2210361 (Refugee)

[2023] AATA 3313

2210361 (Refugee) [2023] AATA 3313 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Dushan Nikolic

CASE NUMBER:  2210361

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Denis Dragovic

DATE:17 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 17 July 2023 at 7:23am

CATCHWORDS

REFUGEE – cancellation – protection visa – stateless – applicant convicted and imprisoned – continued threat to wife and family – separation from family – consequential family visa cancellations – indefinite detention – non-refoulement obligations – best interests of the children – decision under review affirmed

LEGISLATION

Human Rights (Parliamentary Scrutiny) Act 2011, s 8
Migration Act 1958, ss 35A, 46A, 48A, 116, 140, 189, 195A, 196, 197AB, 197C, 197D, 198, 424AA, 424A, 425, 501
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, rr 2.12, 2.43; Schedule 4, Public Interest Criterion 4013

CASES

Al-Kateb v Godwin (2004) 219 CLR 562
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
Chu Kheng Lim v MILGEA (1992) 176 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 July 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).

2. The delegate cancelled the visa under s 116(1)(g) and r.2.43(oa) on the basis that the applicant was convicted for unlawful assault and contravention of a family violence interim intervention order that led to a [sentence] of imprisonment.

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

4. The applicant appeared before the Tribunal on 9 and 23 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A], [Relative A] and [Witness B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g) which refers to a list of prescribed grounds for cancellation under r 2.43. Among the list of grounds for cancellation under r 2.43 is clause (oa) which was the basis upon which the delegate initiated the cancellation of the applicant’s visa. Clause (oa) reads:

   that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

8. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. The applicant was convicted and sentenced for two incidents that were considered separately by Magistrates. The first, being the one upon which the Department’s cancellation was based, occurred on [a day in] August 2021 when he was sentenced to [an] imprisonment for unlawful assault. The second, for which he was sentenced to [a longer] imprisonment, occurred two months prior to the notice of intention to consider cancellation but was not referenced in that document. This second offence was committed on [a day in] March 2022 for which he was convicted [in] December 2022, five months after his visa was cancelled on 15 July 2022.

10. For the reason that the applicant has been convicted of an offence, the Tribunal is satisfied that the ground for cancellation in s 116(g) and r. 2.43 exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. When the applicant was asked the reasons for him remaining in Australia, he listed the fear he held of returning, that he can’t go to Myanmar and that life is better in Australia. Despite asking him a few times he gave the same answers. I asked why he didn’t mention his children. In response he acknowledged that his reasons also included them. I noted that I asked him three times and asked why he hadn’t mentioned his children. He said that he didn’t think of them, but that he does want them to have a good future. He added that his ‘brain is not functioning’.

13. Arising from this comment I asked about the medication he is taking and whether it is affecting his ability to participate in the hearing. He listed two medications, one for his stomach and one to help him sleep. He stated that the stomach medication does not affect his brain but that the sleep medication works into the morning. This specific discussion was held around 9.45am prior to which the hearing was introduced, and we had discussed the law and his prior convictions.

14. The applicant said that he doesn’t sleep much because of his worries. I asked whether he was tired that morning or whether it was the medication affecting him. He said that there wasn’t a problem and that we could go ahead. The applicant’s legal representative also had a view that the hearing should proceed.

15. Noting that the applicant’s mind could be affected by a lack of sleep or the lingering effects of the medication I place not weight on his omission with regards to his children. I also determined that the hearing should proceed but with regular breaks and ongoing assessment of his attentiveness and alertness.

16. I note that in post-hearing submissions it was suggested that the applicant’s head injuries suffered during an attack while in prison have had a longer term impact on the applicant, but the legal representative was unable to access any medical records to clearly identify the extent of them. As it is known that neither myself nor the legal representative are medical experts, I place little weight on these lay observations about hidden impacts of past trauma. In considering this matter upon the conclusion of the hearing, I am satisfied that the applicant understood and was sufficiently alert to respond to the questions such that he had a meaningful opportunity to give evidence and present arguments (s 425 of the Act).  

17. We returned to the discussion of the children. I asked about his opportunities to be with them in the future, to which he responded that he is not educated and has no idea what chance he has of seeing them. He is hoping to be able to leave immigration detention so that he can speak with a family lawyer about his options.

18. In considering the applicant’s claims of compelling reasons to remain in Australia, I consider the issue of possible harm through refoulement later in this decision, I also consider the best interests of the children further below. When considering the applicant’s claim of wanting to engage a lawyer to help him obtain a right to see his children, I accept that this is made more difficult were he to remain in immigration detention. It is difficult for reasons of accessing and communicating with a lawyer but also for limiting his ability to raise the funds to pay for one.

19. I also accept that life is better in Australia, but I don’t place much weight on this because, as will be explained below, repatriation to Myanmar is not an option and the applicant does not have a right to reside in Malaysia. As such there is no comparator country to assess against the question, how much better life would be in Australia considering that Australia is unable to remove him to any other country. In other words, this would be a hypothetical exercise.

20. Overall, I place moderate weight against cancellation for the reasons of compelling needs to stay in Australia.

    The extent of compliance with visa conditions

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

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

22. Prior to discussing the hardship that the applicant will face I explained to him that for the purposes of this decision it is not in consideration whether he would be returned to Myanmar but rather that he would potentially be in immigration detention for an extended period of time or as was translated to the applicant, a ‘long’ time.

23. The matter of whether this amounted to indefinite detention, which was the submission made by the applicant’s legal representative, was discussed with the legal representative. I disagreed with this assessment based upon there being a future stage, discussed further in this decision below, and that before and after that future stage’s decision there are alternative possibilities that include the Minister or a different Minister making a residency determination allowing the applicant to remain in ‘community detention’ or alternatively that a visa is granted by the Minister or a future Minister using their personal powers in addition to further appeal rights.

