2305435 (Migration)

2305435 (Migration) [2024] AATA 1270 (14 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2305435

MEMBER:Kate Millar
DATE:14 May 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 14 May 2024 at 4:51pm
CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of assault in a domestic context – emotional hardship – non-refoulment obligations – best interests of the child – relationship with adult children – indefinite detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 189, 198, 359, 501
Migration Regulations 1994, Schedule 8 Condition 8101; r 2.43
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Vietnam. He came to Australia in 2015 on a Temporary Work (Subclass 457) visa with his then wife [Wife A] and their [number] children.
[The applicant] applied for a Temporary Skill Shortage (Subclass 482) visa, however his application was refused. He then applied for a Protection (Subclass 866) visa and was granted a Bridging C (Subclass 030) visa pending the determination of this application. His application for a protection visa was refused on 24 November 2021, and he has applied for a further review of this decision.
In this time, [the applicant’s] relationship with his wife ended and they divorced [in] July 2021. [The applicant] was convicted of assaulting his wife and daughter [in] April 2022. As a result of these convictions, his Bridging C (Subclass 030) visa was cancelled by a delegate of the Minister on 3 April 2023. This is a review of the decision to cancel [the applicant’s] Bridging C visa.
In reviewing this decision, the issues before the Tribunal are whether a ground to cancel [the applicant’s] visa has been established, and if so whether the visa should be cancelled.
[The applicant] appeared before the Tribunal on 6 February 2024 and 7 May 2024. The Tribunal also took oral evidence from [the applicant’s] son [Child A], and his current spouse [Wife B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CERTIFICATE ISSUED UNDER S 376 OF THE MIGRATION ACT 1958 (Cth) (the Act)
A certificate issued under s 376 of the Act was contained in the Department file. A certificate validly issued under this provision allows the Tribunal to consider the information or document and if it is appropriate to do so, after having regard to the advice of the Secretary, disclose the document or information to the applicant or any other person.
[The applicant] was provided with a copy of the certificate before the hearing and invited to comment on the validity of the certificate. No comments were provided.
The certificate is signed and complies with the terms of s 376 of the Act. The information that is the subject of this certificate relates to the location of [the applicant] to serve notices on him and his conviction for the offences contained in the decision record of the delegate. To the extent that this information is adverse to [the applicant], it has been disclosed in the decision record of the delegate.
This does not prevent the Tribunal disclosing the information or absolve it from the requirement in s 359A to provide adverse information. Adverse information from the police facts, which are on the Department file but were not the subject of the certificate, was provided to [the applicant] and is discussed further below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. These include the ground set out in s 116(1)(g) which refers to prescribed grounds, and in [the applicant’s] circumstances, r.2.43(oa) of the Migration Regulations 1994 (the Regulations) is under consideration.
If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) 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 reg 2.43 of the Regulations. In the present case, the ground in reg 2.43(oa) is relevant.
This states:
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – 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));
[The applicant] was convicted [in] April 2022 of one count of aggravated assault that causes harm – own child/spouse with weapon and one count of aggravated assault that causes harm – own child/spouse no weapon. He was convicted and discharged without penalty having been in custody for [term].
As [the applicant] has been convicted of an offence, the ground to cancel his visa in s 116(1)(g) of the Act and r.2.43(oa) of the Regulations exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must consider whether [the applicant’s] visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual 3 (PAM3) ‘General visa cancellation powers’.
On being asked what he had led to the conviction of aggravated assault of his wife, [the applicant] said there were family issues and his wife had affairs. He said he was grasping her collar and his daughter saw this and called the police. He said he does not consider he did anything wrong and was just grabbing the collar of his wife’s shirt because of extreme stress. He then said it was “a bit wrong”. [The applicant] told the Tribunal he had been wronged in the proceedings because the statement and evidence from his ex-wife was incorrect, and at the hearing he did not get to say anything or tell the Court he did not choke his ex-wife.
The offence against his daughter occurred in 2017. [The applicant] said his daughter was talking back to her mother, so he used a stick to hit her bottom. He considers this is only wrong in the eyes of Australian law. He said the charge of assaulting his child with a weapon was an incident where he was teaching his child and disciplining her. He said he needs to be strict and for his child to be scared to prevent wrongdoing and does not know why this is assault.
He later said he thinks he understands now that grabbing a collar and hitting was wrong.
[The applicant] said he pleaded guilty to the offences because at the time he was under a lot of stress and wanted to kill himself, so he “just accepted it all.” He was represented by a lawyer in the criminal proceedings and spoke to his lawyer with the assistance of an interpreter. The charges appear to have been amended so that a charge of choking, suffocating or strangling in a domestic setting was withdrawn.
