there as he was unable to provide any financial support for their daughter’s care. He says he speaks to her every day but last physically saw her in December 2018. The applicant stated that his current circumstances causes him hardship in not being able to work and earn money that he can send to his daughter and family. The Tribunal notes that if the applicant returns to Egypt he will be able to be present with his daughter and provide her with further support and care. Given his good employment record and university graduate-level education he will be able to seek gainful employment and he has a real possibility, in the Tribunal’s opinion, of generating financial income to support his daughter. The Tribunal accepts the applicant is fond of his daughter and speaks to her every day. The Tribunal considers on the evidence that the applicant’s relationship with his daughter will improve significantly if he was to return to Egypt. The Tribunal considers the hardship that will be caused to his daughter and the applicant’s relationship with her should his visas be cancelled to be extremely limited and in fact weighs the matter in favour of cancelling the applicant’s visas.
101. The applicant at the hearing claimed his relationship with his own family had been damaged by the sponsor’s behaviour and this would cause him further hardship. He said this was because the sponsor was a Christian and he was a Muslim. He claims the sponsor took pictures of himself at Church and sent them to his family who are Muslim. He said his family was very confused by all this and there would be problems if he were to return to Egypt. The Tribunal asked the applicant why he attended a Christian Church for his wedding if it was such a problem for his family. He said it hadn’t been raised before. The Tribunal is not convinced on the evidence that the applicant had not informed his family he was marrying a Christian. The Tribunal notes the applicant at the hearing stated he had only thought of this as an issue to raise at the hearing itself. The Tribunal notes the applicant’s claims concerning challenges he will have with his family in Egypt. The Tribunal can accept that his family may have preferred he married a fellow Muslim, it does not however consider there is any evidence of any particular hardship he will face from his family if he returns to Egypt, particularly given his admission that the relationship has ceased. In the absence of anything more substantive than his oral claim, the Tribunal gives this particular claim of hardship little weight and weighs the matter slightly in favour of cancelling the applicant’s visas.
102. The Tribunal notes the applicant has not been in Egypt for over a year. The Tribunal notes that cancellation of the applicant’s visas will provide the applicant with further opportunities to reunite with his parents and his [siblings] who all reside in Egypt. The Tribunal does not, on the evidence before it, consider there will be any particular hardship for the applicant’s family if his visas are cancelled. The Tribunal accepts there may be some disappointment from his family over the circumstances of his visa cancellation. The Tribunal furthermore considers the applicant’s own relationship with his immediate family will be improved considerably if he is able to physically reunite with his daughter, his parents and siblings in Egypt, particularly given his claims of mental hardship whilst in Australia.
103. The applicant has raised the financial hardship that cancellation of his visas has caused him with his inability to provide financial support to his family including his daughter. The applicant claimed at the hearing that he used to send AU$300 a month to his family. At the hearing the Tribunal noted that in the financial statements the applicant provided it that there was no evidence of these past payments. The Tribunal notes that the applicant furthermore when applying for review and a reduction of his review fee wrote ‘N/A’ when asked about dependents and wrote ‘no’ when asked about any other expenses. The Tribunal is not satisfied on the evidence before it that the applicant was providing regular financial support to his family offshore. The Tribunal gives the claim of financial hardship to the applicant’s family little weight.
104. The applicant claimed at the hearing he will be unable to get a job in Egypt. The Tribunal considers such a statement highly speculative. The Tribunal, noting his good employment and education record asked why that was the case. The applicant stated that he was over [age] years of age. The applicant has provided no corroborative evidence as to why he would be unable to seek gainful employment in Egypt and why his age is such an impediment. In the absence of this, the Tribunal gives the claim little to no weight. The Tribunal weighs this claimed hardship from the potential challenge of seeking employment in Egypt slightly in favour of cancelling the applicant’s visa.

105. The Tribunal has considered all the evidence before it pertaining to the hardship cancellation of the applicant’s visas will have upon himself and his own family in Egypt. It does not consider these to be compelling reasons not to cancel the applicant’s visas in the circumstances of this review. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia. The Tribunal however considers the hardship that will be caused to the applicant himself should his visa be cancelled to be limited. The Tribunal has considered the very limited evidence that has been submitted pertaining to the applicant’s mental and psychological health and treatment and remains generally sceptical of his overall claims, giving them little positive weight. The Tribunal furthermore notes that should the applicant’s Bridging Visa A be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa E.