24. In response, the legal representative noted analysis that people whose visas had been cancelled under another section of the Act (s 501) but of similar characteristics, have not seen the relevant ministers exercise their powers ‘rarely if ever’, which I accept to be the case. In post hearing submissions evidence of this was provided to the Tribunal. I noted, though, that some consideration should be given to the fact that there is a new government who has expressly campaigned and governed with a different approach to the broader immigration portfolio and specifically to immigration detention. I suggested that statistics covering the previous ten years of a Coalition government would not be indicative of how a future Minister would use their personal powers. The legal representative accepted at the hearing that this would be a fair assessment but noted that nevertheless the period of detention would be prolonged.

25. In post hearing submissions further consideration was given to this matter and it was argued:

    We agree that it is possible for s 197D(2) of the Act to operate in this sequence of events in [the applicant’s] case. However, it is equally possible, and we submit more likely, that the Minister will not exercise their discretionary power under s 197D(2). Further, we submit that even if the Minister does choose to consider [the applicant’s] case under s 197D(2), they may decide that [the applicant] poses a risk to the Australian community which is not deemed to be outweighed by alternative prospect of indefinite detention. While we submit that this decision would not be appropriately balanced, our point here is that it is nonetheless entirely possible that the ultimate result of a Ministerial assessment under s 197D(2) is that [the applicant] remains in detention indefinitely, with no recourse to appeal. In such a situation, [the applicant’s] only option would be to request Ministerial intervention under s 195A of the Act, which is a discretionary power and therefore does not promise any outcome, either negative or positive. He could very likely be left without any indication of his future, left in limbo.

    All of the above is to say that any distinction between ‘indefinite’ and ‘prolonged’ detention is immaterial and should not carry weight or bearing on the Tribunal’s decision-making. We submit that [the applicant’s] detention should be considered ‘indefinite’ if there is no foreseeable end to his detention, which we submit that there is not under s 197D(2).

26. In addition it was argued that the actions of the current government with regards to immigration detention were not dissimilar to those of the previous government and as such the past does present a foundation upon which the future can be considered.

27. I note in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 Jagot J addressed a similar issue in response to Ground 2 of the applicant’s appeal under the same amended provisions as apply in this case, albeit for a cancellation under s501A(2) rather than s 116, noting (italics added):

    34. First, proposition (b) above (the applicant would be kept in indefinite detention) is contestable. The Minister accepted that the applicant would have to be detained until removed from Australia or granted a visa: [218]. He accepted that the applicant could not be removed to South Sudan given s 197C(3) of the Migration Act, and that the prospects of finding another country willing to receive him were poor. Accordingly, the applicant faced “the prospect of immigration detention for an indefinite period”. That prospect was subject to the applicant being invited to apply for a Bridging R (Class WR) visa under s 501E(2)(b) (as prescribed by reg 2.12AA of the Migration Regulations 1994 (Cth)), the Minister granting another visa under s 195A, or the Minister making a residence determination under s 197AB.

    35. In respect of ground two, the applicant contended that these were not “bona fide or rational” possibilities given the Minister’s finding at [237] that he could not “rule out the possibility of further criminal conduct by [the applicant]. The “Australian community should not tolerate any risk of further harm”.

    36. I disagree.

28. Jagot J then proceeds to provide the reasoning within which she specifically notes at [42] that, ‘The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith.’

29. Upon reflecting on this matter and the arguments made, I find that the applicant does not face indefinite detention, but I accept that he will face an extended or prolonged period in immigration detention.

30. I do not propose to consider what difference in weight a finding of indefinite detention may have had if I had instead hypothetically made an alternative finding that the detention would be indefinite.

31. If the visa is cancelled the applicant claimed that he will face severe hardship including for his children who were of the ages [specified]. He said that his children’s life will be ruined, especially their access to education. He noted that he is not educated and that he doesn’t want his children to miss out on the opportunities that he missed out on. He believes that the children require his help, though he accepted that hasn’t communicated with them for over three years and doesn’t know even whether they are going to school.

32. I noted that the government pays for education at the primary and secondary level in Australia and that they would have access to such education to which he responded that he wasn’t sure.

33. The applicant said that his extended family are living in [Country 1] in a refugee camp and that they sometimes rely on his support. His mother is very old and does not receive enough support from within the camp, his [sibling] who was killed by the military in Myanmar has [number] children aged what he believes to be about [age ranges] and that they are also with his mother in the camp along with a [further sibling]. He claims that to his knowledge the children are begging in the camp.

34. Previously, when he was in the community the applicant claimed that he would support them by sending around $100 a month. He can’t remember when he last sent them money but recalls that it was a long time ago and most likely before he went into prison and then immigration detention. The last time he spoke with them was a few days prior to the hearing.

35. We discussed the impact extended detention would have on his mental health. He had submitted in writing earlier that the impact would be enormous and further compounded by his lack of English language skills. At the hearing he said that his life will be gone as will his children’s life and that of other family members. He explained the concept of gone as meaning that he never had a life in Myanmar, then he came to Australia which led to opportunities, but ended up in immigration detention where he has no life again. He lamented not being able to support anyone that he needs to support.

36. I asked him about the level of support he could expect to receive from his family and friends while in detention. He said that he believes that no one will call him if he stays in detention.

37. He said that his English is poor and that will affect him as he can’t communicate with other people in detention, especially if someone asks something, he can’t reply. He noted that he can’t read or write in English. I noted that he had indicated that he wanted to learn English and asked if there was a chance to learn English in detention. He acknowledged that there was but said that he tried many times, but it hadn’t helped improve his level of English. He also noted the lack of general opportunities to learn or develop skills while in detention.

38. He said that there aren’t other Myanma detainees to communicate with.  

39. The applicant feared that time in detention will lead to him losing hope and becoming depressed. In addition, regarding his health, he said that it is hard because he is unable to regularly see a doctor as he claimed that a detainee needed to complete a form to see a doctor, but he can’t write in English and as such he can’t complete the form.

40. The applicant said that he was beaten while in prison suffering a concussion and was unconscious as a result, which led to three days in hospital and what he described as substantial injuries. He said that ever since he has had problems with his eyes.

41. There is no evidence before the Tribunal that elaborates on the assault and the applicant could not provide more information as he claimed that it was unprovoked and as such did not understand why it happened. Without any further evidence pertaining to the reason for the attack that could suggest it being repeated in another setting such as immigration detention, I find that the attack is not representative of the circumstances to which he’ll be exposed to in the future in immigration detention.

42. It was noted by the legal representative that immigration detention has become increasingly criminalised due to the number of s 501 cancellation detainees relative to the broader detention population. He suggested that with more hardened criminals it is more likely to resemble a prison setting, increasing the risk of assault and seeing the application of prison rules which could adversely affect the applicant because detainees without English are more vulnerable to being blamed for mishaps and they won’t understand the rules.

1. I accept that the previous assault while in prison would make the applicant hypervigilant and therefore contribute to further stresses and that he would be limited in being able to mitigate them as a result of his poor English skills. This assessment incorporates the evolving nature of the detention community and how detainees without the necessary English language skills could become victims.

2. Third party independent reports including an extensive overview produced by Refugee Council of Australia[1] and oral submissions summarising other reports were received regarding the harm of detention to migrants. In summary the argument was made that immigration detention has a profound effect on mental health, leading to self-harm, PTSD, anxiety and depression. It was also noted that there is a widely held view that this is not the right environment for people who have previously been traumatised and that a part of the drivers for concern are the sense of injustice that arises from detention. These views are reinforced by the Refugee Council of Australia report submitted alongside other evidence on this issue. A further aspect of detention identified in the reports is that upon exiting the system detainees report suffering low self-esteem affecting their ability to establish themselves in their new lives.

   [1] Annex 18, Submission dated 2 June 2023

3. I accept the insightful contributions made by the legal representative noting the connection between the research on the impact of immigration detention and how it would impact the applicant, specifically, that it would lead to not only the applicant facing some form of physical harm, possibly arising from the criminalisation of immigration detention centres, but also that detention will have a longer lasting impact beyond any possible release. These matters weigh heavily in this decision as the applicant will not only lose his liberty, but he will also lose an ability to socialise and in turn be a part of a community which carries with it substantial consequences including a sense of isolation that can lead to depression. As such I accept that he would suffer some near term harm covering the period of detention that traverses this decision, but I also accept that there is longer term residual harm continuing after the period considered in this decision. The type of harm is broad and ranges from losing hope, to mental health challenges, loneliness, and possibly self-inflicted physical harm.

4. That the applicant struggles to communicate will potentially expose him to additional health challenges as he won’t be able to communicate to a doctor his problems.  

5. With regard to his family, I accept that the circumstances of his family in the [Country 1] refugee camp is challenging and any additional money that he could send would make a substantial difference in their lives. But I also note that he has been in touch with them recently and they continue to survive, as are hundreds of thousands of others, albeit in very poor circumstances.

6. With regards to the hardship that arises from his continuing detention and how it impacts his children, I consider this further under the best interests of the children.

7. When considered overall and noting the very heavy personal toll that immigration detention will bring to bear on the applicant, in particular due to his limited English language skills and his already evident despondency, and taking into consideration the impact upon his family in [Country 1], I place considerable weight against cancellation for the reasons of the hardship that he and others will face.

   Circumstances in which ground of cancellation arose

8. The applicant described the circumstances that led to the breakdown of his relationship. He described it as beginning in late 2020. By January 2021 he claimed that his then wife went to the police and sought an intervention order against him. He acknowledged in his written submission that he found ‘this very difficult to process and I will admit that I did not handle it well.’

9. The applicant claims that he was never given an official translator to help him understand the intervention orders, instead he just had a friend who tried to help. As a result, he claims that he did not fully appreciate the details of the conditions.

10. I asked the applicant to describe the circumstances of the incident that led to his visa being cancelled. At the hearing the applicant said that his wife put an intervention order against him, though he claimed that he was never doing anything against his wife. He claimed that subsequently she moved out and he continued to live in the family home.

11. In a written submission he wrote that a final intervention order was in place [on a day in] March 2021.

12. At the hearing the applicant explained that on [a day in] April 2021, he went to the home where he used to live with his wife. He found the door was locked. He claimed that he was suspicious and wondered who had locked the door. So, he went to the back door which was open and entered the house where he found his wife in the house. He claimed that he wasn’t aware that they were inside. In written submissions he wrote that he thought that they were living in other temporary accommodation. He explained at the hearing that he believes that she called the police straight away and that it was pre-planned to get him into trouble.

13. The applicant claimed that he told the police that it was his home and that she wasn’t living there any longer. He said that his wife and children had moved out about 1.5 to 2 months earlier. He explained that he knew what an intervention order was but that he didn’t know about the details. He said that he understood that it meant that he should not meet her and not go to where she lives.

