Beshlikj (Migration)

[2019] AATA 623

Beshlikj (Migration) [2019] AATA 623 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Filip Beshlikj

CASE NUMBER:  1733254

HOME AFFAIRS REFERENCE(S):           BCC2017/3789493

MEMBER:Kira Raif

DATE:27 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 27 February 2019 at 2:20pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – ground for cancellation – domestic violence – convicted of offences – consideration of discretion – low risk of recidivism – expressed remorse for his conduct – best interests of the child – close relationship with child – access to both parents – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 29 December 2017 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of the Former Yugoslav Republic of Macedonia, born in November 1995. He was granted the Class UF Partner (Provisional) visa on 25 September 2015. On 1 December 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(g) and r.2.43(1)(oa). The applicant provided a written response to the NOICC and his visa was cancelled on 29 December 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). 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.

5. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   …

   (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));

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Class UC Partner (Provisional) visa in September 2015.

7. On 11 April 2016 the applicant was convicted at Sutherland Local Court for 12 months for the following offences:

   Assault occasioning bodily harm (DV)

   Stalk / intimidate intend fear physical etc harm (domestic)

8. The primary decision record indicates that the applicant is named as a person of interest in the apprehended violence order (AVO) of the protection of his partner and their child. The AVO was in place for 24 months with the expiry date of 9 April 2018.

9. The applicant admits in his response to the NOICC that there is a ground for cancelling his visa. The Tribunal finds that the applicant has been convicted of offences against the state law. The applicant held the Subclass 309 temporary visa. The Tribunal is satisfied there are grounds for cancelling his visa under s.116(1)(g) and r.2.43(1)(oa).

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

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

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

12. The purpose of a partner visa is to enable the visa holder to remain in Australia with his partner. The applicant stated in his response to the NOICC that his relationship with his former partner had broken down irretrievably and, according to the primary decision, the sponsor wrote to the Department in December 2017 advising of the withdrawal of sponsorship. To that extent, the applicant is no longer able to fulfil the purpose of his travel and stay in Australia.

13. The applicant states that they have a common child and despite the breakdown of the relationship, they have an agreement regarding the arrangements for the child. They share parental responsibility towards the care and welfare of the child and the applicant participates in making decisions in relation to the child. The applicant states that he sees the child every fortnight but plans to see the child more regularly and he also contributes financially to the child’s expenses. The applicant claims that if his visa is cancelled, the absence of the father will obstruct the child’s attachment and emotional development.

14. In his submission to the Tribunal of 21 December 2018 the applicant states that he travelled to Australia to be with his wife and daughter and despite the breakdown of the relationship with his former wife, the purpose of his stay in Australia is to have a meaningful relationship with the child, provide financial support to the child and be present in her life.

15. In oral evidence the applicant told the Tribunal that the purpose of his travelling to Australia was to be with his wife and child. The applicant states there is a compelling need for him to stay in Australia because of his child. The applicant states that his ex-wife and child live in Wollongong while he lives in Melbourne. The applicant states that once the orders are finalised, he plans to move to Sydney to be able to see his daughter. The applicant states that after the separation, he moved to Melbourne because that is where his family was and he did not have the money to live in a hotel on a long term basis.

16. The applicant claims to have a good relationship with his ex-wife and child and whenever he visits Sydney, he visits his child. The visitations stopped in February 2018 because his ex-wife was pregnant. He started the parenting order process under the Family Law Act 1975 and has applied for parenting orders. In the meantime, he had video chats with his daughter. The applicant states that the interim hearing in the Family Court is coming up and he is seeking to be present for the important dates in his child’s life, as well as visitation rights. The applicant states that his ex-wife is agreeable to his seeing the child but not to the timetable he proposed. 

17. The applicant confirmed that the initial AVO included his ex-partner as well as the child. He said that the orders were changed a few days after the AVO was issued and they continued to live together until the relationship ended in 2017.

18. The applicant’s representative submits that despite the breakdown of the relationship, the applicant has maintained a relationship with his daughter; he has spent quality time with her and has taken time to travel to see her. After the ‘incident’ he and the partner reconciled and continued to live together, which shows that the applicant was of no risk to them.

19. The Tribunal acknowledges that the purpose of the applicant’s visa would be fulfilled if the applicant remains with the chid in Australia. The Tribunal acknowledges that the applicant may have a compelling need to remain in Australia because of the presence of his child in Australia.

