2114224 (Refugee)

[2022] AATA 1311

2114224 (Refugee) [2022] AATA 1311 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2114224

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Antoinette Younes

DATE:21 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 785 (Temporary Protection) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 21 March 2022 at 9:26 AM

CATCHWORDS

REFUGEE – cancellation – protection visa – Sri Lanka – criminal conviction and community correction order – discretion to cancel visa – guilty plea and participation in rehabilitation courses – trial for further charges pending – work and financial support for estranged wife and children living in crisis accommodation – hardship if visa cancelled and harm if returned to home county – application for Safe Haven Enterprise Visa in progress – possibility of indefinite immigration detention – mental health – legal consequences of cancellation – non-refoulement – member of family unit – consequential cancellation of child’s visa and no jurisdiction to review – child now holds bridging visa as dependant on mother’s protection application – rights of the child and family unity – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 140(1), 197C(3), 197D(2), 348

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

CASES

Ibrahim v MHA [2019] FCAFC 89

MIMA v SRT (1999) 91 FCR 234

Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 80

Wan v MIMA (2001) 107 FCR 133

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 October 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) because the applicant has been convicted of an offence in New South Wales. 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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 2 March 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.  Last submissions were received on 9 March 2022.

5. The applicants were represented in relation to the review.

6. 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

7. 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?

8. Section 116 – Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (g) a prescribed ground for cancelling a visa applies to the holder.

   …

   (2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   Regulation 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the following ground for cancelling a visa.

9.      Regulation 2.43 – Grounds for cancellation of visa

(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).

1. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. 

2. During the hearing, the Tribunal discussed with the applicant information which became available to the Department that [in] August 2020, the [Local] Court convicted the applicant of Common Assault (DV) for which the Court imposed a Community Correction Order for 12 months commencing [in] August 2020 and concluding [in] August 2021.  The Court also ordered the applicant to comply with any current ADVO Supervision: 12 months commencing [08]/2020 concluding [08]/2021 Supervised by Community Corrections Service Treatment Programs: 12 months commencing [08]/2020 concluding [08]/2021 Anger Management.

3. Moreover, the decision record refers to the applicant being on remand due to an alleged subsequent family violence perpetrated against his wife (Mrs X) and his stepchild.  The applicant confirmed that he entered a plea of not guilty in relation to the charges and that the matter is listed for hearing in June 2022. 

4. The Tribunal indicated to the applicant that given that the charges have not been finalised, the Tribunal will not draw any adverse conclusions based on the NSW Police Facts Sheet which sets out the alleged circumstances that led to the charges.  The Tribunal advised the applicant of his right against self-incrimination.

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/NOTICE) & RESPONSE

5. On 4 March 2021, the Department sent to the applicant an NOICC to which he responded.

6. In submissions dated 18 March 2021, the representative outlined the applicant’s background.  The submissions focussed on the following matters:

   A.    The applicant came to Australia to seek protection and he continues to fear harm.  He has a compelling need to remain in Australia.

   B.    The applicant pleaded guilty to the charge (first) and he is remorseful.  Stress due to the COVID-19 pandemic and trauma due to ill-treatment contributed to the applicant’s offending conduct.  The applicant is committed to rehabilitation and has undertaken relevant courses.  The applicant has complied with visa conditions and he has engaged with the Department.  In case of visa cancellation, the applicant would suffer significant financial and psychological hardship.  If returned to Sri Lanka, he would suffer serious harm. 

   C.   Although the applicant is not currently in contact with the family, Mrs X, the applicant’s newborn, and stepchild would be adversely impacted.  The applicant continues to support the family financially.

   D.   The applicant’s biological son would be subject to the s 140 cancellation, although the son has been included in his mother’s protection visa application.  There are also adverse legal consequences associated with cancellation.  In case of cancellation, Australia would be in breach of its international obligations. 

7. In support, the applicant provided a Certificate of Completion of the Engage Intervention course, dated [August] 2020. 

8. The delegate concluded that the prescribed grounds for cancellation exist and that the visa should be cancelled. 

9. The applicant provided to the Tribunal pre and post-hearing submissions including country information, [Counselling provider] Report, Statements, References, and money transfer details to Mrs X.  Post-hearing, the applicant provided a report from an Accredited Mental Health Practitioner, dated 7 March 2022.  In his Statement of 24 February 2022, the applicant referred to, among other things, his claims for protection, the conviction of common assault, and the further pending charges of assault occasioning actual bodily harm and contravention of the ADVO.  He expressed remorse and a commitment to rehabilitation.