14. The applicant claimed at the hearing that he had understood that some time earlier the ‘Department’ had taken his ex-wife to another place during that 1.5 to 2 month period between when she had left the home and [the day in] April 2021 when he had returned to the home and found the doors were locked. He acknowledged that the police gave him the place name and told him not to go to that place. But he said that he didn’t understand that he couldn’t come to his own home.

15. I asked if he assaulted her in any way to which he said, no. I noted that he had pled guilty to unlawful assault. He said that things happened mistakenly and that he won’t do it again. I asked again if he had harmed or threatened his ex-wife. He said no, he did not threaten or harm her, he said that he was just asking how come they were there in his house. Similarly, in his written submission dated 3 May 2023 he does not mention any details of an assault, threatening behaviour, or harassment.

16. I asked if he had ever visited the place where his wife was taken by the Department and was told not to visit. He said no. I note that in his written statement the applicant acknowledges that he did go near her in that place, writing, ‘I was arrested in February 2021 after going near the temporary accommodation where [my ex-wife] and the children were staying.’[2] This was put to him separately and is discussed further below.

    [2] Statutory Declaration 3 May 2023 at [23]

17. I asked what his view was as to why his wife had left him. He responded that it was his understanding that she just disappeared. He believes that it was for no reason. He claimed that there had not been any arguments prior to her departure. He thought that she just didn’t want to be with him. He said that she created issues as she didn’t want to live with him.

18. I noted to the applicant that there was adverse information that I needed to put to him and that I would explain to him what it was and how it was relevant. The information I put to him was put under the statutory requirements of s 424AA of the Act.

19. The information put to him regarding this first incident was the following:

    a.Ex-wife separated from him in early 2021 due to sustained family violence being perpetrated by him. She claimed that he was monitoring her phone and had complete financial control over her. She then fled into crisis accommodation. In February she witnessed the applicant’s car in front of the crisis accommodation and called the police. As a result, an intervention order, was sought on her behalf and the applicant was arrested on [a day in] February 2021 in relation to this. A final intervention order was put into place by a magistrate. This was served on the applicant on [a day in] March 2021.[3]

    b.Four days later at 10pm the applicant arrived at the address. The front door is locked as the locks have been changed. He tried to enter the residence from the front door but couldn’t so went around to the back door. Ex-wife and children fled into the front bedroom as they had seen he had tried to get into the house. The applicant made his way to the front bedroom, saw his ex-wife and children, walk away and return with a large knife, he held the knife with the blade pointing towards his ex-wife and approached her. She and the children screamed out in distress. The screaming alerted another person who had just arrived outside the house. When the police came the ex-wife and children were found in a distressed state.[4]

    [3] Preliminary Brief – Statement Made by Informant.

    [4] ibid

20. In addition, other material was put to the applicant as is discussed further below. Following the presentation of the entirety of the material, I explained that this evidence was relevant for the following reason:

    This information is relevant to the review because it is contrary to the evidence you have provided and indicates that you have not been truthful, that you have not accepted your criminal actions as being wrong and that you continue to be a threat to your wife and people associated with your wife. Subject to your comments, this may lead the Tribunal to place a heavy weight in favour of cancelling your visa.

21. An adjournment was offered, and the applicant accepted the opportunity. Following the adjournment, the applicant said regarding the issue of the knife he hadn’t mentioned it because he had already been prosecuted and he had accepted the consequences and that he wouldn’t do it in the future.

22. I put to him that I had specifically asked if he had threatened his ex-wife and he had responded no. When this was put to him again, he said that yes, when he entered the room, she was in fear, but what happened was without his intent.

23. I noted that he had claimed that he had never visited his ex-wife in the crisis accommodation and yet the evidence suggested that she had seen him there. He said that when his wife wasn’t coming home, he was searching for her, and he acknowledged that he did go there. I asked how he had decided to go to a place where women seek refuge despite being told by police not to go. He said that at that time there was no intervention order, and he was just looking for her and he realized that she saw him.

24. I suggested that this along with the other matters discussed further below are collectively indicative that he continues to be a threat to his wife and people associated with his ex-wife. In response, he said that he won’t contact them or try to communicate with them if allowed to stay as he would like to see his children. He said that he won’t harm anyone. He said that he understands what he did was wrong, and he is remorseful.

25. The applicant’s legal representative argued that the applicant’s past circumstances including being a part of what could be considered one of the most vulnerable ethnic groups in the world who has in addition experienced trauma at the hands of the Myanmar military and hardship throughout his life limited his ability to be able to process his circumstances. The representative wrote: ‘We submit that there are also cultural and educational barriers to [the applicant] being able to think in a complex manner about his circumstances…he does not necessarily have the cultural or educational tools to analyse all the complex factors of his offending.[5]

    [5] Submission dated 3 July 2023 p3

26. If I understand the submission’s argument correctly, I find this cultural relativist logic to be deeply concerning. While there are nuanced cultural views around the world about what constitutes the entirety of family violence, for example, whether financial control or a slap would constitute a criminal offence or justify social opprobrium, to suggest that the act of picking up a meat cleaver and slashing repeatedly at his ex-wife’s partner for the reason of being with his ex-wife, as is detailed below, should be considered differently because of some generic cultural barriers is argued without evidence, such as for example, that the Rohingya practice what amounts to honour vengeance; and in addition, it would be personally challenging for me to place less discretionary weight on this consideration due to a claim of a lower level of culpability for such behaviour because of culture. He was told what he could not do, namely pursue his wife to her shelter and yet he did. There were intervention orders placed which he wilfully breached. This is not a circumstance of a lack of agency due to some cognitive incapacitation or a lack of understanding of the Australian authorities’ expectations of him tempered by different cultural norms. There can be no confusion over the expectations of him and in turn his actions as being in breach of those expectations, including not only those described to date but those described further below.

