2117816 (Refugee)

[2023] AATA 2637

2117816 (Refugee) [2023] AATA 2637 (1 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Galen Jaffurs

CASE NUMBER:  2117816

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Denis Dragovic

DATE:1 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Statement made on 1 June 2023 at 8:59pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – ground for cancellation – convicted of an offence – domestic violence – intentionally cause injury – make threat to kill – consideration of discretion – degree of hardship – immigration detention – mental health condition – mandatory legal consequences – new process for removal – extended immigration detention – best interests of the child – family unity – circumstances of the conviction – wife’s request for the applicant’s visa not to be cancelled – factors mitigating risk of reoffending – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 48A, 116, 196, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.43

CASES
1901883 (Refugee) [2021] AATA 3216

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the Regulations) on the basis that the applicant had been convicted of intentionally cause injury and make threat to kill and received a sentence of 180 days imprisonment and an 18-month community corrections order. The issue in the present case is whether that ground for cancellation is made out, and if so, whether, after taking all relevant issues into consideration, the visa should be cancelled.

3. The applicant appeared before the Tribunal on 2 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

6. Regarding the usage of the term Burma and not Myanmar throughout this decision, the official name of the country was changed from the Union of Burma to the Union of Myanmar in 1989. Where the interpreter used Burma, and it was the term used by the applicant, I have recorded it as Burma for the purpose of more accurately reflecting the applicant’s evidence, despite the official abridged name being Myanmar. To avoid any doubt, they are one and the same country.

   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) which refers to a list of prescribed grounds for cancellation under reg 2.43. Among the list of grounds for cancellation under reg 2.43(1) is paragraph (oa) which was the basis upon which the delegate initiated the cancellation of the applicant’s visa. Paragraph (oa) reads:

   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))

8. 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?

9. The applicant was convicted and sentenced by a Magistrate in 2020 according to the Notice of Intention to Consider Cancellation (NOICC) for the following:

   [Magistrates Court]

   
   

   Date: [date] July 2020

   
   

   Offences: “Intentionally cause injury” and “make threat to kill”

   
   

   Sentence: Aggregate 180 days imprisonment (concurrent); Community Correction order for 18 months.

10. At the hearing the applicant confirmed that he was charged and convicted as listed above. For this reason, 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

11. 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

12. The applicant wrote that he doesn’t have anyone in Burma and that Australia is his only home. At the hearing he said that he can’t go back because of the troubles he would face, and because of his children’s future. He doesn’t want his children to endure the same atrocities and problems that he faced in Burma, which they would face if they were living in Burma.

13. In considering the weight that should be applied to this consideration it is important to note that this process cannot lead to the applicant being removed from Australia. While the purpose of his stay is to obtain protection, this is not at risk. Instead, for the reasons discussed further below under the section relating to mandatory legal consequences I find that the applicant will remain in Australia but in immigration detention for a limited period.

14. In this specific case, his reason for staying is to maintain protection from the Burmese authorities and support his children. As the applicant’s protection in Australia is secure until some future process by a different decision maker is undertaken, I place limited weight on this reason to stay for the purposes of this decision. In other words, the applicant cannot be removed, and he has no right of entry to another country and as such there is no option but for the applicant to remain. It would only be in a hypothetical realm that any weight could be placed on the purpose of the applicant’s stay at this stage.

15. With regard to his children’s future, I consider this further and give appropriate weightings under other headings including hardship and international obligations.

16. For the reason of the applicant’s inability to leave Australia, in effect minimising or even negating the purpose of this consideration, I place limited weight against cancellation.

    The extent of compliance with visa conditions

17. There is no evidence before the Tribunal that the applicant has not complied with the visa conditions imposed on him. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.

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

18. It was explained to the applicant, as noted above, that the most likely consequence of cancellation would be that he is moved to immigration detention and would remain there for a limited period.

19. I asked the applicant how this would affect him. He said that when he first came to Australia he was just a normal person, but after staying in immigration detention he started to get depressed and needed medication. He said that if he had to stay in detention again, he doesn’t know what will happen to him. In total, the applicant remained in immigration detention for 18 months.

