2218493 (Migration)
[2022] AATA 5109
•27 December 2022
2218493 (Migration) [2022] AATA 5109 (27 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Alison Mary Battisson
CASE NUMBER: 2218493
MEMBER:Wayne Pennell
DATE:27 December 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 27 December 2022 at 9:51am
CATCHWORDS
MIGRATION – Cancellation – Bridging E (Subclass 050) visa – applicant had been charged with multiple criminal offences – applicant had a long history of mental health symptoms - risk of self-harm – best interests of children under the age of 18 in Australia would be affected by the cancellation –– decision under review set asideLEGISLATION
Migration Act 1958, ss 116, 359, 499
Migration Regulations 1994, r 2.43CASES
CKL21 v Minister for Home Affairs [2021] FCA 1019
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
application for review
This is an application for review of a decision dated 22 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under section 116 of the Migration Act 1958 (‘the Act’).
The delegate cancelled the visa under section 116(1)(g) of the Act on the basis that the applicant had been charged with multiple criminal offences. The details of those charges are discussed later in these reasons. 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 applicant appeared before the Tribunal on 21 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, and the applicant’s associate. For the purpose of these reasons, and to protect the identity of the applicant’s wife and associate, the applicant’s wife is referred to as the pseudonym AMR and the applicant’s associate is referred to as MD.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages and the applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
consideration of Claims and evidence
Under section 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 section 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(g) of the Act if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in regulation 2.43 of the Migration Regulations 1994 (‘the Regulations’). In the present case, the ground in regulation 2.43(1)(p)(ii) is relevant.
The delegate’s notice of intention to consider cancellation dated 22 May 2019 provided that information received from the Victoria Police showed that the applicant had been charged with fifteen criminal offences.[1] Those offences were:
[1]The original notification was defective for failing to conform with the requirements of Migration Act 1958, s 127: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FACFC 46.
(1)Aggravated burglary – person present;
(2)Unlawful assault;
(3)A threat to commit a sexual offence;
(4)Contravening a family violence safety notice;
(5)Contravening a family violence safety notice;
(6)Contravening a family violence interim intervention order;
(7)Contravening a family violence interim intervention order;
(8)Contravening a family violence interim intervention order;
(9)Contravening a family violence interim intervention order;
(10)Persistent contravention of a family violence notice or order;
(11)Contravening a family violence interim intervention order;
(12)Contravening a family violence interim intervention order;
(13)Unauthorised access to or modification of restricted data;
(14)Stalking; and
(15)Fail to comply with a lawful direction by a Magistrate.
The recipient of the applicant’s behaviour in respect to the charges preferred against him was his former partner. For the purpose of protecting her identity, she is hereinafter referred to by the pseudonym EAM. EAM was [a] worker at the detention centre where the applicant was housed. The facts in regard to the events and circumstances which led to those charges being preferred against the applicant suggest that after being released into the community, the applicant began a relationship with EAM. He subsequently moved into her house for a few months until he found his own place to live. It is suggested that he became obsessed with EAM, and he started to control her.
In the first week of January 2018, EAM told the applicant to move out of her house and find his own place to live. He became upset and accused her of sleeping with other men and called her a prostitute. He then took a knife and self-harmed by cutting his wrist.
The applicant subsequently moved to Sydney, however he and EAM remained in telephone contact with each other. In April 2018, the applicant returned to Melbourne and recommenced his relationship with EAM. It is alleged that he again became increasingly possessive, jealous and controlling towards EAM and he threatened to self-harm if she broke up with him.
On 11 August 2018, EAM told the applicant that she no longer wanted to be in a relationship with him. It is alleged that he then searched through her mobile phone messages where he became aware that she was going to a friend’s birthday party on 18 August 2018. He continually telephoned EAM (about 30 calls) demanding that he go with her to that party; and he threatened that he would attend the party. When EAM arrived at the party she saw him standing across the road from the venue. When she was at the party, EAM received 66 missed calls on here mobile phone from the applicant over the course of a seven hour period.
