2104545 (Migration)

[2022] AATA 1732

2104545 (Migration) [2022] AATA 1732 (11 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2104545

MEMBER:James Lambie

DATE OF DECISION:  11 April 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 11 April 2022 at 9:06am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the safety of an individual or individuals – applicant convicted of several offences – family violence charges – breach of protection orders – acceptance of responsibility for actions – best interests of the child – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 198, 359
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

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 April 2021 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 Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the criminal offences with which he has been charged and convicted of show that his presence in Australia may be a risk to the safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 24 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing in-person.

5. 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

6. 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)(ii) of the Act. 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?

7. 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].

8. 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.

9. The applicant arrived in Australia [in] June 2014 pursuant to a student visa.

10. The applicant claims he first met his wife, [Ms A] on or about 20 August 2016 and they were married [in] January 2018. He was subsequently granted a Class UK, Subclass 820 (Partner) visa on 24 July 2018 on the basis of his spousal relationship with [Ms A]. The applicant has a stepson, who is [Ms A’s] child from a previous marriage.

11. The applicant has a criminal record as follows:

Date	Offence	Result
[May] 2019 [May] 2019 [May] 2019 [March] 2020 [December] 2020	Contravention of domestic violence order Assaults occasioning bodily harm domestic violence offence Threatening violence – discharge firearms or other act domestic violence offence Contravention of domestic violence order Contravention of domestic violence order	On all charges No conviction recorded Probation Period: 12 months Conviction recorded Probation Period: 9 months Conviction recorded Not further punished

1. The 2019 offences were dealt with in [Court 1] [in] July 2019. The 2020 offences were dealt with in [Court 1] [in] March 2021.

2. As noted in the delegate’s decision, [in] April 2020, the applicant was charged with rape (domestic violence offence) in respect of an alleged incident [in] March 2020.  [Ms A] withdrew her complaint [in] January 2021 and the charge did not proceed.

3. [In] July 2021, the Tribunal issued a summons to the Queensland Police Service seeking the production of documents relating to [the applicant’s] criminal history. This material was produced to the Tribunal [in] August 2021. It was put to the applicant for comment pursuant to s.359A on 6 August 2021. The applicant responded to the s.359A invitation to comment through his representative on 17 August 2021.

4. The submissions, which include statutory declarations from [the applicant] and [Ms A], are described and discussed below.

5. At the commencement of the hearing on 24 August 2021, the Tribunal noted that the Departmental file contained documents covered by a notice under s.375A.  The notice was given to the applicant and his representative for comment.  Neither sought to make any submissions in relation to the notice. 

6. The Tribunal considered the notice and the material covered by it and advised the applicant that it was satisfied that the notice is valid as to its form and the public interest claimed to weigh against the disclosure of the documents identified in it. 

7. Prior to the hearing, I considered the contents of the documents listed in the notice.  I took the view that, while some of the material was potentially prejudicial to the application, the submission and statutory declarations made reference to, and sought to comment upon, the material facts and matters forming the substrate of the contents of the documents, if not the detail.  I therefore determined that the evidence of the parties, as foreshadowed by their written statements, would likely make it unnecessary to receive the contents of the documents into consideration of the application.   The evidence that [the applicant] and [Ms A] gave at the hearing did not make it necessary for me to refer to the documents, or to assess their evidence against the documents.  Accordingly, I have had no regard to the contents of the identified documents for the purposes of considering this application.

8. The submission made on behalf of the applicant notes that:

   The applicant had pleaded guilty to the charges, and received appropriate penalty for the offences.

   Undoubtedly, charges of domestic violence are taken seriously by authorities including the police, judiciary, other authorities and indeed by society.

   The applicant has been made aware, more than adequately that there is no place in our society for such behaviour and he has acknowledged it by pleading guilty to such charges and displaying remorse as well as taking steps to change his behaviour.  He saved his wife the trouble of having to come to court and go through the processes.  He also saved Court’s resources and resources of other entities such as the police and prosecutions. This [is] also evident from the remorse he has shown and his apology to his wife and indeed his promise to never again repeat such behaviour.

9. The Tribunal took evidence from [the applicant].  He told the Tribunal that he arrived in Australia [in] June 2014 on a student visa.  He completed a course in [one subject] and commenced a [further] course, which was interrupted when the college closed.  In August 2016, he met [Ms A].  At the time, [Ms A] was married but separated.  Her son was [age] at the time. She and her husband divorced in November 2017.  The applicant and [Ms A] were married [in] January 2018.

10. A domestic violence order against him was first issued against him in February 2019.  He says in his statutory declaration:

    Some time after our marriage, my wife and I started having arguments, sometimes quite heated arguments because despite my reassurance, [she] used to think and say I married her for a visa and that she would have my visa cancelled. I tried to make her understand that her doubts were baseless but I did not always succeed in convincing her.