106. The Tribunal has considered the degree of hardship that may be imposed on the applicant. Whilst the Tribunal accepts there will be a very limited degree of psychological and mental hardship on the applicant, it gives his claims concerning hardship in relation to his employment, finances and family little weight. The Tribunal has weighed the various claims that have been made in relation to the degree of hardship that will be caused to the applicant and weighs this factor very slightly against cancelling the visas.
The circumstances in which ground for cancellation arose
107. The ground for the cancellation of the applicant’s visas arose as a result of his then alleged behaviour directed towards the sponsor and her children. The delegate considered the behaviour potentially amounted to domestic violence. The delegate considered the applicant may have been a risk to the individuals that were named in the apprehended violence order, namely the sponsor and her children.
108. The Tribunal notes that since this time the applicant pleaded guilty and was convicted of four of the nine offences that he was charged with in 2019. Those convictions, as discussed earlier in this decision record, pertained to four separate charges of common assault (DV) T2. The applicant has stated that he was found guilty but not convicted of breaching an apprehended violence order since the delegate’s decision. The Tribunal notes that a two-year Final Order Apprehended Violence Order was made by the Local Court in September 2019.
109. The Tribunal notes that the cancellation power at s.116(1)(e) does not require a conviction or finding of guilt to be enlivened. The issue at hand is, is the applicant a risk to the safety or safety of an individual or individuals. In this case, the relevant parties in this regard were the sponsor and her children. The Tribunal notes that whilst a conviction or finding of guilt is not required, the fact that the applicant was ultimately convicted of four of the common assault (DV) charges – and a two-year Final Order Apprehended Violence Order made by the Local Court – speaks to the potential risk of the applicant to the health and safety of the sponsor and her children.
110. The Tribunal spent an extensive amount of time discussing with the applicant the circumstances in which the ground for cancellation arose. The Tribunal provided the applicant with a substantial amount of time to articulate his claims as well as stating it would consider any further written submissions he wished to make post-hearing. The Tribunal found the applicant’s oral testimony at its hearing to be rambling, ponderous, sometimes incoherent and lacking in satisfactory corroborative evidence to substantiate his claims of a basic ‘conspiracy’ that was waged against him by the sponsor, her former husband and his former wife in Egypt.
111. The Tribunal has taken into account the decision of the Crown to drop five of the nine charges that played a significant role in the delegate’s ground to cancel the applicant’s visa. The Tribunal however places significant weight on the applicant’s conviction on the remaining charges. The Tribunal considers those charges and convictions – involving common assault and domestic violence directed at the sponsor and her children – to be serious and concerning matters. Those, combined with the Local Court imposing a two-year Final Order apprehended violence order against the applicant, naming the sponsor and her children, suggest the applicant may be a risk to the sponsor and her children.
112. The Tribunal furthermore notes that the applicant pleaded guilty to the four charges of common assault (DV) for which he was convicted. He has submitted to the Tribunal that he did so in order to extricate himself from the other charges he was facing and on the basis of poor legal advice. He also claimed he did so to avoid gaol and he couldn’t afford to be gaoled due to his need to provide support to his daughter and family. He claims he has been wrongly accused. It is his assertion that the claims that led to the charges and convictions were all entirely fabricated and false.
113. The Tribunal has considered the applicant’s testimony on these issues but remains unconvinced.   The Tribunal notes that the applicant had legal representation and had every opportunity to defend himself against the charges in Court. Ultimately, he decided however to instead plead guilty to four charges. The Tribunal accepts the applicant had a desire to avoid further convictions but notes that ultimately the applicant was provided with the opportunity to defend himself against the charges in the Local Court but decided not to. It is not the role of the Tribunal for a re-litigation of the applicant’s charges and convictions.   The Tribunal is not in the circumstances of this review, and based on the evidence before it, prepared to accept the assertions of the applicant that the events were not as he pleaded guilty to in the Local Court.
114. The applicant in great detail outlined what he claims are the circumstances in which the ground for cancellation arose. He denies all charges and maintains he did not commit the crimes involving the committing of acts of domestic violence for which he pleaded guilty and was convicted.
