2207295 (Refugee)

2207295 (Refugee) [2023] AATA 4377 (4 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Roya Majd (MARN: 0701239)
CASE NUMBER: 2207295

COUNTRY OF REFERENCE: Iran
MEMBER:James Lambie
DATE:4 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) Visa.

Statement made on 04 October 2023 at 3:08pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – risk to the health or safety of individuals – applicant charged with serious criminal offences – domestic violence – partner requested most charges be dropped – best interests of the children would be served, rather than hindered, by cancellation – indefinite detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 46, 48, 116, 140, 189, 197, 198, 375A, 438, 424A
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013
CASES
COT 15 v MIBP (No 1) [2015] FCAFC 190
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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

This is an application for review of a decision dated 18 May 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e)(ii) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health of safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The information before the delegate was that the applicant had been charged with the following criminal offences [in] November 2021:
·[in] October 2021 Common assault (domestic violence offence);
·[October] 2021 Assault occasioning bodily harm (DV);
·[October] 2021 Threatening violence – discharge firearm or other act (DV);
·Between [October] and [November] 2021 Using a carriage service to menace, harass or cause offence;
·Between [October] and [November] 2021 Contravention of domestic violence order;
and that he was further charged [in] December 2021 with:
·     Rape (between [December] 2017 – [April] 2018; between [April] 2018 – [June] 2018; between [December] 2020 – [February] 2021; on [a day in] December 2021; and [later in] December 2021) (domestic violence offences);
·     Common assault (6 counts between [May] 2018 – [November] 2021) (DV);
·     Deprivation of liberty – unlawfully detain/confine (between [December] 2019 – [January] 2021) (DV);
·     Strangulation/choking/suffocation (2 counts between [December] 2020 – [February] 2021) (DV);
·     Assault occasioning bodily harm (between [December] 2020 – [February] 2021) (DV);
·     Contravene domestic violence order (6 counts between [December] 2020 and [February] 2021; between [September] – [November] 2021; [on specified days in] December 2021);
·     Breach of bail conditions (between [November] and [December] 2021; [later in] December 2020 (2 counts); [in] September 2021; [and specified days in] December 2021).
The delegate found that these charges indicated that the applicant posed a risk to the community and/or an individual, namely his partner [Partner A], and their two children, as well as a risk of possible re-offending. On this basis, it was found that grounds for cancellation existed and, after consideration of the relevant discretionary factors, that the applicant’s visa should be cancelled.
The applicant applied to the Tribunal for review of the decision on 19 May 2022. The hearing of the matter was postponed at the applicant’s request pending the outcome of the criminal proceedings.
The applicant appeared before the Tribunal on 18 October 2022, 8 December 2022 and 16 February 2023 to give evidence and present arguments.: The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearings.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e)(ii). 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?
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].
The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s 116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
At the hearing of 18 October 2022, the Tribunal asked the applicant’s representative if she could advise the status of certain criminal charges which were pending at the time of the delegate’s decision. The representative advised that most, or all, of the charges had been dropped. The Tribunal said that, if the applicant’s case was that the charges had been dropped, it would need to see some written confirmation. The representative said that it had been hoped to have that confirmation from the prosecutor by the time of the hearing but that it had not arrived. The Tribunal asked if, in that case, the applicant was ready to proceed given that he was submitting that the charges were baseless. The applicant requested an adjournment until confirmation of the status of the charges had been received. The Tribunal said that it would grant the adjournment on that basis but advised that, before doing so, it was bringing to the applicant’s attention that the Department’s file contained material that was covered by a certificate under s. 375A of the Act. It advised that the certificate claimed that the disclosure of certain documents named in it were subject to confidentiality obligations or public interest immunity. The Tribunal advised that the documents were provided to the Department by the Queensland police and consisted of criminal history material which had also been seen by the applicant and communications between the Department and the police which did not appear to be relevant to the application. The Tribunal indicated that it had not yet formed a view on the validity of the certificate[1] but that it did not propose to have regard to the material covered by the certificate, other than the criminal history material itself. The representative told the Tribunal she was content with that proposal. A resumed hearing scheduled for 17 November 2022 was postponed at the applicant’s request because the evidence he was seeking to submit was not yet available.
[1] The Tribunal subsequently determined the certificate to be invalid because s 375A does not apply to Part 7 reviewable decisions. On 15 March 2023, the Department revoked the certificate and issued a certificate over the same material under s 438(1)(a). The Tribunal determined the certificate to be valid and provided a copy of it to the applicant’s representative on 17 March 2023 with a description of the material covered by it and an invitation to comment upon its validity. The Tribunal’s view as to the relevance of the material was unchanged.