27. Similarly, as noted in [67] it was claimed that the applicant had experienced trauma in the past. The argument being that this would have inhibited his ability to regulate his emotions and control his actions. Firstly, I note that no such medical or psychological evidence was provided to support such a view, nevertheless, I accept that as a general occurrence people who have experienced past trauma face complex challenges and that this is true in the case of the applicant.

28. That the applicant was not truthful in his recollection of events is concerning and it leads me to conclude that he has not fully accepted responsibility for his actions. Because he has not fully taken responsibility for his actions when reflecting on the circumstances it is difficult to give any weight to the applicant’s claims, backed by witness statements, that amount to his actions being out of character. Other than his past trauma, no other reasons were given, apart from what can best be described as the applicant blaming his reaction on his wife for having left him. Considering that the circumstances of this first instance of offending are indicative of a wilful, conscious and, shortly thereafter, repeated action, in violation of the existing family violence orders and instructions from police, I place moderate weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s 140

30. Arising from the cancellation of the applicant’s visa, it is relevant to understand the nature of the grant of the children’s visas. In submissions by the representative and evidence available to the Tribunal, the applicant’s children’s visas were granted on the basis of being members of a family unit. As such under s 140 of the Act the applicant’s wife and two children would see their associated visas cancelled.

31. In relation to these circumstances the Tribunal sent to the applicant, prior to the hearing a letter under s 424A of the Act which included the following information:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are according to Departmental records:

    ·The applicant’s wife and children have been placed on a separate visa pathway to the applicant

    This information is relevant to the review because given that the applicant has conceded that grounds for cancellation exist, and in reviewing submissions relating to whether the applicant’s visa should be cancelled, it was argued that cancellation would lead to the breach of Article 3 of the Convention of the Rights of the Child and other international obligations. This was argued on the basis that the applicant’s wife and children were included in his original application and were granted visas based upon being members of the same family unit. As such, arising from the operation of s 140 the applicant’s children were at risk of losing their visas.

    As the applicant’s children are on a pathway separate from the applicant, the cancellation of the applicant’s visa will not have the same impact as were it the case that they had remained tied to their father’s visa.

    This may lead to the Member determining that only limited weight should be placed on the consideration of whether there are mandatory legal consequences to a cancellation decision and similarly place limited weight on other considerations that engage with the wife and children’s circumstances in Australia arising from their visa status.

32. At the hearing I noted that due to privacy reasons I would not be divulging whether they had been granted a visa or how progressed they were on obtaining a visa. In response to the s 424A notice the applicant’s legal representative made oral submissions which were subsequently submitted in writing and received after the hearing:

    our position is that if the Review Applicant’s wife and children hold separate visas to him at the time of the Tribunal’s decision in this matter then we accept that less weight may be accorded to considerations that engage with the family’s visa status in Australia. However, if the Review Applicant’s wife and children do not actually hold separate visas at the time of the Tribunal’s decision, then we submit that the cancellation decision should be set aside because visa cancellation continues to directly impact the Review Applicant’s family and cause them untenable hardship.

33. The representative acknowledged that the Tribunal could not for confidentiality reasons disclose ‘the precise nature of the family’s current visa status’ but then argued ‘that at present this indication is somewhat vague and we submit that if the family is yet to be granted new visas, it would be inappropriate for the Tribunal to place less weight on the relevant policy considerations based on no more than a possibility that the family could in future be granted new visas through Ministerial intervention.’

34. This situation presents a dilemma in which adverse information was available to the Tribunal, in the sense that the children had been identified and placed on a separate visa pathway and that were such visas granted would lead to less or no weight being given to considerations involving the children and family unity than if they remained dependent upon the applicant’s visa. I note the representative’s argument that assuming that they will be granted visas is not the same as knowing that they have been granted visas and as such it should be assumed that they will remain tied to the applicant’s visa.

35. In considering this situation I have reviewed the Departmental record with regards to the current status of the ex-wife and children and find that there is sufficient information to suggest that the actions of the Department, which were disclosed to the applicant without breaching privacy obligations, are indicative of the Department intending the wife and children to have new visas. As such, regardless of the bureaucratic stage at which the process is at, for the purposes of this decision, I assume that the three individuals hold alternative visas to the applicants.

1. For this reason, I find that although there are consequential cancellations, due to my above reasoning there are no practical consequences that would require weight being placed on this consideration as the individuals visa pathway remains intact.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

2. I discussed with the applicant and his legal representative the likely mandatory legal consequences.

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

4. Due to the operation of s46(A) the applicant, as an unauthorised maritime arrival, is unable to apply for a further visa unless the Minister lifts the bar. Even if the Minister were to lift the bar, relevant to this decision due to the operation of s 48 of the Act a non-citizen who has a visa refused or cancelled may only apply for a particular visa. The prescribed visas are listed under r 2.12. None of the prescribed visas aligns with the applicant’s circumstances and as such there is no clear pathway to an alternative visa.

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

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

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

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

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

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

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

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

13. If it is determined that a protection finding would still be made at the time of the decision or at the time of the review, it is not clear how the tension between the cancellation of his original visa, making him an unlawful non-citizen, would interact with the finding other than that he would be unable to be sent to Myanmar but also unable to enter the community and as such will remain in immigration detention. This is because s 189 states that an officer who ‘knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.’

14. Alternatively, if the applicant is no longer a person for whom a protection finding would be made, the applicant would be considered for removal under s 198. But as noted, while one possibility is long term detention and the other removal it would be speculative of this member at this stage to incorporate either or both of these possibilities into this decision.