115. The applicant claims he has been essentially ‘set-up’. He states that the sponsor lodged the Partner visa application a month after she claimed to have been threatened by the applicant. He asked rhetorically why the sponsor continued with the Partner visa application if he was guilty of various incidents of common assault (DV) throughout 2018?
116. The Tribunal accepts that the Crown ultimately did drop some of those charges. The applicant however was convicted of four of those charges. The applicant pleaded guilty to those charges and claims Legal Aid gave him such advice. The Tribunal has taken into account that some charges were withdrawn but notes more importantly that the applicant was convicted of common assault (DV) on four occasions and had a two-year Final Order good behaviour bond imposed on him by the Court.
117. The Tribunal furthermore gives the applicant’s argument that these allegations of domestic violence were false, as the sponsor lodged a Partner visa application after the date of some of these claimed incidents, no positive weight. The Tribunal considers the fact that the application was lodged after the claimed first incident of domestic violence (which did not result ultimately in a conviction) is largely irrelevant. Family violence can occur in some families at any particular time, even when matters within a family can appear to be satisfactory.   The fact that the sponsor lodged a Partner visa application after the first claimed incident of domestic violence does not equate to no family violence being committed whatsoever in the relationship. The Tribunal does not accept the applicant’s claims on this matter.
118. The Tribunal attempted to understand what would motivate such a claimed fabrication of events by the sponsor and her family as claimed by the applicant. He stated that the sponsor had lied to her family about him and told them, a Christian family, that he a Muslim would be converting to Christianity after their marriage. He stated that he told his mother-in-law this wouldn’t be happening. At this point, he claims his sponsor’s family treated him badly and the campaign to cause him trouble commenced. The applicant claimed the sponsor wanted to get rid of him so she could reunite with her former husband. The Tribunal asked the applicant why the sponsor wanted to get back with her former husband if she had, as he claimed, made ‘similar allegations’ against him. The applicant stated the sponsor’s ex-husband was happy to assist the sponsor in the campaign against himself.
119. As discussed earlier in this decision record, the applicant stated that he was essentially misled into travelling to Egypt in December 2018 to obtain divorce documents relating to his previous marriage by the sponsor. He claims the sponsor made false claims that further documents were needed to be acquired in Egypt and submitted as part of the Partner visa application. He claims he was due to return in February 2019 (and has a ticket receipt confirming this) but he was talked into remaining in Egypt until April 2019. He claims when he returned to Australia at this time he was taken into Police custody at Kingsford-Smith Airport. He submitted on the day of the hearing that he was not notified of the charges he was facing until he landed in April 2019. The applicant had legal representation, an interpreter was present at the interview and the applicant was granted Police Bail to appear at the Police Station each day.
120. The applicant has claimed that after he returned to Australia he discovered a conspiracy where his wife, her family, his former wife in Egypt and the sponsor’s former husband were engaging in activity that would bring him significant legal troubles and subsequently impact upon his visa.
121. The applicant claims the sponsor has continued to try and goad him into making contact with her so he can be found in breach of his apprehended violence order. He stated she contacts his friends and tries to get them to convince him to contact the sponsor. He claims she wants to cause him trouble with the Police and make his life trouble. He claims she is being advised by her former husband.
122. The Tribunal considered the applicant’s multiple claims and ‘evidence’ that he submits is essentially proof that he has been set-up by the sponsor and his convictions are the result of malicious and untrue allegations. The Tribunal is not satisfied with the applicant’s explanations and does not accept his claims.
123. The applicant has raised these various issues as ‘evidence’ of a conspiracy against him. As discussed earlier in this decision record, he claims the fact the sponsor waited until he had departed Australia to lodge her complaints to the Police about his behaviour is evidence that the claims are false. He provided messenger conversations which he claims shows that she was supportive of him before he departed Australia as well as cordial conversations between them whilst he was in Egypt in early 2019. He also raised evidence of cordial conversations between the sponsor and his own sister. The Tribunal again does not accept this inference of the applicant that this is somehow evidence the allegations of domestic violence were entirely concocted by the sponsor and her family. The Tribunal considers it plausible that the sponsor only felt safe enough for the sake of herself and her family to make her complaints after the applicant had departed Australia. The Tribunal furthermore notes that a Court has subsequently convicted the applicant of four charges of Common Assault (DV), there is a two-year Final Order AVO against the applicant and he was found guilty (with no conviction recorded) of making contact with the sponsor in breach of an AVO.