On 5 December 2022, the applicant’s representative lodged written submissions, attaching the following:
·an extract from the Department file for the applicant’s 2016 SHEV application;
·a letter from [Partner A] dated 27 January 2022;
·a verdict and judgment record issued out of [Court 1] dated [in] November 2022; and
·a handwritten statutory declaration of [Partner A] dated 5 November 2022.
On the issue of the existence of grounds for cancellation of the visa, the submission was:
The delegate cancelled the visa in May 2022 because he believed that at that time, ground for cancellation appeared to have existed. This was mainly because (at the time) the applicant had several criminal charges against him pending before [Court 1]. However, on [a day in] November 2022, the court concluded that the applicant was convicted – not punished of “Contravention of domestic violence order (aggravated offence)”
It is our submission that although the grounds for cancellation of the visa do not exist in this matter, there are other matters to consider which are listed below and we request the tribunal to consider all relevant items in making its decision.
The hearing was resumed on 8 December 2022. The Tribunal asked if the verdict from [Court 1], which records a conviction on one charge of aggravated contravention of domestic violence order, could be squared with the applicant’s list of 22 charges in his criminal history. It asked what had happened to the other charges. The representative said the others had all been withdrawn and that this charge was the only one that proceeded. The Tribunal asked if there was a document that recorded this, because there is nothing from the police or the prosecutors to this effect. She said this was all she had been given. The Tribunal suggested it might accept a statutory declaration from his criminal lawyer. She said that the lawyer had not been cooperative. The Tribunal said there was no correspondence produced to show any attempts that had been made. The Tribunal said that, against 21 documented charges, it had only an assertion that they were not proceeding, which it did not consider an adequate answer. It said it would not press the applicant to proceed that day if he was still seeking to obtain evidence to deal with the existence of serious and detailed criminal charges. The hearing was adjourned to allow the applicant to present the necessary material.
On 12 December 2022, the applicant’s representative submitted the following documents:
·Payslips from the applicant’s employer from October and November 2021;
·Australian Taxation notices of assessment for the years ending 30 June 2021 and 30 June 2022;
·A superannuation statement dated 6 October 2022;
·An email message from [Partner A] to the DPP requesting withdrawal of charges, dated [in] February 2022; and
·An undated letter from [a specified] Officer of the DPP to [Partner A], detailing the charges against the applicant which did not proceed and the matters in which sentences were entered on [a day in] August 2022.
[Partner A’] email of [February] 2022 reads, relevantly:
Dear Prosecutor
Please don’t go through with the charges against my fiancé. We are the only family he has got and we need him back, our kids need him back. It was a misunderstanding and a clash of cultures and I was not assaulted. We have children together, we are in a consensual relationship and have been for the past six years! It doesn’t make sense so why is it going ahead? It’s not right!
…
Please don’t proceed with these charges, it will break so many hearts …
The letter from the DPP reads, relevantly:
This is an update on the progress of the case against [the applicant’s original name] [the applicant changed his surname to [Partner A’s family name] on 14 April 2021]
This letter is to confirm the outcome of your conversation with the Principal Crown Prosecutor on [a day in] April 2022 in compliance with our ongoing obligation to keep you informed. As discussed, the Office of the Director of Public Prosecutions did not proceed further on the following charges against [the applicant]:
·5 x Rape
·3 x Common assault
·Deprivation of liberty
·2 x Choking
·AOBH
·3 x Contravention of a domestic violence order
[The applicant] was sentenced in [Court 1] [in] August 2022 for the offences of:
·3 x Common assault
·1 x Assault occasioning bodily harm
·3 x Contravention of DVO
·1 x Use carriage service to menace or harass
The head sentence imposed on the accused was:
·[number] days imprisonment
[The applicant] has served [this number] days in pre-sentence custody which was declared time served. A parole release date was set at [a day in] August 2022.
On 19 January 2023, the applicant’s representative lodged with the Tribunal:
·Certificate of course completion issued to the applicant in Anger Management 101, dated [2023];
·Certificate of course completion issued to the applicant in Domestic Violence 101, dated [2023];
·Certificate of course completion issued to the applicant in Positive Parenting Techniques, dated [2023];
·Certificate of course completion issued to the applicant in Stress Management, dated [2023];
·further copies of [Partner A’s] letter of 27 January 2022 and statutory declaration of 5 November 2022; and
·a letter from [business name], dated 8 August 2022, attaching a copy of the applicant’s tax return for the year ended 30 June 2022
The hearing was resumed on 16 February 2023. The applicant’s representative confirmed that [Partner A] would not be giving evidence, and that the applicant would be relying on her written material. The Tribunal indicated that it would have desirable to hear from [Partner A] concerning her withdrawal of certain allegations but noted that she would not be appearing.