EAM subsequently complained to the police and the applicant was charged with the offences. On 13 December 2019, the applicant appeared in [a] Magistrates Court and the following sentences/results were imposed for those charges.
Charges Original Sentence/Order 1. Aggravated burglary – person present.. Dismissed (merits of case). 2. Unlawful assault. Aggregate four months imprisonment. Concurrent. Effective total State term imposed is four months. Time held in custody 97 days, reckoned as a period of imprisonment already served under this sentence. Part concurrent with other State sentences imposed this day. Concurrent portion of sentence is two months. Dealt with pursuant to other Orders. 3.
Threaten to commit a sexual offence.
Sentenced as per charge 2.
4.
Contravene a family violence safety notice.
Sentenced as per charge 2.
5.
Contravene a family violence safety notice.
Sentenced as per charge 2.
6.
Contravene a family violence intervention order.
Dismissed. Other special conditions – alternative to finding of guilt on charge 10.
7.
Contravene a family violence intervention order.
Dismissed. Other special conditions – alternative to finding of guilt on charge 10.
8.
Contravene a family violence intervention order.
Dismissed. Other special conditions – alternative to finding of guilt on charge 10.
9.
Contravene a family violence intervention order.
Dismissed. Other special conditions – alternative to finding of guilt on charge 10.
10.
Persistent contravention of a family violence notice/order.
Sentenced as per charge 2.
11.
Contravene a family violence intervention order.
Sentenced as per charge 2.
12.
Contravene a family violence intervention order.
Sentenced as per charge 2.
13.
Unauthorised access to or modification of restricted data.
Sentenced as per charge 2.
14.
Stalking.
Sentenced as per charge 2.
15.
Fail to comply with direction by a Magistrate.
Dismissed (merits of case).
During the Tribunal’s review hearing, the applicant told the Tribunal that he met EAM when he was in detention in Australia. She was employed at the detention centre where he was located. He understood that she was employed by the detention centre as [a] worker. Following the applicant’s release from detention on a visa, he and EAM commenced an on and off again type relationship which the Tribunal understands lasted for about six months. All of the charges preferred against the applicant occurred towards the end of that relationship, and in particular the offence of persistently contravening a family violence notice or order took place between 7 April 2018 and 15 April 2018. It appears that it was not until about 14 months later on [date] June 2019 that a final family violence protection order was made in [the] Magistrates Court.
After having his charges finalised in [a] Magistrates Court on [date] December 2019 and he was sentenced, the applicant appealed those sentences to the County Court at Melbourne. It appears that prior to the rehearing of this matter on the appeal before the County Court, EAM indicated that she was not willing to give evidence in the proceedings. Negotiations then took place between the applicant’s legal representatives and the prosecutor which led to the proceedings resolving with the applicant’s guilty pleas to the State charges of contravening a family violence safety notice; persistently contravening a family violence safety notice; and two charges of contravening a family violence intervention order. He also pleaded guilty to the Commonwealth offence of using a carriage service to harass. The overall number of charges he pled guilty to in the County Court was reduced from fifteen down to five.
On [date] March 2022, those five charges were finalised in the Victorian County Court, however His Honour [Judge A] declined to deliver an ex tempore decision on that day, instead adjourning the sentence to 17 March 2022. On the information provided to the Tribunal, although it is not entirely clear what the overall results were for the State offences in so far as the County Court’s judgment, the information suggests that [Judge A] imposed discharges for the State offences. In regard to the Commonwealth offence, the applicant was placed on a recognisance of $500 to be of good behaviour for a period of five years.[2]
[2]Submissions from the applicant’s representative, dated 20 December 2022, Page 4, Attachments 22 – 26.