124. The applicant provided on the day of the hearing undated documents including messenger logs that he states are messenger conversations between himself and a gentleman named ‘[name deleted].’ The applicant claims that these conversations are evidence that the sponsor was back with her former husband; that she was attempting to besmirch his name with untrue allegations to the Police and the authorities; that she was trying to ensure his visa was cancelled and how it may be better for him in remain in Egypt. The Tribunal is not prepared to accept such claims on the basis of hearsay along with unverified and undated messenger conversations. It gives them little weight.
125. Similarly the applicant provided undated messenger conversation transcripts he states are between himself and the sponsor. These somewhat discombobulated messages he claims were evidence that he had obtained a new divorce certificate as instructed by the sponsor. He holds that these messages were evidence that at the time he was in Egypt the relationship with the sponsor was fine and the claims that he committed multiple incidents of common assault in 2018 were not true. The Tribunal is not confident that the messages necessarily reflect the applicant’s interpretation of the event. The Tribunal gives the documentation little weight and is not prepared to accept the applicant’s claims based on unverified and undated messenger messages.   The Tribunal remains mystified as to his claim that he had to remarry his former wife and then divorce her again whilst in Egypt in order to obtain a divorce certificate. The Tribunal gives the documents little positive weight.
126. The Tribunal accepts that relationships are complex – particularly those that fail – but ultimately it cannot on the evidence before it accept his submissions that the circumstances in which the ground for cancellation arose are not as was found by the Local Court where he was convicted of four separate charges of common assault (DV) and a two-year final order apprehended violence order was established to protect the sponsor and her children from the applicant.
127. The Tribunal has considered his claims he received poor legal advice from his representative and he was concerned he might be incarcerated so he pleaded guilty to fewer charges. The Tribunal accepts the applicant may have held some concerns, but ultimately it gives greater weight to the evidence of his convictions for events and actions which led to the ground for cancelling his visas.
128. The Tribunal has considered his claims that the evidence of the Crown was ‘overwhelming and difficult to rebut’ and he believes witness documents were falsified. In the absence of any adequate corroborative evidence, the Tribunal cannot accept his claims.
129. The applicant claimed he has had no issue with the law in any other nation in the world. In the absence of any information to the contrary, the Tribunal accepts the applicant’s claim and gives it some positive weight. The Tribunal does however note that it considers the applicant’s lack of previous infractions with the Police is outweighed by the grave seriousness of his criminal convictions and Final Order apprehended violence order which relate to his behaviour towards the sponsor and her children.
130. The Tribunal has considered the applicant’s blanket denial of the charges that resulted in the delegate finding that he is, or may be, or might be, a risk to the health or safety of his wife (the sponsor) and her children. The Tribunal has considered his submissions and submitted evidence which he claims is evidence that the events as claimed never occurred and instead he is the victim to a conspiracy involving the sponsor, her former husband, his former wife and the sponsor’s family. The Tribunal does not accept the applicant’s claims as to the circumstances in which the ground for cancellation arose. The Tribunal notes that the applicant was convicted of four charges of common assault (DV). He has a two-year Final Order apprehended violence order prohibiting him from approaching the sponsor and her children. He admitted at the Tribunal’s hearing he had breached an earlier AVO and contacted the sponsor (for which he was found guilty but not convicted). The Tribunal gives significantly greater weight to this evidence rather than the largely unsubstantiated and discombobulated claims of the applicant.
131. The applicant has explained to the Tribunal the background to the convictions and his recollection of events. Having taken all the evidence into account the Tribunal weighs the circumstances in which the ground for the cancellation arose strongly in favour of cancelling the visas.
Past and present behaviour of the visa holder towards the Department
132. The Tribunal has considered the past and present behaviour of the applicant towards the Department. The decision record the applicant provided indicates the applicant responded to the Notice of Intention to Consider Cancellation (NOICC) and has actively engaged in the cancellation consideration process. On the evidence before it the Tribunal weighs this factor slightly against cancelling the visas.
