2112389 (Migration)
[2022] AATA 282
•28 January 2022
2112389 (Migration) [2022] AATA 282 (28 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2112389
MEMBER:Rosa Gagliardi
DATE:28 January 2022
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Statement made on 28 January 2022 at 10:49pmCATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – convicted of offences – employment in a skilled occupation – good character claims – relationship ceased – motivation to remain in Australia permanently – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198, 359A, 424A
Migration Regulations 1994 (Cth), r 2.43Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 10 September 2021 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 (Cth) (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of offences that are against a law of a Territory, being the Australian Capital Territory (reg.2.43(1)(oa)). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 December 2021 and again on 21 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). 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?
s 116(1)(g) - prescribed ground
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.
The applicant was granted a Partner (subclass 820) visa on 16 January 2020. On
10 September 2021 the Department cancelled the visa under section 116 as it appeared that a prescribed ground existed under regulation 2.43(1)(oa) of the Regulations.
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)(g). 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.
A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It provides the following:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with
circumstances in which the Minister may cancel a visa), the grounds prescribed
are the following:
(oa) in the case of the holder of a temporary visa other than a Subclass
050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection
Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that
the Minister is satisfied that the holder has been convicted of an
offence against a law of the Commonwealth, a State or Territory
(whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))The Australian Federal Police informed the Department that the applicant had been convicted of the following offences in the Australian Capital Territory as follows:
COURT AND DATE
CONVICTION
RESULT/SENTENCE
[COURT 1] [MARCH] 2021
DESTROY/DAMAGE PROPERTY NOT EXCEEDING $5,000
CONVICTED AND RELEASED IMMEDIATELY PURSUANT TO S.13 CRIMES (SENTENCING) ACT 2005, ON ENTERING A GOOD BEHAVIOUR ORDER FOR [period]
COMMON ASSAULT
CONVICTED AND SENTENCED PURSUANT TO S.10 CRIMES (SENTENCE ADMINISTRATION) ACT 2005 TO A TOTAL TERM OF [period] IMPRISONMENT TO BE SERVED AS FULL TIME DETENTION.
CHOKES, SUFFOCATES, STRANGLES ANOTHER PERSON
CONVICTED AND SENTENCED PURSUANT S.12 CRIMES (SENTENCING) ACT 2005, TO [period] IMPRISONMENT. THE SENTENCE IS TO BE SUSPENDED AND THE OFFENDER RELEASED AFTER SERVING [number] MONTH ON CONDITION THAT: ORDER REQUIRMENTS TO ATTEND SUCH EDUCATIONAL, VOCATIONAL, PSYCHOLOGICAL, PSYCHIATRIC OR OTHER ASSESSMENTS, PROGRAMS OR COUNSELLING AS DIRECTED, PARTICULARLY IN RELATION TO: FAMILY VIOLENCE. PROBATION TO BE SUBJECT TO PROBATION TO BE SUPERVISED BY THE DIRECTOR GENERAL AND TO OBEY ALL REASONABLE DIRECTIONS OF THE DIRECTOR GENERAL FOR A [PERIOD] . TO BE OF GOOD BEHAVIOUR FOR A PERIOD [specified]
COMMON ASSAULT
CONVICTED AND RELEASED IMMEDIATELY PURSUANT TO S.13 CRIMES (SENTENCING) ACT 2005, ON ENTERING A GOOD BEHAVIOUR ORDER FOR [period]
DESTROY/DAMAGE
CONVICTED AND RELEASED IMMEDIATELY PURSUANT TO S.13 CRIMES (SENTENCING) ACT 2005 ON ENTERING A GOOD BEVAVIOUR ORDER FOR [period]
As the applicant has been convicted of offences that are against a law of a Territory, the Australian Capital Territory, it appears that a ground exists to cancel the applicant’s visa under s.116(1)(g) of the Act because the prescribed ground appears to exist at reg.2.43(1)(oa). The grounds to cancel also exist because the applicant holds a Partner visa, which is a temporary visa other than a subclass 050 Bridging visa, a subclass 051 Bridging visa or a subclass 444 Special Category visa.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant by the Department [in] August 2021 in writing. The applicant provided a response by email on 29 August 2021. The applicant at the time did not express whether he thought there were grounds for cancellation. Without addressing the specific issue of whether there is a ground for cancellation, the applicant wrote, “nothing like the two things I was charged with will ever happen again”, advising that he had complied with the Court directed mental health treatment. He also stated that he was waiting to complete his Community Service and was scheduled to attend counselling and an anger management course in early 2022.
In the applicant’s response to the NOICC, he did, however, mount an argument (as he was to do at hearing) claiming that in fact he had been the victim of assaults and family violence, and that he had not had the opportunity to put forward his version of events during consideration for conviction at [Court 1]. Neither the Department, nor the Tribunal can now review the issue of how the matter was dealt with in [Court 1]. It was open to the applicant to appeal his convictions to put forward any arguments that he was treated unfairly during the court proceedings at [Court 1], and that he had not been given the opportunity to put forward a defence which would have cast doubt on his accuser’s claims. These matters are all outside the remit of the Tribunal.
The applicant also advanced at hearing that his Legal Aid lawyer told him to plead guilty and that it had not been the applicant’s intention to do so. His lawyer was purportedly rushed and unable to consider the case to a requisite standard.
It is not in the Tribunal’s purview to establish guilt or innocence of the applicant. The test for the Tribunal is whether in the first instance, the grounds to cancel the applicant’s Partner visa exist under s.116(1)(g). As the information before the Tribunal indicates that the applicant holds a Partner visa, which is a temporary visa, other than a subclass 050 Bridging visa, a subclass 444 Special Category visa, and he has been convicted of offences that are against the laws of the Australian Capital Territory, the grounds to cancel the applicant’s visa under s.116(1)(g) of the Act exists because the prescribed ground exists at reg.2.43(1)(oa).
The set of documents put to the applicant pursuant to s.359A of the Migration Act, which set out the applicant’s offences and convictions, being, the information provided by the AFP regarding the convictions, lead the Tribunal to find that the grounds to cancel exist. For these reasons, the Tribunal is satisfied that the ground for cancellation in s. 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
In making a decision in this matter, the Tribunal has had regard to the applicant’s statements to the Tribunal verbally and in writing. The Tribunal considers it is helpful to set out in full the applicant’s arguments, through his migration agents, received by the Tribunal on
21 December 2021:
Background:
[The applicant] was born in Turkey [on date].
He came to Australia in 2015 on a student visa and studied at [College 1].
He qualified in [Occupation 1] and obtained employment at [Employer 1] and until recently, worked at [Employer 2]. He has always been employed, paid taxes, had a circle of friends and had never been in trouble with the law – until he made the decision to apply for a Partner Visa instead of a Work Visa.
[The applicant’s] decision
As you are well aware, the utility approach to decision making is the outcome that achieves a person’s goals. The theory is based on the assumption that people are basically rational, so if a person has all the relevant information, that person will make a decision that results in the maximum expected utility (Manktelow, 1999). Sometimes decision making is good and sometimes not so good – it really depends in the information a person has at hand.
In [the applicant’s] case, he made decisions on the information he had and these were not good decisions. He was legally in Australia and on the information he had at the time, he applied for a Partner Visa with his girlfriend sponsoring him. This is not an unusual occurrence. However, it is important to clarify the situation before he applied for the Partner Visa:1. [The applicant] was legally in Australia
2. [The applicant] was skilled and had employment – he could have applied for a work visa as his occupation is on the skilled occupation list.
3. [The applicant] had never been violent toward anyone. He was gainfully employed, paid his taxes and wanted to start a family in his new life in Australia.
4. His decision to apply for the Partner Visa did not maximize the probability of a good outcome, which is quite common with partnership visas. Many people make poor decisions because they want to avoid the negative feeling of being a ‘loser’ (Thierry Post, 2008). This was the situation with [the applicant] when he applied for the Partner Visa. He wanted an Australian visa to achieve his dream. Not unusual. Not illegal. Not uncommon. But his emotions did affect his decision. He had the expected emotion by predicting a Partner Visa would bring him happiness and the immediate emotion of happiness at the time of his decision. Both these emotions had an effect on [the applicant’s] subsequent decisions.
5. The charges brought against [the applicant] concerned one person – his partner who was his sponsor - the person he thought would bring him happiness. Unfortunately, we are instructed by [the applicant] that he was told by his Legal Aid lawyer to plead guilty – and he was not aware of the consequences. It is well known Legal Aid operates on a tight budget and, unless the case is high profile, defendants are encouraged to “plead guilty” so the legal process can move on like a sausage factory. On face value with the surface facts, this was not unusual, however, in [the applicant’s] case (and even noted by the [court]) there was a psychological aspect that should have been investigated. Subsequently [the applicant] was severely disadvantaged by the legal system. As it happens in many partner visa situations when the Australian citizen imagines they are a conduit for a PR, emotions get high and accusations fly and it is not unusual for the Australian citizen to “get even” by making complaints to get the person “kicked out” of Australia and bad decision-making by both parties is evidence by the actions of both parties.
The [court] recommended that [the applicant] receive psychological counselling
This did not happen as [the applicant] did not know where to turn. He went back to work. However, since the [court] raised the question of [the applicant’s] mental capacity in Court, it is necessary for this submission to address this aspect of [the applicant’s] decision making. It is stressed, that until [the applicant’s] episode with the law, he was law abiding, hard-working and had a social group of friends. One would have to ask the question, does a violent person had a circle of law-abiding friends? It is submitted that the answer is a resounding “No”. The old saying “birds of a feather…” is true and this is evidenced by [the applicant’s] loyal employer at [Employer 2] and his friends who submitted character references in support of him. None of them are violent people and none of them saw any evidence of violence by [the applicant].Therefore, it is necessary in this submission, to address that fact that decision making involves different aspects of the brain. The pre-frontal cortex is activated by stimuli from all the senses and by the anticipation of future events, and therefore, is relevant in determining [the applicant’s] complex behaviours that were involved in thinking. [The applicant] should have been psychologically assessed and brain scanned to assess any damage to the pre-frontal cortex.
It is submitted that:
1. We are instructed by [the applicant] that he was denied proper legal representation by the Legal Aid lawyer not being able to defend a defendant taking into account his visa status as well as the defence of cognitive impairment. The [court] noted that [the applicant] needs psychological help and this is important. We are instructed by [the applicant] that he was told to plead guilty by his lawyer and was not given any direction as to where to go to seek psychological help.
2. [The applicant] had no priors of violence towards anyone before his relationship with his partner. Therefore, the psychological taunts that often occur in partner visa marriages can trigger actions based on reasoning at the time. This is recognized in neuroeconomics as the neural basis of decision making. He made a bad decision. He is not a bad person – just his decision was bad.
3.It is submitted that to a large extent, [the applicant] was the victim. He was vulnerable, alone. We are instructed that he was unable to give his partner and her mother the money they constantly demanded and this activation of the stimuli from his senses resulted in complex behaviour. This was no explored nor investigated in his case although the [court] did raise this issue.
Work ethic:
Since [the applicant] graduated from [College 1] as a qualified [Occupation 1], he has been constantly employed. He is treasured by his current employers, [named] who have financed this appeal – such is the high regard they have of his character and his work ethic. The [business] is open for long hours and is the [business] of choice of [important clients] in Canberra. [The applicant] is meticulous [and works to] high standards and is skilled at presenting [his work] for [important clients]. A recent [project] was for [a specified client]. He is trusted and valued as an important member of the team,Addressing the criminal matters:
It is submitted:1. [The applicant] was the victim – this was not explored by his defence
2.The psychological component of the charges was not explored – as noted by the [court]
3.There was no history of violence prior to applying for the Partner Visa – he studied and worked hard for a new life in Australia
4.[The applicant] has never been in trouble with the law either before or after his involvement with his partner.
5. [The applicant] has supplied character statements
6. [The applicant] is not a bad person – he made a bad decision which had repercussions.
7.[The applicant] is turning [age] on [date] and it is submitted that he deserves a chance. He is not a bad man. He is a young man who made a bad decision resulting in complex behaviour, the psychological cause which was never explored.
Why [the applicant] should remain in Australia:
It is submitted:1.[The applicant] is employed and has the position [specified] waiting for him at [Employer 2].
2. [The applicant] contributes to the Australian economy.
3. [The applicant’s] occupation is a skill that is required in Australia
4.[The applicant’s] character was faultless until he made a bad decision to apply for a Partner Visa with his girlfriend as the sponsor. The actions of the girlfriend and her mother were not explored by his defence and he was just told to “Plead guilty”. We are also instructed that his defence, who was not a registered migration agent, never told him the consequences of a plea of “guilty”.
[The applicant] is a young man of [age] years. He has no family in Australia but worked long shifts to get ahead and contribute to Australia. He has shown remorse and it is submitted that his actions were out of character. His actions were alien to his character. The behaviour only occurred during his relationship - NOT before nor after his relationship. The actions and words of his partner and her mother were not sought in evidence and it is submitted, that this would have been important to his case. As noted by the [court], [the applicant] would benefit from psychological counselling. In the interests of justice, it is submitted that [the applicant] is allowed to remain in Australia.
In another submission received by the Tribunal also on 21 December 2021, the applicant, through his migration agents, wrote:
[The applicant] accepts that he has been charged and convicted but in the interests of justice, [the applicant] wants the Member to understand the background of his situation. He acknowledges that he had a translator at the court but he has given his instructions to inform the Member that he was urged to enter a plea of guilty by his lawyer and he was never asked about his side of the events.
The knife:
It was his partner who welded (sic) the knife hysterically and [the applicant] held her down to make her drop the knife and calm her down. The argument was over an electricity bill and [the applicant’s] migration fees. They suffering (sic) in financial hardship and every penny [the applicant] earned went on living expenses for his partner and her mother.Episode in the car:
[The applicant] picked up his partner after her work shift. They were having a conversation about a birthday and anniversary with family. The conversation turned to [the applicant’s] accusing him of having an affair with her mother. The partner leaned over and started biting his arm while he was driving. To avoid a car accident, he had to stop her from biting him while he was driving. She reported this as an assault. [The applicant] was never asked about his version of what happened.Episode in the bathroom
The partner’s mother was staying with them. An argument ensured about problems in the family while they were having drinks and nuts. About midnight, [the applicant] went to take a shower. He fell asleep on the floor. The partner’s mother came into the bathroom. The partner then came into the bathroom screaming that he was having an affair with her mother. The partner sprayed something into [the applicant’s] face while she screamed accusations at him.[The applicant] maintains that he was the victim in the relationship.
[The applicant] suffered:
1.Financial hardship
2.Being in an abusive controlling relationship
3.Being unable to work because of an accident
Window 1 Window 2 Window 3 BEFORE the relationship DURING the relationship AFTER the relationship Submissions:
[The applicant] had a traumatic time during his relationship. This resulted in him being charged and convicted.Before and after the relationship [the applicant] had a normal life, a friendship group and no trouble with the law.
He would suffer if returned to Turkey – financially and emotionally.
He is not a bad man – he had a bad experience in a window of his life. These experiences did not occur either before or after his relationship.
In the interests of justice, it is submitted that [the applicant] be allowed to remain in Australia and to apply for a work visa. His current employer will sponsor him.
[The applicant] is not a danger to Australia or Australians. He had a window in his life where bad choices resulted from stress and financial insecurity. He is not a bad man.
[The applicant] is hard working but has no political influence. He is not a security risk.
The applicant’s representative also referred to an ASIO case in which the person was permitted to stay even though there were concerns about his character.
The Tribunal does not consider it is helpful to compare this case with a matter looked at by ASIO or any other agency. This is particularly so as little concrete evidence has been submitted to the Tribunal in relation to this so-called comparable case. The Tribunal is required to assess the facts before it and to consider its discretion carefully.
On the basis of the material provided to the applicant under s.424A of the Act, which details events outlined by the AFP Statement of Facts, the Tribunal is not satisfied that the applicant, was treated unfairly by either the court or his Legal Aid lawyer. On the face of little evidence, except the applicant’s own assertions, that he was not to blame for the events that led to the charges and convictions, the Tribunal finds that his account that he was the victim of a flawed judicial proceedings unconvincing. The Tribunal notes that the migration agents have not made available to the Tribunal any transcript of the proceedings to enable the Tribunal to make up its own mind about whether the applicant was treated unfairly or not.
It is also not plausible that the applicant would have been coerced by a Legal Aid lawyer into pleading guilty if there was serious doubt about the convictions. No matter how rushed a lawyer in such circumstances might be, the lawyer has a duty to the court, first and foremost, to act in a way that is ethical. The offences of which the applicant was convicted are particularly egregious. The applicant and his lawyer would have been cognisant of the consequences of pleading guilty to such offences, not just in terms of his migration options but in terms of his criminal history overall.
The Tribunal notes that in the AFP’s Statement of Facts the applicant in his record of interview did make admissions to restraining his former partner on the bed, even though he denied choking her, but he recalled she stated that she could not breathe.
The Tribunal considers that had a string of events that would have led to a miscarriage of justice occurred, it would have been open to the applicant to seek redress by a court of review. Instead, it appears that it was when the issue of the visa cancellation has been raised that the applicant has attempted to contest the charges.