15. An alternative possibility that arises during the applicant’s detention waiting for the next stage of the process arises from s 197AB which provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is the power that has allowed non-citizens being placed in what is colloquially known as ‘community detention’. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[6] Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister relevant to the applicant is:

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

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

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

17. As the law stands the applicant is liable to be held in immigration detention for an extended period.

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

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

19. The applicant’s legal representative made extensive submissions regarding the avenues through which the cancellation of the applicant’s visa could lead to the breach of Australia’s international obligations referencing among others’ views those of the Refugee Council and the Special Rapporteur on Torture. But I noted at the hearing that none of the submissions engaged with caselaw on whether Australia’s immigration detention system breached the International Convention on Civil and Political Rights, the Convention Against Torture or other international obligations (see for example Al-Kateb v Godwin (2004) 219 CLR 562 and Chu Kheng Lim v MILGEA (1992) 176 CLR 1). While I accept that there are some views of Australia’s immigration detention system being contrary to international obligations, particularly that it is arbitrary as was noted in the submissions, Australian courts have considered this matter carefully and repeatedly found that Australia’s immigration detention program as it is and has been configured for some decades, is legal.

20. Nevertheless, the post-hearing submission argued that there is a difference between whether the program is legal in the context of Australia’s laws as opposed to whether it breaches any international obligations, the latter of which is the focus of consideration for this Tribunal.

21. In this regard, I once again return to BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022], (italics added):

    48. I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.

    49. The contestable nature of proposition (c) is also exposed in the Statement of Compatibility with Human Rights which accompanied the amending Act, required under s 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). In that statement (attached to the Explanatory Memoranda for the Bill) at p 14, it says that:

    While some unlawful non-citizens affected by the amendments made by the Bill will be subject to immigration detention while awaiting removal, the Minister’s decision not to grant them a visa or place them in community detention will be made in consideration of their individual circumstances. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to their individual circumstances and therefore not be arbitrary and contrary to Article 9 [of the ICCPR].

22. I adopt the arguments in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs as well as those made by Hayne J in Al-Kateb v Godwin in which he wrote, ‘[t]here must, at least, be doubt about whether the mandatory detention of those who do not have permission to enter and remain in Australia contravenes Art 9 of the ICCPR when the detention is in accordance with a procedure established by law (Art 9(1)) and the lawfulness of that detention can readily be tested in a court (Art 9(4))’.

100.   No alternative persuasive argument, other than quoting a UN working group’s expansive definition of the term ‘arbitrary’, was provided to this Tribunal to suggest that the circumstances have changed such that this case can be differentiated from those that have been considered earlier. Furthermore, in making his case the applicant’s legal representative referenced various international working group findings, UN Human Rights Committee’s Detention Guidelines and Australian Human Rights Commission views, but none of these constitute an element of Australia’s international obligations as they would were they to arise from signed and ratified covenants or treaties. As soft law, they may be indicative of where international law may be in the future or what a select group of individuals or states stand at present, but they are not a part of Australia’s international legal obligations. As such I find that the applicant’s detention is not in breach of any of Australia’s international obligations and place no weight on this consideration.

101.   For the reasons discussed above, regardless of the outcome of this decision the applicant does not face the prospect of being removed from Australia and as such any consideration of a breach of Australia’s non-refoulement obligations is not relevant.

102.   The representative argued that it remains the best interests of the applicant’s children that they be able to conduct a relationship with their biological father in the future if they choose to do so. In addition, it was argued that if he was forced to leave Australia or be detained indefinitely ‘there will be a significant barrier to his children ever being able to conduct a meaningful relationship with him.’

103.   In considering these circumstances it is incumbent upon me to first consider what the best interests are of the children. In doing so I take into consideration that he has had family violence orders against him and that his family was taken to a refuge. I note that there are no current prospects for the applicant to see his children and whether any would emerge into the future is unknown and would be speculative to consider. In the longer term, as the applicant’s legal representative has argued, if the applicant is in immigration detention for some years to come there would be a significant barrier to his children being able to establish and then maintain a meaningful relationship. I accept this. The applicant’s oldest child is [age] years of age. They may be in [age ranges] while the applicant remains detained. They may independently decide that they want to establish a relationship. Leaving that door open to them is of value. It is also of value to have the applicant spend years rehabilitating in the community rather than in the detention centre.

104.   But when considered overall, noting my findings of the applicant having a limited indication of accepting responsibility and the repeated nature of the offending and the type of offending, I find that it is not in the best interests of the children that the applicant has a visa. This is because of the risks to the children that the applicant poses not only directly but indirectly through any psychological harm that would arise from threats and harassment of their mother.

105.   As such I place considerable weight in favour of cancellation arising from Australia’s international obligations under the Convention on the Rights of the Child and in particular obligations to ‘undertake to ensure the child such protection and care as is necessary for his or her well-being’ (Article 3(2)).

106.   Incorporated into this weighting is the implied right of family unity arising from the International Covenant on Civil and Political Rights (articles 17.1 and 23.1) and the Convention on the Rights of the Child (articles 9 and 16). While there is an implied international obligation to maintain family unity, there is also an acknowledgement that in the case of the dissolution of a marriage ‘provision shall be made for the necessary protection of any children’ (ICCPR Article 23(4)). In this case the rights of the child including the obligation of the state to provide protection for children, I find outweighs, the family unity principles and as such I place no weight on international family unity principles.

Any other relevant matters

107.   In March 2022 the applicant committed another violent offence. He was tried and subsequently convicted and sentenced to [a longer] imprisonment. This second conviction occurred after the decision to cancel the applicant’s visa and became known to the Tribunal in its entirety by way of a submission made by the applicant’s representative dated 2 June 2023 and a document in the Departmental file headed ‘Public Domain: Crown v [the applicant]’.