Whether there would be consequential cancellations under s.140
133. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa. The Tribunal therefore finds that there will be no consequential cancellations under s. 140 of the Act if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visas.
Mandatory legal consequences of a decision to cancel the visas
134. The Tribunal notes that the applicant will become an unlawful non-citizen if his visas are cancelled and may be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. The Tribunal has considered that indefinite detention is a possibility if his visas were to be cancelled. The applicant may also be subject to an s.48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 of Schedule 4 to the Regulations as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.   On the evidence before it, the Tribunal weighs this factor slightly against cancelling the visas.
International obligations – non-refoulment
135. The Tribunal is not aware of any international obligations which would be breached as a result of the cancellation of the visas. None has been claimed.
136. The Tribunal weighs this factor neither in favour nor against cancelling the visas.
The best interests of any children under the age of 18 in Australia who would be affected by the cancellation
137. The evidence indicates that the applicant has a child in Egypt that currently resides with his parents.
138. The sponsor has children – named in the Final Order Apprehended Violence Order – as protected persons. These are children of the sponsor and her former partner. The children reside with the sponsor. The applicant does not have a direct parental relationship with the children and is in fact prohibited by the AVO from making contact with them.
139. The applicant confirmed that he and the sponsor did not have any children together.
140. Given these facts, the cancellation of the applicant’s visas will not result in either a separation of the family unit or the separation of the children from either parent.
141. The Tribunal weighs this factor neither in favour nor against cancelling the visas.
Any other relevant matters
142. The Tribunal, as noted previously in this decision record, has taken into account the applicant’s claims pertaining to volunteering. The applicant submitted to the Tribunal confirmation of receipt emails he received from a range of organisations [acknowledging] his enquiry about volunteering. Those emailed enquiries appear to have been made in late December 2019. He also included an email on [a page] offering to assist older citizens with deliveries. The applicant has submitted his interest in volunteering is illustrative of his good character as well as his commitment to society. The Tribunal gives this claim no positive weight. There is no evidence the applicant has ever actually undertaken any of these volunteering efforts or has joined and actively participated in any of these organisations. The Tribunal notes that even if he had, this does not necessarily negate the risk he may be to the health or safety of the sponsor and her children. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

Conclusion
143. The Tribunal has weighed the considerations. In this case, the Tribunal has considered the seriousness of the applicant’s convictions, the two-year Final Order apprehended violence order, his contesting of the Police version of some of these events as well as his claims concerning the sponsor and others in relation to a conspiracy against him. The Tribunal has paid close attention to his complicated and sometimes incoherent claims (and claimed evidence) of a conspiracy involving the sponsor and others to have his visas cancelled and his life destroyed. The Tribunal has taken into account these claims, which the applicant essentially suggests illustrates his presence in Australia is not in fact a danger to the health or safety of an individual or individuals. The Tribunal however remains unconvinced about the veracity of his statements concerning the sponsor and her family.
144. The Tribunal has had regard to his claims as to the hardship he will face should his visas be cancelled and acknowledges his strong denial of the events as claimed by the sponsor. The Tribunal notes his claims concerning his mental and psychological health. The Tribunal considered however that these factors were outweighed by the other considerations. The Tribunal considers the actions that led to his conviction on four separate common assault charges (DV) are serious. The Tribunal furthermore notes that the Court was concerned enough to impose a two-year Final Order apprehended violence order naming the applicant in September 2019. The Tribunal is particularly concerned that some of his convictions pertain to actions against the sponsor’s children. The Tribunal takes a particularly dim view of domestic violence which remains a blight in Australian society.
145. The Tribunal does take into account the hardship that will be caused to the applicant in cancelling his visas. This hardship however is outweighed, in the Tribunal’s opinion, by the gravity and seriousness of the applicant’s criminal convictions which suggests the applicant is, or may be, or might be a risk to the health or safety of the sponsor and her children.
146. The Tribunal considers that the nature of the convictions and the circumstances of the events that led to the convictions are such that the Tribunal considers the visas should be cancelled. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.
147. Considering the circumstances as a whole, the Tribunal concludes that the visas should be cancelled.
DECISION
148. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
149. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Justin Owen
Senior Member

[2020] AATA 6190

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice