2203882 (Migration)

[2022] AATA 3189

2203882 (Migration) [2022] AATA 3189 (2 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Manjinder Singh Saini (MARN: 1171779)

CASE NUMBER:  2203882

MEMBER:R. Skaros

DATE:2 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 02 August 2022 at 3:29pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to the health and safety of an individual or individuals – applicant convicted of serious offences – member of the family unit – threats against family members – mental health issues – separation from the applicant’s family – lifetime family violence restraining order – visa expired – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 501
Migration Regulations 1994

CASES

Gong v MIBP [2016] FCCA 561
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 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 18 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was granted the Subclass 485 visa on 29 June 2018 as a member of the family unit of [his wife] (the primary visa holder). The Subclass 485 visa was granted for a period of two years.

3. On 2 August 2019, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant did not receive that NOICC and the Department, on 15 August 2019, reissued the NOICC which was received by the applicant and to which he responded.

4. The applicant was initially notified of the decision to cancel his Subclass 485 visa on 18 September 2019. On 8 March 2022, the Department re-notified the applicant of the decision to cancel his Subclass 485 visa as he had not been correctly notified of that decision.

5. The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health and safety of an individual or individuals.

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

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

8. The applicant appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The hearing was scheduled to be held by video conference, however, on the day of the hearing, the video facility at the Yongah Hill Immigration Detention Centre was not working due to network issues. The applicant was instead connected to the hearing by telephone. The Tribunal asked the applicant if he was happy to proceed with the hearing by telephone given the network issues. The applicant indicated he had no issue with the hearing being conducted by telephone and the Tribunal proceeded on this basis. The applicant confirmed that he could hear the member and interpreter clearly. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicant was represented in relation to the review. The representative did not attend the hearing.

10. The Tribunal notes that the Department’s file included a certificate issued under s.375A of the Act and signed by a delegate of the Minister. The certificate was in relation to various documents on the Department’s file and stated that disclosure of information in those documents, other than to the Tribunal, would be contrary to the public interest because it would disclose lawful method for preventing detecting and investigating breaches or evasion of the law which would or be likely to prejudice the effectiveness of those methods. The documents related to correspondence with other authorities, including State police and child protection, and internal correspondence regarding the process of cancellation.

11. A copy of the certificate was sent to the applicant and the representative by email prior to the hearing. Issues relating to the validity of the certificate and relevance of the information covered by the certificate were discussed with the applicant at the hearing. The Tribunal noted that some the information in the documents covered by the certificate was relevant to the issues in the review, but noted that the information, to the extent that it was relevant, was disclosed to the applicant in the NOICC, an extract of which was also included in the delegate’s decision record, and that the applicant had an opportunity to respond to that information. After some discussion about the nature of the information covered by the certificate, no issue was taken with the validity of the certificate.

12. The Tribunal is satisfied that the certificate, which was properly signed and dated by a delegate of the Minister, provides valid public interest reasons for the non-disclosure of the stated documents. The Tribunal is also satisfied that the information relevant to the issues in the review (as discussed in detail below) have been disclosed to the applicant, and to which the applicant has had an opportunity to respond.

13. 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

14. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). 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?

15. A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

16. The particulars of the ground of cancellation were set out in the delegate’s decision record. It states that on 6 June 2019 Western Australia Police (WAPOL) advised the Department that they had charged the applicant with the following alleged offences against his wife ([named]) and [age] daughter ([named]); two counts of unlawful act or omission with intent to harm (endangering life, health or safety of any person), threaten to kill, common assault and deprivation of liberty.

17. It states that on 7 June 2019 WAPOL informed the Department that the applicant was remanded in custody at [a named] prison pending these charges. On 2 July 2018 WAPOL advised that this continued to be the case and that the applicant is scheduled to appear in [Court 1] [in] September 2019 in relation to these charges.

18. The delegate set out the information contained in the Statement of Material Facts relating to the alleged offences which was obtained from WAPOL. It states that at approximately 6:30pm [in] June 2019 the applicant was at his home address in [Suburb 1]. Present at the address were his wife ([named]), his [age] daughter ([named]) and an adult witness.