The Tribunal further recognises an earlier entry on to his Victorian Criminal History where he appeared in [a] Magistrates Court on [date] January 2019 charged with an offence of using a carriage service to harass. The facts and circumstances of that offence are unknown, save for the charge being struck out and he was not further punished.
For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(g) of the Act exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Applicant’s circumstances
The applicant’s family background, personal circumstances and the history of his detention is succinctly recorded in a health assessment report undertaken by the NC, a Senior Practitioner and Counsellor with Foundation House.[3]
[3]Submissions from the applicant’s representative, dated 20 December 2022, Attachment 1.
The applicant was born in Iraq on [date]. His father had three wives, with the applicant’s mother being his father’s third wife. Apart from being the youngest of three brothers, he also has seven older half siblings from his father’s first two wives. His father’s second wife tragically lost her two children in an accidental house blast from a bathroom heater and because she suffered from significant grief, the applicant was “given” to her. He was aged about [age] when that happened. He can recall as a young child coming home from school and rescuing his father’s second wife from several suicide attempts. When he was about age [age], he returned into the care of his biological mother.
The applicant’s parents were hard working, his father was a [occupation] who was away for long periods of time and his mother was a [occupation]. At the age of [age], the applicant was driving trucks on his own. When discussing his young life, he revealed that his past was full of trauma. He described that while he worked for [a] company in Iraq, he witnessed traumatic events such as violent deaths, the aftermath of bombings, he was shot in the ankle in 2006, and he experienced the loss of friends and some family.
In 2005, at the age of [age] the applicant married his first wife. Their marriage lasted seven years before they divorced in 2012. He has three children from that marriage who all live in Iraq.
In 2013, the applicant, his brother and his father were working with what he described as the global alliance, including NATO forces in Iraq. Threats were made to him and his family by an Islamic group. It was around this time that ISIS arrived in Iraq. Because of the threats that were made, the applicant and one of his brothers fled Iraq. They flew from Iraq to Iran, and then flew from Iran to [Country 1] before then flying on to [Country 2]. After arriving in [Country 2], they boarded a refugee boat enroute to Australia. The boat was intercepted by the Australian Navy and they along with the other asylum seekers were taken to Christmas Island. They stayed for about four to five days on Christmas Island before being transferred to Manus Island, arriving sometime in October 2013.
He described that when in detention on Manus Island he was the victim of assaults by officers, along with his prolonged hunger strike where he lost thirty kilograms of weight. This was on a backdrop of witnessing suicides and self-harming incidents in the detention centre. His brother decided to return to Iraq in 2014 after hearing the news that his only son was killed in a car bomb. While living in Iraq, his brother was shot and wounded. His brother has since fled to [Country 3] where he now lives. Further tragedy included his sister’s son being shot and in a coma for several months after being part of a demonstration. His eldest brother was killed by a militia group in 2014 and his half-brother in 2018. Both his parents are deceased, his father in 2015 and his mother died of a heart attack in 2018.
The applicant spent almost three years on Manus Island before being found to be a refugee. In 2016, he was transferred to Australia for medical treatment. After several months in detention in Australia, he was released into the community where he lived for approximately two years. It was during this time that he worked [in] the building and construction industry and met MD. This was also when had a relationship with EAM. He was later taken into custody in relation to the offences arising from his relationship with EAM. He served out his sentence and was then returned to detention where he has remained.
When questioned by the Tribunal about his domestic violence related offending, he said that he was sorry for what he did to EAM. He wished that she would forgive him but accepts that because of his actions she may not do that. He recognised that because of what he did, he would have made her scared and sad. He now recognises what a huge mistake it was to act in the way that he did, and he offered up an excuse that at that time he was scared of being alone and he should have asked for others to help him instead of harassing EAM.
The Tribunal acknowledges that the applicant accepted that his behaviour which resulted in the domestic violence charges being preferred against him was unacceptable and it had a negative impact upon EAM. Specifically, he recognised and accepted that his behaviour was harassing and would have caused EAM distress and fear.[4]
[4]Submissions from the applicant’s representative, dated 20 December 2022, Page 5, Paragraph 31.