The Tribunal has viewed the Statement of Facts and notes the degree of seriousness of some of the family violence charges:
The Defendant became angry and aggressively approached Ms xxx getting close to her face. The defendant pulled Ms xxx’s hair again causing Ms xxx to kick out at him to get him away from her.
The Defendant pulled Ms xxx onto the bed by pulling her hair. Ms xxx was laying on the bed and the Defendant held her down by holding onto her hair with one hand and using the other hand around her throat.
The Defendant applied pressure to Ms xxx’s throat restricting her breathing and airway…
The Defendant said, “I’m going to kill you”.The Defendant slapped Ms xxx while still applying pressure with one hand to Ms xxx’s throat causing Ms xxx to feel fear that the Defendant was going to kill her.
The Defendant grabbed a pillow and put it over her face causing Ms xxx to be unable to breathe for about a second…
As a result of the Defendant applying pressure to and grabbing Ms xxx throat, she received red marks and scratches to her neck.The Tribunal considers that no matter how much pressure might have been applied to the applicant to plead guilty (a matter which the Tribunal does not accept), the Tribunal is not satisfied that the applicant would have simply not have told the [court] that he had acted in self-defence or that he had not engaged in the conduct of which he was accused.
The Tribunal has also taken into account the migration agents’ claims that the applicant needs psychological/psychiatric care. While this may be the case, the applicant has not been so debilitated that he is not able and willing to resume his work and be released into the community. Further, very little evidence has been submitted of the applicant attempting to seek assistance by way of psychological counselling since the [court]’s comments that the applicant would benefit from such.
The Tribunal also notes that the first submission referred to above is somewhat contradictory in nature. It states that the applicant has shown remorse and “it is submitted that his actions were out of character. His actions were alien to his character. The behaviour only occurred during his relationship – NOT before nor after his relationship”. This indicates, to some degree that the applicant had acted in concerning ways, in contradiction to the applicant’s claims that he was the victim of family violence.
Further, it is argued that the applicant’s character was faultless “until he made a bad decision to apply for a Partner visa with his girlfriend as the sponsor”. The Tribunal would argue instead that it is not a bad decision to be sponsored by a partner with whom one has a genuine and continuing spousal relationship. Clearly, the relationship was troubled and if the applicant felt that he was being financially manipulated he could have walked away from the relationship without engaging in conduct that would lead to his sponsor fearing for her life. As put to the applicant at hearing, it was always open to him to seek an intervention order against his partner if he thought she was controlling and abusing him financially – an act the applicant did not undertake.
The migration agents also argue, “The actions of the girlfriend and her mother were not explored by his defence and he was just told to ‘Plead guilty’”. The Tribunal does not have a copy of any submissions made by the applicant’s defence, so it is difficult for the Tribunal to accept that the defence would not have argued for the applicant that he had been provoked to a point where he acted in ways that seemed he had committed family violence.
In terms of the argument that the applicant’s character took a turn for the worse in the relationship and that the applicant is not a “bad” person, and that he only made bad decisions, the Tribunal observes that any action to constrain a person such that they fear for their lives, would indicate not just a serious lapse in judgement, but a propensity to engage in criminal conduct in disempowering others, particularly his partner when he was in a relationship with her. Such actions far outweigh any periods where the applicant might have engaged in conduct consistent with being of good character. The Tribunal has had regard to the existence of character references, but this support is outweighed by the Statement of Facts produced by the AFP setting out the applicant’s conduct.
The Tribunal places significant adverse weight on the applicant’s convictions and considers it has little evidence before it that the applicant was in any way a victim of family violence. This matter is overwhelming in respect of the Tribunal’s other considerations as to whether to cancel as set out below.
The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
The applicant’s purpose for staying in Australia has shifted over time.
The applicant came to Australia [in] July 2015 holding a Vocational Education and Training Sector (subclass 572) visa. He was then granted a further Student (subclass 500) visa on 12 October 2017. Hence, the applicant’s initial purpose was to undertake study in Australia, and he claims that he complied with all the conditions of his Student visas - a matter which the Tribunal is prepared to accept.
He then applied for a Combined Partner (subclass 820/subclass 801) visa, sponsored by his former partner, the victim named in the AFP Statement of Facts. On lodging this application, therefore, the applicant wished to stay in Australia to be with his partner.