19. A verbal argument began between the applicant and his wife which escalated with both parties pushing each other, resulting in his wife leaving the house with the child and the adult witness. As his wife was leaving the house, the applicant gave chase and took hold of her clothing collar. He pulled on her collar and dragged her back towards the house. The applicant’s wife broke free of his grip and continued down the street to a nearby park.

20. Approximately thirty minutes later the applicant’s wife returned to the house accompanied by her mother and [Relative A], as well as the adult witness. She moved into a separate room with her mother and [Relative A]. After a short time, the verbal argument continued with the applicant making verbal threats stating, “I'm going to kill you, kill your family”. The applicant yelled this threat again and picked up a jerrycan which contained petrol and continued stating “I'm going to kill you, kill your family”.

21. The applicant’s mother-in-law and [the Relative A] ran from the house out of fear. The applicant stood in front of his wife and daughter, holding the jerrycan. He yelled threats to kill his wife and threw petrol from the jerrycan over her head. The applicant continued pouring petrol over his wife's head with enough contents to cover the top of her body. The applicant continued pouring petrol onto his daughter who was beside his wife. While still holding the jerrycan the applicant grabbed his wife's wrist and flung her onto a nearby sofa.

22. The adult witness intervened and assisted the wife to her feet. The applicant’s wife, child and the adult witness ran from the address to a nearby park. At the park they sought refuge with members of the public who assisted in phoning the police. The applicant gave chase and yelled abuse towards his wife while members of the public intervened. The applicant yelled “I'm going to kill you and your child and your family as well”. Shortly afterwards police attended the park and arrested the applicant, who was then taken to [a named] Police Station where he initially participated in, but declined to continue, an audio-visually recorded interview. The applicant offered the explanation to police that he has depression and was trying to hurt himself, not them. The applicant was charged and refused bail. The applicant’s wife and child were taken to hospital where they were treated for minor injuries.

23. Information was also sought from the Department of Communities, which is responsible for the delivery of child protection and family support, regarding the welfare of the applicant’s daughter following the laying of charges against the applicant. On 6 June 2019, the case manager who was assigned to the daughter’s matter advised the Department that they hold significant concerns for the welfare of the applicant’s wife and daughter should the applicant be released from prison and have direct access to them. It was noted that the advice was based on the severity of the incident which led to the charges, and the wife's apparent inability to adequately protect their daughter when the applicant was present.

24. The applicant responded to the NOICC on 22 August 2019 by way of a written statement. He explained that in September 2015, he and his wife came to Australia so his wife could complete higher studies. Due to his non-English background, he faced many problems such as not being able to find a job and, when he was able to find a job, he could not maintain it as he was unable to communicate in English. He said he relied on his wife to help him and be his interpreter.

25. The applicant stated that in August 2016, his grandfather had a heart attack and wanted to see the applicant. He told his grandfather he would travel to see him but was unable to do so as he could not afford the cost of the trip. His grandfather, with whom he had a strong emotional and mental attachment, subsequently passed away. The death of his grandfather broke him, and he felt a sense of deep regret because he could not be with him during his last moments. Due to his unemployment, his grandfather’s death, trauma, and other family problems back in India, he went into depression and his mental health got worse.

26. The applicant said his wife observed his behaviour and suggested he go and see a GP. The GP prescribed him antidepressants. He took the medication for about six to seven months and was completely fine. He started working as [an occupation 1] and stopped taking his medication because it made him sleepy. He felt completely fine, but at the start of 2019 he lost his job. He tried to get another job but was unsuccessful. He said the financial burden from his parents upset him. In November 2018, he purchased a car but without a job it was impossible for him to pay the monthly instalments. He said all these problems had a bad impact on his mental condition. He said his wife worked hard to meet their expenses and took care of their daughter. He felt bad for his wife because as the man of the house he was not able to provide the necessary support.

27. In addressing the issue of whether he believes the grounds for cancellation does or does not exist, the applicant said he loves his family and would never think of harming them. On the day of incident his brain went numb, and he did not know how the situation had escalated. He understands the charges against him, but he is not a criminal and has never harmed anyone. He does not have any previous criminal record. At the time of the incident, he had severe depression and anxiety because, being the man of the house, he was not able to provide all the necessities of life for his family. He said his wife started working full time to support the family and even stopped buying food and clothes for herself. She sold the car and started taking public transport. He was in severe stress and because of him his wife was suffering, and he was unable to provide happiness to her like other men in his circle of friends.

