2300938 (Migration)

[2023] AATA 1855

2300938 (Migration) [2023] AATA 1855 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Noosheen Mogadam

CASE NUMBER:  2300938

MEMBER:Denis Dragovic

DATE:19 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 19 April 2023 at 2:00pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the health or safety of an individual – applicant convicted of family violence offences – outstanding separate protection visa appeal – family hardship – best interests of the children – decision under review affirmed                 

LEGISLATION

Migration Act 1958, ss 116, 127, 137K, 189, 195, 197C, 197D, 198, 494B, 494C
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, r 4.31; Schedule 4, PIC 4013; r 4.31

CASES

Gong v MIBP [2016] FCCA 561
Minister for Home Affairs v Parata [2021] FCAFC 46

Any 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

1. This is an application for review of a decision dated 18 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(e) which allows for there to be grounds for cancellation of a visa if the decision maker is satisfied that the visa holder is a risk to the health or safety of an individual. In this case the Minister’s delegate found that there were grounds for cancellation for the reason of the applicant’s past behaviour towards his wife. Specifically, the applicant was sentenced to 3 years imprisonment arising from an incident in which his wife suffered a [length] cut by [specified weapon]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. Arising from a separate matter in Minister for Home Affairs v Parata [2021] FCAFC 46 the full bench in a unanimous decision concluded that a valid notification of a cancellation decision under s 127 must state whether it is reviewable under Part 5 or Part 7 of the Act. If this information is not included in the notification, then it will not be a valid notification under the Act and the prescribed period for applying for review will not have started to run.

4. The Minister appealed the decision to the High Court but on the 10 December 2021 the High Court of Australia refused the application.

5. As a result of Parata and that the applicant’s notification did not include information on the part under which the cancellation was made, the notification was not a valid notification. For this reason, the countdown on the 28-day time limit for lodging appeals to the Tribunal had not started as the previous notification was invalid and the applicant had not received a new notification. Instead, as the decision by the High Court closed any further avenues of appeal the Department revisited their cancellation decisions and re-notified visa holders.

6. The applicant was re-notified by the Department on 24 January 2023.

7. As such the appeal is a valid application on the basis of the original notification being invalid but the subsequent notification valid and the appeal to the Tribunal in response to the valid notification being within the prescribed time period.

8. The applicant appeared before the Tribunal on 3 March 2023 for a case management hearing to discuss the nuances of the case and how it should be approached. The applicant was accompanied by his representative at this hearing.

9. Complicating matters is that the applicant had applied for protection and had his application refused by the Department on 1 June 2021. The applicant did not appeal that decision within time. The representative in this matter subsequently lodged an appeal with the Tribunal on the 2 March 2023. At the case management hearing of this BV cancellation matter the representative stated that the protection appeal application was within the Tribunal’s jurisdiction and would be argued on the basis of concerns over the Department’s notification of refusal.

10. This is relevant to the current matter because without the protection visa appeal the applicant has no pending substantive visa. Whereas the usual consequence of a bridging visa being cancelled is that the applicant would be detained pending the resolution of the substantive visa, in this matter, were the Tribunal to find that the appeal application was out of time then the consequence of the cancellation of the bridging visa is markedly different.

11. Without a substantive visa, the cancellation of the applicant’s visa would make him an unlawful non‑citizen and liable for deportation under s 198 for the following reasons.

12. As explained in detail in case 1901883 in which this member co-sat with Deputy President Redfern, Section 198 of the Act contains the relevant provisions relating to the removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they have not applied for a substantive visa under s 195(1) or revocation under s 137K.

13. Importantly, the obligations of removal under s 198 are now subject to the provisions of the new ss 197C(3) and 197D of the Act, which were inserted by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) and came into effect on 25 May 2021. Broadly speaking, this new subsection provides that s 197C does not require or authorise removal of an unlawful non-citizen who has been found to engage protection obligations. But in this case, the applicant does not have a protection finding and as such without an ongoing appeal before the Tribunal, removal under s 198(5) is the relevant and likely course of action.

14. As noted earlier, the applicant’s representative has claimed that the applicant was not properly notified of the protection visa refusal. If the Tribunal in that matter was to find in his favour, the applicant’s protection visa will be considered by the Tribunal at some point in the future but certainly after the consideration of this matter in which case removal (deportation) would not be a consequence of the bridging visa cancellation.