The Tribunal asked [the applicant] if he could tell it about the circumstances in which the charges came to made. He said that he and [Partner A] had been living a good life together, but that circumstances had changed as his job became more stressful and the cost of living increased. He said that, at about the time his second child was born, he lost his job and could not find another one because of the Covid-19 restrictions. He said that he and [Partner A] had argued about the effect of his losing his job. He said he was impatient and lost control, and that he had treated her badly. He said there was very little support available and the family was economically stressed. The Tribunal asked about the circumstances of a domestic violence order being issued. He said he recognised at the time he needed to obtain help and to work on his behaviour, but due to his debts, the Covid situation, and all the stress, he did not take the steps he now realises he should have taken.
The Tribunal suggested to [the applicant] that he had previously provided a statement to the Department to the effect that he had not committed any acts of violence against [Partner A] and asked if that was still his evidence. He said he did not recall making that statement and that he accepted that he had behaved badly. The Tribunal asked if he now accepted that he had committed acts of violence against her. He said that, unfortunately, that is the case. The Tribunal asked if it was also true that he had committed acts of violence in the presence of the children. He said he had not, but that he accepted that the children were affected by the situation. The Tribunal asked if he accepted that he had made extremely violent threats to [Partner A]. He said that in the circumstances he could not control his tongue and that what he had said was unacceptable. The Tribunal asked if, given this criminal history, that it could form the view, despite anything [Partner A] had said to the contrary, that his presence in Australia could present a risk to her safety. He said he could understand that the Tribunal might think that.
The Tribunal noted that [Partner A] had made extremely detailed allegations to the police in respect of a number of charges that did not ultimately proceed. It asked if the applicant or any other person threatened or persuaded her to withdraw her allegations. He said that there had been nothing of that nature. The Tribunal told the applicant that, because [Partner A] was not giving evidence, it would not be able to ask this question of her. He said he understood. The Tribunal said that it was therefore unable to explore for itself the reasons why such detailed allegations had been withdrawn. He said he understood.
The remainder of the hearing was concerned with the discretionary factors, discussed further below.
[In] March 2023, the Tribunal issued a summons to the Queensland Police Service (QPS) for documents relating to an aggravated contravention of a domestic violence order to which [the applicant] had pleaded guilty [in] March 2023. The response to the summons, dated [later in] March 2023 comprised a police service court brief (form QP9) listing four counts of aggravated contravention of a domestic violence order, and a Solicitors Office Report with more detailed particulars of the charges. The charges were that [the applicant], being subject to a Protection Order issued [in] November 2022 naming [Partner A] and her children, and which contained a condition prohibiting [the applicant] from contacting the named persons or attempting contact or asking someone other than a lawyer to contact them:
·sent an email to [Partner A] on [a day in] January 2023;
·sent two separate emails to [Partner A] on [a day in] January 2023; and
·sent an email to [Partner A] on [a day in] January 2023.
The Solicitors Office Report contains detailed reports concerning compliance with the protection order. It also contains notes “to assist the FaCC [Family and Child Connect] service to offer help and support to the child(ren)’s family to stop the child(ren) becoming in need of protection.” The report includes the following notes:
·[On [a day in] January 2023] This report has been reviewed by [Authority 1] in accordance with the Operational Procedures Manual and the [Authority 1] Manual. As a result of this review, which is based on the information contained in this report, there are serious concerns for the wellbeing of the subject child(ren). This matter is therefore suitable for referral to Family & Child Connect (FaCC). It is noted that the aggrieved declined offers of referral from Police at the time of initial attendance However, the worries for the children are sufficiently serious to warrant a non-consenting referral in these circumstances.
·[On [a day in] January 2022] [redacted] has contacted Police and advised of two breaches of the DVO that occurred on the [specified days] of January 2022 as follows: [date] – [redacted] advised that she has received a telephone call ([date] 11.55am) from a male person called [redacted] who stated that he was asked to contact her on behalf of [the applicant]. She was able to ascertain from [redacted] that his father is currently in custody with [the applicant] and that the message has been passed through that channel. [Redacted] told her that [the applicant] wants to speak to her. [Date] – [redacted] advised that she received another telephone call ([date] 11.24am) from a male person who stated that ‘she needs to attend a Police station and drop the charges against [the applicant].’ ([Date]) Police contacted [redacted] after receiving ongoing email correspondence regarding [redacted] wishes to withdraw all criminal complaints relating to [the applicant]. In relation to this complaint [redacted] outlines that [the applicant] has always had her consent to contact her therefore DV breach currently unfounded as breach has not occurred.

On 17 March 2023, the Tribunal sent a letter pursuant to s 424A to [the applicant] via his representative with a copy of the material supplied by the QPS. That letter relevantly contained the following:
The Tribunal has received further information that is considered relevant to the review from the Queensland Police Service. A copy of this material is attached to this letter.
The information from the Queensland Police Service is relevant to the review because it may suggest that [Partner A] withdrew criminal complaints against you by reason of the application of implied threats or other improper influence and that your presence in Australia might be a risk to the health and safety of an individual or individuals. This information may also suggest that evidence you previously gave to the Tribunal that [Partner A] withdrew the complaints of her own volition is not correct.
If we rely on this information in making our decision, we may affirm the decision under review on the basis that the grounds for cancelling the visa outweigh the reasons not to cancel the visa.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 24 March 2023…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.
On 24 March 2023, the Tribunal received a letter from the applicant’s representative as follows:
We are writing to respond to the letter received from the Tribunal in 17 March 2023, “INVITATION TO COMMENT ON OR RESPOND TO INFORMATION”.
The applicant has confirmed that all evidence he has previously given to the Tribunal that [Partner A] withdrew the complaints of her own volition is in fact correct. However there has been a change in the relationship of the parties.
We are instructed that the applicant is awaiting for a hearing dated [in] April 2023 and we believe the outcome of this hearing would be of relevance and/or significance to the outcome of the review application.
The representative requested an extension of time until 7 April 2023 to respond and advise the Tribunal of the outcome of the court hearing. In response, the Tribunal requested particulars of the court proceedings and their claimed relevance to this application.
On 31 March 2023, the representative advised:
We are instructed that the proceedings on [a day in] April 2023 relate to the four charges on the Queensland Police Service Court Brief. It is our client’s assertion that the communications between him and [Partner A] was consensual and that he was not in breach of the DV order. There have been numerous statutory declarations, emails and letters written by [Partner A] over a long period of time confirming that [Partner A] did not withdraw criminal complaints against our client by reason of implied threats or other improper influence.
It is relevant and significant to our client’s Tribunal application to demonstrate that he does not and will not have any criminal convictions and that our client’s presence in Australia will not be a risk to the health and safety of an individual or individuals.
We submit that regardless of whether [Partner A] and our client have a spousal relationship or not, the fact the children’s best interest is a priority, remains and there is no doubt that having their father in their lives is in the children’s bet interest.
On 11 April 2023, the representative forwarded a copy of an order of [Court 2] dated [in] April 2023, and a letter from QPASST dated [in] April 2023. The court order records that the applicant, in respect of the first charge mentioned in paragraph 18, had entered into a $[amount] recognisance to be of good behaviour for a period of 6 months, in default of which he would be required to appear for conviction and sentence. The QPASST letter is discussed further below.
On 14 June 2023, the representative wrote to the Tribunal that she had been advised that there was new evidence in support of the application and requested that the Tribunal refrain from making a decision for a period of 14 days. On 20 June 2023, the Tribunal replied that the request would be considered if an explanation of the nature and relevance of the new evidence was provided. On 21 June 2023, the representative advised:
On the 14^th of June 2023, it was brought to our attention by a friend of the applicant that there was more evidence in support of the application for review which the applicant had not presented because he had lost hope in the review process and in life in general and that was the reason we wrote to the tribunal.
As you are aware, the applicant is in Immigration Detention. We tried to speak with him and after a few days managed to do so.
He has agreed to send us the evidence as soon as possible but our understanding is that they relate to court proceedings in relation to the domestic violence as well as witness statements that had not yet been presented as the applicant did not understand they were required.
Under normal circumstances, the applicant would have submitted all the evidence by now, but as the Tribunal is aware and the applicant’s psychologist has also confirmed, the applicant’s psychological status is very fragile.
We believe this evidence is relevant and would greatly assist the tribunal to reach a decision that is fair and preferable …
On 22 June 2023, the Tribunal replied that any further material must be received by 29 June 2023. On 30 June 2023, the representative wrote to the Tribunal:
The applicant has been in isolation due to a covid outbreak at the detention facility with limited access. Unfortunately we have not been able to receive the required documents as yet and will forward them to you as soon as we receive them in the next few days but please find attached a support letter.