At hearing the Tribunal asked the applicant at what stage his relationship with his former partner was at. The applicant seemed to indicate that he harboured desires to reconcile with his partner. He stated that she would be supportive of his application to remain in Australia, even though the Tribunal does not have any such evidence before it. Indeed, one of the migration agents at hearing stated emphatically that the relationship was over. The Tribunal notes that his sponsor withdrew sponsorship and told the Department that the relationship had broken down in July 2021.
At the time of hearing and review it was clear to the Tribunal that the applicant had yet another purpose to want to remain in Australia – to work and be sponsored by his employers who held him in high regard.
From the applicant’s migration history in Australia, the Tribunal considers that the applicant is highly motivated to remain in Australia permanently.
The extent of compliance with visa conditions
The applicant has stated that he has complied with his visa conditions, including the Student visa conditions, and the Tribunal does not have any evidence before it of non-compliance with visa conditions. The Tribunal places some, albeit limited, positive weight in the applicant’s favour on this matter.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal has assessed that the applicant is motivated to remain in Australia permanently to benefit from work opportunities. The Tribunal accepts, therefore, that the applicant will suffer psychologically and emotionally in being deprived of such opportunities. Nonetheless, the Tribunal considers that much of the hardship faced by the applicant are as a direct result of the cancellation for criminal matters that are not insignificant.
The applicant has drawn attention in his response to the NOICC that he invested $60,000 in training in Australia and that a year later he met and fell in love with his partner. The applicant further wrote, “If I am forced to return to Turkey my family cannot afford to support me they have already lent me all the money possible to help me pay bills during covid lockdown. I have invested all of my savings in the visa process and my family will be put under financial hardship to support me when I return until I find work”. These submissions were echoed at hearing. He also stated at hearing that at the moment his father was not working. He had been working for a [product] company but had an [operation] and was currently resting. The applicant advised that his father was able to access rental income from properties he owned in Turkey.
The applicant further advised, when asked, that his mother had completed [number] years in [a specified] industry and was waiting to receive her pension. Furthermore, his brother was also working in [another] industry and did not have a family of his own to support. He lived at his work premises sometimes, and at others, his brother lived with their parents.
The applicant also stated at hearing that he was required to pay back some employers from whom he had borrowed money.
The Tribunal accepts that the applicant may suffer some hardship on return to Turkey involving his economic circumstances. Nonetheless, it is not as though the applicant’s family in Turkey have no income coming into their household, should the applicant initially decide to live with his parents on return to Turkey. The applicant is [age] years of age and has time to establish himself in any industry he wishes.
The applicant at hearing also stated that he had a tertiary qualification from Turkey in [subject] and that it was considered a higher degree than anything he had done in Australia. The Tribunal considers that the applicant now has work experience in the international arena (Australia) in his trade. In Turkey after completing his scholarship he was working in a [business]. In Australia the applicant has worked in a well-regarded [business]. Given the applicant’s qualifications (some obtained in Australia, he is a qualified [Occupation 1]) and work experience (some of which was also obtained in Australia), the Tribunal is not satisfied that the applicant will be unable to support himself in any way, let alone in a dynamic industry such as [the area of his experience].
While the Tribunal accepts that the applicant may be a burden on his family until he finds appropriate work in Turkey, it appears that his family also has independent income from rental properties and could rely on his family overall for assistance, if needed at all. The applicant appears to have been resourceful in finding work in Australia and there appears to be no reason why he would not be able to do so again in Turkey.
In terms of the applicant’s debts, the Tribunal has little evidence that together with his family, over time, the applicant may not be able to repay the money he has loaned.
The Tribunal understands that the applicant would like to work in Australia and to be sponsored here as it is argued that had he not lodged a Partner visa, he could have applied for a Skilled visa as his occupation is on the Skilled Occupation Shortages List. The Tribunal appreciates that the applicant may face some obstacles in applying for a skilled visa offshore if his Partner visa is cancelled, however, this is a matter on which his migration agents can advise him.
The Tribunal accepts the applicant’s financial circumstances on return to Turkey will cause some hardship but not such that he would be deprived of making a living of any sort or that he would be returning as an unqualified person without particular skills. The Tribunal places limited weight on any difficult financial hardship the applicant may face in returning to Turkey. The Tribunal has also considered any affect COVID-19 might have on the applicant’s employability in Turkey, and while [demand for his line of work is weaker] during the pandemic, there seems little reason the applicant could not work in a [related business] where contact with members of the public might be limited.