15. One option is for this Tribunal to consider whether the protection visa application was properly lodged and make a finding on that matter to determine whether the applicant has a substantive visa application pending. If there is a substantive pending visa application, then the discretionary consequences that need to be considered in this matter are limited to further detention. If not, then as noted above removal is a probability that arises from the legislation and as such this needs to be a part of the discretionary considerations in this matter.

16. Alternatively, moving forward without considering whether the Tribunal has jurisdiction in the protection visa application is also possible. This would leave the Tribunal in a position to acknowledge and accept the Department’s findings of the applicant’s past protection claims, as they were prior to June 2021 when the refusal decision was made, but to consider in full his subsequent claims including those covering the period since the war in Ukraine began on 24 February 2022. Alternatively, the Tribunal could revisit the entirety of the applicant’s claims under the discretionary considerations.

17. In summary, there are three possible pathways forward, all of which were discussed at the case management hearing. The first is to consider the jurisdiction claims arising from the protection visa appeal. If the pathway for a substantive visa opens through this process then the Tribunal does not consider any of the applicant’s claims relating to non-refoulment as they will be considered under the protection visa application regime. The second is not to fast track the consideration of the jurisdiction of the protection visa and instead that the Tribunal only considers those claims that arise from events and circumstances post 1 June 2021. The third is that the Tribunal considers all of the protection claims in this matter as a precautionary approach.

18. In considering how to proceed, I have decided that the appropriate course is that the Tribunal’s jurisdiction in the associated protection visa be considered first. As such the case was constituted to this member and submissions were received.

19. Consideration of the validity of the protection application appeal was made separately by this member but is included here as it is relevant to this matter.

20. Relevant to the consideration of jurisdiction is whether the applicant received the visa refusal by a method identified in the Act and if so whether he appealed the decision within the statutory time frame. The correct methods of notification are listed in s 494B which relevant to this case includes delivery by hand. The statutory time frame for appeal is 28 days from the day the applicant is deemed to have been notified (see r. 4.31 to be read in conjunction with s 494C).

21. The applicant’s visa refusal was dated 1 June 2021 and addressed to the post office box of the correctional facility the applicant was believed to be in at the time. There is no record on the Department’s file as to how the refusal notice was subsequently conveyed to the applicant. When a request was made by this Tribunal to the Department to consult with the correctional facility the response was, ‘Enquiries were made…In response there was no evidence in [the applicant]’s (inmate) physical warrant file regarding the refusal notification sent by Registered Post.’

22. At the hearing I asked the applicant if he recalled receiving the notice. He said that he recalled learning that his visa was refused but he did not recall how he had learned that. He explained that he cannot read English and as such he doesn’t know what the notices were that he had received.

23. There is evidence in the Departmental file that earlier correspondence between the Department and the applicant was hand delivered, a correct method by which the Minister can give documents (s 494B(2)) to the applicant but there is no such evidence that the visa refusal notice was similarly hand delivered.

24. As the applicant has not provided any evidence to suggest that he did receive the refusal and both the Department and the correctional facility have no evidence that would suggest that it was conveyed to the applicant by a legislated method, I found that the applicant was not notified and as such the time frame for lodging the appeal to the Tribunal has not exceeded the statutory 28 days. For this reason, the Tribunal has jurisdiction to hear the protection visa application. As such the applicant has a substantive visa pending which influences the discretionary elements when considering this bridging visa cancellation.

25. The Tribunal exercised its discretion to hold the hearing by video conference due to the applicant being held in immigration detention in [location]. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant.

26. The applicant appeared by video conference to give evidence and present arguments on the 16 March 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages.

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

28. 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

29. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

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

31. In considering whether the applicant is or may be a risk to an individual, which is the basis of the visa cancellation, I asked the applicant questions relating to his conviction as it could shed light on any future risk he may pose.

32. The applicant recalled that in 2019 he had an argument with his wife and following the argument he left their home and got drunk. He said that the problems he faced had come together at once, he was working hard, his mother was sick and he was arguing with his wife, which together led him to drinking. He said that otherwise he usually drank only on Saturdays to unwind.