10. In oral evidence and in reference to the conviction, the applicant stated that he had assistance in Court from an interpreter who told him he could live happily with his family.  He said he was not sure if the interpreter was a lawyer and he pleaded guilty.  He said he paid the interpreter $700, and the interpreter told him he had to do a course, not to commit any further offences or cause any damage to property.  He said he completed a one day Anger Management course and lived with his family.  The Tribunal asked the applicant to clarify, given the contention that he claimed to be remorseful.  The applicant agreed that he has committed the offence for which he has been convicted.

11. The Tribunal referred to the further charges noted in the delegate’s decision record, alleging violence perpetrated by the applicant against Mrs X and the child.  The applicant said that those charges have not been proven and that the matter is listed for hearing in June 2022. He confirmed that he is on bail, with conditions to report to police weekly, not to contact Mrs X or the children or go 100 metres near their address, not to assault, not go near an airport, to notify of a change of address, and not commit family violence.  He said he has not seen his family since those charges and that he plans to live with the family.  He said he wants to be a good husband and a good parent.  He said he likes sports and wants to encourage his children to play sports.  He said in Sri Lanka, he did not get the opportunity of a good education but wants that for his children.   He said his wife would suffer if he is not able to assist financially.  He explained that he is currently working and since around June 2021, he has provided about $100 a week to the family, as evidenced by the money transfers.

12. The Tribunal indicated to the applicant that the Tribunal must accept that [in] August 2020, he was convicted by the [Local Court] of Common Assault (DV) and that the Tribunal considers the offence to be serious, involving a member of his own family, Mrs X.  The applicant acknowledged the seriousness of his offending and said he is undertaking a behaviour modification program aimed at teaching respect.  He said he has changed a lot. 

13. In relation to the pending charges, the Tribunal indicated that the presumption of innocence means that he is innocent unless and until proven otherwise by the Courts. 

14. The applicant is not disputing that the ground for cancellation exists but is contending that the visa should not be cancelled on discretionary grounds.

15. On the evidence, the Tribunal is satisfied that the applicant has been convicted of the offence of common assault (DV) and 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

16. 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, whether the visa holder has a compelling need to travel to or remain in Australia

17. The applicant arrived in Australia [in] July 2012 and on 20 November 2012, he applied for a protection visa.  The applicant sought protection on the grounds of, among other things, his Tamil race and imputed political opinion, claimed to have led to serious harm. He was found to be a person in respect of whom Australia has protection obligations. 

18. On 18 January 2016, he was granted a Temporary Protection visa (class XD Subclass 785). He applied for a Safe Haven Enterprise visa (SHEV) on 6 December 2018 and that application is pending.

19. The applicant has claimed that he continues to fear serious harm and that he is fearful that if he were to return to Sri Lanka, he would be seriously harmed due to, among other things, his Tamil ethnicity and imputed pro-LTTE sentiments. He claimed that he would be treated with a high level of suspicion and be subjected to serious harm on those grounds as well as his involvement in the Tamil diaspora in Australia. 

20. As discussed during the hearing, the Tribunal has noted those claims but as there is a pending application for the SHEV, the Tribunal will not determine those claims.  The Tribunal is satisfied that the SHEV application would be considered by a delegate in accordance with established legal principles and guidelines.

21. The applicant has advised the Tribunal that there is a pending criminal matter relating to another alleged incident.  He gave evidence that he has pleaded not guilty and that the matter is set for a hearing in June 2022.  The applicant is entitled to the presumption of innocence and it is inappropriate for the Tribunal to make any comments about the charges or take them into account.

22. The applicant has a family in Australia, including a spouse and two minor children.  The applicant gave evidence and provided corroborative material (transfers) that he makes a financial contribution to his family.  The applicant is employed, and his employer has provided a favourable reference letter. 

23. The Tribunal is satisfied on the evidence that the applicant’s purpose to travel to Australia is consistent with him seeking protection.  He was granted a temporary protection visa based on the claims he had made.  Having a pending protection visa application, a pending criminal matter, a family including two minors, and a job all mean that the applicant has a compelling need to remain in Australia. 

24. The Tribunal gives this consideration weight in the applicant’s favour.   

    The extent of compliance with visa conditions

25. The applicant’s protection visa was granted subject to condition 8503 (no further stay), condition 8565 requiring the applicant to notify the Department of any change of address and condition 8570 (restricted travel obligations). 

26. There is no evidence before the Tribunal to suggest that the applicant has not complied with any of those conditions.  