He is currently subject to an intervention order requiring him not to approach his ex-wife and daughter and has complied with this order. He provided a recent National Police Check to show he has not been convicted of any further offences.
[The applicant] said he had applied for a protection visa because his lawyer told him he had to apply to remain in Australia, and he was not aware of which type of visa was in the application.
[In] October 2023 [the applicant] married [Wife B]. [The applicant] would like to apply for a partner visa and is concerned that if his visa is cancelled this will affect any future visa applications.
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
A timeline provided by [the applicant] states he arrived in Australia on a Temporary Work (Skilled) visa in 2015. He applied for a further work visa in 2019, but this was refused. His Temporary Work visa expired in April 2019. As a result, [the applicant] is not in Australia for the purpose he travelled to Australia, which was to work temporarily.
After the further work visa was refused, he lodged an application for a protection visa, and was granted a Bridging Visa C in association with his protection visa application. His protection visa application was refused by a delegate of the Minister, and [the applicant] has applied to this Tribunal for a review of this decision.
The current purpose of [the applicant] being in Australia is for the determination of his application for a protection visa. Section 198(5A) of the Act requires that he is not removed from Australia until his application for a protection visa is finally determined, and he will remain in Australia. This meets the current purpose of his stay in Australia.
[The applicant] married again [in] October 2023, and said he is currently in Australia because he has a new family here and has been seeking legal aid to get a new visa. He has not yet applied for another visa. His wife has [number] adult children in Australia with ages [age range].
[The applicant] does not have any contact with his ex-wife or eldest daughter but communicates with them through his son. He re-established contact with his son when he was admitted to hospital in June 2023 with [medical condition 1]. He has contact with his youngest daughter, and as she is a child her best interests are considered further below. It is not suggested he is financially supporting his family as he does not have the right to work in Australia.
While contact with his new wife and two of his children provides support for not cancelling [the applicant’s] visa, he will not be removed from Australia and if detained they can remain in contact with him within the constraints of detention. I do not consider remaining in Australia to apply for another visa is a compelling reason to remain in Australia.
The extent of compliance with visa conditions
[The applicant’s] visa was granted with Condition 8101, which states the holder must not work in Australia. There is no information before me to show [the applicant] has breached this condition.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The effect of the visa being cancelled is that [the applicant] would be liable to being detained. It is not, as supposed by [the applicant], that he will be returned to Vietnam. This is because he will not be removed from Australia until his protection visa application is finally determined.
[The applicant] said his wife will not be able to live apart from him if he is detained because as her husband, he manages the household and is at home while she manages her business. He said he supports his youngest daughter financially when his wife gives him money, and that he also supports her by coming when she needs him. He is not able to visit her at home due to the intervention order which prevents him going to the house.
[The applicant’s] son said that the circumstances of his family have deteriorated since his father was arrested, and he did not see his father from the time he was arrested until he was hospitalised in 2023. He wants his father to be available to care for him and his two sisters and to help them emotionally. He said he has not been happy since his family separated, and he needs the support of his father. He said his siblings are still young and go to school and they need support, and he cannot replace the love and support from his father. He does not want his father to lose his freedom if he is in immigration detention.
I accept that [the applicant’s] son and his younger daughter will lose their current in person contact if the visa is cancelled; however, I do not accept that his elder daughter will lose this contact as [the applicant] is restrained from contacting her.
[The applicant] provided information to show he owes $2,881 for medical treatment in Australia and also provided a discharge summary showing he was in hospital overnight in May 2023 with [medical condition 2]. He has a history of [medical condition 1]. He was admitted to hospital from [in] June 2023, with a discharge diagnosis of [medical condition 2]. I accept [the applicant] suffers from health conditions, however as medical treatment is available to him in immigration detention,[1] and there being no other evidence to show that detention will exacerbate his condition, this is a neutral factor.
[1] Detention Management (abf.gov.au) IHMS: International Health and Medical Services
If [the applicant’s] visa is cancelled and he does not apply for another visa, or is not granted another visa, it is likely he will be detained. This will cause [the applicant] emotional hardship in being separated from his current wife, her children, his son and his younger daughter. There are no medical reports before me that [the applicant] suffers a mental illness, although I am mindful that he says he pleaded guilty to the offences because he wanted to kill himself at that time, and that detention will result in stress and emotional hardship. I accept that [the applicant] will suffer emotional and potentially psychological hardship.
I accept that if his visa is cancelled, this will cause emotional hardship to his wife, his eldest son, and his younger daughter.
The hardship to [the applicant] and his family weigh significantly in favour of not cancelling his visa.
The circumstances in which ground of cancellation arose
[The applicant’s] visa was cancelled because he committed offences against his ex-wife and his child. He was convicted of aggravated assault, with one count including the use of a weapon.