33. The applicant described his return home after drinking as triggering another argument. He said that he then took a [weapon] in his hand and that his wife moved towards him. He said that what happened next was unintentional and that somehow it caused her harm. When he saw what happened he said that he was very scared. After that, he claimed at the hearing, that he just ‘switched off’ and went to sleep. I asked how he could just go to sleep after he did his wife harm. He said that he doesn’t remember what happened, he was very drunk, and he only remembers when he woke up the next morning.

34. The applicant explained that prior to this incident there was an apprehended violence order against him due to other arguments he had with his wife. He said that the arguments at that earlier stage were over their son’s religious practices and whether he would be involved in a church at a young age or when the boy grew up.

35. The applicant described the events that led to the apprehended violence order as beginning when she called him a demon. He said that he placed his hand against her mouth and told her to calm down because their child was young. He claimed that nothing else happened. Then, in the following morning he went to work but when he came back home, she wasn’t there but the police had arrived. He said that the police explained that what he had done was assault. According to the applicant that is how the first 12-month AVO was established which he claimed did not allow him to live together with his wife. About a month into the 12 month period the court allowed them to live together.

36. The applicant acknowledged that alcohol played a big part in his offending. He recognised that if he wasn’t drunk, he would be with his family now. He said that it’s been four years since he has been away from his children and that he didn’t even know that she was pregnant at the time. He said that he has completed a domestic violence course and has worked with a psychologist.

37. In his written statement he wrote:

    All of a sudden I had a lot of responsibility. I started my own business and I was working seven days a week to make money and was drinking to deal with stress on my time off. Everything was happening all at once and heavy drinking was a new thing for me. The family responsibilities and providing for our growing family was very heavy and I had no outlet. I do not say this to make any excuses. I was wrong to try to drown my stress with alcohol and I take full responsibility for making the wrong decisions.

    …

    I had no family and no friends and I turned to alcohol. I believe I am not myself when I drink and I have no control over my actions.

38. I put to the applicant under s 359AA of the Act information available from the [Police] Fact Sheet noting that his recollection of events varied substantially to those recorded by the police. I read out the record:

    The accused has grabbed hold of the victims face, covering her mouth, with such force as to leave a bruise on the victim's chin. The accused stated “I'm gonna kill you, i'm gonna kill you.” This lasted for around 1 to 2 minutes. The accused left the Victim on the bed and walked into the kitchen

    A short time later the accused returned with a [specified weapon]. The accused has raised the [weapon] and commenced swinging it towards the victim. One of the swings has connected with the victim and cut the victim across her [body part]. This caused a wound of approximately 7 centimetres of length, causing both layers of skin to separate and exposing the muscle. It also caused minor scratches towards the [further body part].

    At this time, the child has started crying and the victim, being concerned for the child, has taken the child to calm him. The victim has pressed a cushion to her bleeding [body part]. The accused has placed the [weapon] on a table.

39. I also noted that the Fact Sheet states that the ‘Police contacted the accused via phone and arranged his attendance at [a named] Police Station, however the accused did not arrive.’ I noted that later when the applicant arrived it is recorded that he had denied that he had harmed the victim and denied assaulting the applicant in any way including intimidating her. I quoted, ‘The accused said, “I was so drunk, I can’t remember. I absolutely did not do these things.”’

40. I explained that the information is relevant as it may lead to questioning the applicant’s credibility and also because the severity of the incident described is different to how the applicant described it. As such, depending upon his comments, I explained that this may lead the Tribunal to find that there are grounds for cancelling the visa and that when considering whether the visa should be cancelled this information would be a reason to find that the visa should be cancelled.

41. The applicant was provided a break to confer with his representative. At the completion of the allotted time, further time was requested and granted.

42. Following the break, in response to the different accounts of the evening the applicant said that he did not have anything to add. I asked again why there would be such a difference between the two accounts, to which he said that he accepts his guilt and what he said is what he remembers as it is how he sees it.

43. We went through the differences so that the applicant could specifically respond to each.

44. Firstly, I noted that his recollection was that he ‘took a [weapon] in his hand, she moved towards him, and then what happened was intentional, somehow it caused her harm.’ I noted that what she had reported to the police sounded intentional and very aggressive. I also noted that without the benefit of sentencing remarks that he was sentenced to three years suggests that it was found to be a serious assault. He said that he is not objecting to what the police say, as it is behind him now and that he wants to think about the future and move ahead. This was reaffirmed in a statutory declaration received post-hearing in which he wrote that due to the level of his intoxication on the night he does not rely upon his memory. He noted that he pled guilty to all of the offending and did not contest the charges.