By acknowledging the impact of his behaviour upon EAM, the Tribunal is of the view that this shows a degree of acceptable insight by him in recognising that his behaviour was not only unacceptable and unlawful; but it also had a detrimental effect upon EAM. In the Tribunal assessment, when a person has insight into the consequences of their actions and is aware of the impact of those actions on others, it not only shows contrition and empathy towards the aggrieved, but it is also an indication that they are less likely to re-offend than a person who has no insight into the effect those actions had on others.[5]
[5]Re TAA [2006] QCST 11, [97].
The applicant told the Tribunal that when he was previously out in the community and [working], he met his current wife, AMR. Her car had broken down and he provided her assistance. He later helped her relocate from Sydney to Melbourne. After her arrival in Melbourne, she was a regular visitor to him in the detention centre. When he broke both hands and was hospitalised, she became his designated carer. On [date] April 2022, they were married.
It has been the applicant’s desire to be accepted into [Country 4] as a refugee. In March 2022, he travelled to Sydney where he was interviewed by [Country 4] resettlement team. The resettlement process is ongoing, and AMR is yet to be interviewed. The applicant accepts that because of his convictions in Australia, that process may never eventuate.
The Tribunal has been provided with significant medical information about the applicant. In regard to his current medical condition, he is housed by himself in detention. Because he sustained broken bones in both hands, he has been assigned a carer from 10:00am to 6:00pm.
He has also been diagnosed with [Medical condition 1]. [Details about the disease deleted]. The applicant has been prescribed medication to treat his condition.
In regard to his mental health, in May 2019 the applicant was assessed by Psychologist [MN]. The applicant had engaged with MN over a number of years and MN concluded that the applicant had a long history of mental health symptoms arising from his own personal history, along with his experiences of witnessing other refugees self-harming and suiciding on Manus Island.
At the time of his report, MN opined that because of the applicant’s history of self-harm and suicide attempts in detention, he has significant concerns about the applicant’s potential for rapid mental health deterioration.[6] In a later report,[7] MN described that the applicant had been psychiatrically assessed by Dr ZN and diagnosed with Major Depressive Disorder; Post Traumatic Stress Disorder; Bi-Polar Affective Disorder; and Schizophrenia. MN went on to comment that he had concerns about the applicant’s potential for a rapid deterioration of his mental health during detention.
[6]Submissions from the applicant’s representative, dated 20 December 2022, Attachment 20, report of Psychologist [name] dated 21 May 2019.
[7]Submissions from the applicant’s representative, dated 20 December 2022, Attachment 19, report of Psychologist [name] dated 15 July 2019.
The Tribunal notes that the issue regarding the applicant’s mental health was further noted by the sentencing Magistrate when the applicant was initially sentenced in [a] Magistrates Court on [date] December 2019. The Court’s verdict and judgment record reveals that the applicant’s custody management issues were noted by the sentencing Magistrate where it was recorded that the applicant may be at risk of self-harm; and he had an undiagnosed disability/illness. It was the Magistrate’s recommendation that the applicant be assessed in respect to supervision in safe custody.
When asked by the Tribunal to explain the impact upon him of any cancellation of his Bridging visa, he said that it would have a detrimental psychological impact, as well as a significant impact upon his wife, his unborn child and his wife’s two small children, as well as his children who live in Iraq who he still supports.
He further outlined that his mental and physical health has deteriorated since he had been returned to detention. He cited his recent diagnosis in June 2022 of [Medical condition 1], and the breaking of both his hands. He is presently on medication for his condition and is undergoing regular psychological counselling.
The applicant’s wife evidence
AMR was born in Iraq, and she is currently aged [age]. When aged [age], she was married and sponsored to Australia through a spousal visa. She has two sons from that marriage, they are aged [age] and [age].
