2120128 (Migration)

[2022] AATA 3195

2120128 (Migration) [2022] AATA 3195 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2120128

MEMBER:R. Skaros

DATE:19 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 19 September 2022 at 10:33am

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – criminal convictions – domestic violence, driving and property offences – community service and corrections orders – wife, children and step-children Australian citizens – period as unlawful non-citizen – partner visa application in progress – counselling, community support, employment, study and lifestyle changes – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 23 December 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been convicted of an offence against a law of the State of New South Wales (NSW).

3. A copy of the delegate’s decision record was provided to the Tribunal with the application for review.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal from his home in Newcastle (by video conference) on 15 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, [Ms A], and stepdaughter, [Ms B].

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

   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. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant, and provides for the cancellation of a temporary visa (other than a visa in Subclass 050, Subclass 051 or a Subclass 444) in circumstances where the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory.

9. The particulars of the ground of cancellation are set out in the Notice of Intention to Consider Cancellation (NOICC), dated 21 October 2021, and the delegate’s decision record. They indicate that the applicant has been convicted of the following offences in the State of NSW:

   ·     22 February 2018: common assault (domestic violence (DV) for which the applicant received a s.9 Bond and 12 months DV orders.

   ·     14 February 2019: Contravene restriction in AVO (DV) and common assault for which the applicant received 12 months community corrections order.

   ·     3 December 2020: Driving unlicenced (first offence) and drive mid-range PCA (first offence) for which the applicant received a fine, driver disqualification, 18 months community service order and participate in alcohol interlock program.

   ·     20 May 2021: Damage/destroy property and contravene AVO for which he received 12 months community corrections order.

10. In response to the NOICC, the applicant’s then representative provided written submissions together with letters of support from the applicant’s spouse, [Ms A], and father-in-law, [Mr C].

11. In the written submissions, dated 10 November 2021, the representative set out the charges for which the applicant had been convicted, which includes five DV related offences and two driving offence. At the hearing, the applicant confirmed that he had been convicted of the above-mentioned offences.

12. On the evidence before it, the Tribunal finds that the applicant, who was the holder of a temporary (Subclass 030) visa, has been convicted of offences against the law of the State of NSW.

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

    Consideration of discretion

14. 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’.

15. In the written submission to the Department, dated 10 November 2021, the applicant’s representative stated that the applicant was born was born in Fiji, is a Fijian citizen and holds no other citizenship. He said the applicant had made frequent visits to Australia since 2017. The applicant lodged a partner visa application in 2019 which is yet to be decided. The applicant’s wife and two children are Australian citizens. The applicant also has two stepchildren who are also Australian citizens. At the hearing, the applicant informed the Tribunal that on [Date], his wife gave birth to their third child together, who is also an Australian citizen.

16. The representative provided some background information about Fijian culture and the hierarchy that exists within the community which forms part of the family unit. It was submitted that the applicant’s criminal offending occurred whilst he was intoxicated and that he has struggled to control his behaviour due to his consumption of alcohol. It was submitted that the DV incidents were due to verbal altercations whilst the applicant was intoxicated, and that the applicant did not physically harm his partner during the arguments. It was submitted that the applicant has been spoken to by the elders in his community (including his father-in-law) about his alcohol consumption and behaviour. It was submitted that the applicant stopped consuming alcohol since May 2021, and that the applicant and his wife have not had any issues since the applicant stopped drinking alcohol.

17. In her letter of support, dated 1 November 2021, the applicant’s wife said she has been married to the applicant for 5 years and that he was the sole breadwinner for the family, supporting her and their four children. She said the children are very close to the applicant and it was important for them to have both parents in their lives. She said they do not have family close to them and they rely on each other for support. She said the applicant’s offending occurred while he was intoxicated and that since he has given up alcohol he has drastically changed.

18. In his letter of support, the applicant’s father-in-law stated that he is aware of the applicant’s offending and believes it was due to the applicant’s immaturity. He has witnessed the changes in the applicant’s life and is happy that his daughter and the applicant have resolved their differences. He said the applicant and his wife have revived their church commitments, the applicant has found gainful employment and is contributing to the family and the children’s upbringing. He said a broken family would be detrimental to his daughter and each of the children, and that it was in the best interest of everyone that the family stay together. He said the applicant was a reformed person and would make a positive contribution to his family and the community.

19. On review, the Tribunal also received an updated letter of support from the applicant’s father-in-law, dated 4 August 2022. He said he has known the applicant for over five years and has seen a big change in the applicant’s behaviour. He said the applicant has matured as a father, the family was living in harmony, they joined their local church and are quite happy. He said the applicant has been looking after the children, including dropping them off and picking them up from school and assisting with house chores. He said the applicant has skills as [an occupation] and intends to go back to TAFE to get the qualifications necessary to get a job in this field. He wants the Tribunal to consider the impact of a broken family on his daughter and the children.