45. Secondly, I noted that he had said that the police called him and that he went to the police station. I noted that the discrepancy was that the police fact sheet records that he didn’t attend as requested despite agreeing to. In response, he said that when the police called him, he was still in a lot of stress after what had happened and that he could not control himself. He said that it was later, when he calmed down, that he was able to go which was after the police called him the second time and he told them that he would come the next morning.

1. The applicant had explained in submissions and in the hearing that he and his wife were communicating again. He provided a letter from his wife’s brother which supported the applicant’s release into the community. He wrote in his statement, ‘She tells me she wants to stay as a family’.

2. As the applicant was claiming that his wife was supportive of him, I asked why his wife has not provided written or oral submissions. The applicant said that they are communicating and that if she wants to support him that she can. The applicant’s representative added that they did not approach her as they did not want to place any pressure on her.

3. Arising from the discussion over the wife’s views towards the applicant, I proposed that the Tribunal invite the applicant’s wife to appear with the representative present but without the applicant noting that if there is any adverse information that arises from her evidence then this would need to be put to the applicant. The invitation for the wife to attend without the applicant was out of an abundance of caution regarding the uncertainty over the nature of their relationship, the existence of a previous AVO and the concern over whether she would feel coerced. For the same reasons, I noted that a written statement would not provide a fair opportunity for her to express herself nor could I ensure that she would be aware of the possible impact of her evidence to her circumstances.

4. The representative sought an adjournment to consult with the applicant. Following the adjournment, the representative agreed to move ahead as proposed.

5. The Tribunal sent an email on 31 March 2023 to [Ms A], the applicant’s wife, inviting her to attend a video hearing. The invitation was also sent to the applicant’s representative inviting her to attend the same video hearing.

6. Through the course of an attempted test dial on 3 April 2023, which is the practice of the Tribunal prior to witnesses and applicants participating in a video hearing, it is recorded in the Tribunal’s case management system that the witness, [Ms A], stated to the Tribunal Officer, ‘I am not proceeding thank you.’ On the same day correspondence was received from the representative indicating that she has been unable to reach [Ms A] and was uncertain if [Ms A] would be attending.

7. On the day of the hearing facilitated for the purpose of hearing evidence from [Ms A], the witness did not appear.

8. The representative requested further time to make submissions arising from this situation which was granted. Submissions were received on the 14 April 2023.

9. In them, the applicant argued that his wife takes the attitude that whatever their fate is it will be and that as a result she didn’t want to appear. He added that he believes that the leader of [a church] in Ukraine may have influenced his wife not to appear.

10. Included in the submissions were screen shots of communication between the applicant and [Ms A] as well as an explanation of each. He wrote that what was provided was communication between [Ms A] and the police pertaining to the AVO in which she writes that ‘we decided to stay together and have a new happy start. We want to have more children in addition to our [number]…please direct me about the removal and discharge of [the applicant’s] AVO obligations. We will not be able to live a family life, and have more children should his AVO obligations remain in place.’

11. The applicant wrote, ‘I would not have provided her contact details if I did not believe she wanted me to be released.’

12. In an earlier submission the applicant provided an unsigned letter from his brother-in-law that states the following:

    I'm [Mr B], [Ms A]’s brother. And I've known [the applicant] for 5 years. And also aware of his past life. I am pleased that [the applicant] does not deny his unintentional crime committed drunk. In relation to my sister [Ms A].

    I believe that [the applicant], deeply in his soul and with sorrow of heart regrets what happened. And promises our family and [Ms A] that nothing like this will ever happen again.

    For more than a year we have been talking to [the applicant]. by phone [via communication app] about his fate. I hope that [the applicant] still loves his family and wants to help [Ms A] and their [number] little children in their future lives.

13. I accept this submission as a positive character reference for the applicant.

14. In his written submission the applicant stated:

    My time away in prison has been the hardest time of my life. I have kept out of trouble and kept to myself. I have managed in here but my mental health has been deteriorating. I am desperate to remain in my children’s lives and for them to have a father, not like how I missed out.