27. The Tribunal gives this consideration some weight in the applicant’s favour.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. In response to the NOICC, the applicant referred to continuing to live with Mrs X[1] who has been supportive.  He submitted that visa cancellation means that he could be returned to Sri Lanka or be indefinitely detained in Australia which would have significant financial, psychological and emotional hardships. 

    [1] Subsequent charges have led to bail and ADVO conditions precluding the applicant from living with his family.

29. In submissions to the Tribunal, it was contended that in case of cancellation the applicant would face significant hardship. It was contended that the applicant was subjected to ongoing torture, harassment, discrimination, and persecution in his home country and that in case of cancellation the applicant would face serious harm or face indefinite detention.

30. The Tribunal is satisfied that the applicant has been granted a temporary protection visa.  He was found to be owed Australia’s protection.  The purpose of a temporary protection visa is to provide temporary protection and there is no legal basis for making an assumption or have an expectation of permanency. 

31. The applicant has lodged another application – he has a pending application for a SHEV.  If found to be owed protection and assuming he meets all the relevant criteria, he could be granted the SHEV.  The Tribunal is satisfied that the assessment of that application would be in accordance with law and policy.  The Tribunal has noted the applicant’s protection claims but is satisfied that they would be tested during the processing of the pending application for the SHEV.  Cancellation would not prevent a positive outcome of that application and therefore the Tribunal gives this factor neutral weight. 

32. In case of cancellation, the applicant would be able to remain in Australia pending the outcome of the SHEV application.  However, he could remain in detention for an indefinite period and there is a degree of hardship associated with indefinite detention. 

33. The Tribunal granted the applicant time to provide a post-hearing mental health report but was advised that the Tribunal would give that report as much weight as the Tribunal considered to be appropriate.  In her report dated 7 March 2022 [Ms A], Accredited Mental Health Social Worker, noted the following:

    ·The applicant’s GP referred him to her on 14 May 2021, due to a deterioration in the applicant’s mental state.  The applicant experienced poor sleep, feelings of hopelessness, helplessness, and worthlessness following the ongoing legal proceedings related to allegations of physical assault made by his stepson. The applicant has been living separately in compliance with the ADVO and bail conditions.

    ·The prolonged separation from his wife and children has severely impacted his mental health.  The lack of access to see his biological son has worsened his depression due to the pending legal issues related to his alleged physical aggression towards his step- son.  He has expressed feelings that life is not worth living but hopes to reunite with the family.  The applicant has been a responsible partner and father to his children.

    ·Mrs X and the children are suffering from the prolonged separation from the applicant, and they are living in crisis accommodation.  Mrs X is provided (by [Ms A]) with monthly telephone counselling.  The applicant commenced monthly telephone supportive counselling to monitor his mental state and provide psychotherapy focusing on his capacity to develop coping strategies.  The applicant has been referred to his GP for review of medication for his depression.

34. The Tribunal accepts the submissions and [Ms A]’s observations that in case of cancellation, the applicant would suffer financial, emotional, mental, and psychological hardships.  On the evidence, the Tribunal accepts that the applicant is vulnerable psychologically and that his mental health could worsen in case of cancellation. 

35. The applicant has lived in Australia for about 10 years. He has worked to establish himself and to support his family.  He has established himself in Australia financially and socially.  He has established friendships and supports the Tamil community in Australia, as evidenced by the references provided. 

36. There are complex family dynamics in this case.  The applicant has been convicted of domestic violence against his wife.  The applicant does not see his marriage to Mrs X as having ended.  He expressed to the Tribunal his intention to make the marriage work and to be with his family.  He gave evidence of his plans to be actively involved in the children’s education and upbringing and the Tribunal accepts the applicant’s stated good intentions.  The Tribunal has given some weight to those intentions.  However, the Tribunal would be engaging in speculative reasoning about what could or would happen to the family or whether the applicant and Mrs X would reunite when the pending charges are finalised or at any other time.  The evidence before the Tribunal is that due to the bail conditions and the ADVO, the applicant has not seen his wife and children.  The applicant has committed a serious offence against Mrs X who was [pregnant] at the time and this led to a conviction with protective orders.  The applicant pleaded guilty. It is reasonable, however, to accept that cancellation could potentially mean a longer separation particularly if the applicant had to depart Australia or be detained indefinitely.  This could cause a degree of emotional, financial and psychological hardship to the applicant and to his family.

1. The Tribunal is mindful that the applicant has committed an offence against his wife and although his actions are questionable, the applicant is remorseful and he continues to see a future with Mrs X.  The Tribunal cannot take and has not taken into account the pending charges.  