28. The applicant said he was granted bail with protective bail conditions. He can communicate with his wife via electronic media. He is doing his best to overcome his mental disorder, so this type of incident does not happen again. He consults his GP ([Doctor A]) every two weeks and has been prescribed anti-depressants. He exercises regularly to increase a sense of self control and self-esteem. [Community Organisation 1] is helping him and provides counselling sessions. He is cooperating with the child protection manager who has undertaken to provide the necessary support and classes for the family’s wellbeing. He said his wife is the only person that has assisted him with his mental health issues. Without him she will face financial hardship as she has a lot of expenses, which has caused her stress.

29. The Department also received a copy of a letter from the applicant’s wife, which was undated and addressed to the presiding Magistrate. In the letter, the applicant’s wife provided details of the applicant’s past employment difficulties, medical issues, and pressure from family overseas to send funds. She said the applicant does not have a previous criminal record and that he has never harmed anyone. She said the applicant was not well mentally and required treatment. They have been married for four years and seven months and the applicant has been a good husband and father. In relation to the incident which led to the applicant being charged, she said after the argument between her husband and her family members escalated, she and her family members decided to go out of the house so the applicant could calm down. She wanted to help him overcome his mental disorders. She said because of his previous treatment history, she is sure he will get better. She said she is not seeking any kind of restraining orders for herself or her daughter as the applicant is not a threat to them. She requested that the applicant be grant bail so he can return home and get the necessary treatment.

30. The Department also received a medical certificate dated 22 August 2019 from [Doctor A] indicating that the applicant has been under his care and has had a history of depression/anxiety and stress in the preceding four to six months. It was indicated that the applicant is under medication which has controlled his symptoms. Details of the medication was provided.

31. Also provided was a patient health summary relating to a consultation with the applicant and his wife which took place on 24 August 2016 for anxiety/depression. It noted that the applicant’s wife said the applicant had been angry for over a year and often irrationally blamed her, was sometimes physically threatening, and sometimes threatened suicide.

32. The applicant also provided a letter from the General Secretary of [Community Organisation 2], dated 8 July 2019, stating they had received a request from the applicant’s wife to organise some guidance and counselling sessions for the applicant who they understand has depression and anxiety issues. They advised that they have senior community members who provide guidance and support to families with these types of issues and would be happy to organise sessions to the applicant.

33. On review, the Tribunal received several character references for the applicant, including letters support the Director of [Business 1], [Mr A], and the applicant’s friend [Mr B], in which they state that they have known the applicant socially since 2015, that the charges against the applicant were extremely out of character, that the applicant is remorseful and unlikely to offend and that they are willing to provide the support he requires to establish himself within the Australian community. The Tribunal also received a letter of support from [a named JP], in which he states he has known the applicant for 5 years, they used to meet at local Sikh religious services every Sunday and they have family connections in India. He said the applicant and his family are very hardworking and are dedicated to volunteer service and the principles of the Sikh religion.

34. At the hearing the Tribunal discussed with the applicant the information before it, as set out in the statement of material facts (detailed above), which it explained raises concerns about whether his presence in Australia may pose a risk to the health or safety of an individual or individuals, namely is wife and/or daughter. The Tribunal noted that the threshold for establishing that the ground of cancellation in s 116(1)(e) exists was quite low and the mere possibility of the applicant posing a risk in the future was sufficient. The Tribunal expressed its concern that the applicant’s past conduct towards his wife and daughter (as alleged in the statement of facts) suggest he had threatened to harm them and endangered their lives.

35. In response, the applicant said when the police arrested him a lot was said which was included in the statement. He said since then several charges against him had been dropped and he was found guilty of only two charges. He said the charges of threaten to kill and deprivation of liberty were removed from the charge sheet, though he was ultimately found guilty of the charge of endangering life. He said he accepts the findings of the Court and requested the Tribunal read the sentencing remarks. The applicant gave evidence that he was sentenced to [period] of imprisonment with a non-parole period of six months. He served six months of his sentence, after which he was granted parole. Following the hearing, the Tribunal received a copy of the transcript of proceedings in relation to the sentencing of the applicant.[1]

    [1] [Source deleted].