    [In] February 2019, an application for a domestic violence order was made by the Police on her behalf.  With a view to resolving the matter and to reassure her, I consented to a protection being made.

    Our relationship was getting back on track when we again had an argument which led to a scuffle, pushing and shoving.  In or about May 2019, I was charged with [breach] of the Protection Order as well as charged with assault occasioning bodily harm in relation to the same offence.

    I wanted to save my marriage.  So, I started looking for professional help as well as help from our community religious people.  I expressed my remorse and apologised to [Ms A] and she accepted my apology.  I should say that I did not intend to nor did I attack her with any weapon.  We reconciled and submission were made to the Court on that basis, and the Court took into account my submissions.  I was put on probation and conviction was not recorded, which is reflected in the Police Report.

11. At paragraphs 14 to 17 of his statutory declaration, the applicant details the courses he has undertaken and the religious and family assistance he says he has sought to deal with these issues.  In relation to the offending, he says (at paragraph 19):

    I fully appreciates the wrong I have done, and I have paid a heavy price, including spending time in custody and I have certainly learnt a lesson in that I had put myself in this situation, and that it is my responsibility to bring about a change.  I feel ashamed of the hurt and distress I have caused. I had pleaded guilty to the charges so that my wife did not have to come to Court to give evidence and go through the very difficult court process.

12. The Tribunal questioned the applicant on the detail of the domestic violence incidents, which are vaguely described in the statutory declaration.  Asked about the incident that gave rise to the initial domestic violence order of [February] 2019, described in paragraph 9 of his statutory declaration, the Tribunal noted that he said that, “[w]ith a view to resolving the matter and to reassure her, I consented to a protection being made.”  It put to him that this did not acknowledge the commission of an act of domestic violence. The applicant said that he and [Ms A] had had an argument, but there was no physical violence involved. The Tribunal asked if [Ms A] had called the police.  He said that she had.  The Tribunal asked why this was not included in his statutory declaration:  his description did not seem to accept any responsibility.  The applicant was asked if [Ms A] was justified in calling the police. He said that she was.  The Tribunal put it to him that this element was not conceded in the statutory declaration.  He said that he accepted this.  The Tribunal said that the order seemed to have arisen from an incident in October 2018, but was not made until [February] 2019, that is, after about 9 months of marriage.  He accepted that this was correct.  The Tribunal put it his that this incident involved a physical altercation.  He denied that there any physical altercation.  The Tribunal put it to him that, at paragraph 11 of [Ms A’s] affidavit to [Court 1] of [a day in] January 2021, she describes a ‘physical altercation’ in October 2018.  It asked if he was saying this was incorrect. He said that there was no physical altercation:  he had just pushed her.  The Tribunal asked if this might not constitute an assault.  He said accepted that it would.  He said they had had an argument and he just pushed her aside so he could go outside, and they could both cool down. It was not serious.  The Tribunal asked if it was not serious enough for her to call the police.  He said that he had been talking to her in a loud voice and she got scared.  That was why she had called the police.  The Tribunal cautioned the applicant that, if it took the view that he was deliberately evading or minimising his conduct, it might not accept his evidence that he accepted responsibility for his conduct, nor that he had absorbed the substance of the court orders or the courses he had claimed to have undertaken.  He said he had learnt a great deal from the courses.  The Tribunal asked why, then, had he not accepted that there was a physical element to this incident until he had been confronted with contradictory evidence.  He said that the Tribunal had all the documents and should have known what happened.  The Tribunal explained that it did not matter what it thought of the documents – it was seeking to learn the applicant’s view of the incident.  It would be relevant to the Tribunal’s assessment of the application whether or not the applicant understood what constitutes domestic violence. He said that he does understand what domestic violence is.  The Tribunal cautioned that, should it form a contrary view, it would not be beneficial to his application.

13. The applicant said he apologised for the incident of October 2018 and that he would not repeat it.  The Tribunal told him that it could only decide on the evidence and that, in respect of the very first incident of domestic violence, he had sought to downplay it and deny responsibility.  He asked how the Tribunal could take that view.  The Tribunal asked him to read paragraph 9 of his statutory declaration and explain how it accepts any responsibility for a domestic violence order being made against him. He said that he had pleaded guilty.  The Tribunal put it to that he went on to say that he did so in order to placate and reassure [Ms A], not to accept responsibility.  He said that he understood his responsibility.