20. The Tribunal has had regard to all the relevant circumstances, including matters raised by the applicant and his wife at the hearing, and departmental guidelines, as follows.

    The purpose of the applicant’s stay in Australia and whether he has a compelling need to remain in Australia

21. The applicant’s immigration history was set out in the delegate’s decision record, which the applicant confirmed at the hearing to be correct. It indicates that the applicant first arrived in Australia in February 2017 as the holder of a Visitor (Tourist stream) (Subclass 600) visa. That visa was granted on 31 January 2017 and ceased on 21 June 2018. The applicant subsequently applied onshore for a second Visitor (Tourist stream) visa. In that application, he declared that the purpose of his stay in Australia was to look after his wife and children. That visa was granted on 06 August 2018 and ceased on 1 January 2019.

22. The applicant applied onshore for a third Visitor (Tourist stream) visa. In that application, the applicant again declared the reason for his stay in Australia was to look after his wife and children. That visa was granted on 25 February 2019 and ceased on 25 March 2019. It was indicated that the applicant had travelled to and from Australia as a tourist on several occasions, with his last arrival being [in] May 2018 and that he has remained in Australia since that date.

23. It was further indicated that after a period of being unlawful, on 26 May 2019, the applicant lodged an application for a combined Partner (Subclass 820/ 801) visa. The applicant was granted an associated Bridging C visa on 27 May 2019, which allowed him to remain lawfully in Australia while his partner visa application was being assessed.

24. The Tribunal notes that the applicant is currently not the holder of any visa, though the Department has not sought to detain him. The applicant indicated at the hearing that he has been living at the same address in [Suburb 1] and has been in communication with the Department as recently as last month to follow up on the progress of his partner visa application.

25. The applicant gave evidence that he wants to remain in Australia so he can continue to be part of his children’s lives. He and his wife have five children together, and it would be very difficult for his wife to raise the children on her own. He said his wife recently returned to work after a period of maternity leave and he has been looking after the children at home. He takes the older children to and from school and looks after the younger children at home.

26. The applicant said he and his wife do not have any close family nearby, and they do not have stable finances to be able to pay for afterschool care or childcare fees. He said if his visa is reinstated, he would like to return to work and would be able to get some work (night shift) to assist with the family’s finances. He said they are also considering asking his mother to come for a visit and spend time with the children, and this would enable him to do additional shift work.

27. The Tribunal is satisfied that the applicant wishes to remain in Australia to be with his spouse and children, all of whom are Australian citizens. The Tribunal accepts that the applicant plays an integral role in the lives of his children and that it would be very difficult for the applicant’s spouse and children, for reasons discussed further below, if he could not remain in Australia.

28. The Tribunal is satisfied that the applicant has a compelling need to remain in Australia, not just to await the outcome of his partner visa application, but to support his wife and contribute to the upbringing of the children. The Tribunal gives weight to this consideration in favour of not cancelling the visa.

    The extent of compliance with visa conditions

29. The delegate’s decision record indicates that there were no conditions imposed on the applicant’s Bridging C visa. There is also no evidence before the Tribunal which suggests that the applicant has breached a condition imposed on previous visas he has held. The Tribunal give some weight, albeit limited, to this circumstance in favour of not cancelling the visa.

    The degree of hardship that may be caused

30. If the applicant’s visa remains cancelled, then he will be liable for detention under s.189 of the Migration Act. The Tribunal notes that the Department has not sought to detain the applicant since his visa was cancelled on 23 December 2021. The applicant appears to have remained unlawful in the community since the cancellation of his Bridging C visa. The applicant did not appear to be aware of his visa status and gave evidence that he has been residing at the same address and has been in communication with the Department as recently as last month. He indicated the Department has not contacted him about his visa status.

31. When asked what hardship he and his family would experience if his visa remained cancelled and he was detained, the applicant said it would be very difficult for him to be separated from the children, whom he has been caring for on a full-time basis, and that it would be very difficult for his wife, who has recently returned to work, and for the children, who now have a good relationship with him.

32. In her evidence to the Tribunal, the applicant’s spouse said they have five children ranging from [teens] to two months and that it would be very difficult for her to raise the children on her own. She said they do not have any close family they can rely on to assist with the upbringing of the children. Her father and stepmother live in Canberra due to her father’s professional employment with a government agency. She is an only child and her mother passed away when she was quite young.

33. In relation to her eldest two children from a previous relationship, she said the applicant has been in the children’s lives since 2016 (when she and the applicant got married) and they consider him their father and call him dad. She said he has raised them for the last six years and they are extremely attached to him, even more so than her. She said their family life has significantly improved since the applicant started getting professional help and going to church.