36. The Tribunal discussed with the applicant the information provided by the welfare officer (detailed above) which indicates they had significant concerns, given the severity of the incident, about the welfare of his daughter if he was released and had concerns about whether his wife would be able to protect her from the applicant. In responding to this concern, the applicant said he has not had any contact with his wife or daughter for a very long time. He said his wife was supporting him in prison after he was charged, but since then she has stopped communicating with him and they have not had any contact for a few years. When asked if they had separated, he said they have. He said his wife’s family had targeted his family and that his mother has since passed away. When asked to explain the relationship between the families, the applicant said his ex-wife’s family had put pressure on his family and his father has stopped talking to him because of the problems he caused. He said his father has medical issues and his mother passed away when he was in custody.

1. The Tribunal put to the applicant that based on his past conduct, and the subsequent finding of guilt in relation to two of the charges, it may find that his presence in Australia may be a risk to the health or safety of his ex-wife and daughter. The applicant said he has learnt from his past actions and next time he will consider a lot of things before acting. He said he has lost his mother and daughter. He said he can confirm he will not harm his family or daughter. He is a simple person and just wants to accept God’s will and live his life accordingly.  

2. The Tribunal discussed with the applicant the claim that the incident, which led to him being charged, was due to his mental health issues and remarked that there was limited evidence before it regarding the current state of his mental health. In response, the applicant said it has been more than three years and he has recovered. He has suffered a lot because of his mistake, which he regrets. He said it was a major incident in his life and he is trying to keep himself in control and stay strong. He said he completed courses about anger management and children while he was at the detention centre which have helped him improve himself.

3. The Tribunal has carefully considered the evidence before it. The Tribunal accepts that the applicant’s wife (with whom he has now separated) initially supported the applicant and did not consider him to be a threat to her or their daughter. The evidence, however, suggests that welfare authorities had concerns for the safety of the applicant’s wife and daughter. The Tribunal acknowledges that the advice of the welfare officer is over three years old, however, there is no current evidence before the Tribunal which suggests that welfare authorities no longer hold concerns in relation to the safety of the applicant’s former wife and daughter. The Tribunal accepts that the applicant has not had any contact with his former wife and daughter for a considerably long time (since 2019), however, this does not alleviate the Tribunal’s concern about the risk the applicant may pose to their health or safety in future.

4. The Tribunal has considered the medical and other evidence before it regarding the state of the applicant’s mental health and circumstances at the time of the incident. The Tribunal accepts that the applicant suffered from depression and anxiety and had been prescribed anti-depressants. It also accepts that at the time of the incident the applicant was unemployed and was experiencing pressures due to personal, family, and financial circumstances. The Tribunal is concerned that if the applicant, in future, is faced with challenging situations, stressful events or life’s pressures, he may again become overwhelmed and act irrationally. The Tribunal holds this concern because there is no current substantive evidence before it indicating the applicant has recovered from his mental health condition. The Tribunal accepts that the applicant has undertaken several courses whilst in detention, however, this does not overcome the Tribunal’s concern regarding the applicant’s mental health issues and the risk he may possibly pose to the health or safety of his ex-wife or daughter.

5. The Tribunal has had regard to the judge’s remarks, as set out in the transcript of the sentencing hearing. The judge issued a family violence restraining order to the applicant (for the duration his life) which identified his ex-wife as the protected person. It orders the applicant not to communicate with his ex-wife, other than through a legal representative acting on behalf of his ex-wife, by any means whatsoever. In sentencing the applicant, the judge confirmed that the applicant had been convicted of two charges. The first being intent to injure or annoy, administered unlawfully a noxious thing (petrol) to his ex-wife. This was in circumstances of aggravation, being the presence of their daughter. The second related to unlawfully doing an act, the result of which the health or safety of his daughter was or was likely to be endangered. The judge accepted that the applicant did not intend to pour petrol on his daughter. It was found that the petrol came on the daughter when the applicant was splashing petrol across the room. It was accepted that the applicant did not intend to set his ex-wife on fire, it was nevertheless noted that the applicant’s conduct (the pouring of petrol) would have caused the applicant’s ex-wife to fear that she would be so harmed. 