14. The Tribunal took the applicant to paragraph 10 of his statutory declaration. It asked if he was happy with wording of that paragraph.  He said that he was  The Tribunal asked if he satisfied that it was truthful and took proper responsibility for his actions, or if he would prefer the Tribunal to read the charge sheet to him and have him square that with his statutory declaration. He said that he did take responsibility, because he pleaded guilty and accepted 12 months’ probation. The Tribunal put it to him that this incident occurred only three months after he had been issued with a domestic violence order. He accepted that he had breached the order.  He also accepted the Tribunal’s suggestion that this incident involved a physical assault.  He did not accept that the incident involved a threat with a knife.  He said that he and [Ms A] were arguing in the kitchen, when he dropped a kitchen knife he was using at the time onto the floor.  The Tribunal asked if he was certain of this.  It asked why [Ms A] would call the police.  It also noted that he had pleaded guilty to a threat with a knife and asked if that plea was not properly entered.  He said that they were arguing, and that he dropped the knife which bounced into the refrigerator.  The Tribunal asked how this could have resulted in a stab puncture to the refrigerator door. He said that he dropped the knife, not onto the floor, but the kitchen bench, and then brushed it with his hand which caused it to slide along the bench and connect with the refrigerator.

15. When the Tribunal expressed that it would have trouble accepting this account, the applicant said that he had just come home from a nine-hour shift without even a drink of water and that, as soon as he came home, he and [Ms A] got into an argument.  The Tribunal asked if everything in the police report was exaggerated.  He said his wife’s English was not good and she had a lot of problems explaining the incident to the police.  The Tribunal asked him to explain how a [length] long stab mark was found on the refrigerator.  He said he brushed the knife, causing it to hit the refrigerator, and his wife thought he had thrown the knife at her.  The Tribunal noted that she had not told the police he had thrown the knife at her.  The Tribunal reiterated its caution that if it took the view that he was not being truthful in relation to this and other incidents, it would adversely affect the Tribunal’s assessment of his credibility generally.  It offered the applicant a brief adjournment to allow him to seek his representative’s advice on that matter.  For the purposes of obtaining that advice, the Tribunal read out the relevant passage from the charge sheet, viz:

    Fearful for her safety, [[Ms A]] has moved away from the defendant to the kitchen whereby the defendant has followed her and has proceeded to pick up a knife and make threats to kill [her].

    The defendant has then lunged with the knife towards [[Ms A]] striking the fridge and leaving a stab mark in the freezer door.

    Police have observed a stab mark approximately [length] in length in the freezer door.

    Police spoke with a witness who corroborated [[Ms A’s]] version.

    The Tribunal has noted that no one, until this very point in the proceedings, had suggested that the police version was materially incorrect, or that anyone had suggested that she had claimed he had thrown the knife at her.  The Tribunal asked also to reflect on whether he was asking the Tribunal to accept that brushing a knife from a bench would cause a stab mark in the freezer door.  He said that he did ask the Tribunal to accept that. 

16. The Tribunal asked if the applicant had committed any other form of physical assault in the course of this incident.  He said he did not recall anything else happening.  They had the argument and then he went outside.  The Tribunal asked if his evidence was that he did not pull her hair or push her head down. He said he pushed past her to go outside.  The Tribunal asked if his evidence was that, just as he had claimed in respect of the first incident, that he had gently pushed past her.  He said she had tried to stop him.  He said he accepted that pushing is a form of physical violence. He said that the situation was a big mess because of miscommunication between them.  The Tribunal put it to him that the incident had been witnessed by [Ms A’s] brother. He agreed.  The Tribunal said that it had been provided with [Brother A’s] statutory declaration. There is no suggestion in that statutory declaration that [Ms A] or the police had fabricated the charges against him.  He said he was not saying that anyone had lied that [Ms A] could not explain the situation to the police properly in English.

17. In response to the Tribunal’s question, he said that everything he had told the Tribunal was the truth.  The Tribunal took him to [Ms A’s] statutory declaration of 17 August 2021, which does not indicate that she had resiled from what she had told the police about this incident.  It took him to paragraph 12 of that statutory declaration, in which she says:

    I also note that the prior incident involving a knife and domestic violence was a rare one-off incident which happened after an escalation of frustrations over familial issues.  And he did not use it as a weapon to hurt us.

1. The Tribunal put it to the applicant that, in the charge sheet:

   Police observed that the aggrieved was visibly upset that she appeared in paid and that her shirt was torn.

   It asked if this was also incorrect.  He said that this happened when he tried to push past her to go outside. The Tribunal said that what the police say they observed sounded considerably more violent than what he had described.  He said that not everything that happened was in the police report.