She explained to the Tribunal that the man she married was a drug addict and he was abusive to her. During their marriage, he verbally and physically abused her on several occasions. She has since divorced him. Following their divorce, he has provided no financial support to her or their children. There is a domestic violence order in place to protect her and the children from her ex-husband.
AMR said the applicant now provides emotional and financial support to her and her children. On [date] April 2022, she and the applicant were married, and he has become the father of her children. Both she and the children visit him in the detention centre and the children call him ‘dad’.
The Tribunal was informed by AMR that she is pregnant, and she and the applicant are expecting their daughter in March 2023. Provided to the Tribunal were medical records confirming her pregnancy and the scheduled caesarean birth of their daughter in March 2023.
She hopes that the applicant is successful with his application and is released into the community so that they are able to start their life together and support each another. She described the pressure she felt of this process which has made her pregnancy a very difficult one, and she has her own physical and mental health issues because of the stress of not knowing what it going to happen.
She went on to claim that she was dealing with mental health issues that directly relate to the applicant’s ongoing detention. She gave examples of daily episodes of anxiety, stress and panic attacks. The Tribunal notes that no supporting medical evidence was produced to support that claim. Notwithstanding the acceptance of the veracity of her overall evidence, in the absence of any medical evidence from a professional and suitably qualified medical practitioner or other suitably qualified health practitioner, the Tribunal does not accept AMR’s evidence in respect to her alleged mental or psychological health issues.
AMR explained to the Tribunal that because the applicant is not in the community and is not able to provide all of the required support to her and her children, she feels very vulnerable, alone and displaced within the community. She said that this description also applied to her children who consider him as a father figure; and it most certainly will have an impact upon their daughter who will be born in March 2023.
Because she has no family or friends to support her, she is wholly dependent upon the applicant with every aspect of her life including housing matters, banking, daily living issues, and her ongoing medication and appointments with medical practitioners. He organises for all of this for her over the phone from detention.
AMR went on to explain that if the applicant’s detention continues, she fears that her life, the life of her two sons and the life of their unborn daughter will become worse. For example, she cited inflation and the rising costs of living.
When addressing the domestic violence which existed between the applicant and EAM, AMR said that notwithstanding that she visits him regularly in detention, they speak each day on the phone. She has not experienced anything like he was earlier accused of. She said he accepts that he made a big mistake and he had remorse for his behaviour.
When assessing the overall evidence of AMR, the Tribunal accepts her evidence in respect to her experiencing additional burdens of raising her two children, and that responsibility is further burdened by the pending birth of her third child in March 2023. Albeit that she is married to the applicant, he remains in detention and her role in every day caring for those children at this point in time is that of a single parent.
Evidence of MD
MD is the Managing Director of company [Company 1] in Melbourne. [Company 1] is a [company].
He told the Tribunal that he met the applicant sometime in [2019]. He went on to say that the applicant was later subcontracted by [Company 1] to undertake [specified] work on various job sites. MD could offer only positive comments about the applicant’s overall good character, work ethic, skill and tradesmanship.
He added that should the applicant be successful in re-entering the community, the applicant would be welcome to reopen an account with [Company 1] and he would not hesitate in securing work for the [applicant].
In respect to the oral testimony of the applicant, MD and AMR, the Tribunal finds that their evidence was delivered in a spontaneous, consistent and forthright manner. The Tribunal does not consider that there is anything within their evidence that could cast a doubt on the veracity of their testimony. Overall, the Tribunal accepts their evidence.
Consideration of discretion
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in regulation 2.43(1)(p) of the Regulations, the Tribunal must comply with Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under section 499 of the Act (‘the Minister’s Direction No. 63’). This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
§the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
§the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
§the impact of a decision to cancel the visa on the family unit;
§the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
§the circumstances in which the ground for cancellation arose;
§the possible consequences of cancellation; and
§any other matter considered relevant.