6. The judge’s remarks indicate that the applicant had not previously been the subject of any criminal proceedings, but nevertheless refers to a history of violence between the applicant and his ex-wife. The Tribunal notes this is consistent with the patient health summary document provided to the Department (referred to above) in which the applicant’s ex-wife was recorded to have said that the applicant had been angry for over a year, often irrationally blamed her and was sometimes physically threatening.

7. The Tribunal has had regard to the recent character references provided in which the applicant’s friends state that the applicant remorseful and unlikely to offend, that the charges were out of character and they are willing to support the applicant. While the Tribunal accepts that the applicant has some support from friends in Australia who believe his conduct was out of character, the Tribunal gives these references limited weight, given other evidence before it which suggests a history of violence between the applicant and his ex-wife.

8. The Tribunal acknowledges that the applicant has not had contact with his ex-wife and daughter for several years. It also acknowledges that there is a lifetime restraining order in place, however, these circumstances do not, in the Tribunal’s view, eliminate or significantly reduce the threat that the applicant may pose to the health or safety of his ex-wife or daughter.

9. The Tribunal considers the charges of which the applicant has now been convicted, which involved violence in a family setting and in the presence of a young child, to be very serious. On this basis, and for all the above reasons, the Tribunal finds that the presence of the applicant in Australia is (or may be) a risk to the health or safety of an individual or individuals, being his ex-wife and daughter.

10. Given the above, the Tribunal finds that the ground for cancellation in s 116(1)(e) 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 applicant’s travel and stay in Australia

12. The applicant travelled to Australia in 2015 with his ex-wife so she could undertake higher studies.  On 29 June 2018, the applicant was granted a Skilled (Provisional) Subclass 485 visa as a member of the family unit (spouse) of his ex-wife. That visa was granted for a period of two years (until 29 June 2020).

13. The applicant and his ex-wife are now separated and have not had any communication for several years. Furthermore, there is a restraining order in place which prevents the applicant from having any communication with his ex-wife. As the applicant and his ex-wife are no longer in a relationship with one another, the Tribunal considers that the purpose for which the Subclass 485 visa was granted no longer exists. Furthermore, the Subclass 485 visa would, in any case, have ceased over two years ago.

14. When these factors were discussed with the applicant, he said while he does not currently have a relationship with his daughter, he hopes when she grows-up he can see her. He said this would have to be done through the court. He said if he had to leave his daughter in Australia it would deteriorate his mental health. He came to Australia for a better future and wants to give back to the community. He is connected to an organisation in Australia and has undertaken some volunteer work with those organisations. When asked if he had taken any action to get access to (or communicate with) his daughter, the applicant said no and that his daughter can only be with his ex-wife though there were a few organisations that would help him pursue an application in court.  The applicant confirmed that at this time he does not have any permission to see his daughter or have any communication with her.

15. The Tribunal has considered the applicant’s evidence and accepts that he would like to resume communication with (and see) his daughter. The Tribunal acknowledges that the applicant intends to seek the assistance of an organisation to assist him with an application to the court so he can resume contact with his daughter. The Tribunal also acknowledges the applicant’s evidence that if he had to return to India and his daughter remained in Australia, the separation may affect his mental health. It accepts that the applicant wants to remain in Australia for a better future and to contribute to the community. However, none of the reasons given by the applicant as to why he wants to remain in Australia are consistent with the purpose of the Subclass 485 visa. The Subclass 485 visa is a temporary visa (of two years’ duration) that was granted to the applicant so he could remain with his ex-wife as a member of her family unit. The relationship between the applicant and his ex-wife has broken down, as such the applicant no longer satisfies the purpose for which the Subclass 485 visa was granted to him. In any case, the Subclass 485 visa granted to the applicant ceased on 29 June 2020, which was over two years ago. The Tribunal gives significant weight to these circumstances in favour of cancelling the Subclass 485 visa.

    The extent of compliance with visa conditions

16. There is no evidence before the Tribunal which suggests that the applicant has not complied with any of the conditions imposed on his visa. This circumstance weighs neither in favour of nor against cancellation of the Subclass 485 visa.