2. The Tribunal said that the approach it would ordinarily take in an application of this nature involving domestic violence, particularly where it is quite serious violence that has been alleged, and there is evidence that the applicant understands the seriousness of his actions and has taken steps to deal with it, that is a matter to which it could give some favourable weight in terms of assessing the risk the applicant poses to a person or persons in Australia.  But where an applicant denies or heavily minimises their actions, the Tribunal might ask whether that person understands the nature or effect of domestic violence at all.  He said he was sorry he pushed past her to go outside and was sorry that his carelessness with the knife had damaged the fridge.  He maintained under questioning that his version was correct.  When asked if [Ms A] and [Brother A] had lied to the police, he responded that there were misunderstandings because of the quality of their English.  The Tribunal put it to him that he and his representative were aware of the details of the charges, because the Tribunal had caused them to be sent under cover of the s.359A  letter.  Further, the statutory declarations of [Ms A] and [Brother A] were provided in response to that letter and nowhere resile from what they are reported in the charge sheets to have told police.  Both of them explicitly mention that domestic violence occurred.  He maintained that the only violence was his attempting to push past her.

3. The Tribunal asked the applicant if there were any other incidents of domestic violence other than those alleged by the police.  He said there was nothing other than was in the police reports and he was only convicted of technical breaches of the orders.  One incident related to him staying with his wife when the written agreement permitted him only to visit his stepson, the stepson being at school at the time. He said that he got to his wife’s home a little early.  On another occasion, he had stayed the night with [Ms A] after his stepson had gone to bed. The Tribunal asked why [Ms A] might have called the police on each of these occasions.  He said she called the police when they had arguments, and that sometimes she gets scared during the arguments.   The Tribunal asked whether, in his view, it was unreasonable for [Ms A] to call the police, given that his evidence was that the worst that ever happened was him trying to push past her. He said that the first time the police attended was because a relative had ‘brainwashed’ her into making a complaint. Her relatives had told her that he was using her to get a visa.  The Tribunal asked why she had called the police on other occasions.  He said it was because she was scared.  The Tribunal asked why she was scared.  He said she was scared of the police and was just following what they had told her were the rules.  In response to the Tribunal’s question, he said that he had never done anything violent.

4. The Tribunal asked the applicant to explain what he had described as brainwashing.  He said that relatives of hers in India were suspicious of his motives in marrying her.  They were jealous of his success in coming to Australia and they imputed him with false motives.  Part of this was encouraging her to call the police about him.  The Tribunal asked if it was his case that his wife’s allegations were not to be believed. He said that the Tribunal could believe that she might have believed some of these things in her mind. He reminded the Tribunal that he accepted the police definition of domestic violence and pleaded guilty.

5. The Tribunal put it to the applicant that, [in] April 2020, he visited [Ms A].  During that visit, the police allege that she sent a ‘safe word’ via text to a friend to alert the friend that the applicant was there.  The Tribunal asked why she needed such an arrangement. He said that she had that arrangement because she was scared.  The Tribunal asked why she was scared. The applicant said that one of the things that had recently happened was the knife incident.  The Tribunal put it to him that his evidence was that the knife incident was accidental.  He said he did not know why she was scared.  The Tribunal asked if he thought she was being unreasonable.  He said that he agreed with that.

6. The Tribunal put it to him that the incident with the knife happened [May] 2019 and that, 11 months later, she was still sending safe words to friends that he was seeking to stay at her place. He said that, by law, he should not have been staying at her place. He was only allowed to communicate with her about his stepson. She did not want to get into trouble with the police.  The Tribunal asked why she didn’t just ask him to go home. He said she thought if she just asked him to go home, it would lead to a change in their living arrangements.

7. The Tribunal said there had, on his evidence, been two incidents, in 2018 and 2019, during which he had just pushed past her during an argument.  There had been a domestic violence order and a prosecution.  On his evidence, there were no other incidents.  However, she is so scared that she sends a safe word to a friend almost a year later.  He said that she did not want any ‘mess’ with the police.  The Tribunal said that, if there was no problem, she could simply go to the police and tell them she wanted the order varied.  He said that no variation to the order was permitted until he completed the domestic violence course.

8. The Tribunal heard from [Ms A].  She told the Tribunal she was born in [year] and entered Australia in 2013 on a prospective marriage visa.  She has one brother living in Australia, who lives in the same apartment block. The remainder of her family live in India.  While in Australia, she has completed qualifications in [a subject].  At the time of the hearing, she was a week from finishing [another] course.

9. The Tribunal took her to her statutory declaration of 17 August 2021.  She confirmed that she met the applicant in August 2016. They were married [in] January 2018.

10. The Tribunal asked her about the domestic violence incident in October 2018.  She said that it started as a small argument about a family matter.  He had pushed her and taken her car, which was actually her ex-husband’s car, and she did not know where he was going.  She went to the police station and asked the police to call him and ask him where he was.  The police took a statement from her said they could make a call and trace it to see where he was.  She said the police spoke to her about a domestic violence order.  She said she was resistant, because she wanted to continue the relationship.  The following day, she received a visit from the police. She said they put pressure on her to apply for a domestic violence order. Her husband received a temporary protection order in the mail a few days later requiring him to be of good behaviour towards her.