20. I asked about his claim that he was ‘normal’ when he went into detention, noting that he had claimed to have experienced significant emotional and psychological trauma while in Burma. He acknowledged that he has past experiences which come into his mind, but he explained that normally if he is with his family and going about his business those memories don’t come to the fore. He claimed that his psychologist mentioned to him that if he has activities to occupy his mind then the flashbacks would not happen.

21. The applicant has considerable health concerns. In a medical statement it is written that: ‘In addition to the PTSD…the applicant also has severe diabetes, melitis and hypertension and his general practitioner indicates concerns about the applicant’s eyesight and dentition.’

22. The applicant expressed his fear of being detained again after having spent 18 months in immigration detention previously. He wrote in a submission, ‘I cannot bear the thought of being detained forever…If I were to be indefinitely detained, it also means that I will have no chance to make amends to my daughters nor my wife. I miss them terribly and care deeply about them.’

23. The applicant has had an ongoing concern over his mental health. He was interned in [Hospital 1], Western Australia’s public psychiatric hospital, for two or three weeks. The applicant is concerned that a further stint in immigration detention will lead to him deteriorating such that he will be hospitalised again.

24. From his children’s point of view, he claimed that they will suffer significantly were he to be detained. His [age]-year-old daughter, he claims, became ‘thin’ during his stint in prison. He claims that her circumstances weren’t because of being unable to afford food, but because of his absence and the emotional impact it had on her as she would see other parents together and eventually it led to her experiencing mental health challenges. Based upon that experience he is worried that his children will have significant emotional and mental health problems.

25. The applicant is also concerned that the children will not be able to meet their goals. The children have their own dreams of becoming a teacher, doctor or engineer. While without his presence he acknowledged they probably won’t have problems with daily living, he is concerned that their goals will be limited as they will be without a father.

26. The applicant currently takes the children to school every day and occasionally on the weekend takes them to the beach. If they have money, he said that while they are out they will buy something to eat. The applicant said that he thought about his family a lot while in prison and he realises that if he had not acted in the manner that he did he would have a beautiful family now.

27. The applicant’s wife gave evidence regarding the hardship she would face. She explained that after the incident she moved to NSW where she stayed with friends for a year. She moved as she couldn’t drive and without her husband she found it difficult. She returned to Victoria as her friends with whom she was staying couldn’t help her for much longer. The applicant was released from prison in December 2020 whereas his wife moved to NSW in November 2020. After the applicant’s wife returned to Victoria they continued to live apart for a year. In March 2022 the applicants said that a court determined that they could live together again which they have been doing since June 2022 without any issues being reported.

28. She said that the consequence of the applicant being detained for a long time is that she and her children will suffer as they had when he was away from them. She explained that due to his earlier absence they suffered a lot. Now that they are living together she said that he does a lot of things for his family including shopping, cooking and being a father to the children. She said that she had [number of] children by caesarean and so she can’t do some chores.

29. In weighing these considerations cumulatively, I accept that the applicant will suffer severe hardship arising from a further stint in immigration detention. The applicant’s previous stay, amounting to a not inconsequential 18 months of detention led to him being hospitalised. I accept that a further stay will lead to a precipitous deterioration of his mental health and have a disproportionate impact on him relative to other detainees. I have read and acknowledge the independent research submitted by the applicant’s previous lawyer regarding the negative and long-term impact of detention on detainee’s mental health and wellness.[1] I also accept that the applicant’s wife will face hardship. Whereas she was able to stay with friends in the past, it is not clear that such an option is open to them. But as discussed further below, I am concerned that the applicant’s wife is supportive of the applicant returning and living with him primarily because she has limited options. While the children will face hardship also, I have not given any weight to their plight under this consideration as it is given weight under considerations arising from the Convention on the Rights of the Child. When turning my mind to this consideration and all of the aspects discussed above cumulatively, I place substantial weight against cancellation. 

    Circumstances in which the ground of cancellation arose

    [1] Mary Bosworth, ‘The Impact of Immigration Detention on Mental Health: A Literature Review’, Centre for Criminology, University of Oxford, undated

30. The applicant wrote in a submission dated 19 November 2020:

    I have been struggling with mental health issues since I arrived in Australia. I have been formally diagnosed with Post Traumatic Stress Disorder (‘PTSD’). I have been taking anti-depressant, Citalopram for the past several years. My GP, [Dr B], referred me to a psychologist in early last year, however, I stopped going there as I was asked to talk about my past which I find painful to talk about.