    The extent of compliance with visa conditions

20. Nothing adverse is known about the applicant’s compliance with visa conditions. The applicant claims in his evidence to the Tribunal that he has been truthful and cooperative with the Department and regularised his status promptly. He also informed the Department of his addresses. The Tribunal accepts that evidence.  

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

21. In his written response to the NOICC the applicant refers to his relationship with his child and the hardship that separation would cause. The Tribunal is prepared to accept that the applicant maintains a close relationship with his daughter, that he sees her regularly and that his daughter would be adversely affected by the separation. The Tribunal acknowledges the supporting evidence he presented to the delegate. The Tribunal is also mindful, however, that the applicant has been the subject of an AVO which names his former partner, and, significantly, also his child as protected persons. The fact that it was necessary to name the child as the protected person may suggest that the applicant was assessed as being a risk to the child’s well-being.

22. The applicant refers to the financial support he provides to his child. He states that if his visa is cancelled, he will lose his job and will not be able to provide for the child. However, the applicant has not satisfied the Tribunal that such financial support is needed and also that he would be unable to continue to provide financial support even if his visa is cancelled and he is required to depart Australia.

23. The Tribunal accepts that if the applicant is required to leave Australia, this may cause him to lose his employment. The Tribunal acknowledges that this may affect the applicant’s and the family’s financial circumstances.

24. In his submission to the Tribunal of 21 December 2018 the applicant states that he will experience psychological and emotional hardship as a result of the cancellation. The applicant refers to his care for his daughter and states that even following a period of separation in 2014 and 2015 he called and spoke to his partner daily and requested to see the child. The applicant states that after his arrival in Australia, he financially, emotionally and physically supported the child. Initially his partner did not work and he was the sole supporter of the child. Later on, he continued to provide physical and financial support and has been present to spend time with the child. The applicant states that he separated from his former partner in September 2017 and relocated to Melbourne. Despite the move, he continued to have a meaningful relationship with the child and travelled to NSW on several occasions to spend time with the child. He speaks to the child by video chats and asks for updates and photos of the child and has asked to spend time with her. The contact became more limited since his ex-wife fell pregnant with her new partner and the applicant has applied for parenting orders from the Federal Circuit Court.

25. The applicant states that if the visa is cancelled, he will experience severe emotional and psychological hardship if he is separated from his child and will not be able to spend any time with the child and fulfil his parental duties and responsibilities.

26. The applicant also claims that he may have financial difficulties supporting the child due to the local income level in Macedonia. While that may be the case, the applicant has not presented adequate evidence that such financial support is needed or that the withdrawal of the financial support, if it were to occur, would have a detrimental effect on the child.

27. The applicant provided to the Tribunal a number of declarations from third parties outlining the hardship they would experience as a result of the applicant being required to leave the country. The Tribunal is of the view, however, that the provision of emotional support is not limited to people residing in close vicinity of each other or even in the same country. If the applicant were to leave the country, he would be able to maintain regular and frequent contact with friends and relatives in Australia and continue to provide whatever emotional support may be needed. While the Tribunal accepts that others may be affected by the applicant’s departure from Australia, the Tribunal does not accept that this would amount to hardship.

28. In oral evidence the applicant states that if his visa is cancelled, his child will suffer financial hardship because he will not be able to support his child. He claims the income in Macedonia is much lower and it would be hard for him to find a job. Following the hearing, the applicant provided to the Tribunal evidence of his potential income in Macedonia. The applicant states that at present, he sends money to his daughter weekly or fortnightly and also for specific purchases. The applicant states that he sends different sums of money but around $100 a week, more or less. The applicant states that with his qualifications and experience, he would have limited job opportunities in Macedonia and his income would not be sufficient to support his child. The applicant states that his ex-wife does rely on him for financial support as she does not work. Her new partner does work but he does not know about the family’s income.

29. The applicant states that he has a close bond with his daughter and he believes she will suffer emotionally if he is to leave the country. He believes she will look for her real father and he does not want to miss important events in her life. He wants to be present for the important events in her life. The applicant states that if he is required to leave the country, his contact with his daughter would depend on his ex-wife. He will not be able to finalise the Family Court matter and pay the legal fees and get the orders. It would be difficult to communicate with his daughter because of the time difference and he worried that he would lose contact with his child.

30. The applicant states that it would be hard for him to find a job in Macedonia and that would also cause hardship.

31. The applicant’s representative submits that if the applicant was to live overseas, his communication with his daughter would be entirely dependent on his former spouse and if she does not facilitate the communication, it will not happen. The representative submits that the absence of her father in the formative years of the child’s life would have an adverse effect on the child and if there is no communication, the child may believe that the father has abandoned her. The representative notes that despite the separation, the applicant has continued to financially support the child. If he travelled to Macedonia, it would be difficult for him to find employment and, due to his own expenses, he would be unable to provide financial support to the child.