2. In essence, the Tribunal accepts that cancellation of the applicant's visa can result in personal, psychological, and economic hardships, including not being able to assist his family financially. Naturally the applicant does not want his visa to be cancelled and in case of cancellation, he would be impacted. Moreover, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. Given his mental health, there is a degree of hardship associated with potential detention and removal.

3. The Tribunal gives this consideration weight in the applicant’s favour. 

   Circumstances in which 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

4. The ground for cancellation arose as a result of the applicant being convicted of common assault. He pleaded guilty to the charge.  The applicant has expressed remorse and commitment to rehabilitation. He has undertaken the Engage Course and is currently undertaking a Men’s Behavioural Change Course.  He has attended counselling.  The applicant referred to significant stressors at the time of offending, including loss of work, COVID-19 restrictions, and trauma due to the harm he suffered in Sri Lanka.

5. The Tribunal takes the view that violence is not acceptable and its impacts on victims cannot be underestimated.  In this case the victim is the applicant’s spouse.  On the applicant’s own evidence, the offending conduct occurred when Mrs X was [pregnant] with the couple’s younger child.  As discussed during the hearing, the Tribunal considers the offence to be serious and this is reflected in the sentence imposed by the Court. 

6. The Tribunal acknowledges the applicant’s explanations, remorse, and commitment to behaviour modification; however, the Tribunal is not satisfied on the evidence that the conduct was beyond the applicant’s control. 

7. The Tribunal explained to the applicant that although the Tribunal notes his explanations and submissions, the Tribunal must accept that he has been convicted of the above offence.

8. The Tribunal is of the view that domestic violence offences are serious.  In this case, the offence concerns the applicant’s spouse who was [pregnant].  The Court’s finding is that the applicant had committed the offence with which he was charged.  It is not open to this Tribunal to go beyond the findings of the sentencing Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction, and the sentence imposed as a result of a conviction are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:

   [45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

   [46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.

9. The Tribunal gives this consideration significant weight in favour of cancellation.

   Past and present behaviour of the visa holder towards the Department

10. The applicant responded to the NOICC and has engaged in the cancellation process.

11. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140

12. The applicant’s younger son is a dependant on the applicant’s visa.  The son’s visa would be cancelled pursuant to s 140. 

13. As discussed during the hearing, there is information in the delegate’s decision record that the son has been granted a Bridging visa E (BVE – Subclass 050) as a dependant on his mother’s BVE. 

14. In submissions, it is acknowledged that Mrs X has lodged a protection visa application, but the applicant stated that he does not know about the progress of Mrs X’s application.  The information before the Tribunal indicates that the son has been granted a BVE as a dependant on Mrs X’s BVE.  Consequently, although cancellation of the applicant’s visa would result in the cancellation of the son’s visa, as far as the Tribunal is aware, the son holds a BVE. 

15. On balance, the Tribunal has decided to give this consideration neutral weight.

    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

16. In case of cancellation, the applicant would be subject to s 46A and s 48A of the Act which means that he would not be able to apply for another visa whilst in Australia, including a protection visa, unless the Minister lifts the relevant bars using personal non-compellable powers under s 46A(2) and s 48B(1).  The applicant has, however, a pending application for a SHEV, which would be assessed on its merit.

17. Moreover, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The Tribunal is mindful that the Minister has a personal non-compellable power in s 195A of the Act to grant a visa if it is in the public interest.

18. The applicant would also be subject to public interest criterion 4013 for three years, in case of cancellation. 

19. The Tribunal is of the view that those consequences are intended legislative consequences to give power to detention and removal from Australia. 

20. The Tribunal has dealt with the potential hardship associated with detention and removal from Australia.

21. The Tribunal gives this aspect neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

22. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.

23. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

24. Article 33 of the Refugees Convention is relevant in this instance.  Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

25. The Tribunal will now consider whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act.  The applicant has been found to be owed Australia’s protection obligations and he was granted a temporary visa on that basis.  The Tribunal is of the view that the grant of a temporary visa was intended by the legislature to be a scheme to enable Australia to fulfil its international obligations and those under the Act and provide temporary protection to those who met the criteria.  The Tribunal gives weight in favour of cancellation to the fact that this is a temporary visa that has an expiry date and legally, there is no basis for a personal expectation of permanency for the holder of this visa.