108.   The details of this second incident were raised at the hearing initially by asking the applicant what happened at that time. The applicant described this incident as involving a ‘distant brother’. The applicant said that it began with the applicant driving on his way home and having his car break down. At the time he was living at [Suburb 1], but he had returned from visiting his old home, [at Address 1 in] [Suburb 2], to see if there was any mail. He claimed that once he stopped his car another car suddenly reversed their car and hit his car. Then an argument ensued.

109.   The applicant believes that the ‘distant brother’ saw his car broken down and had intentionally come to make problems. He believes the ‘distant brother’ wanted to have a fight with him for reasons related to the applicant’s wife. The applicant suspects that the ‘distant brother’ initiated it because he thought he could create a case and have him sent to jail so that he could get his wife for him. He admitted that this ‘distant brother’ was in a relationship and living in the same house as his ex-wife.

110.   According to the applicant there was a fight during which both were hurt.

111.   I asked if he knew where his ex-wife and ‘distant brother’, who was in a relationship with her lived. He said that he knew that it was in [Suburb 2] but that he didn’t know the number, nor the street.

112.   As far as who was injured, he said that his ‘distant brother’ was hurt as some car glass was broken, but that he didn’t know the details as he didn’t see what happened to him. He claimed that when they fought, he didn’t see any injuries and only learned afterwards from other people.

113.   This recollection of events was different to how he described the events in his written statutory declaration from 3 May 2023 in which he acknowledged that he was driving in the area ‘where [my ex-wife] and the children were now staying…I parked my car near the house where they were staying and then [Mr A] drove up and he must have seen me because he backed his car into my car. This made me upset and I got out of the car to talk to him about it and then we got into a fight.’

114.   Contrary to both of these recollections there was a third version of events. I noted to the applicant that there was adverse information that I needed to put to him and that I would explain to him what it was and how it was relevant. The information I put to him was put under the requirements of s 424AA at the same time as the above mentioned material.

115.   The information put to him regarding the second incident was the following:

a.On [a day in] March 2022 the applicant arrived outside of [Address 2 in] [Suburb 2] and parked his vehicle on a service road. The location where he had stopped was directly opposite the address that he was prohibited from visiting under his intervention order. From where he was parked he had a clear view of the house.

b.A man named [Mr A variant] drove up to him and reversed his car twice into the applicant’s car. The applicant then exited his vehicle, opened his car boot and grabbed a weapon and hid it under his shirt while approaching [Mr A’s] car. This was observed by a witness on the other side of the road. The weapon he held was a meat cleaver. Using the meat cleaver he broke the front window of [Mr A’s] car and tried to hit him with the meat cleaver. He suffered ‘large lacerations’ to the [specified body parts]. As [Mr A] was trying to escape from the other side of the car the applicant hit him on his [body parts] casing a large cut. He was bleeding profusely as he tried to run away.

c.In addition to a witness much of this was recorded on CCTV footage.

116.   I explained that this evidence was relevant for the following reason:

This information is relevant to the review because it is contrary to the evidence you have provided and indicates that you have not been truthful, that you have not accepted your criminal actions as being wrong and that you continue to be a threat to your wife and people associated with your wife. Subject to your comments, this may lead the Tribunal to place a heavy weight in favour of cancelling your visa.

117.   As noted earlier an adjournment was offered, and the applicant accepted the opportunity. Following the adjournment, the applicant said that about the meat cleaver he didn’t mention it because had already been prosecuted for it, which was the same response to the omission regarding the knife in the first incident. The applicant accepted the consequences and said that he wouldn’t do it in the future.

118.   I put to him that when I asked what type of injuries [Mr A] had sustained, he said that he didn’t know and yet there was information that suggested he had repeatedly slashed at [Mr A] with a meat cleaver injuring him repeatedly. He responded that he hadn’t seen the injury he had sustained as [Mr A] had left from the scene. He said that he was scared so he left the scene as well. I put to him that what he was saying is that as he was swinging the meat cleaver and it hit his [body parts] he didn’t notice any injury. He acknowledged that the cleaver was in his car and as soon as he hit [Mr A] he left, still claiming that he didn’t see any injury.

119.   I asked about his claim that his car had broken down in front of the property that he was not supposed to be visiting. He reaffirmed that his car broke down, and that he was not sure of the distance between his car and the residence.

120.   I explained that because there is such a difference between his account and those of the victim, witness and CCTV, it seems that he has not accepted that his actions are wrong. He responded that he accepts whatever is there on the record, as it is sometimes difficult for him to remember things.

121.   As noted above, after suggesting that this is indicative that he continues to be a threat to his wife and people associated with his ex-wife the applicant said that he won’t contact them or try to communicate with them, if allowed to stay as he would like to see his children. He said that he won’t harm anyone. He said that he understands what he did was wrong, and he is remorseful.

122.   I suggested to the applicant that it appears he has been to court three times, twice in jail, and there have been many intervention orders and I asked why I should believe him now when he claims that he won’t harm anyone. He acknowledged what happened in the past but said that he doesn’t want to go down that path again.

123.   I put to the applicant that the latest Final Intervention Order that I have received from his representative ends March 2022, and I asked if he has another to which he responded that he is not sure and that its being a long time. In a submission by the representative a further Final Intervention Order was provided to the Tribunal with an end date [in] April 2025.

124.   That the applicant has committed a second violent crime following not long after the first one for which he was charged and convicted is of concern. The nature of his actions including once again stalking his ex-wife (I do not accept that his car randomly broke down opposite his ex-partner’s house), withholding information from the Tribunal, lying about the events, together lead me to place considerable additional weight in favour of cancellation.