The Minister’s Direction No. 63 provides that the primary considerations should generally be given greater weight than any secondary considerations; one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also given 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 Tribunal had before it the following material provided by the applicant’s representative:
§Representative’s written submissions dated 20 December 2022;
§Health Assessment Summary Report dated 10 August 2022 from NC, Senior Practitioner and Counsellor, [name deleted];
§Certificate from the Office of the Minister, Papua New Guinea Ministry of Foreign Affairs & Immigration;
§Screenshot of the applicant and AMR engaging in [Country 4] resettlement process;
§Marriage certificate dated [date] April 2022 for the applicant’s marriage to the AMR;
§Copy of a passport issued to AMR;
§Documents confirming that AMR is a permanent resident of Australia;
§Document from [a] Hospital, Melbourne confirming that AMR is pregnant;
§Statements from AMR;
§Numerous reports outlining the applicant’s current medical diagnosis;
§Medico-legal reports dated 21 May 2019 and 15 July 2019 from MN, [Psychologist].
§Statement from MD, Managing Director, [Company 1], Melbourne.
§Applicant’s Victoria Police criminal history;
§Applicant’s undertaking of Bail dated 19 August 2018;
§Letter from SA;
§Letter from AB; and
§Report by the Acting Commonwealth Ombudsman dated 18 February 2022.
In regard to the letters received from SA and AB, they did not provide oral evidence to the review hearing. Although the Tribunal has given consideration to the contents of their letters, it is the Tribunal’s assessment that no probative evidence is contained within those documents. As such no weight is given to their contents.
Relevant primary and secondary considerations - other relevant factors
Because it is a privilege and not a right of a non-citizen to live in the community while their immigration status is being resolved, one of the primary considerations for the Tribunal is the Government’s low tolerance for criminal behaviour by non-citizens who are in the community on a temporary basis (‘the Government’s view’).[8]
[8]The Minister’s Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q); Clause 4.3(3).
In deciding whether to cancel the applicant’s Bridging visa under the prescribed grounds of the Regulations,[9] a primary consideration by the Tribunal is the Government’s view that the prescribed grounds should be applied rigorously in every instance of non-compliance.[10] Guidance is provided to the Tribunal by the Court’s findings in ACH15 v Minister for Immigration and Border Protection where the Court determined that the rigour referred to in Clause 6 of the Minister’s Direction No. 63 is addressed solely in the question of whether consideration should be given to cancelling the visa; it is not saying that the power to cancel the visa should be exercised rigorously.[11] Consequently, the Tribunal is mindful that it must take the Government’s view into consideration as part of the matters to be given weight in exercising that discretion, instead of simply following that view.[12]
[9]Migration Regulations 1994, r 2.43(1)(p)(ii).
[10]The Minister’s Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q); Clause 6(1).
[11]ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250, [28] – [31].
[12]ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250, [33].
Therefore, the Tribunal gives consideration to the various charges which were preferred against the applicant and notes that they all arose from a domestic relationship with his former partner, EAM. Although it is recognised that the offences were committed within a relatively short time span, and a significant number of the charges were discontinued because EAM was reluctant to give evidence, in the Tribunal’s view, this does not mitigate the seriousness of the charges preferred. They were domestic violence related charges which EAM felt aggrieved; and she was concerned and fearful of the actions of the applicant. The Tribunal accepts that the Victoria Police also viewed his offending as serious by taking a prosecutorial approach.
The penalty available to the court for offences for contravening the Victorian State domestic violence legislation carries a term of imprisonment, and in respect to contravening a family violence safety notice, the maximum penalty as prescribed by the legislation is two years imprisonment or 240 penalty units; or both.[13] The maximum penalty for persistently contravening domestic violence notices or orders is five years imprisonment or 600 penalty units; or both.[14] The Tribunal recognises and accepts that the final penalty imposed by [Judge A] in the Victorian County Court fell way below the maximum penalty, and was towards the very bottom of the range of penalties available.