15. I accept that the applicant’s hardship in immigration detention and the risk of returning to detention and not being with his family would be a strong deterrent for the applicant which would in turn minimize the likelihood of the applicant being a risk to his wife.

16. I acknowledge the applicant’s efforts while in prison and detention to be better equipped to manage his emotions including by way of attending courses.

17. I note that the applicant claims that he will never touch alcohol again.

18. When considering all of the above evidence I am concerned by the applicant’s repeated violence towards his wife, limited empathy of how his actions impact her and what I find to be modest remorse. He has participated in some courses and accepts his guilt, but his recollection of events is revelatory as they differ substantially from the police statement of facts.

19. I recognize that a police statement of facts is not above contestation but noting that the applicant was convicted and sentenced to 3 years imprisonment is strongly suggestive of his recollections not being accepted by a court as the actual course of events that night.

20. While there are many factors that would work to inhibit any potential for violence including wanting to be with his children and the risk of being one step closer to deportation, the applicant’s past behaviour isn’t indicative of an isolated incident. In considering the very low threshold of whether the applicant may be a risk to his wife, I find that he may be.

21. For this reason, I am is satisfied that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

22. 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

23. The applicant said that the reason for him staying in Australia is his family. The applicant has [number of children] with an Australian permanent resident. Regarding his son, the applicant described himself as being very happy when he learned that he was to have a child. He said that he entered prison in Australia when the child was only [age] old and has been absent since then. Regarding his [other children], he has only met them by video as they were born after he went into prison. He said that they don’t know him much, noting that they use a word when referring to him that is used for male strangers, but his wife refers to him as their father during these calls. He said that the first time he saw them by video they were [specified ages]. I acknowledge his children as a purpose for remaining in Australia and consider this matter further below under considerations arising from the Convention of the Rights of the Child.

24. Another purpose of his stay in Australia arises from his relationship with [Ms A]. The applicant said that he doesn’t call [Ms A] often as he is afraid to break a law and that he doesn’t want to pressure her. He recalled calling his son when he turned [age] but otherwise, he said that he waits for her to call. He claims that she sometimes calls him nearly every day. As noted in the earlier section, there are questions over the relationship into the future which the applicant acknowledged in a post-hearing submission, writing specifically, ‘I have come to the realization that because of our past and her current state, our relationship is not a stable relationship and it may be that we will get divorced.’

25. The applicant places considerable weight on his role as a parent. He said that he thinks about his children all of the time. He said that he wants to help his wife look after the children. He expressed concern over his children being raised without a father. As the applicant grew up without a father, his father having died when the applicant was [very young], he said that he knows how hard it can be without a father for a child.

26. In addition to his desire to remain in Australia for reasons of his family the applicant is waiting for his protection visa to be considered. I acknowledge that the applicant’s stay in Australia is in part for the purpose of finalising his protection visa appeal and the running of the appeal would be easier were the applicant in the community.

27. It is clear from the evidence the applicant provided and the refusal of his wife to provide evidence that the nature of the relationship with his wife is fragile at best. The extent to which the nature of the relationship can change if he was not in detention is limited as the applicant has acknowledged that it may already be ending. This leads me to place limited weight against cancellation for reasons arising from the purpose of his stay being to maintain his relationship.

28. Noting the compelling reason of playing a role in his children’s lives from his perspective (as opposed to from theirs) and the importance he places on it, but also acknowledging the limited evidence that his wife is supportive of him playing such a role leads me to place limited weight against cancellation.

29. When considered cumulatively, together with the importance of being able to adequately prepare for a protection visa, I place moderate weight against the cancellation of the applicant’s bridging visa.

    The extent of compliance with visa conditions

30. There is no evidence to suggest that the applicant has not complied with his visa conditions. As this is a minimal expectation of all visa holders, I place little weight against cancelling the applicant’s bridging visa.

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

31. The children and their mother currently live alone in a public housing flat in [named suburb]. He said that she survives through government benefits.

32. Regarding [Ms A]’s family members, the applicant said that he doesn’t know what role they play in supporting the children and his wife as he doesn’t speak with them much other than two [specified relatives]. He claimed that they want him to be released.