Attached to the email were statutory declaration from [Mr B] and [Mr C], both dated 28 June 2023. These are referred to further below.
On 6 July 2023, the Tribunal wrote to the representative asking if the applicant still intended to submit further material. On 7 July 2023, the representative responded:
We have been trying to contact the applicant without success and need additional time to go through the detention centre to find out where the applicant is currently located. Our understanding is that there were further material but the applicant has not been able to send it to us due to him being in isolation. I will keep the tribunal informed of the progress.
No further advice or material has since been received by the Tribunal.
The evidence presented by the applicant and the submissions made by his representative are, to some extent, inconsistent. His representative’s submissions have maintained throughout the application that the grounds for cancellation did not exist (see paragraphs 14 and 29) while, at the hearing on 16 February 2023 (but not before), the applicant conceded that he had behaved badly, that he had committed acts of violence and that, while not accepting that he had committed acts of violence in the presence of the children, that the children had been affected by his actions. He allowed, without conceding that the grounds for cancellation existed, that the Tribunal might form the view that his presence in Australia could present a risk to [Partner A’s] health or safety. He maintained that the very serious charges which did not proceed had arisen from a misunderstanding and that [Partner A’s] request that they not proceed had not been the subject of any improper influence.
It was the applicant himself who disclosed the letter from the DPP listing the matters of which he was convicted and in respect of which sentences were imposed [in] August 2022 (see paragraph 18 above). They comprised 8 domestic violence offences, in respect of which he was sentenced to a total of [number] days’ imprisonment. They include 3 assaults against [Partner A], one of which occasioned actual bodily harm. I consider these to be sufficient to determine that the applicant’s presence in Australia is or may be, or would be or might be, a risk to the health or safety of [Partner A]. Direct or indirect exposure to domestic violence poses a range of risks to children in the affected household, including poor psychological, behavioural and physical outcomes[2],
[2] See, for example, Australian Domestic & Family Violence Clearinghouse, The Impact of Domestic Violence on Children: a Literature Review (2011) Microsoft Word - RG113568-Final (anu.edu.au)
This assessment is not allayed by [Partner A’s] request that prosecution not proceed in respect of the 15 additional charges, which included five counts of rape and two of choking. The withdrawal of charges by a victim of domestic violence is often affected by particular vulnerabilities relating to the violent behaviour or the victim’s circumstances. I consider [Partner A’s] stated reasons for seeking to withdraw (see paragraph 17 and her letter of 22 January 2022[3]) are difficult to reconcile with the graphic details of the allegations contained in the charges, particularly in circumstances where there is information to suggest that her withdrawal of them may have been suborned and where the police had assessed that there are such serious concerns for the welfare of the children that a non-consenting referral to FaCC should be considered (see paragraph 26). Had [Partner A] appeared to give evidence to the Tribunal, I would have sought to inquire further into the circumstances and context of her purported withdrawal of her complaints[4].
[3] [Partner A’s] letter of 22 January 2022 also claims that her statements in an interview were distorted by a social worker and police.
[4] See Impact on consent and disclosure - National Domestic and Family Violence Bench Book (aija.org.au)
Although it is not strictly necessary to form a conclusion on those matters, the grounds for cancellation being found to exist in any event, I mention them to indicate that the risks posed to [Partner A] and the children by the presence of the applicant in Australia may be higher than those assessed to exist in paragraph 36 and which form the basis of my finding.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1(e)(ii) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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
[The applicant] arrived in Australia [in] March 2013 as an unauthorised maritime arrival. He was subsequently granted a subclass 790 Safe Haven Enterprise visa for a period of 5 years which expired [in] October 2021. His application for a further subclass 790 visa was refused on 21 March 2022, this decision being affirmed by the IAA [in] March 2022. On the information available to the Tribunal, the purpose of [the applicant’s] travel to Australia has ended. There, are however, other issues relevant to his claims to need to stay in Australia, which are dealt with individually below.
I have given this factor a neutral weighting, subject to my observations on other factors
The extent of compliance with visa conditions
The delegate found that [the applicant] had complied with the conditions of his visa and gave this consideration a little weight. I have done the same.
The degree of financial, psychological, emotional or other hardship that may be caused
The Tribunal asked the applicant at the hearing on 16 February 2023 about the hardship that might be caused to himself, [Partner A], and the children if the visa was cancelled. He said that, in relation to [Partner A], it was really a matter for her to decide because there is a DVO in place. In relation to the children, he could not face being apart from them. He said it would be hard on him, the children, and [Partner A].