125.   The applicant invited three witnesses to give evidence. Summaries of the evidence of the three is provided herewith. 

a.[Witness B]: This witness stated that he heard from others that there was a fight. I asked if he had heard him to have fought others before. He said that he had known him for a long time, but not heard of any fighting, nor of fighting with his ex-wife. He added that he is well-liked by the community and that he participates in the community. With regards to helping the applicant get back into the community, he said that the applicant can stay with him for a while, and that he is willing to help him find accommodation and find work.

b.[Witness A]: This witness said that the applicant is a very good person and good in the community. He knew of the one incident in the applicant’s family, for which he had to go to jail. This witness said that he would give him employment and that he has work to be given to him. With regards to the fighting, this witness said that he doesn’t fight, suggesting that he wouldn’t have a problem with an ant.

c.[Relative A]: This witness said that as a human, things happen, oftentimes because of a misunderstanding. I asked about the ‘arguments’ he references in his written statement. The witness said that he has some recollection of what he had been told about what happened during one of the incidents. Otherwise, he has never been known to fight and is mostly a very quiet person. The witness said that in the community he is involved with kids, mostly in organising parties.

126.   Written statements were also received by witnesses which align with the oral statements provided at the hearing.

127.   I accept that each of the three witnesses view the applicant positively and are offering some sort of support and protective measure against the applicant committing further crimes. They all attest to the applicant attending community and cultural events. I accept that having been in Australia for about 10 years that he has established a social group and that group has accepted him. Was the applicant to be detained both he and the social group would be impacted. As I have already considered and weighed the impact on the individual, I place minimal additional weight against cancellation for the reasons of the impact it would have on the applicant’s social group. This is for the reason of the nature of the relationships that were explained by the witnesses and the applicant, being mainly friends or distant relative ([Relative A]) as opposed to dependants or partners.

128.   In submissions the representative argued that the applicant’s

prospects for rehabilitation are far greater in the Australian community with the support of his close friends – who have stated their capacity and willingness to assist – than in indefinite detention where his mental health has and will almost certainly deteriorate beyond repair and he has severely limited access to interpreter services.

129.   I accept that the applicant’s prospects for rehabilitation are far better in the community. Recognizing the wide reaching repercussions of this including, for example, that rehabilitation will help the children if a relationship is established, as noted above, leads me to place moderate weight against cancellation. This is for the reason that the prospects of community detention, as discussed above, are highly unlikely and as such the only way the applicant will be allowed into the community is if his visa is not cancelled.

130.   Submissions were made that the applicant’s clean record in prison shows that he is focused on good behaviour and that he didn’t understand what had happened during court appearances such that he wasn’t intentionally breaking the law. While the applicant does appear to have a good prison record, there can be many reasons for this and not just that he has rejected violence. Noting that there is a particular target for his violence, namely, his ex-wife, I place minimal weight against cancellation on this reasoning.

131.   With regards to the applicant’s claims that he wasn’t intentionally breaking the law, I do not accept this as I find the applicant to have repeatedly and intentionally undertaken the acts for which he was convicted.

132.   For the same reason I do not accept the applicant’s claims of remorse. The legal representative suggested that his clean prison record, references to his ‘police and cooperative’ behaviour was an indication of remorse. There are many motivations for good behaviour in prison, as noted earlier. While one of them may be genuine contrition, others would include self-interest. Disentangling them would be impossible.

133.   The representative also argued that the end date on the Family Violence order of 2025 was deemed ‘to be a sufficiently proportionate measure to mitigate any risk he may pose to the Australian community.’ While I acknowledge that based upon the evidence before me the applicant was given a three year rather than a five year order but I note that it would be speculative to presume that another order would not be sought or imposed just as this order was imposed upon the end of the 2022 order.

134.   Looking forward the applicant aspires to get a job and to work again with the intention of being able to support his children. He claims to understand the intervention order that is in place and that he hopes to be able to be a part of his children’s lives in the future. He hopes to be able to support his family in [Country 1] if he is able to work again. He claims that he did not know the possible consequence that his transgressions would have on his visa and that this has been a wake-up call for him. In addition, he claims to have close ties to the Rohingya community in Australia and as noted in the witness statements he believes that they are willing and able to support his transition back into the community. These are all powerful motivating factors that I accept will place some degree of pressure on the applicant not to offend again. Due to the presence of these factors, I place moderate weight against cancellation.

135.   The applicant’s legal representative submitted the claimed unnecessary costs of immigration detention should be taken into consideration including that it costs an estimated $239,000 per detainee per annum relative to $12,000 were they in community detention.[7] He submitted that this should be given weight as a consideration including from the perspective of whether the cost is necessary and whether the community would accept it.

[7] See Annex 20, Submission 20 June 2023

136.   It would be unfortunate if Australian policy was driven by cost alone or that a considerable weight be placed on it. There are many medical procedures that are costly. These medical expenditures could be used elsewhere to a greater effect, but as a society, value is placed on making decisions that are in the context of the individual and we largely eschew purely utilitarian approaches where the sum of the benefits outweighs individual considerations. Similarly in this case, noting that the government who has oversight of the entirety of the budget and understands the competing demands upon it and has chosen to commit some of it to immigration detention and that they have in that context provided guidance for factors to be considered by decision makers by way of policy (PAM) and being satisfied by this situation, I place very limited weight against cancellation for the reason of the cost of immigration detention.

137.   Considering the circumstances as a whole, noting the various weightings given throughout this decision and considering them collectively, I conclude that the visa should be cancelled

DECISION

138.   The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Denis Dragovic
Deputy President