31. In another submission undated but packaged together with other material from his representative and submitted in March 2021 he wrote:

    During my time in prison, I regularly see psychologists and take classes to learn as much as possible. Although I still find it very difficult to talk about my past, I am doing the best I can as I now understand how important it is to keep receiving counselling and improve my mental health.

32. At the hearing the applicant said that on the morning of the incident he didn’t take his medication as he can’t take it without breakfast. He said that he has been taking the medication since being in detention. The medication is for stress and depression, but he is not claiming that it contributed to his actions.

33. In the 19 November 2020 statement the applicant wrote:

    Lately, I struggle to control my fear and my heart starts beating so fast when I am left alone for too long. When this happens, I scream and cry. This happens almost daily. My psychologist said that he will change my medication soon so that I can control my mood better.

34. In the undated statement he wrote:

    I am taking Citalopram every day. The amount was increased from 5mg to 10mg and then to 20mg. My mood is completely under control. In all the years that I have been in Australia, including in immigration detention and prison, I only lost my cool once and I paid dearly for it.

    …

    As I have already explained that I had not taken my mental health medication that day and I could not control my temper.

    …

    I have always taken medication regularly when in the community until the day I had a fight with my wife. I only missed one day and I will regret this for the rest of my life. I am now taking my medication again, every day.’

35. The applicant wrote in his submission: ‘When I was very young, my parents were killed in front of me and I continue to have nightmares about this to date.’ At the hearing he confirmed this to be the case. He said that the army stopped his father as he was returning to the village, attached a bayonet and then stabbed him to death.

36. With regard to his past and his mental health issues he said that he can’t connect it to his actions against his wife because his dark memories are flashbacks. He said that the incident with his wife happened because he didn’t understand the law. The applicant explained that he was never educated and that he didn’t have knowledge about how in Australia one should have a good relationship with your family. He claimed that in Malaysia, Burma and Thailand, countries where he had lived and understood the laws, they didn’t take such matters seriously.

37. I asked if the law was like it is in Malaysia and Thailand, would he continue to commit violence against his wife. He said what he meant is that you have to obey the law in the country where you are staying. I explained to him that what he did was not just illegal but wrong. He said he understands that to be the case following the courses he did in prison. He said that he learned that it’s not okay to do what he did. I asked if he goes on a holiday to Malaysia and his wife makes him angry is it okay to hit her? He said he understands that whichever country he goes to they have laws and women have rights and he shouldn’t be doing what he did and that it is wrong what he did.

38. On the day of the incident, he said that they were planning to go to a new [shop] to buy the children some clothes. He explained that his wife had dressed and was ready to go but was upset that he was late coming home. He claims to have told her that even though they were late they could go to a market close by. He claims that she started shouting at him, and because of her shouting, he had an emotional response. He claims that she threw her dinner plate away and he then lost his temper and laid his hands on her. He admitted to slapping her and smacking her with his belt, but he said that he didn’t have an intention of killing her.

39. He claimed that the next day he suggested that they should go to have a medical check-up for her as she appeared injured, but he claimed that she didn’t want to go. He asked if she wanted to go to [the shop], but she didn’t want to go there either. So, he went alone.

40. The day after, on the Monday, he went to work and that is when she called the police.

41. He claimed that the police came and interviewed him but without an interpreter. After that the police charged him with threatening to kill her.

42. I asked if he is claiming that the entirety of his violence against her included slapping her and smacking her with his belt. He said that he hit her with the belt several times. I asked if he struck her to the back of the neck. He said that didn’t happen, he just pulled her to a place where the children were not present and then slapped her under the ear, and with the belt on the back of her body.

43. Drawing on the information from the police’s statement of alleged facts, I put to him that the information I have is that he removed his belt and struck his wife repeatedly to the head. He said that it’s not true.

44. I put to him that the information before me was that he had struck his wife with a closed fist to the facial area and that she started to bleed from the mouth. He said that it was not true.

45. I put to him that the information before me was that he put his foot on the side of her neck as she lay on the ground and that he applied force. He said that it was not true.