11. The Tribunal took her to the events of [May] 2019. She said that she and the applicant had got into an argument.  The applicant was going to his friend’s house and her son was following him.  The applicant did not see that the child was behind the car and she had run out to retrieve him.  Before this, she had had an argument with the applicant’s mother over a wedding in India to which [Ms A] had not been invited.  She had also been sending some money to the applicant’s family and the applicant’s mother had complained about the amount.  Later, when the applicant came home, she berated him for not noticing the child behind the car.  He told her it was her responsibility to control the child.  She said that he and his family were all using her. He told her to stop listening to her family and to trust him.  She threw something on the floor, and he pushed a knife towards the fridge.  At the time, she said, she thought he was trying to strike her with the knife.  She called the police.  In response to the Tribunal’s question, she agreed that her brother was there at the time.  She denied that he kicked her or hit her but said that he had pushed her.  She said she pushed him as well.  The Tribunal asked if he had pulled her hair.  She said that when she and the applicant were pushing at each other, he might have touched her hair.  She denied that he had struck at her with his knee.  The Tribunal asked who, then, had invented all of the details in the police report.  She said that her English was not good, and the police had not arrived with an interpreter.  The Tribunal asked if the police had invented the details in the report.  She said she was not sure if the police were understanding her properly.  The Tribunal asked if the police had made up the detail that the applicant had [kneed her] and that she was in pain from that when they arrived.  She said that she and the applicant had been pushing each other and in the course of that she fell down.  The Tribunal asked if the police had made up the detail that the applicant had pulled her hair.  She said that while she and the applicant were pushing at each other, other people were trying to separate them and she thought someone might have touched her hair, but she was not sure.  The Tribunal asked if the police had made up the detail that the applicant had threatened to kill her.  She said, no, that she had told the police that, with what happened with the knife might have killed her. The Tribunal asked if the police have invented the detail that he had taken her by the arm and thrown her to the ground.  She said she fell down while she and the applicant were pushing each other.  The Tribunal asked if her shirt was torn when police attended the premises.  She said that both her and the applicant’s shirts may have been torn in the scuffle.  The Tribunal suggested that this sounded like a serious “scuffle.” She agreed that it did, but they were both wearing old t-shirts because they were preparing to move house.

12. The Tribunal asked if it was the case that this matter then went to Court, and the applicant was placed on probation.  She said that was correct.  The Tribunal noted that he pleaded to guilty to serious offences:  assault occasioning bodily harm and threatening violence with a weapon.  She said, as to bodily harm, her skin was very soft and marked easily. The Tribunal put it to her that that allegation included him [kicking her]. She said there was only a scuffle involving them pushing each other.  The Tribunal reiterated that the applicant went to court in July 2019 and pleaded guilty to three offences: contravene domestic violence order, assault occasioning bodily harm, and threatening violence with a weapon.  It asked if it was her evidence that the police case was just a litany of lies.  She said she was not saying the police were lying but that she did have some misunderstandings with the police. She said she tried to tell the police what happened, but she did not think she made herself properly understood to them.  The Tribunal put it to her that she allowed the applicant to plead guilty to very serious offences – possibly serious enough to have his visa cancelled on their own – despite knowing the allegations were untrue.  She said that things happened, but they happened in a different way.

13. The Tribunal took her back to her statutory declaration of 17 August 2021 where, at paragraph 12, she had said:

    I also note that the prior incident involving a knife and domestic violence was a rare one-off incident which happened after an escalation in frustrations over familial issues.

    The Tribunal put it to her that she had not said that the whole police case was factually wrong.  She said that she has said that the police misunderstood, and that she had put that in her affidavit.  The Tribunal said that the affidavit sought to withdraw the complaint of rape, but not the other matters.   

14. The Tribunal put it to [Ms A] that, if it accepted the version of events presented to it at the hearing, it could not understand why the police kept getting called to her place.  She did not respond.

15. The Tribunal took her to paragraph 12 of her affidavit of [January] 2021, which reads:

    On [the day in] May 2019, [the applicant] threatened me with a knife. The police applied for further conditions on the domestic violence order including that [the applicant] could not approach me. [The applicant] was taken to the watch house after the knife incident.