In regard to the assault against his wife, [the applicant] said there were family issues and that she was having affairs. He said he grabbed her by the collar, and this is also reflected in the statement from his ex-wife. He was convicted of assault, with the charge of choking or strangling being withdrawn.
An excerpt from the statement of police facts about the assault on [the applicant’s] daughter was provided to [the applicant] under s 359AA of the Act. This was:
… the victim [[the applicant’s] daughter] had recently lost her job and the accused [[the applicant]] found out. He became really [angry] and told the victim to lay on the floor. The victim laid face down and the accused left the room, returning with a piece of floor board wood. The victim described the wood as being about three (3) inches wide and about two/thirds the height of a door in length.
The accused began beating the victim with the wood, hitting her in the thigh area really hard causing pain. He hit the victim more than 15 times. Whilst he was hitting the victim he said “I will kill you” and “You are a disappointment”. She didn’t think he would stop.
The victim’s brother, [redacted] came into the room and said “Stop, you’re going to kill her” which caused the accused to stop. As a result of the beating, the victim had lots of scratches on her thighs and a really large bruise on her right thigh. There was so much blood pooling in the bruise that it swelled her leg.
In response, [the applicant] said this occurred in 2017 in his daughter’s summer holidays. She was looking for a job and asked him to look for a job for her. He spent time looking for a job and finally found [a] job for her. After the employer agreed to offer the job, he told his daughter to go to work the next day and she refused. Because it was difficult and took effort and time to find her a job he was angry and asked her to lie down on the floor because he wanted to give her a lesson, but she did not give a true statement to police. He said he just wanted to teach her as her father and did not want to kill her, but because of her false statement the police arrested him and only listened to one side of the story. His wife and son were both witnesses. He said he did hit his daughter with a piece of wood, but that it was the width of two fingers and a length of approximately 60 cm.
The statement by [the applicant’s] ex-wife says that [the applicant] was the breadwinner of the family who worked hard and for long hours to support the family and was a good husband and a responsible father. His ex-wife states that before their Subclass 457 visas expired, they applied for Subclass 482 visas, but [the applicant’s relative] withdrew their sponsorship after they raised issues about underpayment of wages and their applications were refused. They were bitterly disappointed, and [the applicant] started drinking and becoming verbally abusive to her and the children when he was drunk. Their relationship deteriorated and ended in divorce [in] July 2021.
His ex-wife states that on one occasion [the applicant] pulled her collar during an argument and hit their daughter on the legs with a wooden stick while disciplining her. [The applicant] was remanded in custody for [term] awaiting trial. She states she is sorry that calling the police led to him being unnecessarily detained for [this term], she only wanted to deter him from coming back, and has learned from her son he is deeply remorseful and has stopped drinking. She does not believe he is a threat to her, her children, or anyone else.
A statement from his daughter says her father pulled her mother’s collar and struck her on the legs with a wooden stick while disciplining her, and she is aware he is deeply remorseful for his conduct. She said she has learned from her brother her father has learned a hard lesson and realises it is a mistake to apply Vietnamese customs in Australia when disciplining his children, and that it is unlawful for him to discipline his children using a stick or any kind of force. She states her father has been diagnosed with a serious medical condition that has required him to be hospitalised. She claims to be in the process of making arrangements to visit her father to tell him she has forgiven him and wants him to stay alive and healthy and she recalls beautiful moments when they were in Vietnam.
Both these statements are written in English. They are witnessed by [the applicant’s] son. His son said his mother does not speak English, but [one] sister translated the documents for them. His son said he wrote the statements based on the guidelines from the solicitor after his father’s solicitor contacted him and his sister asking for assistance in reducing the charges against his father. He said his sister and mother supported reducing the charges and the solicitor prepared statements for them which were read out in Court. He did not provide the statements prepared by the solicitor because this solicitor is not involved with his father anymore, so he has re-written the statements which they then signed.
The statements refer to [the applicant’s] remorse and realisation that he cannot use Vietnamese customs when disciplining his children. This is in stark contrast to [the applicant’s] oral evidence that he was wronged in the criminal proceedings, that he needs to be strict for his children to fear wrongdoing, and that he does not know why his actions were assault.

I do not accept the statements that claim that [the applicant] is remorseful, or that he realises what he has done is wrong. In the context in which these statements were prepared and witnessed, and in the absence of other evidence from [the applicant’s] ex-wife and elder daughter, I place little weight on these statements.
[The applicant’s] son said he was present when his sister was assaulted. He said he came home and his father was spanking his sister. He said he was using a small stick. On being asked why the police facts record that his sister was hit with a floorboard made of wood about three inches wide and two-thirds the height of a door, he said it was not a large plank, it was one and a half times of his big finger. He said he did not see his father hit his sister on any other occasion, and he did not see his father hit or grab his mother.