46. He said that these claims were explained to him by his criminal lawyer.

47. He said that at the time she was looking after [the] children on her own and that she couldn’t cope. He said that he admitted to it but that it wasn’t true. He added that his lawyer said that if he pled guilty, he would only get a community corrections order.

1. I put to him that the information before me was that he had his foot on her neck for five minutes and then when he took it off, he kicked her in the back. He said that this was not right. He said that because at the time his wife was so upset at what he did that when she described what happened she may have described a little more than what actually happened.

2. I asked if he meant that she lied to the police. He said that he didn’t mean that. He said that when they got back together, he asked her about what she said, and she said that she couldn’t remember what she had said and that she didn’t understand the conversation with the police at the time.

3. I put to him that the information before me was that he then continued to punch her to the facial area until she lost consciousness. He said that was not true. He said that she didn’t lose consciousness. He said that when the police came, she felt dizzy and fainted and they called an ambulance.

4. The applicant said that when the incident occurred a housemate came to intervene as she was screaming for help. The man was another Burmese person from the applicant’s village, but the police did not interview him. He claims that his wife told the police that this other person was not in the house at the time.

5. I put to him that the information before me was that he told his wife not to report the incident to the police or he would kill her. He said that it was not true and that he didn’t say that. I put to him that the court found him guilty of that (threat to kill). He said that at the time of the conviction he didn’t understand what was being said.

6. He complained that now he is having trouble finding work. When he is interviewed, he has to mention his criminal record, but he lamented that at the time his lawyer was advising him to admit to everything as he would get a lesser sentence.

7. I asked what happened when the police came. He said that the police came twice, the first time he lied to them that his wife was not home. He said that they then came back a second time. He admitted that it was not right that he lied to the police. He explained in greater detail that he returned home after leaving for work and saw that she was calling the police. Because she was talking to the police on the phone, knowing that the police would come, he claims that he just waited outside. When the police came, he lied that she wasn’t there. But then the police came back a second time. He said that he lied to the police because he wanted to ask her forgiveness and not to give evidence and an explanation to the police. I asked why he didn’t ask for her forgiveness on Sunday rather than wait until Monday. He said that he did ask for forgiveness on Sunday and had asked if she wanted to go shopping or get medical treatment and he bought fish and cooked for the family.

8. Evidence from the witness, the applicant’s wife, was taken separately. She explained that they had an argument and that he laid his hands on her. She said that because she does not have family in Australia, she called the police. She claims that he slapped her on her cheek and hit her with a belt 3–4 times on her backside and that one of the strikes struck her on the back of her head. I asked if she remembered what she told the police. At the time she was giving evidence to the police, she told them that he put his foot on her neck, she now claimed that that was false, she claimed that she said it because she thought that if she said that he would learn a lesson. She said that she didn’t anticipate that her reporting him would have such a big impact, she also expressed concern about what was recorded as it was done without an interpreter.

9. She claims that he was not violent towards her before nor since.

10. She said that she was thankful that her family have a chance to come to Australia and is thankful that Australian law is strict on this matter. She believes her husband has changed.

11. She acknowledged that she lost consciousness and went to the hospital but that it was while the police were present. She claimed it was due to a lot of questions being asked and being tired.

12. In the Departmental file there were a series of photos taken from the hospital of the wounds inflicted on the applicant’s wife. We went through them individually.

13. I noted that the arms were severely bruised. He said that when he was hitting her with the belt, she was protecting herself with the arms and that is how they were injured.

14. I asked about the severe bruising on the neck, she said that the belt landed on her head on one occasion but not on her neck. The applicant again said that he didn’t step on her neck.

15. At the hearing the applicant did not tie his behaviour towards his wife with his own past trauma. Despite the applicant’s acceptance that he had acted in a way that he shouldn’t have, it is relevant to consider whether the actions arise from some lingering effects of his severe mental health challenges including having not taken his medication at the time which impacted his mood as reported by his doctor. It appears that this is the case based upon the applicant’s own statements. This is not to excuse his past behaviour, as the violence committed by him against his wife has been addressed through the criminal justice system. Rather, any risk to his wife and potentially others that arises from his mental health is a factor that would weigh in favour of cancellation as it is possible that he may not take his medication in the future and some trigger will lead to him committing violence again. For this reason, I place limited weight in favour of cancellation arising from his potential risk to the community by not taking the same medication which I accept led to the offending.