26. The applicant has a pending application for a SHEV and the Tribunal is satisfied that the assessment of that application would be in accordance with law and policy.  He has made protection claims.  The Tribunal has noted those claims but is satisfied that they would be tested during the processing of the pending application for the SHEV.  In case of cancellation, the applicant would be able to remain in Australia pending the outcome of this application.  Furthermore, cancellation would not prevent a positive outcome of that application and therefore there would not be a breach of any of Australia’s international obligations. The Tribunal observes that the cancellation of a visa is legally distinct from removal.  

27. With limited exceptions, an applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia as soon as practicable, as required by s 198 of the Act. Section 197C(1) provides that, for the purposes of the removal obligation in s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Section 197C(2) provides that it is an officer’s duty to remove a person under s 198 as soon as reasonably practicable irrespective of whether there has been an assessment of non-refoulement obligations.

28. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the Amending Act) amends the Act and is designed to ensure, through ss 197C and 198 that a non-citizen will not be removed from Australia if found to engage protection obligations.

29. Section 197C was amended in May 2021, to include new subparagraphs (3) to (9). The amended s 197C(3) provides that, despite s 197C(1) and (2), s 198 does not require or authorise removal of an unlawful non-citizen if, in the course of having their last protection visa application considered, there was a protection finding made, unless that decision with the protection finding has been quashed or set aside, the Minister is satisfied that the non-citizen is no longer a person in respect of whom a protection finding would be made, or the non-citizen has requested removal. To complement this, a new s 197D(2) has also been inserted – it provides that, for the purposes of s 197C(3), the Minister may make a decision that a person is no longer a person in respect of whom a protection finding would be made. Generally speaking, a protection finding relates to a favourable finding by the Minister or a delegate in relation to some or all of the relevant protection visa criteria. The Tribunal is satisfied that the practical effect is that, in relation to the cancellation of a protection visa, the former visa holder will not be subject to removal under s 198 unless and until there is a further decision under s 197D that a protection finding would no longer be made.

30. The Tribunal further observes that the Department may also conduct an International Treaties Obligations Assessment (ITOA), which is an assessment by the Department of whether Australia’s non-refoulement obligations under international treaties are engaged in relation to a person.

31. In light of the impact of ss 197C and 198 of the Amending Act and the ITOA as discussed above, as well as the pending SHEV application, the Tribunal is not satisfied that Australia would be in breach of its non-refoulement obligations, in case of the cancellation of the applicant’s visa.

    Convention on the Rights of the Child (CROC)

32. As a signatory to the CROC, Australia has an obligation concerning children in Australia.  The CROC applies to children under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the chid.

33. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

34. Article 3 of the CROC states:

    1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 

    3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

35. The Tribunal discussed with the applicant his children and raised the issue the Tribunal considers that violence in the home is not in the children’s best interest.  The applicant gave evidence that he believes that children must grow up with both parents who are role models and fathers are their heroes.  He said children share their ups and downs with their parents.  He said he wants to support his family and is trying to make changes so that he can live with his family.

36. The Tribunal asked the applicant if he considered himself to be a good role model for his children.  He said he never argues with his wife in front of the children.  He said he has trained his son in [Sport] and sends him to Tamil school as well as teaching the son the Tamil language.  He said he teaches the children respect others, other cultures, teacher-student relationships and helping in the community.  The applicant stated that he accepts that the conviction against their mother is not a good example but that he will ensure that it would not happen again.  He said he admitted his fault and asked for an apology.  He said his wife is expecting him and he needs to be given an opportunity to change.  He said his counsellor is experienced and he is listening to advice. 

37. The applicant gave evidence that he has been away from his family for a year and that he will ensure that violence would not happen again.  He said he has no anger issues and that he practises yoga for relaxation.  He said he is confident that he would not commit any further offences.  He said he had lost his job as [an Occupation] and faced financial difficulties.  He said his wife was [pregnant] at the time, but he did not intend to hurt her.  He said the visa is important to him as he faces harm if returned to Sri Lanka where it is not safe.

38. The applicant has two minor children.  In submissions to the Tribunal, it was argued that family unity is fundamental, children have the right to live with their parents, and separation of the children all mean that Australia would be in breach of its international obligations relating to the children whose interests are primary considerations.  The Tribunal agrees that family unity is important and that generally-speaking, children should be with their parents.  However, family unity does not mean that it is in the best interests of the children to be in a family where family violence has occurred.  As has happened in this case, the applicant has lost his right to see his children through a legal process.  Moreover, the Tribunal is of the view that family unity does not always mean mother and father; it can mean a single parent household where children are provided with the love and care commensurate with a two-parent household.  The children are not living with him and although he does make a financial contribution, that does not mean that he is the carer or that he should be entitled to be with or see the children.  It was submitted that the current arrangements are temporary, but cancellation could mean a long-term separation.  There is no dispute that the applicant through bail and other conditions is not permitted to see the children.  It is not for the Tribunal to comment on or critique that legal process.   The Tribunal cannot predict the future and as highlighted earlier cancellation of the visa does not necessarily mean removal from Australia.  Therefore, even if the visa is cancelled, there are other processes as discussed above that would need to be considered prior to any removal from Australia.