32. The Tribunal accepts that the cancellation of the visa would likely mean that the applicant may be required to leave Australia and that his interactions with his child would be more limited, although the Tribunal is mindful that these are somewhat limited at present due to the applicant and his child living in different states and the applicant’s evidence that his former partner has limited their interactions. Nevertheless, the Tribunal accepts that considerable hardship may be caused to the applicant if he is required to return to his home country.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence

33. The ground for cancelling arises because the applicant has been convicted of offences. In his response to the NOICC, the applicant describes the family situation that led to the argument and the convictions. He claims that due to various factors, there was a heated argument and a physical altercation between him and his wife. The applicant’s evidence to the delegate is that his former partner wanted to drop the charges but ‘changed her statement’. The applicant states that he was advised to plead guilty by his lawyer to avoid a trial and since he had no knowledge of Australian law, he followed his lawyer’s advice. The applicant does not appear to be remorseful about his conduct.

34. In his submission to the Tribunal of 21 December 2018 the applicant states that he was affected by lack of sleep as he and his wife were caring for their seven month old daughter. At the time he was new to the country, had limited English, no employment and no support network apart from the sponsor and her family. He felt ashamed that he could not provide for his family and the family circumstances exacerbated his shame. On 15 January 2016 he and the sponsor had an argument, and he grabbed his wife’s neck, leaving marks, and punched the door. The police were called and he was charged and convicted. Four days later he and his partner reconciled. His partner tried to retract the statement she made to the police as she believed the incident was blown out of proportion. They resumed cohabitation and were in a relationship until September 2017.

35. The applicant states that he was given a 12 month good behaviour bond and a two year AVO and that shows that his behaviour was considered at the lower end of the scale of seriousness. The Tribunal does not accept that argument. A good behaviour bond and a two year AVO does not suggest that the applicant’s behaviour was at the lowest scale.

36. In oral evidence the applicant acknowledged the offences and stated that he was truly sorry and he was ashamed of what has happened. The applicant states that there was no excuse for doing what he did. The applicant states that he has been seeing a psychologist and has learned how to deal with stress and would not behave in the same way again.

37. The applicant submits that the above incident was the only instance of criminal behaviour and there is low risk of recidivism. The applicant presented to the Tribunal a psychological report which confirms that, having regard to a variety of factors. The Tribunal accepts that the risk of recidivism is low.

    Past and present behaviour of the visa holder towards the Department

38. Nothing adverse is known about the applicant’s behaviour towards the Department. The applicant states that he has never breached any conditions.

    Whether there would be consequential cancellations under s.140

39. There are no persons whose visas would be cancelled under s.140.

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

40. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The cancellation of the Provisional Partner visa may affect the applicant’s eligibility for the permanent visa. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the Tribunal accepts that in relation to certain visa categories, the applicant may be subject to an exclusion period and will have limited opportunities to make visa applications onshore.

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

1. In his evidence to the Tribunal the applicant states that his life may be at risk in light of the Macedonian security situation and he refers to the DFAT Smart Traveller report and the threat of terrorist attacks. He also refers to the poor health system in Macedonia. The Tribunal does not consider that the assessment of non-refoulement claims can be made on the basis of the Smart Traveller advice. The applicant told the Tribunal that he does not believe anyone would harm him in Macedonia.

2. However, if the applicant believes he may be harmed on return to Macedonia, the applicant is eligible to seek a protection visa where his claims would be assessed. Nothing precludes such an application being made. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

3. The applicant has an Australian citizen child from his relationship with his former partner. The applicant states that he and his former partner have reached an agreement in relation to their child and he refers to having a close relationship with his daughter and his involvement in the child’s upbringing. The applicant provided to the Tribunal evidence of having made an application in the Family Court for parenting orders. The applicant states that the welfare of his daughter would be affected if she is separated from him.

4. As noted above, the Tribunal is mindful that the child was named as the protected person in the AVO to which the applicant was subject. The applicant’s evidence to the Tribunal is that there was never any violence or threat of violence in relation to the child.  The applicant states that shortly after the AVO was issued, its terms were varied to enable him to live with his wife and child, indicating he was no risk to them. The applicant provided to the Tribunal copies of the Interim AVO and the Final AVO. The Tribunal acknowledges that the Final Order does not prohibit the applicant from residing with his wife and child.