    Past and present behaviour of the visa holder towards the Department

16. There is no evidence before the Tribunal that the applicant has had any adverse engagement towards the Department. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.

    Whether there would be consequential cancellations under s 140

17. There are no consequential cancellations that arise from a cancellation of the applicant’s visa. As such I place neutral weight on this matter.

    Whether there are mandatory legal consequences

18. If the applicant’s visa is cancelled and he exhausts any rights of judicial review, he will be an unlawful non-citizen. Unless the applicant can regularise his position, he faces the prospect of an extended period in detention for the reasons explained below.

19. Due to the operation of s 48 of the Act a non-citizen who has a visa refused or cancelled may only apply for a particular visa. The prescribed visas are listed under reg 2.12 of the Regulations. Among this list the applicant’s circumstances align with the opportunity to apply for a partner visa. His wife has Australian citizenship by operation of s 12(1)(b) of the Australian Citizenship Act 2007. Due to the costs associated with a partner visa, which I accept to be prohibitive for many and especially for the applicant and his family, I give him the benefit of the doubt and accept that he will not pursue this pathway in the near term.

20. Due to the operation of s 48A of the Act where a protection visa holder has had their visa refused or cancelled, the citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. Section 35A(3) of the Act defines what encompasses a protection visa and specifically includes temporary protection visas such as the one the applicant held.

21. The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.

22. When all of these legislative pathways are considered, it is clear that the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removed.

23. Removal, though, carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the relatively new ss 197C(3) and 197D which entered into force by way of the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) that came into effect on 25 May 2021.

24. In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken. These additional steps to the removal provisions have added a new process that works to prevent people from being refouled.

25. A full accounting of the new process was undertaken in a separate case 1901883 (Refugee) [2021] AATA 3216 (2 September 2021) which was heard by this member and Deputy President Redfern.

26. The new process created by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) is untested in that an applicant has not seen through the entire process including availing themselves of the opportunity to appeal before the Tribunal. As such the length of time it would take is unknown but based upon current timeframes it could amount to a few years or more and as such the applicant could remain in detention for an extended period until an outcome is finalised. It would be speculative to presume what that outcome would be.

27. It is relevant to appreciate that following this extended period of detention the process would be finalised (including any appeals). This is because either the applicant retains the protection finding or alternatively he is found to ‘no longer’ be a person for whom a protection finding would be made (s 197D(2)) which would then open a pathway to removal.

28. If it is determined that a protection finding would still be made at the time of the decision or at the time of the review, it is not clear how the tension between the cancellation of his original visa, making him an unlawful non-citizen, would interact other than that he would be unable to be sent to Burma but also unable to enter the community and as such will remain in immigration detention.

29. This is because s 189 states that an officer who ‘knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.’ Alternatively, if the applicant is no longer a person for whom a protection finding would be made, the applicant would be considered for removal under s 198. But as noted, while one possibility is indefinite detention and the other is removal, it would be speculative of this member at this stage to incorporate into this decision either possibility.

30. An alternative possibility that arises during the applicant’s detention while waiting for the next stage of the process arises from s 197AB which provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is the power that has allowed non-citizens to be placed in what is colloquially known as ‘community detention’. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[2] Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister relevant to the applicant is:

    a.     where the continued presence of the person in Australia would pose a threat to an individual in Australia, to Australian society or security, or may prejudice Australia’s international relations.

    [2] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

31. On the other hand, among the profile of cases to be referred for the Minister’s attention there are none that align with the applicant’s circumstances. The grant of a favourable residency determination is therefore a highly unlikely outcome in the circumstances of this case.

32. As the law stands the applicant is liable to be held in immigration detention for an extended but time bound period.

33. Having already considered the weight to be placed on the hardship he would bear arising from his detention, for this consideration I place moderate weight against cancellation arising from his inability to access other visas or regularise a position in the community arising from the legal consequences.

    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

34. The applicant has [number] young children for which evidence was provided that [number] are Australian citizens. [All] children fall under the Convention on the Rights of the Child as they are presently within the jurisdiction of Australia.