    The Tribunal asked how this was consistent with her the evidence she had given at the hearing.  She said that the applicant had knocked the knife from a knife stand.  When the inconsistency was again put to her, she insisted she was telling the Tribunal the truth. She said her brother told her that if she changed her story after calling the police, she would make a fool of herself.  The Tribunal asked which was true, the affidavit or her evidence at the hearing.  She said both were true.  The Tribunal said that her version in the affidavit was that the applicant had threatened her with a knife, while at the hearing it was an accident and a misunderstanding.  She said the affidavit reflected what she thought at the time.  The Tribunal reminded her that the affidavit was dated [in] January 2021, some eighteen months after the incident, and only 7 months before the hearing.  It put to her that she continued to feel that the applicant had threatened her with a knife from [May] 2019 until [January] 2021 at the earliest.  It asked why she had changed her mind about it so recently.  She said she had had depression.  The Tribunal put it to her that she had altered her evidence to achieve the visa outcome. It suggested to her that she was not telling the Tribunal the truth.  She said that she was telling the truth.  The Tribunal put it to her that the applicant of his family had threatened her with consequences if she did not change her story.  She said that even if the applicant did not get a visa, the relationship would continue.  The Tribunal asked if, in addition to the police, she had told other people that the applicant or his family had threatened her.  She said that, when his family came to visit in 2018, they were very greedy and just wanted money from her. She said that members of the Australian Punjabi community had put it into her mind that the community back in India would seek to exploit her and that she needed to be watchful of the applicant.  She said it was not easy for her.  She said she had been through a lot and paid a lot of money to get the applicant a visa and did not want to go through it all again.  She said that, with all the money this had cost her, she could have bought a house.

16. The Tribunal asked how it was that she had made so many claims of domestic violence had been made which she now claimed to be untrue.  She said she came from a background in the Punjab where arguments between husband and wife are a common thing.  The Tribunal put it to her that she had been consistent in her claims, and her perception of them, for a period of at least 20 months but had changed her mind completely when informed about the Department’s intention to cancel the applicant’s visa.  She said that the situation was smooth now and she wanted the chance to live quietly with her husband and her child.  She said it would be difficult for her and her son if the visa was cancelled.

17. The applicant declined to comment on any aspect of [Ms A’s] evidence.

    Consideration of grounds for cancellation

18. The Tribunal has considered all of the material before it as to whether the applicant’s presence in Australia may be a risk to the safety of an individual or individuals, namely, [Ms A] and her son. S.116(1)(e)(ii) is expressed in a way that the relevant risk allows for a degree of uncertainty and requires the decisionmaker to make an assessment of the risk, that is, as to future conduct, with necessarily imperfect information. However, it is accepted that past behaviour may provide some insight as to the risk of similar behaviour in the future.

19. I have placed considerable weight on the applicant’s offending and his entry of pleas of guilty to them.  That weight has been tempered by the fact that no conviction was recorded in respect of the incident of [May] 2019, although the applicant was placed on probation for a period of 12 months.  Convictions were recorded in respect of the incidents on [days in] March and [December] 2020, and a further period of probation was imposed.

20. I have also placed considerable weight on the fact that these are incidents of domestic violence, for which the Australian Government has no tolerance, and which has severe impact on victims and their families.  I am also mindful that the disposition of criminal matters is entirely within the jurisdiction of the relevant Court.  The visa cancellation procedure is based on different legal principles, but the Tribunal’s assessment of risk must be based on tangible material and be reasonably reached.

21. The submissions made on behalf of the applicant, recited at paragraph 19 above, rely heavily upon the applicant’s pleas of guilty, his acceptance of responsibility for his actions, his remorse, and steps he has taken to recognise and deal with his offending.  I have taken into consideration the courses he completed.  However, his evidence to the Tribunal indicated that his expressed remorse was in respect of a strict definition of domestic violence that he did not fully accept.  His evidence was that his pleas of guilty were entered in order to placate [Ms A], to calm the situation down, and to reassure her that he was not seeking to exploit her.  His account of the incidents of domestic violence bore very little relationship to the matters charged, amounting to little more than mutual scuffling when he tried to withdraw himself from an argument.  The tenor of his evidence was to cast himself as the reasonable party, who nevertheless was required to accept that Australian law would cast him as the offender if there was any physical contact.  His account of the outbreak of the argument that resulted in the incident of [May] 2019 (see paragraph 26 above) cast himself as the exhausted husband, getting home from a long shift without even a drink of water, only to be confronted by his wife.  [Ms A’s] account (see paragraph 39 above) provides cogent reasons for the argument and is, for the purposes of comparison, far more credible.  I consider the discrepancy to be indicative of the applicant’s unwillingness to confront his culpability for his conduct.

22. A very significant part of the hearing was devoted to both the applicant’s and [Ms A’s] purported repudiation of the incidents the subjects of domestic violence orders and proceedings. [Ms A] expressly denied, when it was put to her, that she had changed her account either under pressure from others or for the purposes of this application.  The Tribunal put to her numerous inconsistencies with her statutory declarations and affidavit.  She maintained that her evidence to the Tribunal and her previous statements were all correct, the inconsistencies having arisen from the imperfection in her English and a change in perception of the events in hindsight.  She said that her previous perception of the events may have been affected by pressure from her family and community and that she suffered from depression at the time.  She now claims that there was never any risk to her or the child and that, effectively, there were only technical breaches of domestic violence orders relating to a couple of arguments and attendances by the applicant without written consent.