39. In post-hearing submissions, the representative referred to the Tribunal raising the issue that that it is not in the best interests of the children to have family violence in their home. The representative submitted ‘…when assessing the best interests of the children it is imperative that the totality of the family’s circumstances is considered and not only the offending behaviour. The Applicant indicated that he is remorseful for his actions. It is apparent that he is committed to change given his attendance at counselling and by undertaking a behavioural change course. The Applicant explained at his hearing that he believes parents have an important role in their children’s life and it is evident the applicant wants to be involved in his children’s life in the future.  Further, it is apparent that except for the isolated incident, he was committed to being a good parent to his children’.

40. The Tribunal does not dispute that it is important to consider the totality of the family’s circumstances.  The question for the Tribunal is what decision is in the best interests of the children, not what the children might do if their parent were required to cease living in Australia.[2]

    [2] Wan v MIMA (2001) 107 FCR 133, at [27]-[28].

41. In her [Counselling program] Client Report dated 25 February 2022, [Ms B] of [Counselling provider] discussed the applicant’s attendance at the course and concluded that ‘…changing domestic violence behaviours is a long process that requires at least two years for significant change to be observed’ and that the completion of the program does not guarantee that behaviour change has occurred. 

42. The information before the Tribunal indicates that currently Mrs X is the children’s primary carer and due to the bail and ADVO conditions, the applicant is not permitted to see them.  The Tribunal has carefully considered the totality of the evidence and on balance, the Tribunal is satisfied that despite his personal assurances and acceptance of wrongdoing, changing domestic violence behaviour is a long-term process – as noted in [Ms B]’s report.  When this was put to the applicant, he said that he admitted his fault and immediately asked for an apology.  He said he expects that his wife is waiting for him and he should be given an opportunity.  The Tribunal is not persuaded; the Tribunal acknowledges the applicant’s personal assurances, but they do not overcome the Tribunal’s assessment of what is in the best interests of the children.  On balance, the Tribunal is satisfied that cancellation of the visa would be consistent with their best interests.  As discussed above, the applicant committed a serious offence against the mother of the children when she was [pregnant], and this can hardly be in their best interest.  The Court imposed a sentence consistent with the seriousness of the offence.  It would be inappropriate for the Tribunal to undermine the Court’s conclusions and the sentence imposed by making findings or reaching conclusions that could suggest otherwise.  It is clear that the applicant cannot see his family due to the bail conditions and ADVO, albeit the charges have not yet been proven.

1. On the evidence, the Tribunal is satisfied that Australia would not be in breach of any of its international obligations in case of the cancellation.

2. The Tribunal gives this aspect weight in favour of cancellation.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

3. The Subclass 785 is a temporary visa.  The Tribunal has dealt with ties under other considerations.

4. The Tribunal gives this aspect weight in favour of cancellation.

   Any other relevant matters

5. The Tribunal is mindful that there is a pending criminal matter.  The Tribunal has not taken this matter into account in an adverse manner to the applicant.  The Tribunal respects the doctrine of the presumption of innocence.   The Tribunal has considered awaiting the finalisation of the criminal matter.  Although the matter is listed for hearing in June, there is a degree of uncertainty about the length of time this process could take.  The Tribunal is satisfied that it is reasonable not to await the finalisation of this matter and that the applicant is not disadvantaged.

6. The Tribunal has carefully considered the material before it individually and cumulatively. 

7. From a purely numerical perspective, there are aspects in the applicant’s favour, essentially relating to his own circumstances.  The cancellation process is not intended to be a simple mathematical or formulaic process but an assessment involving a balanced determination.  The Tribunal has explained its reasons and on balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.  The applicant has been convicted of an offence that involves his wife who was [pregnant].  On balance, the Tribunal considers that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.

8. The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

9. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 785 (Temporary Protection) visa.

10. The Tribunal has no jurisdiction with respect to the second named applicant.

    Antoinette Younes
    Senior Member