5. In his submission to the Tribunal of 21 December 2018, the applicant refers to his meaningful relationship with his daughter, his desire to spend time with her, their regular contact and his fulfilment of responsibilities towards his child. The applicant states that the child has the right to be cared for by, and to know, both parents and it is in her best interests that he remain in Australia, which will ensure a meaningful relationship in the future. The applicant refers to the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (ICCPR). He states that his departure from Australia would mean he cannot spend time with the child on a regular basis, which is not in the best interest of the child. The applicant states that making provision to communicate with him in Macedonia will undermine the child’s routine and perception of what a normal family should be like and his absence from important moments and events in the child’s life is not in the child’s best interest. The Tribunal does not necessarily accept that claim because the applicant does not live with his child and although he visits the child from time to time, the applicant’s evidence is that the communication is predominantly by electronic means. The same communication can occur even if the applicant lives in a different country. The Tribunal is also mindful of the applicant’s evidence that following separation, he made the decision to move to a different state where he knew his physical contact with his child would be limited. While the Tribunal accepts that the applicant has made trips to NSW to see the child, the Tribunal also notes that the applicant voluntarily took steps to remove himself from being near the child and to limit his interactions with the child.

6. The applicant subsequently provided to the Tribunal a number of videos and other materials referring to his interactions with his daughter. The Tribunal accepts that the applicant has had some involvement with the child’s upbringing and has made arrangements to maintain a relationship with his daughter, although these have been limited since the divorce. The Tribunal is mindful, however, that the applicant and his former partner live separately and the child resides with her mother. The applicant states that he sees the child regularly and the Tribunal accepts that if he applicant were to leave Australia, his opportunities to see the child in person would be very limited.

7. The applicant states that he has a strong bond with his daughter and believes his daughter would be strongly affected emotionally and financially if he is not around. The applicant states that working in Australia would allow him to support his daughter but working in Macedonia would not.

8. The representative states that the applicant’s physical separation from his child means that the applicant would be deprived of the opportunity to be with his child and provide support to her. The absence of contact would have a detrimental effect on the applicant’s future relationship with the child. The representative submits that the Family Court takes a futuristic approach and looks at the possibility of developing a meaningful relationship with the child in the future.

9. Following the hearing, the applicant provided to the Tribunal evidence of his court proceedings relating to parenting orders and evidence of having made arrangements through Catholic Care for supervised access to the child. The Federal Circuit Court of Australia (FCCA) response shows that the applicant’s ex-partner seeks to retain sole parental responsibility in relation to the child and that the child will have supervised time with the father.

10. Having considered the circumstances, the Tribunal accepts that the incident leading to the issuance of the AVO did not involve any violence or threat of violence towards the child. The Tribunal accepts that the applicant continued to reside with his spouse and daughter after the AVO was issued and until the relationship broke down. The Tribunal accepts the expert assessment that the risk of re-offending, and of future harm to the child, is minimal. The Tribunal accepts that the applicant has maintained a close relationship with his daughter and that it is his strong desire for that relationship to continue to exist. The Tribunal accepts that the applicant has an ongoing application for parenting orders and acknowledges the legal advice, a copy of which the applicant presented to the Tribunal, about its prospects of success. The presented evidence appears to suggest that the child’s mother is not opposed to the applicant having contact with the child and, as stated above, the Tribunal accepts that such contact will be limited, at best, if the applicant is to leave Australia. In the circumstances, the Tribunal has formed the view that it is in the best interests of the child to have access to both parents, including her father.

    Any other relevant matters

11. The applicant refers to his business ties in Australia. He states that he has been employed throughout his stay in Australia and paid taxes, contributing to the Australian economy. The applicant refers to his present employment as a stonemason and he provided to the Tribunal a statement from his employer indicating that the applicant is a valuable asset to the company. The Tribunal accepts that evidence.

12. The applicant provided to the Tribunal a number of declarations from third parties attesting to his character and outlining his circumstances. The applicant’s employer gave oral evidence to the Tribunal concerning the applicant’s good character. The Tribunal has had regard to that evidence. The Tribunal accepts that those who provided character evidence believe the applicant to be a person of good character.

13. The applicant’s employer spoke about the good relationship he has with the applicant and states that it would be a loss to him and his business if the applicant was required to leave the country. The applicant states that his employer would also be affected due to the applicant’s skill set and the nature of his employment and if the applicant was to leave, other employees may be affected. The Tribunal is mindful, however, that the applicant has no obligation to remain with the same employer and even if the company may experience hardship in the immediate future, should the applicant be required to leave Australia, the Tribunal is of the view that alternative arrangements can be made to find a suitable employee.