34. In relation to their financial circumstances, the applicant’s wife gave evidence that she recently returned to work after a period of maternity leave. She currently works as a disability support worker. Prior to going on maternity leave she worked as a nursing assistant in an aged care facility. She said if the applicant could not remain with the family, she would not be able to work as there would be no one to look after the children.

35. The applicant and his spouse asked the Tribunal to take evidence from their eldest daughter [Ms B] as she wanted to speak to the Tribunal. With their permission, the Tribunal agreed to take evidence from [Ms B]. The Tribunal confirmed that [Ms B] is [Age] years of age and that she wished to speak to the Tribunal. [Ms B] gave evidence that she and the applicant get along well. She said their family life has been good, they have movie nights, they go for walks to the park and the shops together. [Ms B] said they have been going to church, and at home they also do bible study as a family and pray together. When asked about life at home and what it was like on a day-to-day basis, she said it has been good, they cook and bake together, take the younger kids to the park, and the applicant takes them to do exercise. [Ms B] said they would all be very sad if the applicant could not stay with them, and that it would be especially difficult for the younger children.

36. The Tribunal finds that if the applicant’s visa remains cancelled, he will be liable for detention. If the applicant is detained, he will be separated from his spouse and children. The Tribunal considers that any separation, even if it was temporary, would place undue psychological, emotional and financial hardship on the applicant, his wife and the children. For these reasons, the Tribunal gives significant weight to this consideration in favour of not cancelling the applicant’s visa.

    Circumstances in which ground of cancellation arose

37. The ground of cancellation arose when the applicant was convicted of offences against the laws of NSW, which included five domestic violence related offences and two driving offences.

38. The Department’s file includes a police fact sheet which relates to the incident that occurred on 20 March 2021, which led to the applicant being charged and convicted with the offences of contravening a restriction in an AVO and destroying/damaging property.

39. The police fact sheet indicates that the applicant, who is in a domestic relationship with the victim (his wife), came home intoxicated at 4:40 am on 20 March 2021. The victim was at home with three children. The applicant repeatedly called the victim on her mobile phone, but she refused to answer as she knew it was the applicant and the children were sleeping. When she opened the front door, she realised the applicant was intoxicated and angry. She ran to the back door. The applicant confronted the victim about not answering her phone, he then went to the bedroom and took her phone and smashed it. The applicant also went to the lounge room and threw an object towards the flat screen TV and smashed it. It was recorded that the victim asked the applicant to leave. The noise woke up the children and one of the children ([Ms B]) got out of bed. The applicant commenced laughing and making comments, so the victim went to the backyard. The applicant ran towards her causing her to scream. The victim asked [Ms B] to go to her room, and the applicant followed [Ms B] and commenced a conversation with her. It was alleged that the applicant threatened [Ms B] and threatened to take his three-year-old son ([named]) with him.

40. It was recorded that the applicant apologised to [Ms B] and after a short time left the house in the family’s vehicle. Police attended the family home and obtained a statement from the victim in relation to the incident. It was noted that [Ms B] did not wish to provide a formal version of the incident. Police observed a flatscreen TV in the lounge room with a smashed screen. The victim advised that the applicant had taken her and [Ms B]’s mobile phones.

41. It was recorded that on 31 March 2021 the applicant attended [Suburb 2] Police Station and placed under arrest for the alleged offences of Contravene AVO and Malicious Damage. As noted above, the applicant was convicted of these offences [in] May 2021 in [Local Court] (NSW).

42. In written submissions, the applicant’s former representative contended that the applicant has struggled to control his behaviour due to the consumption of alcohol. It was also suggested that the applicant’s cultural background and upbringing, where men are the chief of the household and talk back was regarded as disrespectful, had contributed to the applicant’s offending.

1. It was submitted that the applicant had never physically harmed his partner, though on two occasions he pushed her from a doorway so he could leave the house to ‘cool down’. It was submitted that the offence of contravene restrictions in AVO relates to the applicant being drunk and arguing with his partner. In relation to the driving offences, it was submitted that this related to the applicant borrowing his friend’s dirt motorbike and riding it home when he was drunk.

2. The Tribunal discussed with the applicant his convictions and information on the police facts sheet. It noted that he appears to have a history of domestic violence related incidents and it was concerned that his offending conduct may be repeated in future.

3. In response, the applicant said he was very sorry for what he has done. He has learnt that his conduct is not acceptable. He said it all started with the incident in 2018 when he saw his wife another man at their home. When he came into the room and saw her with his friend, he got very upset and started to wreck everything. He said he felt betrayed and did not know how to control his reaction. His wife got really scared and called the police. He said that day changed everything in their relationship. He started drinking every weekend and every night when he came home. He said his behaviour made his wife and children scared. He now recognises that what he was doing was punishing himself and his family. The money he spent on legal and court cases should have been spent on his family.