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

17. The applicant gave evidence that if his visa is cancelled and he remains in Immigration detention he will face a lot of difficulties because of his faith. He said he wears a turban and has long hair. Also, he is not a smoker whereas a lot of the detainees smoked, and he found inhaling cigarette smoke difficult. He said God was testing him.

18. The Tribunal acknowledges the difficulties experienced by the applicant whilst he has been in detention. The Tribunal accepts that these difficulties are likely to continue if the applicant’s Subclass 485 visa remains cancelled and he is not granted another type of visa. The Tribunal accepts that remaining in detention may cause the applicant some emotional and psychological hardship, and gives this consideration some, albeit limited, weight in favour of not cancelling the visa.

    The circumstances in which ground of cancellation arose.

19. The ground of cancellation arose because of an incident which occurred [in] June 2019 which led to the applicant being charged with very serious offences, two of which he was subsequently convicted. The Tribunal discussed with the applicant the facts of the incident (as set out in statements of material facts) and expressed its concern as to the seriousness of the applicant’s conduct which endangered the lives of his ex-wife and daughter. The Tribunal noted that, had it not been for the intervention of another person, his actions (of pouring petrol on his ex-wife and daughter) could have resulted in them being very seriously harmed.

20. In response the applicant said even he got shocked when he read the police report. He said the police included a lot of details which were not found to be accurate, and he requested the Tribunal to read the sentencing remarks carefully. As noted above, the applicant provided a copy of the sentencing remarks to which the Tribunal has had regard. The Tribunal acknowledges the findings of the court that the applicant did not intend to pour petrol on his daughter and that he had no intention of setting his ex-wife alight. The Tribunal also accepts that several charges against the applicant were dropped and he was not found guilty of one of the three charges pursued at trial. Notwithstanding these concessions, the applicant was still found guilty of two very serious offences for which he was sentenced to [period] imprisonment, in respect of each conviction, even after taking into account the time already spent by the applicant in Immigration detention (2 years).

21. The Tribunal gives significant weight to the circumstances in which the ground of cancellation arose in favour of cancelling the visa.

    Past and present behaviour of the applicant towards the Department

22. There is no evidence before the Tribunal which suggests that the applicant’s behaviour towards the Department has been of any concern. This circumstance weighs neither in favour of nor against cancellation. 

    Whether there would be consequential cancellations under s 140

23. The delegate noted that the cancellation of the applicant’s visa would not result in the cancellation of his ex-wife or daughter. It was noted that the applicant’s ex-wife and child would continue to hold the Subclass 485 visa until 29 June 2020, being the date on which the visa ceased to be in effect.

24. As no other person’s visa will be consequentially cancelled by the cancellation of the applicant’s Subclass 485 visa, the Tribunal gives no weight to this consideration in favour of not cancelling the visa.

    The mandatory legal consequences of cancellation

25. If the visa is cancelled, the applicant will remain in Immigration detention and will be liable for removal from Australia, subject to any appeals or other visa applications he may wish to pursue. Any further visa applications or appeals pursued by the applicant in Australia are likely to prolong his stay in detention.

26. The Tribunal notes that the applicant will be affected by s.48 of the Act, which limits the types of visas he can apply for onshore. The Tribunal further notes that any visa application applied for by the applicant will likely be affected by the character provisions in s.501 of the Act, as the applicant has been sentenced to [a period] of imprisonment.

27. The Tribunal discussed with the applicant the consequences of cancellation, to which he said he understood. The Tribunal considers the mandatory legal consequences of cancellation to be the intended purpose of the legislation, and for this reason gives them little weight in favour of not cancelling the visa.

    Australia’s international obligations

28. 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.

29. It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

30. When asked about whether he has any fears of returning to his home country of India, the applicant said he has been in Australia for a long time. He said his family has been through a lot, his father is unwell, has mother has passed away and the situation in India is currently bad and he is not sure what will happen to him.

31. The Tribunal has considered the applicant’s evidence and acknowledges that he has been in Australia for seven years, that his family’s circumstances in India have changed and that he is uncertain about his future in India, where he says the situation is bad. However, the Tribunal is not satisfied that any of the matters raised by the applicant (individually or cumulatively) suggest that cancellation of his visa would result in Australia breaching its non-refoulment obligations.