14. The Tribunal has also had regard to the psychological report from Mr Johnson dated July 2018. It is of considerable concern to the Tribunal that the report was specifically prepared in response to the cancellation of the applicant’s visa and at the request of the applicant’s migration representative, rather than a health professional. Given the applicant’s motivations in obtaining the report, and the timing of it, the Tribunal considers any self-reporting on which any findings in that report are based, to be self-serving and unreliable. Nevertheless, the Tribunal acknowledges, as noted above, Mr Johnson’s assessment of the applicant’s rehabilitation and chances of reoffending and also the circumstances of the applicant’s relationship with his daughter and former partner.

15. In oral evidence the applicant expressed remorse for what he has done and stated there was no excuse for his conduct. He states that he sees the psychologist and is able to deal with situations better. He has learned a lot from the time when the incident happened.

16. The applicant states that his friends and family would experience hardship if his visa is cancelled because he provides emotional support to his family and friends in Australia. The Tribunal acknowledges the various statements provided by the applicant.  The applicant states that the standard of living in Macedonia is lower than in Australia and the employment prospects are more limited. The Tribunal acknowledges that evidence, although the Tribunal is mindful that the applicant does not presently hold a permanent visa.

17. The applicant’s representative submits that at the time of the offence, the applicant was about 20 years old. He was young and immature and not accustomed to the pressures of married life. At the time he experienced various pressures, including financial and emotional pressures, and a lack of family support. The child was listed as a protected person on the AVO due to her presence in the household and there was no offence in relation to the child. The representative submits that consideration must be given to the penalty. The maximum penalty for each offence is seven and five years respectively. The applicant was sentenced to a good behaviour bond and an AVO, which expired in April 2018 and was not renewed. The penalty imposed indicates that the actions were not so severe as to attract the maximum penalty. The applicant has not breached the AVO and the offence was completely out of character. There is no likelihood that the applicant would harm his partner or child or other members of the community if his visa is reinstated. The applicant has recognised what he did was wrong and has insight into his behaviour and has expressed remorse for his behaviour. He has shown rehabilitation and has no history of prior offending. He has been living among members of the Australian community and has had regular contact with the child and has not committed any offences or engaged in any behaviour that is likely to suggest he would be a risk to the community. He obtained professional assistance to be able to deal with similar situations in the future. The psychological report states that the risk of recidivism is very remote. There are protective factors which show that he will not commit any other offences, such as stable employment, social support from his family in Australia, his colleagues and members of the community, as evidenced through character references.  He has no vices and has no association with people who may be a bad influence. His circumstances show that he will not commit other offences.

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa as the applicant was the holder of a temporary visa and has been convicted of an offence.

19. The Tribunal considers the circumstances in which the ground for cancellation arose to be significant. The applicant had been convicted of offences involving violence towards his partner. Despite the applicant’s claim that his offending was at the lower end of the scale, family violence, at any level, is a very serious offence and involves conduct that is contrary to community expectations. The nature of the offending offers a strong reason why the visa should be cancelled.

20. However, the Tribunal acknowledges that there is no evidence of any other offending and the risk of recidivism has been assessed as being low. The applicant has expressed remorse for his conduct and has engaged in a program to help him deal with stressful situations. The Tribunal is mindful that should the applicant re-offend, his visa may be cancelled and also that the applicant will have to pass the character test, for the purpose of a permanent visa, where different considerations would arise.

21. The Tribunal accepts that the applicant has settled in Australia since his entry into this country; he has been gainfully employed and has been providing financial support to his daughter. The Tribunal accepts the applicant’s evidence that his income would be more limited if he were to work in Macedonia and that would affect his capacity to provide financial support to his child. The Tribunal accepts the applicant’s evidence that he has a close relationship with his child, that there is regular electronic contact and that he is in the process of arranging more personal contact. The Tribunal also acknowledges that the applicant is seeking formal parenting orders which, if granted, will give the applicant more regular access to his daughter. The Tribunal accepts that the cancellation of the visa is likely to adversely affect the applicant’s relationship with his daughter and the Tribunal has formed the view that it is in the best interests of the child to maintain the close relationship with her father. That is a primary consideration and in the Tribunal’s view, outweighs other considerations that may favour the cancellation.

22. There are no other known instances of non-compliance and no known breaches of the law. The Tribunal accepts that considerable hardship may be caused to the applicant as a result of the visa being cancelled.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member