33. The applicant said that it is hard for his family with him being in detention. He said that he wants to help his wife look after the children. In a post-hearing submission he noted that ‘we have so little money’ and that his wife has had debts in the past that he had helped to pay off. I acknowledge that he would be unable to do so while in detention.

34. The applicant expressed concern over his children being raised without a father including having someone provide for them ‘emotionally, financially and in any other way’. He expressed a desire to be in the children’s lives and to care for them as he identifies having a father as being valuable in children’s lives.

35. The applicant said that he grew up without a father as his father died when the applicant was [very young], so he knows how hard it is.

36. I asked how the applicant will handle a situation where his wife decides when and how he sees the children. He said that it’s up to her, he will do whatever she decides. He said that he doesn’t want to break any law. He said that if he is allowed to see his children at least once a week he will work and support them. He added that he is not sure how or whether her feelings will change towards him and whether she will fear him nor whether they will live together as a family again.

37. While the applicant’s family and his wife’s family may benefit from the applicant’s presence in the community, the question is the degree of hardship they would face with his continued absence. It has been nearly four years that the applicant has been away from his family. During this period his family have been unable to obtain the benefit of his presence including financial support (the applicant was working prior to his imprisonment and detention as a [specified occupation]) as well as emotional and physical support, which he could offer by way of helping raise the children or play a role in the family. The continuation of this situation would be an extension of their current circumstances for which no evidence regarding their hardship was received by the Tribunal other than from the applicant believing them to be struggling. But the degree to which this is the case is unknown as [Ms A] has family and government support.

38. I acknowledge that the applicant is facing personal hardship for the reason of being in detention. He has expressed a desire to see his children and to provide support to them. He has a concern over his mental health. He said that he thinks about it all night including about the fate of his [brothers] who are in the military and fighting against Russia in the Ukrainian town of [Town 1] at the time of the hearing. He said that he speaks to a psychologist, but asked rhetorically, how can psychologists help? He said that he cannot sleep at night and that he finds solace in going to the gym. He explained that the best moments for him are when his wife calls and when he can see his children.

39. The applicant’s circumstances of being in immigration detention since 17 February 2022 following nearly three years in prison have undoubtedly strained his mental well-being. I acknowledge that remaining in detention will cause further hardship to the applicant’s health. He has stated that he considers returning to Ukraine to simply end the wait for an outcome.

40. When considered cumulatively, for reasons of his and his family’s hardship and his own personal hardship, I place moderate weight against the cancellation of the applicant’s visa.

    Circumstances in which the ground of cancellation arose.

41. The multifaceted circumstances in which the ground for cancellation arose were discussed in the earlier section including his drinking, a confluence of personal stresses, and a lack of ability to moderate his temperament. These circumstances were compounded by an existing AVO which the applicant violated.

42. Importantly, these circumstances were not beyond the control of the applicant. It was through his own actions that the grounds for cancellation arose. Acknowledging that the applicant’s past may have influenced his actions to some degree including fighting in a war or being raised without a father, he nevertheless did not lose agency. For this reason, I find that there are minimal extenuating circumstances beyond the visa holder’s control and as such place little weight against cancellation.

    Past and present behaviour of the visa holder towards the department

43. There is no evidence to suggest that the applicant’s behaviour towards the department has been problematic. As this is a minimal expectation of all visa holders, I place little weight against cancelling the applicant’s bridging visa.

    Whether there would be consequential cancellations under s 140

44. There are no circumstances in which any consequential cancellations would arise, as such I find this consideration to be neutral.

    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

45. The mandatory legal consequences discussed earlier are that the applicant will continue to be detained under s 189. As the applicant has a substantive visa application pending, he would not be liable for removal. As the applicant’s protection visa application has been constituted to this member and will be heard within the coming months the foreseeable length of detention is best measured in months and not years. But the outcome of the decision may be adverse and as such he may appeal the decision to the Federal Circuit and Family Court. If this is the case the applicant may remain in detention for another few years until the case is heard. The outcome of each of these stages is speculative, but could in multiple scenarios extend his detention further into future years. As such, when considering the consequence of cancellation, I take into account the applicant potentially remaining in detention for upwards of several years.