The Tribunal reminded [the applicant] that it had, on each of the two previous hearing dates, asked if he might consider submitting his bank statements so that the Tribunal could see the extent of the financial support he was providing the family. It noted that he had not submitted any such material. He said he had submitted tax returns which showed that he had been in receipt of a stable income. The Tribunal suggested that if bank statements were made available, there would be a means of seeing the extent to which he had supported the family. The Tribunal put it to him that his 2022 tax return (questions IT7 and IT8) had claimed no child support and no dependent children. He said he did not know about making such claims. The Tribunal put it to him that he had engaged a tax agent to complete his return.
The Tribunal has considered the written representations from [Partner A]. In her statutory declaration of 5 November 2022, she states:
[The applicant] is a very loving, kind and hardworking man. He is selfless and considerate of how the children and I are. [The applicant] goes out of his way to make sure we are OK and always puts the children and I first. [The applicant] is a wonderful husband and father with great integrity. He is a loyal friend and partner.
The children and I need [the applicant] in our lives. It would be heartbreaking if he wasn’t returned to us. We all miss him dearly, including my immediate family …
She expresses similar sentiments in her letter of 27 January 2022 and her email to the DPP [in] February 2022 (quoted at paragraph 17). Against this, I give consideration to the police notes of [January] 2022 and following (see paragraph 26) which indicate that she approached police before these letters were written to advise that requests had been made of her to withdraw the charges. While the Tribunal accepts that [the applicant] has strong paternal and reciprocal bonds with his young sons, it is inclined to treat [Partner A’s] representations with caution. A perceived need to preserve the relationship between the children and the perpetrator is a recognised as common context or reason for non-disclosure or withdrawal of domestic violence complaints[5]. [Partner A] was not available to address this concern at the hearing.
[5] Ibid
In circumstances where [the applicant] has not responded to repeated invitations to quantify and verify his contribution to the financial welfare of [Partner A] and her children[6], there is insufficient material to be satisfied of any financial hardship to them that may result from cancellation of the visa. There are further considerations that apply to the best interests of the children which are discussed below.
[6] Very few conclusions can be drawn from his 2021 and 2022 tax returns, he having been incarcerated for a substantial proportion of the latter, or from the two payslips he provided. His superannuation statement, it is noted, does not name any beneficiaries.
I give a degree of weight to this factor in favour of [the applicant] but, for the reasons stated above it is heavily measured by the lack of evidence that would have been readily accessible if it tended to assist him, and the caution with which I treat [Partner A’s] representations.
As to the hardship that [the applicant] may suffer as a result of cancellation, the Tribunal accepts that his economic prospects are uncertain, he being unable to resume lawful employment in Australia, and that he may be subject to continued immigration detention and possible removal from Australia. The Tribunal accepts that separation from his children may result in emotional and psychological distress. However, it also notes that he is presently subject to strict conditions in respect of his contact with them.
The Tribunal has considered the QPASST report, dated [in] April 2023. The report states that [the applicant] reports a history of torture and trauma, although this is not particularised. The report further states:
He spoke openly about his experiences in Australia, including about family relationship problems and his engagement with the justice system. [The applicant] has demonstrated insight into his current situation and the capacity to reflect on his past actions and behaviour.
To describe the matters of which [the applicant] was convicted, leaving aside the other offences with which he was charged, as “family relationship problems and engagement with the justice system” strikes the Tribunal as euphemistic in the circumstances of this application. It continues:
[The applicant] presents as future focused, and is clearly focused on being able to gave access to, and support his children in the future. He has spoken about wanting to be a positive role model for his sons, [The applicant] has presented with a strong motivation for self-improvement and to engage in all supports available to help him manage his psychological symptoms and improve his communication and interpersonal skills…
It is my opinion that [the applicant] would be vulnerable to a further deterioration of his mental health if he remains in detention. Prolonged detention represents a secondary trauma, which impedes recovery from the primary trauma of the refugee experience. It is highly recommended that [the applicant] be supported to live in the community where is able to effectively use his pre-existing coping resources, and further develop positive coping strategies, in order to improve his mental health and wellbeing.
The Tribunal gives a degree of weight in [the applicant’s] favour to this report.
[Mr D] is [Partner A’s] father. His letter reads, relevantly:
It is my sincere hope that he is soon released, so that he can get back to providing for his family… We all love [the applicant] would like to avoid the damage done to this family with my grandsons not having their father with them as they grow up. He loves his family and we love him, to see him remain incarcerated or deported would be deeply saddening.