4. The Tribunal remarked that the Australian community had little tolerance for perpetrators of domestic violence. It noted that Australia had a national plan to reduce violence against women and children, and that any form of domestic/family violence is not tolerated regardless of cultural background or circumstances.[1]

   [1] The National Plan to Reduce Violence against Women and their Children 2010 – 2022 | Department of Social Services, Australian Government (dss.gov.au)

5. The applicant said he now understands this, as he has been getting assistance from his psychologist and family counsellor. Also, last year they joined a church where he attends men’s group. He said they have been praying as a family and this has helped them lot. His psychologist has helped him understand and manage his behaviour and the family counsellor has assisted him with his parenting skills. He now spends a lot of time with his children, and they do activities together to bond as a family. He said his life has completely changed since May 2021. He has stopped drinking, got rid of his bad friends, embraced his new church friends, and has even stopped playing rugby because his rugby friends were always going to the pub and drinking. He said he has been staying at home and spending time with the kids.

6. The applicant’s wife confirmed that their family life has changed (for the better) since the applicant stopped drinking and said she and the children are now much happier.

7. The Tribunal considers that the circumstances of the non-compliance, being the convictions, which include domestic violence related offences, weigh in favour of cancelling the visa. The Tribunal does not accept that the applicant’s cultural background or the events which led to the applicant being charged and convicted, excuses the applicant’s conduct. Against this however, the Tribunal also gives some favourable weight to the applicant’s acknowledgement of his wrongdoing and the efforts he has made to improve his family’s quality of life, including obtaining professional assistance, avoiding triggering situations and spending time with his children.

   Past and present behaviour of the applicant towards the department

8. The delegate noted that there was no adverse information regarding the visa holder’s behaviour towards the Department or to departmental staff. The Tribunal gives this consideration neutral weight in the exercise of its discretion.

   Whether there would be consequential cancellations under s 140

9. The applicant’s wife and children are Australian citizens. Accordingly, no other person’s visa will be cancelled under s 140 as a consequence of the applicant’s visa being cancelled.

   Mandatory legal consequences

10. If the applicant’s visa remains cancelled, he will be liable for detention. Cancellation of the applicant’s Bridging C visa, which is the subject of this review, will not result in the applicant being removed from Australia as he still has a partner visa application pending before the Department.

11. If the applicant is placed in immigration detention, he will be separated from his wife and children and this is likely to cause undue hardship for them. In the circumstances of this case, the Tribunal considers that the mandatory legal consequences of cancellation weigh in favour of not cancelling the visa.

    Australia’s international obligations

12. The Tribunal has considered 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.

13. The applicant has not raised any claims which suggest that cancellation of the visa would breach Australia’s non-refoulment obligations.

14. In relation to Australia’s obligations regarding family unity and the best interest of the children, the Tribunal has considered the evidence before it as follows.

15. The Tribunal considers that it is in the best interest of children to cared for by both parents, however, it is also important that children are not subjected to or exposed to family violence. The Tribunal raised with the applicant its concern about the children having been exposed to family violence and risk that this conduct may be repeated in future. In response, the applicant said his main goal is to make up for lost time. On weekends he used to go out drinking with his footy friends, but now his priority is to be a good father. He said he wants to be a role model for his children, he does not want his sons to be involved with the ‘cops’ and go down a bad path. He also wants to be a good role model for his daughters, so they do not end up in relationships with a violent husband. He said through therapy and spending time with the men’s group at church, he is learning to be a good husband and father.

16. In her evidence to the Tribunal, the applicant’s wife said she and the applicant have bonded and learnt to become a family unit. They have received help from their church and the children have been very happy. She said the applicant spending time at home with the kids has allowed them to bond and do things as a family together.

17. The evidence before the Tribunal indicates that the applicant has made significant efforts to improve himself, change his offending conduct and focus on his family. The evidence further indicates that the applicant is involved in the care and development of the children, and that the children have a meaningful and fulfilling relationship with their father/stepfather. 

18. In considering the evidence overall, the Tribunal is satisfied that it is in the best interest of the children, all of whom are Australian citizens, to be cared for by both parents, and that at this time, it would not be in the best interest of the children to be separated from their father. For these reasons, the Tribunal gives significant to the best interest of the children in favour of not cancelling the applicant’s visa.

    Conclusion

19. The Tribunal has carefully considered the evidence before it and has weighed up all the relevant circumstances. In the exercise of its discretion, the Tribunal considers that the circumstances in favour of not cancelling the visa substantially outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should be not be cancelled.

    decision

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

    R. Skaros
    Senior Member