46. The applicant will also be limited in the visas he can apply for due to s 48 of the Act which bars applicants who have had visas cancelled from applying for further visas other than those that are prescribed in the Migration Regulations. The prescribed list of visas includes, relevant to the applicant’s circumstances, bridging and partner visas.

47. The applicant would be affected by Public Interest Criteria 4013 which limits him from applying for another visa for three years from the date of the visa cancellation. The applicant’s visa was cancelled on the 18 April 2019 and as such the three-year period will pass within days of this decision being made. I note that while the applicant was re-notified of the cancellation for the purpose of being correctly notified, s 127(3) of the Act states ‘Failure to give notification of a decision does not affect the validity of the decision.’ It is for this reason that the starting date for the three-year period under PIC 4013 is the first cancellation decision and not the renotification.

48. As the PIC 4013 period is at its end the applicant can apply for another bridging visa were this visa to be cancelled. He may alternatively choose to apply for a different type of visa that has a pathway into the community such as a partner visa, but the latter visa pathway will take an extended period of time, possibly a few years, to work its way through the Department. It is also questionable whether the applicant has the financial resources to apply for a partner visa.

49. Noting that the applicant can apply for a bridging visa but is limited to any other visa application and that until such time as he is granted a visa he will remain in detention, overall, I find that the mandatory legal consequences for the applicant are impactful and place moderate weight against cancellation of the visa. 

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

50. The matter at hand is a bridging visa cancellation the consequences of which includes the applicant potentially remaining in detention separate from his family for several years or until such time as the applicant is successful by means of another visa pathway or the Minister grants the applicant a visa or makes a residency determination that places him into the community.

51. As a forced return to Ukraine is not a possibility arising from this decision there are no risks of Australia’s non-refoulement obligation being breached.

52. In considering the Convention on the Rights of the Child I find that it is in the best interests of the children for the applicant to be in the community so that he can work and financially support the family. Being in the community may also be in the best interests of the children if their mother acquiesced in allowing the applicant to see the children or a court order was obtained that was based on professional opinions of the children being safe in the presence of the applicant. It would be speculative to make presumptions about how the children would adapt to the presence of their father in their lives. I note, though, that the applicant has been violent towards his partner with the children present. I also note that the father’s absence is due to his violent assault upon his wife following an earlier assault. Such violent behaviour has an impact upon children. These are factors that play against the applicant’s presence in their lives beyond supporting them financially being in the best interests of the child. When considered holistically I find that it is in the children’s best interest for the applicant to be in the community but due to the countervailing concerns I place limited weight against cancellation.

1. With regards to family unity principles which emerge 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) I note that this consideration overlaps to some degree with those of the best interest of the children, where some weight has already been placed on the importance of maintaining a relationship between the father and the children. The family unity principles differ in this case to those arising from the Convention on the Rights of the Child in that there are questions over whether there is a family unit. [Ms A] has not indicated that she intends the family to remain together. She did not appear on behalf of her husband. The applicant has acknowledged the perilous status of his relationship and the uncertainty he faces considering that she chose not to give evidence. The applicant did indicate a hope for a future together with [Ms A] acknowledging that work needed to be done on their relationship. But as of the time of the decision, there is little evidence before me that there is a family in substance to speak of. As such I place very little weight against cancellation. 

   Any other relevant matters

2. I note that the applicant had trouble aligning his views of what led to his visa being cancelled with the police record and the severity of the sentence. While the applicant exhibited remorse by stating that he was sorry and writing in his submissions that he was remorseful (as well as his wife accepting that he is remorseful according to a screenshot of correspondence from her) he appeared not to accept the extremely violent nature of his actions despite having several years to reconcile the two opposing narratives. That he attempted to explain the slash across the victim’s [body] as unintentional is difficult to reconcile with someone who is genuinely remorseful. The applicant’s prior AVO and subsequent family violence reinforces concerns that his behaviour was not an aberration. For the reasons of the applicant’s lack of genuine insight into his offending, I place considerable weight in favour of cancellation.

100.   The applicant’s repeat offending, his repeated disregard for [Ms A]’s safety and wellbeing and the severity of the harm he brought to bear on [her] including in the presence of a child, alongside my finding that he may be a risk to [Ms A] leads me to place considerable weight in favour of cancellation.

101.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

DECISION

102.   The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Denis Dragovic
Deputy President