1. Leaving aside the details in the charge sheets (which were not fully tested in court), there are objective facts which can be gleaned from the undisputed history of the relationship and [Ms A’s] prior statements.  The first of these is that police were called upon to intervene on no less than 4 occasions.  [Ms A’s] evidence was that it she who sought their intervention or assistance.  The second is that the event of [May] 2019 resulted in some form of bodily injury (whether by way of superficial markings to her skin, or something more serious) and torn clothing to [Ms A], and some form of damage to the refrigerator caused by a knife.  The third is that untoward incidents in the relationship were known to at least [Ms A’s] brother, and to two friends, with one (at least) of whom she had a prearranged text message protocol in place in order for the police to intervene.  The fourth is that [Ms A’s] previous statements accept without qualification that there has been a history of domestic violence.  Her brother’s statutory declaration to the Tribunal, likewise, does not resile from an observed history of domestic violence.

2. It is not uncommon, in Tribunal proceedings, for women who have suffered domestic violence to seek to sanitise their version of events, particularly where consequences they may not have contemplated – such as the cancellation of a visa – arise, or where the familial or community pressure is exerted.  The Tribunal is not in a position to determine what may have driven [Ms A] to revise her account of the relationship.  On balance, despite what [Ms A] told the Tribunal, it seems to me that the accounts provided to the police in the immediate aftermath of the events described there are more likely to be reliable.

3. For the avoidance of doubt, the Tribunal has expressly declined to consider the likelihood or otherwise of the rape allegation, because it involves a very serious crime, and the complaint was withdrawn much earlier than the matters discussed at length at the hearing.  The Tribunal is, however, satisfied on the material before it that there has been a significant history of domestic violence perpetrated by the applicant.  The Tribunal is also satisfied that [Ms A] has spent a very significant proportion of her marriage to the applicant living in a degree of fear of harm at his hands.  I also consider that her son has been, by reason of their living arrangements, exposed in some degree to the commission of domestic violence by the applicant against [Ms A].  On the evidence presented by the applicant I am far from satisfied that he has demonstrated any insight into his offending behaviour and has shown a propensity to cast himself as the victim or an innocent party when asked to describe the relevant events.

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

5. 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’.

   The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel or remain in Australia

6. The applicant first entered Australia [in] June 2014 as the holder of a student visa.  He has therefore lived here for more than 7 years.  He applied for a combined Partner (subclass 820/801) visa, sponsored by [Ms A], on 15 March 2018, having been married to her [in] January 2018.  He claims to be in a committed and loving relationship with [Ms A] and her son.  Both the applicant and [Ms A] describe his relationship with the child as paternal.

7. I give this factor a degree of weight against cancellation of the visa.

   The extent of compliance with visa condition

8. The Department has indicated that there is no information to suggest that the applicant has not complied with any of the conditions attached to his visa.

9. I give this factor a degree of weight against cancellation of the visa.

   The degree of financial, psychological, emotional, or other hardship that may be caused by cancellation

10. I have given careful thought to the fact that the applicant has established strong family relations with [Ms A] and her son, and the fact that he has assumed the role of father in the child’s life.  [Ms A] gave emotional evidence to the same effect.  I have also taken into account that the terms of the domestic violence orders made specific provision for him to spend time with the child.  [Ms A’s] evidence is also that she and her son will suffer financial hardship, in addition to emotional pain, if the applicant is required to leave Australia.

11. The applicant has not submitted any financial records to allow an objective assessment of the degree of financial hardship than might ensue from cancellation.  He told the Tribunal he had worked in [several professions].  [Ms A] has worked casually for [a named employer]. However, where her evidence touched on the household income, she spoke chiefly of Centrelink benefits.  There is insufficient material to assess the degree of financial hardship that cancellation may entail.

12. I also note that orders have been in place since [February] 2019 restricting the applicant from cohabitating with [Ms A].  Against this, I note that [Ms A] has signed a statutory declaration of 4 May 2021 giving written permission for the applicant to reside with her and her son.

13. The applicant does not have any other family living in Australia.  Both the applicant and [Ms A] mentioned in their evidence to the Tribunal the family expectations that are associated with being granted a visa to stay in Australia.  Cancellation therefore would be a matter of embarrassment to both of them.  There is no particular weight I can give to this.

14. I accept the evidence as to the emotional hardship that may result, subject to my comments in paragraph 85 below.

    The circumstances in which the ground for cancellation arose

15. This factor, as is obvious from paragraphs 19 to 45 above, constituted (in addition to the question of whether the grounds for cancellation are made out) the bulk of the evidence to the Tribunal.

16. It is clear to me that domestic violence commenced early in the marriage and continued despite the applicant being made subject to domestic violence orders and placed on probation.  It is also clear that the incidence of domestic violence caused [Ms A] to fear for her safety and to institute measures, including coded text messages, to arrange for police intervention when the applicant was in breach of the orders.