[13]Family Violence Protection Act 2008 (Vic), s 37.
[14]Family Violence Protection Act 2008 (Vic), s 125A.
Notwithstanding the ultimate penalty imposed by the County Court, when weighing up the features of the circumstances of the applicant’s offending behaviour; his ultimate pleas of guilty to domestic violence related charges all weigh strongly in favour of cancelling the applicant’s Bridging visa.
However, the Minister’s Direction No. 63 provides that one primary consideration can outweigh the other primary consideration.[15] The Tribunal’s view is that consideration should be given to the evidence of both the applicant and AMR with respect to the impact of any cancellation would have on AMR’s two sons who consider the applicant as their father and call him ‘dad’; and the impact of any cancellation would have on the applicant’s daughter when she is born in March 2023.[16]
[15]The Minister’s Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q); Clause 5.1(4).
[16]CQU15 v Minister for Immigration and Border Protection [2016] FCCA 1946, [61].
In the Tribunal assessment with respect to his previous relationship with EAM, the circumstances of that relationship between them and the domestic violence that occurred has to be viewed within the unique setting of that particular relationship. There is no evidence to suggest that his past behaviours have flowed across into his current relationship and marriage to AMR. When assessing if there is a correlation between past behaviour and future behaviour, guidance is found in the court’s determination in CKL21 v Minister for Home Affairs [2021] FCA 1019 (‘CKL21’).[17] In CKL21, the court considered the determinations of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (‘Guo’) about a significant difference in reaching findings about the occurrence of past events compared with findings about the likely occurrence of future events.
[17]CKL21 v Minister for Home Affairs [2021] FCA 1019, [73] – [74].
In Guo, the High Court reasoned that the course of the future is not predictable, and past events are not a certain guide to the future, but in many areas of life, proof that events have occurred often provides a reliable basis for determining the probability, high or low, of their recurrence. The High Court went on to determine that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred.[18]
[18]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 – 575.
The High Court in Guo went on to determine that unless the Tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, the Tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.[19]
[19]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 – 575.
In recognising and adopting the above passage, Guo makes it clear that while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. This can be described as involving speculation. Any conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk; a risk may be so low that it must properly be disregarded and an event which has occurred in the past, the conditions under which that event occurred and the likelihood that those conditions have since changed, or other events have intervened to interrupt the cycle of regularity.[20]
[20]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 – 575.
When applying the principles arrived at by the Courts in Guo and CKL21, along with applying careful consideration to the facts, circumstance and features of the applicant’s relationships with EAM and AMR, the Tribunal is satisfied that given the passage of a considerable time where the applicant has remained offence free, no weight can be given to a future risk of the applicant further contravening the conditions of any visa. Other events have also intervened, such as the deterioration of his physical health, his marriage to AMR and the pending birth of their daughter. Another beneficial feature is the insight shown by the applicant into his unacceptable past behaviour which led to him being criminally charged.
In furtherance to that, it is the Tribunal’s view that significant weight should be given to the consideration that if the applicant’s Bridging visa was cancelled, this would not be in the best interests of the children involved. This is because he is married to AMR who has permanent residency in Australia, her two children from a previous relationship refer to the applicant as ‘dad’, and they are within Australia; and his daughter will be born in March 2023.
It is the Tribunal’s assessment that if the applicant were to be in the community with his family, apart from the emotional support as a father, he will be in a position to help the three children build their capacity to achieve in their education and position in the community; and he will be able to support the childrens’ greater inclusion in the community in an everyday setting. This means that each of the children will be provided with opportunities to grow and learn which would enable them to have the best possible start in life. Those are the features which strongly suggest that any cancellation of the applicant’s Bridging visa is not in their best interests.