35. Article 3.1 of the Convention on the Rights of the Child (CRC) states:

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

36. When considering the best interests of the child I recognise that at the time of the delegate’s decision the applicant was living apart and not in contact with his family, but as noted above, this situation has changed, and they are now living together, and the applicant is playing a role as the father in the lives of the children.

37. While the violence the applicant perpetrated against his wife has had direct and indirect consequences on the children including affecting their mother and leading to the loss of their father from their lives, I must take a forward-looking approach. The mother of the [number] children has strongly spoken of her desire for the applicant to have a place in their lives, she does not want his visa to be cancelled. Both have spoken of the hardship that would befall the family if he was absent. I accept that the [children] would have their futures compromised if the applicant’s visa were to be cancelled and note that [number] are Australian citizens and as such are tied to this country and have some degree of stability whereas the [remainder] would be further affected as a result of the uncertainty arising from the applicant’s situation. For this reason, I find that it is in the best interests of the children that his visa is not cancelled and furthermore, I place considerable weight against cancellation for the reasons of ensuring Australia does not breach its international obligations towards the best interests of the children.

38. The applicant and his children comprise a family. Family unity is a principle that is derived from international treaties such as the International Covenant on Civil and Political Rights, Article 23: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

39. Based on the best interests of the child being not to cancel the applicant’s visa and noting the importance of family unity, I place considerable weight against the cancellation of the applicant’s visa for the purposes of maintaining family unity and ensuring that Australia is not in breach of its obligations towards these international conventions.

40. The issue of non-refoulement has been addressed above with a finding that the applicant will not be removed within the context of this decision and as such the situation does not expose Australia to a potential breach of its non-refoulement obligations. As such I place no weight on this consideration.

    Any other relevant matters

41. With regard to whether the applicant has a history of violence against his wife, he said that they have discussions and arguments, but never such that it became something as big as this incident. I asked if he had ever hit his wife before, noting that there was information before me that suggested that he had hit her on a regular basis. The applicant’s wife said that she told the police that they had arguments but that he never laid a hand on her. She once again lamented the lack of an interpreter. He said that there are a lot of things described through this hearing that his wife didn’t say.

42. It is difficult to weigh the wife’s evidence that she provided false information to the police. On the one hand, I am concerned that she is not sincere in her statements and that she is compelled to say such things to lessen his culpability due to the difficulties she has faced living on her own. On the other hand, it is possible that out of anger, spite or fear, she exaggerated some of the facts such as whether he had beat her before or whether he had stepped on her neck.

43. I note that this Tribunal is confined by court authorities on whether to revisit the findings of matters determined in a criminal court. In summarising what these are, Bromberg J wrote at [78] in HZCP v Minister for Immigration and Border Protection (‘HZCP’):[3]

    Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[4]

    [3] [2018] FCA 1803.

    [4] Ibid [78]. I note that this case was appealed in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, but the case was dismissed.

44. In this regard, the wife’s alteration of his statements falls under the caveat, namely circumstances that can be reviewed other than for impugning the conviction. The applicant was convicted on the basis of his violent actions against his wife and not for any previous actions. As such, that the applicant’s wife is now affirming that he had not committed any violence against her previously, I find to be relevant and place some weight against cancellation.

45. I also accept that the wife has made a choice to express her desire for her husband to return. She said that what happened in the past has already happened and he has faced the consequences. She said that they are now back together as a family, and they need to look at what will happen to her and their children. She said that he understands what the consequences of future wrongdoing are. Furthermore, she claims that he has changed after his stint in prison and that she doesn’t want to lose him again.

46. While the reasoning for this may be complicated and involve conscious and subconscious elements, and I may remain doubtful of its sincerity were her circumstances different, ultimately, I place some weight against cancellation based upon the importance of respecting the applicant’s wife’s agency as an adult and recognising her proactive request for the applicant’s visa not to be cancelled.  

47. In his written submissions the applicant wrote that ‘now she [his wife] knows what I do to manage the situation and we do it together.’ This was explained at the hearing as being a by-product of the applicant’s attendance in various courses and the time he has had in prison to reflect on his behaviour. Similarly, in a November 2020 statement he wrote:

    I also talk to a prison chaplain every week. I enjoy talking to him and learnt so much from our conversation. We talk about many things, including my offending and religion. He also tells me about Australian culture. My time in prison has been very informative and I have learnt a lot. I really want to continue and keep learning so I will be a better person.