[Ms E] is [Partner A’s] grandmother. Her letter reads, relevantly:
I have known [the applicant] for over three years. He is Dad to my 2 beautiful great grandsons. I have gotten to know him when I have been down there to see them on visits from North Queensland … He provided well for my granddaughter [Partner A] and his little boys … [The applicant] calls me Grandma, like my granddaughter and always treats me with respectful kindness. He is a generous host who made me feel very welcome to their home, so it has been easy to accept him as part of my family … Though [[Partner A] is] not living with him she really believes in him as a decent person and loving father … I believe it is paramount in both their lives for the both of them to have a close and active part in raising their sons …
The Tribunal gives both of these letters some weight as evidence of the emotional and psychological hardship to them, the children and to [the applicant] that might result from cancellation of the visa.
Circumstances in which ground of cancellation arose.
The Tribunal suggested that the applicant’s evidence was not that the conduct giving rise to the convictions came about by factors beyond his control. He said he was under a lot of stress and had no support. He said he could not control himself and had made mistakes he now regrets.
The Tribunal cannot find that the grounds for cancellation arose from factors beyond [the applicant’s] control. The Tribunal considers the offences of which he was convicted as objectively serious, reflected by the imposition of a term of imprisonment. It further notes that the offences are those that pose genuine concerns for the safety and well-being of [Partner A] and her children. It further notes that the courts have found that he has contravened domestic violence orders on multiple occasions. It gives heavy weight to this factor.
Past and present behaviour of the visa holder towards the Department

The delegate found that [the applicant] has no displayed any negative or adverse behaviour in his previous dealings with the Department and allowed this a little weight against cancellation. The Tribunal does the same.
Whether there would be consequential cancellations under s 140
[The applicant’s] visa has no secondary holders and there are, therefore, no consequential cancellations to be considered.
Mandatory legal consequences of cancellation
If [the applicant’s] visa is cancelled, he will be subject to ss 46A and 48A, which would make him ineligible to apply for another visa, including a protection visa, while he is in Australia unless the Minister lifts the relevant bars under s 46A)2) and s 48B(1). In addition, if the visa is cancelled he will become an unlawful non-citizen will be liable for immigration detention under s 189 and removal from Australia under s 198. I further note that, for the purposes of s 198, s 197C makes it is irrelevant that whether Australia has non-refoulement obligations in respect of an unlawful non-citizen, and that this may result in his indefinite detention or removal to Iran. He would also be subject PIC 4013 for a period of three years.
These are matters to which I give some significant weight against cancellation of the visa.
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
I have considered the consequences of cancellation of [the applicant’s] visa in terms of Australia’s non-refoulement obligations.
The Tribunal notes that [the applicant’s] protection claims have been made and dealt with under another process and that, therefore the assessment of Australia’s non-refoulement obligations are finally determined by the decision made there. Further, a decision to cancel a visa is not itself a decision in itself to remove a person from Australia and therefore would not, of itself, breach Australia’s non-refoulement obligations.[7]
[7] COT 15 v MIBP (No 1) [2015] FCAFC 190
It was submitted on behalf of [the applicant] that:
The applicant would refuse to voluntarily return to Iran. According to the country information from the Department of Foreign Affairs and Trade, the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018. This would apply to the applicant because he arrived in Australia in 2010.
The applicant is not able to seek protection in a third country nor that the government has plans to negotiate for relocation of Iranian nationals to another country.
As such, unless there is a change in Iranian policy or the applicant changes his mind and decides to return to Iran voluntarily, it is likely the applicant would be in detention for an extended period. This will be the case irrespective of the effect of the amendments to the removal provisions because even if a new assessment of protection obligations is undertaken, country information suggests that Iran will still refuse to accept an involuntary returnee.
It was therefore urged that heavy weight against cancellation should be placed on this consideration.
I have noted the prospect of indefinite detention in paragraphs 57 and 58 above and given it some significant weight.
I have given careful consideration to the question of cancellation in terms of Australia’s obligations under the International Convention on the Rights of the Child (CROC) and, in particular Articles 3 and 9, which provide:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child …
I have noted that [the applicant] has two Australian citizen children, aged [ages]. It was submitted on [the applicant’s] behalf that
It is in the best interest of the children to be with both of their parents, especially in the child’s formative years.
In support of that submission, I have also had regard to [the applicant’s] evidence, [Partner A’s] letters and statutory declaration (see paragraphs 17 and 45), and to the letters of [Mr D] and [Ms E] (see paragraphs 51 and 52).