The Tribunal recognises that the applicant’s individual’s circumstances, including the seriousness of his actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether his Bridging visa should be cancelled. When careful consideration is applied to this matter, the circumstances weigh in favour of the applicant and persuades the Tribunal to consider the primary consideration that the best interests of children under the age of 18 in Australia would be affected by the cancellation. The Tribunal finds that this primary consideration outweighs the other primary consideration relating to the applicant’s criminal behaviour.
Secondary considerations
The applicant arrived in Australia (Christmas Island) by boat on [date] March 2013 to seek asylum. He was later transferred to Manus Island, Papua New Guinea for regional processing. The evidence from NC, a Senior Practitioner and Counsellor, is that the applicant suffered significant mental and physical health problems while on Manus Island.
On [date] April 2016, the Papua New Guinea Minister for Foreign Affairs and Immigration recognised the applicant as being owed protection obligations.[21] On or about [date] May 2016, the applicant was transferred to Australia for medical treatment due to a badly infected hand. Only those people without criminal records or security risks were transferred to Australia for medical treatment. On his arrival in Australia, the applicant was initially held in closed detention until about 4 July 2017 when he was released from closed detention on a residence determination. On 26 March 2019, he was granted the Bridging visa.
[21]Submissions from the applicant’s representative, dated 20 December 2022, Page 2, Paragraph 5, Attachment 2.
The applicant has applied to re-settlement in [Country 4] and has been interviewed for the finalisation of that process. His wife supports that process and is willing to travel to [Country 4] with the applicant.
The Tribunal notes that the extent of the applicant’s non-compliance with the conditions of his Bridging visa are focused on a brief period in 2018 when he inappropriately engaged in domestic violence related behaviour which caused EAM fear. This led to the Victoria Police prosecuting him for those offences outlined earlier in these reasons. Notwithstanding that information, the Tribunal notes the absence of any other information or evidence relating to any prior or subsequent non-compliance with the visa conditions. The Tribunal also identifies that his visa remained in place for approximately twelve months after he was charged with the domestic violence related charges.
In respect to the degree of hardship that may be caused to the applicant, in the Tribunal’s view the primary hardship relates to the impact of continual detention upon the applicant. This is supported by a recent report by the Acting Commonwealth Ombudsman which assessed 20 cases involving 38 individuals with respect to the appropriateness of immigration detention of those 20 cases. Those individuals who were the subject of the assessment were temporarily transferred to Australia from a regional processing facility for medical treatment and, under the current legal and policy setting at that time, were subject to be returned to a regional processing country when they had completed their medical treatment. Concern was expressed by the Acting Commonwealth Ombudsman of what impact the uncertainty of their immigration pathway was having on their individual health and welfare. The Tribunal notes that the applicant was part of this assessment.[22]
[22]Report by Penny McKay, Acting Commonwealth Ombudsman dated 18 February 2022 attached to submissions from the applicant’s representative, dated 20 December 2022, Page 5, Paragraph 37, Attachment 29.
Earlier outlined in these reasons was an assessment of the applicant by Psychologist MN [who] concluded that the applicant had a long history of mental health symptoms arising from his own personal history, along with his experiences of witnessing other refugees self-harming and suiciding on Manus Island. MN further commented on the concerns of the applicant’s potential for a rapid deterioration of his mental health during detention.
Further to those assessments, it was noted by the presiding Magistrate who originally sentenced the applicant in [a] Magistrates Court on [date] December 2019 that the applicant may be at risk of self-harm; and he had an undiagnosed disability/illness, and he should be assessed in respect to supervision in safe custody.
The Tribunal has carefully considered the evidence in this matter and notwithstanding a finding has been made that a primary consideration has been established in that the applicant pleas of guilty to domestic violence related charges in the Victorian County Court weighed strongly in favour of cancelling the applicant’s Bridging visa; it is the Tribunal’s finding that this primary consideration is outweighed by the evidence that supports a finding that the best interests of a child under the age of 18 in Australia would be affected by any cancellation of his Bridging visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Wayne Pennell
Senior Member
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