1. I accept the applicant’s sincerity in his written statements. He has also expressed remorse. He wrote:

   In prison, I miss my children terribly and have reflected on my offending. I am very very sorry for what I have done…I admit that what I did was really bad, but I will do everything I can so that I will not repeat the same mistake…I am so ashamed of what I did that I feel that I have no right to say that I want to be back with my wife. It is completely up to her and I will respect whatever decision that she makes.

2. But as noted during the hearing the severity of his attack upon his wife is substantial and his responses do not fully acknowledge the impact it has had on her. Overall, when considering the applicant’s remorse and his level of understanding of the consequences of his actions and the nature of them including the impact upon his wife, I accept that he recognises his actions as wrong and place some weight against cancellation for this reason.

3. There are several motivating factors that should influence the applicant such that he does not cause harm to others in the future. Firstly, the applicant acknowledges that there is a court determined family violence final intervention order against him through to 2032 (the actual order expires in March 2025 though he believes it to go through a further seven years). If he breaches it, he expressed and understanding at the hearing that he would go to jail. The specific obligations arising from the order are that he is not to commit family violence against any of the protected persons which includes his wife and children, that he is not to intentionally damage property and that he cannot get another person to do anything protected under this order.

4. I asked how that made him feel, having a government tell him what he can and can’t do to his wife. He said that he doesn’t have trouble with that and that he is accepting of the wrongdoing he has committed. He added that his wife has rights and feelings. I asked if the risk of being sent to jail is at the back of his mind every time he has an argument with his wife. He said that it is not only in the back of his mind, but in his eyes and in his head, he said that he is always thinking of his wife and his community’s view of him, as anyone doing the wrong thing is not considered to be good.

5. With regard to his future and having a purpose such that he could build on what he has learned through the courses he undertook, he wrote:

   I am taking English classes and other courses such as [specified]… I set up a [business] and did my best to contribute positively to the community. When I am released, I intend to go back to re-start my business…My time in prison has been very informative and I have learnt a lot. I really want to continue and keep learning so I will be a better person…I owe this country a lot and respect and grateful for the safety it offered me and my family.

100.   That he has a purpose and ideas for what he can do in the future is a further means of mitigating any risks that he may pose as his past trauma is triggered from recollections that in turn undermine his present state of mind. With some activities, as he was told by his psychologist, he can minimise the recurring flashbacks.

101.   Another motivational factor to prevent the applicant from acting in a violent manner is that he wants to see his children achieve something in Australia. He wrote, ‘It would be my pride and joy to see my daughters go to university in Australia.’

102.   Based upon the existence of several factors that will motivate the applicant not to offend again including an intervention order that is in force through to 2025 but can be extended, wanting to see his children achieve in their lives in Australia and having his own projects to work on and follow through, he will have both a constant reminder of the perilous nature of his freedom in Australia were he to ever to be on the verge of reoffending and a reason for focusing on improving his behaviour and mental health. For these reasons, I place some weight against cancellation on the basis that due to the presence of the intervention order he is less of a risk to his wife and others in the community.

103.   There is no evidence before me that the applicant has offended since leaving prison on 2 December 2020.

104.   Considering the circumstances as a whole, I placed substantial weight against cancellation arising from the hardship the family would face. I placed considerable weight against cancellation arising from the importance of Australia’s international obligations to the rights of the child and family unity and the importance of Australia not breaching these international obligations. I placed moderate weight against cancellation for the reason of an inability to access other visas or regularise a position in the community arising from the legal consequences of cancellation. I note that there are substantial factors that mitigate the risk that he will reoffend for which I placed some weight against cancellation. Limited weight was placed against cancellation arising from a number of other considerations. But weighing in favour of cancellation is the seriousness of the offending and the circumstances of the offending. When considered cumulatively, I find that the factors against cancellation outweigh those that are in favour of cancellation and as such I find that the visa should not be cancelled.

DECISION

105.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Denis Dragovic
Deputy President