Against that submission, I have weighed the fact that [the applicant] has been convicted of multiple offences of domestic violence against [Partner A], and of contraventions of domestic violence orders. In paragraphs 36 and 37 above, I have assessed that [the applicant’s] presence in Australia poses a risk to the health and safety of [Partner A] and the children. It is also noted that the children are named persons in the domestic violence orders. The material available to the Tribunal does not suggest that [Partner A] and her wider family, with the assistance of welfare agencies if necessary, are unable to ensure that the best interests of the children are protected. Accordingly, the Tribunal gives weight to the conclusion of the court, police and welfare officers that, to adopt the terminology of CROC Article 9, separation from [the applicant] is necessary for the best interests of the children.
Any other relevant matters
The applicant asked the Tribunal to bear in mind the very stressful personal circumstances he was in at the time the offences were committed. He said that his conflict with [Partner A] arose from cultural differences and misunderstandings because of the language barrier between them. He said that if there had been some psychological or other support available, the tensions might have been relieved and the conflict could have been avoided. He said he loves his children deeply and, if given the opportunity, he can provide positive contributions to his children and to the community.
The Tribunal has also considered the representations made by [Mr B] and [Mr F], both of whom are [sporting] partners of [the applicant] and who attest to his values and commitment to his family.
The applicant’s representative asked the Tribunal to bear in mind that the Department had accepted the applicant’s initial protection claims and that, absent the domestic violence matters, his visa would have been automatically extended. She said the situation in Iran had deteriorated since the original decision was made. In relation to the grounds for cancellation, the applicant had expressed remorse. She asked the Tribunal to take into account [Partner A’s] representations to the prosecutor, police, the Department and the Tribunal. She said that [Partner A] had expressed remorse for making a lot of those allegations which arose from misunderstandings. She also asked the Tribunal to note the courses the applicant had undertaken, and also the fact that the most serious charges had been dropped, and that guilty pleas had been entered into the others and he has served his sentence. She asked that the Tribunal give full credit to [Partner A'] written statements.
The Tribunal has noted all of these matters. It accepts that, since 2010, [the applicant] has formed family and social ties in Australia which would be affected by cancellation of the visa. For reasons given above, it treats [Partner A’s] statements with caution and cannot give them the credit or weight urged by [the applicant’s] representative. It notes, and gives a degree of weight to, [the applicant’s] rehabilitation efforts.
Recusal request
On 26 May 2023, [the applicant’s] representative wrote to the Tribunal requesting that I recuse myself from this matter on the basis of an apprehension of bias said to arise from the conduct of two other matters before me in which the representative was acting for other applicants. It was submitted, in effect, that the conduct of those matters reflected an animus on my part against the representative personally or professionally. In the other matters, the request was subsequently withdrawn but it there has been no specific withdrawal of the request in this matter.
I hold no personal or professional animus against Ms Majd and, in fact, I consider that her appearances and submissions before me on behalf of her clients have been able and professional. There has been no claim that any apprehension of bias specific to this matter has arisen. A review of the record indicates that every accommodation has been made to allow [the applicant] the opportunity to present his case to his best advantage, and extensive allowances have been made (including agreeing to numerous requests for postponements and adjournments) to afford additional evidence to be adduced. The transcripts indicate that, where evidentiary shortcomings were identified, the nature of the shortcoming was explained and time was allowed to remediate it.
Accordingly, I decline to recuse myself from this matter.
Conclusion
The matters to which I have given the greatest weight against cancellation of the visa are the degree of hardship that may be caused to [the applicant] and the mandatory legal consequences of cancellation, which includes the possibility of indefinite detention (noting the contents of the QPASST report). I have also given weight to the claimed emotional and psychological hardship that may be suffered by [Partner A] and her children, although countervailing considerations apply to this factor. A lesser degree of weight is given to [the applicant’s] rehabilitation efforts, his compliance with visa conditions, his behaviour towards the Department, and the distress that may be caused to [the applicant’s] in-laws and friends.
In favour of cancellation, I have given very considerable weight to the grounds of cancellation which includes a finding that [the applicant’s] presence in Australia poses a risk to health and safety of [Partner A] and her young children. I have given equivalent weight to the circumstances in which the grounds for cancellation arose, noting that they involve offences of domestic violence and contraventions of existing domestic violence orders. Bearing these matters in mind, I have determined that the best interests of the children would be served, rather than hindered, by cancellation of the visa despite any claimed emotional and psychological hardship that would result. This is a primary consideration in the determination of the application and, accordingly, is given very significant weight.
Considering the circumstances as a whole, the Tribunal concludes that the factors in favour of cancellation outweigh those against it and that, therefore, the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) Visa.
James Lambie
Senior Member

[2023] AATA 4377

4 October 2023

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