[The applicant’s] explanation for his conduct does not show that he has considered the gravity of hitting his daughter with a board or stick, and that he considers he was trying to teach her a lesson. He considered he was wronged in being charged with assault for grabbing his ex-wife’s collar. The circumstances in which his offending arose being in a domestic setting and involving violence towards family members and his lack of understanding of the gravity of his offending weigh in favour of cancelling his visa.
Past and present behaviour of the visa holder towards the Department
[The applicant] said he is currently in Australia without a visa and is here illegally. He said he did apply for another bridging visa but withdrew his application because that visa would be cancelled. A timeline provided by [the applicant] at the hearing states he lodged an application for a Bridging Visa E but withdrew it after receiving a notice of intention to consider refusal of his application under s 501(1) of the Act. [The applicant] has chosen not to test his eligibility for another visa, and instead remain in Australia unlawfully because there is a risk his visa application would be refused. This shows a disregard of Australia’s migration laws and weighs against him.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations that apply.
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
If [the applicant’s] bridging visa is cancelled, he will be an unlawful non-citizen, and liable to detention under s 189 of the Act. The delegate states [the applicant] may apply for or be granted a Bridging Visa E, however the outcome of this application is speculative and being issued a notice to consider refusing this visa under s 501(1) of the Act adds to the uncertainty of his eligibility for this visa. The legal consequence of cancelling the visa is that he will be detained unless he is granted a Bridging Visa E.
[The applicant] currently has an application to review the refusal of his protection visa before the Tribunal. The obligation to remove as soon as reasonably practicable an unlawful non-citizen under s 198 does not apply to a person who has made a valid application for a substantive visa that can be granted while the person is in the migration zone and the application for a substantive visa has not been finally determined (s 198(2) of the Act). [The applicant] cannot be removed from Australia until this visa application is finally determined.
This means that the immediate legal consequence of cancelling his visa is that he will be detained and will remain in detention unless he is otherwise granted a visa or until his protection visa application is finally determined. He can apply for a Bridging Visa E but is understandably concerned that this will be refused.
The detention of a person is a serious matter and must be carefully considered in any visa cancellation. As [the applicant] will be detained, this weighs in favour of not cancelling his 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
The decision to cancel [the applicant’s] Bridging Visa will not result in his removal from Australia as he cannot be removed until his protection visa is finally determined and cancelling his Bridging Visa C (Subclass 030) will not result in a breach of Australia’s non-refoulment obligations.
If his visa remains cancelled, he will either remain unlawfully in the community or be detained. He may apply for a Bridging Visa E, however the outcome of any application to return to the community pending the final determination of his protection visa is uncertain.
[The applicant] has three children. Two of his children are adults. His youngest daughter turns [age] this year. He is in contact with his youngest daughter, and says he sees her every week or every second week. He said he helps with the care of his youngest daughter by helping with transport and that when he can work, he will assist further.
If his visa remains cancelled and he is detained, he will be unable to have in person contact with his youngest daughter. The wishes of his youngest daughter are not known; however, [the applicant] gave evidence that he continues to see his youngest daughter. It is assumed in [the applicant’s] favour that it is in the best interests of his youngest daughter that he remains in the community to allow her to have contact with him in person. While the best interests of his youngest daughter are a primary consideration, [the applicant] was advised this will not necessarily outweigh all other considerations. It does weigh in favour of not cancelling his visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
A Bridging Visa C is not a permanent visa, and this does not apply. However, it is noted above that [the applicant] has ties in Australia with his son and youngest daughter and with his current wife and her children.
CONCLUSION
[The applicant] has been convicted of assaulting his ex-wife in a domestic context, and of assaulting his daughter with a piece of wood. He considers this was necessary to teach or educate his daughter. He is currently in Australia unlawfully, having withdrawn his application for a Bridging Visa E after receiving a notice of intention to consider refusing his application. He can apply for this visa again, however the prospects of a further visa being granted are uncertain. [The applicant] has suffered from some health concerns; however, treatment for his condition is available in immigration detention.
[The applicant] has remarried and his current wife, her children and his son and youngest daughter will be affected by a decision to cancel his visa, as he will be detained unless he applies for and is granted another visa. It is in the best interests of his youngest daughter that he remains in the community. His son is supporting [the applicant] and assisting him and gave evidence that he wants his father’s support in his day-to-day life. He is rightfully concerned that the cancellation of his visa will affect any further visa applications.
Considering the circumstances as a whole, I consider that the offences and the circumstances of the offending visa outweigh those considerations in favour of not cancelling his visa, and I have concluded that his visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
Kate Millar
Senior Member

[2024] AATA 1270

14 May 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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