32. In relation to Australia’s obligations regarding family unity and the best interest of the applicant’s daughter, who would now be [age] years of age, the Tribunal has considered the evidence before it as follows.

33. The evidence before the Tribunal, as given by the applicant, is that he and his ex-wife have been separated for several years and he has not had any communication with his ex-wife and daughter. The Tribunal also notes that there is a lifetime restraining order in place in respect of the applicant’s ex-wife. The applicant has not claimed, and there is no evidence before the Tribunal which suggests that there is any intention for the applicant and his ex-wife to reunite.

34. In relation to the applicant’s daughter, the Tribunal acknowledges the applicant’s evidence that he may be able to see his daughter with permission of the court, however, at the present time there is no court order in place which permits the applicant to have contact with his daughter. Furthermore, the evidence before the Tribunal, indicates that welfare authorities had concerns about the daughter’s safety in the presence of the applicant. The Tribunal acknowledges that the evidence from the child’s welfare officer was given three years ago, however, there is no current evidence before the Tribunal which suggests that the situation has changed. The Tribunal discussed this evidence with the applicant and noted that in the absence of any current evidence before it, the Tribunal may rely on the information provided by welfare authorities to find that it was not in his daughter’s best interest to reunite (or have physical contact) with him.

35. The applicant did not dispute or disagree with the evidence before the Tribunal and said if it was not in the best interest (or safety) of his ex-wife or daughter, then he can move to a different state, where he can live and work. He said he has experience in the [occupation 1] industry and could go to another city to work. The Tribunal queried whether he would be eligible for a visa which would permit him to remain in Australia to work and noted that there was no evidence before it to suggest that he would qualify for such a visa. The applicant said he wanted advice on his eligibility. The Tribunal noted that while it was open for him to seek advice from his representative regarding his eligibility for a visa, the evidence before it does not suggest that he is eligible for a visa that would permit him to live and work in Australia.

36. The Tribunal has considered the evidence before it and acknowledges that if the applicant’s daughter remains in Australia and the applicant’s visa is cancelled and he is removed from Australia, then the applicant will be separated from his young daughter. The evidence before the Tribunal, as it stands, does not indicate that it is in the child’s best interest to be with the applicant. In the circumstances, the Tribunal does not consider that cancellation of the applicant’s visa would result in Australia breaching its international obligations in relation to the Convention on the Rights of the Child.

37. Given the above, the Tribunal does not consider that Australia would be in breach of its international obligations if the visa is cancelled. Accordingly, it gives no weight to this consideration in favour of not cancelling the visa.

    Other Relevant matters

38. The Tribunal has considered the recent character references provided from the applicant’s friends. It has also considered the evidence provided by the applicant and his friends, in their letter of support, indicating the applicant has undertaken some volunteer work in the community. The Tribunal gives some weight, albeit limited, to the volunteer work undertaken by the applicant and the support he has from friends, in favour of not cancelling the visa.

1. Another consideration which the Tribunal considers relevant, which was also considered by the delegate and set out in the decision record, is the nature of the charges against the applicant. The applicant was convicted of two very serious offences which were committed in a family setting and in the presence of a young child. As noted in the delegate’s decision record, the National Plan to Reduce Violence against Women and their Children (2010-2022), endorsed by the Council of Australian Governments, states that reducing all violence in the community is a priority and all forms of violence against women are unacceptable, in any community and in any culture. It notes that the emotional and personal costs of violence against women cannot be measured: the effects reach all levels of society. It recognises that violence not only affects the victim themselves, but the children who are exposed to it, their extended families, their friends, their work colleagues and ultimately the broader community.[2]

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

2. The Tribunal explained to the applicant that the nature of his conduct, which led to his convictions, were particularly objectionable given Australia’s strong view that family violence is unacceptable and cannot be tolerated, and that it may give weight to this consideration in favour cancelling his visa. The applicant indicated he understood. He had no further comments to make. The Tribunal gives weight to this consideration in favour of cancelling the visa.

   Conclusion

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

   decision

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

   R. Skaros
   Senior Member