In terms of effective ties in Australia, the Tribunal appreciates that if he returns to Turkey the applicant’s opportunities for reconciling with his former partner will be significantly diminished. Nonetheless, on the evidence before it, there is little to indicate that the applicant’s former partner wishes to re-engage with the applicant at all. The Tribunal, therefore, does not place substantial weight on this matter in favour of not cancelling the visa.
The Tribunal notes that the applicant has a [relative] in Melbourne, but it appears that they only communicate by phone on occasions and that this is the extent of the applicant’s personal ties in Australia. The applicant confirmed he did not have children, dependent or other, in either Turkey or Australia. As far as the Tribunal has been able to make out from the applicant’s evidence, the applicant has no close family ties in Australia who would be adversely affected by his departure.
The Tribunal appreciates that the applicant is esteemed by his employers and others, but the Tribunal is unable to discern any significant hardship, other than disappointment, were the applicant to return to Turkey. They may also consider that their business might be affected without the applicant but given the applicant never had permanent residency in Australia, it was not a given that he would be able to remain here indefinitely to contribute to the business.
The applicant at hearing stated that he was attempting to protect his family in Turkey from his negative circumstances in Australia as otherwise they would suffer. The Tribunal appreciates the applicant’s parents will be disappointed that the applicant has not achieved a permanent migration outcome, but given he came as a student, there was never any guarantee that the applicant would become a permanent resident. In terms of the applicant’s detention and convictions it is a matter for the applicant as to whether he reveals these aspects of his stay in Australia to his parents.
At hearing the Tribunal also asked the applicant about whether he considered he may have difficulty obtaining treatment in Turkey for his psychological difficulties and he responded that he did not think so. Asked specifically what his mental health problems consisted of, the applicant stated that he was under so much financial stress because of his situation and he was losing a lot of sleep. Furthermore, he stated that he had this problem with his partner, who was the most important person in his life. He was taking medication to deal with his sleep problems as well as his deep depression. The medication did not change his circumstances, the applicant explained, however, it did assist his mind to work properly. The applicant added that he was also having [specified treatment] in Australia.
At the time of application, the applicant stated, however, that he may not have access to mental health treatment options or may not be able to afford them if he returned to Turkey. While the following information refers to the impact of COVID-19 and development of mental health strategies as a result of the pandemic, the Tribunal considers that it demonstrates that Turkey is responding in an adaptive way to the current circumstances:
A study determining depression and related factors in a society that COVID-19 affects found that in Turkey, the pandemic has caused mild-level depression across all socio-demographic groups. However, the results of the study also concluded that depression levels were significantly higher in the 18-29 year age group, women, single people and those living in poverty.
While many high-income countries have tried to mitigate the reduction in mental health services and increasing mental health problems with telemedicine or teletherapy, less than 50% of low-income countries have reported deploying these tactics.
Turkey is one low-income country that stands out in its effort to provide easy access to teletherapy from the increased anxiety, fear and negative feelings due to COVID-19. After March 2020, the government launched psycho-social support programs in every province. Turkey set up hotlines to address the various emotional impacts of COVID-19, as well as psychiatric guides for health care workers under risk of infection. There are more than 2,200 volunteers for the hotline, including psychiatry experts, social workers and health professionals from non-governmental organizations. The hotline has served more than 2,000 people according to professor Ejder Yıldırım, a director of the program. The system is set up so hotline workers make three calls to applicants at the first stage of therapy. In the second stage, hotline workers make around five calls over a period of five weeks to follow-up with patients.
The Coronavirus Online Mental Support Program
In Istanbul, Turkey’s most populated city, the local health authority has launched a Coronavirus Online Mental Support Program in addition to the hotline. As of August 2020, more than 1,100 people have used the online support system during the pandemic for issues related to COVID-19, natural disasters and crises.While the world struggles to deal with the emotional and psychological impact of COVID-19, mental health in Turkey has highlighted the importance of having readily available resources in mental health care, especially in low-income countries.[1]
[1] ‘Increasing Resources for Mental Health in Turkey’, The Borgen Project, 27 November 2020, accessed on 27 January 2022.
The Tribunal does not accept, therefore, that the applicant would be deprived of, or denied access to treatment for mental health difficulties in Turkey. Were the applicant to require specialist treatment by way of psychiatric intervention, it would seem that the applicant’s family has some resources to engage that assistance for the applicant.
Circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant has stated that he was provoked into actions that appeared like he had been the violent one, when in fact his former partner, her mother and her partner, were also treating him badly financially and in other ways, and he was the victim of circumstances because it had been his former partner who wielded a knife. Even if the Tribunal were to accept the applicant’s account (and it does not), it does not explain the choking incident and the use of the pillow to smother his previous partner.
Among the material sent to the applicant pursuant to s.359A of the Act for comment, was a notation that a First Instance Warrant was sworn for the arrest of the applicant, for failing to appear in relation to a particular charge. This, in itself, would demonstrate that the applicant has not acted in good faith in relation to the criminal justice system in Australia, and that he has avoided the opportunity to put forward his version of events when it suited him.
The Tribunal considers that the [court] assessing the criminal matters would have taken into account any mitigating circumstances to assess whether the applicant had diminished responsibility because of actions by others.
The Tribunal does not consider that the actions of the applicant were beyond his control. The applicant had options he could have pursued if he thought that the relationship was untenable. For example, he could have walked away from the relationship altogether. While the Tribunal appreciates that the applicant might have been mindful that this might have cost him a Partner visa by withdrawing from the relationship, it is claimed that he had other options by way of sponsorship via a Skilled visa.
Further, it was open to the applicant to seek an intervention order against his former partner and her family to secure his safety and to ensure that he did not become embroiled in any violent scenes with them.
The Tribunal does not accept that the applicant’s circumstances were beyond his control. The Tribunal considers that the applicant is now revising his account of events in a self-serving way, so he does not have his visa cancelled.
Past and present behaviour of the visa holder towards the Department
The Tribunal does not have any adverse information before it regarding the applicant’s behaviour, past and present, towards the Department. The Tribunal places some weight in the applicant’s favour in this matter against cancelling the visa.
Whether there would be consequential cancellations under s.140
The evidence indicates that there would be no consequential cancellations under s.140 of the Act.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal has taken into account that if the visa was cancelled, the applicant would become an unlawful non-citizen and could be liable for detention under s.189. He could also be removed under s.198 of the Act. Of course, it is open to the applicant to depart Australia voluntarily.
The Tribunal has also considered that the cancellation will also place a limitation under section 48 of the Act, which means he will have limited option to apply for further visas in Australia and the applicant may be subject to an exclusion period in relation to an offshore visa application.
As discussed above, the applicant is [age] years of age and has the opportunity to seek to re-establish himself. Any options for migration to Australia should be discussed with his migration agents.
Whether any international obligations, including non-refoulement, family unit and best interests of the children as primary consideration, would be breached as a result of the cancellation
The applicant has stated that he does not have children either in Turkey or Australia – a matter which the Tribunal accepts. As such, the Tribunal is not required to assess the best interests of any children under the Convention on the Rights of the Child. The applicant’s family unit comprises his brother and parents who live in Turkey.
In terms of Australia’s non-refoulement obligations, the Tribunal’s evidence is that the applicant’s family is comfortable enough financially in Turkey and that they have been permitted to work, without interruption, until the applicant’s father required [surgery]. His independent income via rental properties, has ensured, however, that the applicant’s father and family are able to survive in Turkey.
The applicant put little information before the Tribunal to indicate that he would suffer serious harm on return to Turkey or that he fears being returned in relation for any other reason related to Australia’s non-refoulement obligations.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
While the subclass 820 part of the application is not permanent, the Tribunal has considered the applicant’s links to family, business or other ties in Australia. The applicant’s strong family links are in Turkey. The Tribunal accepts that the applicant is esteemed by his employers in Australia and that they might have difficulty filling the position being held for the applicant. Nonetheless, the Tribunal does not think that the applicant’s links to family, business, or other ties in Australia, are so strong as to outweigh the serious concerns held by the Tribunal in respect of the matters listed in the AFP Statement of Facts and the following convictions.
Other relevant matters
It has been argued that the applicant is not a security risk to Australia. The Tribunal is not assessing, however, whether the applicant is a security risk to Australia. That is outside the remit of this Tribunal as it is currently constituted.
The Tribunal also notes that the applicant is undergoing [specified treatment] and has considered whether such treatment would be available to him in Turkey. The Tribunal has little material before it to indicate that common dental services are not available to Turkish nationals.
Conclusion
Considering the circumstances as a whole the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Rosa Gagliardi
Member
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Immigration
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Administrative Law
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