17. It is also clear to me that the applicant has little insight into his offending, despite having completed courses to recognise and deal with domestic violence.  As stated above, his evidence deeply minimised his own culpability for his behaviour.   The Tribunal asked him if, should his evidence be accepted, his wife had acted reasonably in calling the police.  His reply was that it was up to the Tribunal to draw that conclusion. This indicates a lack of remorse.

18. I also give weight to the fact that there was a young child in the household who was likely exposed to the applicant’s violence against [Ms A] or its aftermath.

19. Despite the evidence given to the hearing that the matters charged and to which the applicant pleaded guilty have been exaggerated as to their intensity and effect, and as to the applicant’s intent, I am of the view that the factual background to this matter (see paragraph 51) is strongly indicative of a state of affairs much closer to the facts and matters alleged by the police.  I do not accept that [Ms A] was pressured by her family or community into making false claims against her husband.  I also do not accept that the quality of [Ms A’s] English resulted in the contents of the police reports so being wildly at variance with what she told the Tribunal. In the absence of any supporting medical evidence, I do not accept that she had a mental health condition that caused her to make false or exaggerated complaints of domestic violence.  However, I make no finding as to who or what caused her to alter her version of events because it is unnecessary to do so.

20. In light of these conclusions, there can be no suggestion that the circumstances giving rise to the grounds for cancellation arose from circumstances beyond the applicant’s control.

21. The Tribunal gives significant weight to this factor in favour of cancellation.

    The visa holder’s past and present behaviour towards the Department

22. The delegate found there was no evidence before him to indicate that the applicant had been uncooperative in any dealings with the Department.  I do not propose to disturb that finding and accord a small degree of weight to this against cancellation.

    Any consequential cancellations that may result

23. There is no suggestion that cancellation of the applicant’s visa would result in any consequential cancellations.  No weight is given to this factor.

    Mandatory legal consequences

24. If the visa is cancelled, the applicant will be subject to s.48 of the Act, which would limit the lodgement of further visa applications while he remains in Australia.  He would cease to hold a valid visa allowing him to remain in Australia, he would be become an unlawful non-citizen, and he would be liable for immigration detention pursuant to s.189 and removal pursuant to s.198 of the Act.

25. It is open to the applicant to depart Australia voluntarily should his visa be cancelled, which would not affect his eligibility for a permanent partner visa, should his appeal against the refusal of that visa be successful. 

26. I give these matters some weight against cancellation.

    Australia’s international obligations

27. No submissions were raised on the matter of Australia’s non-refoulement obligations under the Refugees Convention and Protocol, the Convention Against Torture and the International Covenant on Civil and Political Rights. The applicant has not indicated that he fears returning to India for a Convention reason.  Accordingly, I am satisfied that cancellation of the visa and the applicant’s removal from Australia would not place Australia in breach of any of these instruments.

28. I have given careful consideration as to whether cancellation would place Australia in breach of its obligations under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

29. [Ms A’s] son (‘[initial specified]’) is [age] years old, and the applicant has assumed parental responsibility for him.

30. Under the Convention on the Rights of the Child, the best interests of the child are to be a primary consideration.  Any relationship that would affect the best interests of the child.  Consideration should be given to the type and strength of the relationship between the non-citizen and the child and also the extent of the impact that visa cancellation would have on the child.

31. Article 23.1 of the International Covenant on Civil and Political Rights provides that:

    The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

32. Article 17.1 provides that:

    No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.

33. A decision to cancel a visa on for deportation does not amount to an unlawful or arbitrary use of power.  However, I have given consideration to the societal interest in maintaining family unity and as to how the best interests of the child are to be served.  The maintenance of family unity, while highly desirable, is not absolute and is subject to countervailing considerations.  The most relevant of these is where it is necessary for, or secondary to, the best interests of the child.  I note that the applicant’s domestic violence orders have required him to absent himself from [the child] except under specified conditions and/or with [Ms A’s] consent.

34. The material submitted to the Department refers to [the child’s] biological father not providing emotional or financial support but specify only very generally that the applicant has been providing that support.  However, I do give these statements some weight against cancellation. 

35. However, when considering the best interests of the child, I give the strongest weight to the need for the child to be raised in safety and security and, so far as possible, free from violence.  As noted above, I consider it likely that [the child] has been exposed to the commission of violence against his mother, whether he was present or experienced its aftermath, and likely has suffered harm as a result of the harm suffered by his mother.  I give weight to the fact that it has been deemed necessary to issue orders for the protection of his mother and that those orders have been breached on multiple occasions.  Accordingly, in all the circumstances, I do not consider that Australia’s international obligation would be breached were the visa to be cancelled.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    James Lambie
    Senior Member