Bhachi (Migration)

[2021] AATA 3106

Bhachi (Migration) [2021] AATA 3106 (7 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eddson Nyashadzashe Bhachi

CASE NUMBER:  2002868

HOME AFFAIRS REFERENCE(S):          BCC2019/6409079

MEMBER:Denis Dragovic

DATE:7 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 07 July 2021 at 3:18pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa  – applicant had charges against him – criminal conviction – being identified as a low risk – he ‘may’ be a risk to the Australian community – three Australian citizen children –children’s best interests –decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994

CASES

Fang v MIMIA [2004] FCA 1387
Gong v MIBP [2016] FCCA 561
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa, granted on the 12 November 2015, under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the Department was briefed by Victoria Police that the applicant had charges against him. The list of charges was provided in the delegate’s decision which was submitted to the Tribunal by the applicant.

3. The charges arose from three incidents from 2019 and evidence obtained post-arrest that would suggest further incidents around the same time. The delegate found that the applicant was likely to re-offend and therefore his continued presence in Australia is or may be a risk to the safety of the Australian community.

4. When the notice of intention to consider cancellation dated 10 January 2020 was sent to the visa applicant the delegate did not receive a response.

5. The applicant appeared before the Tribunal on 28 January 2021 and 2 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Eusebia Bhachi, the applicant’s sister, and Pilunnguaq Ateba (Pilu), the applicant’s former partner and mother of his three children.

6. The applicant was represented in relation to the review by his registered migration agent.  

   ISSUES OF LAW

7. There are two issues that the representative has put forward as being relevant prior to the substantive matters of the case are considered. The first is whether the applicant was given notification of the cancellation of his visa in a real and meaningful way and secondly whether the application to the Tribunal for review is within jurisdiction.

8. Regarding the first matter, the representative claims that the applicant did not have access to a ‘lawyer or independent third person’ when he was handed the notice of intention to consider cancellation of his visa as he was at that time in prison and that the minister had not provided ‘mechanisms that would assist [the applicant] in overcoming the well-recognised barriers to accessing justice faced by prisoners.’

9. I note that in Fang v MIMIA [2004] FCA 1387, an issue considered included whether the appellant was not given a reasonable period within which to respond. The Court in that case held that all these matters were cured by the nature of the review before the Migration Review Tribunal.

10. I note that in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed the full bench wrote at [42]:

    We are assisted to the above conclusion by the recognition that the constitution and powers of the Tribunal are appropriate for a body conducting review on the merits rather than making decisions as to compliance with statutory provisions.  An application for review to a tribunal is an application for review on the merits.  Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal.[1]

    [1] Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58

11. Based upon this jurisprudence I am satisfied that as the review is a de novo review and the mechanisms of the Tribunal are such that the applicant is afforded procedural fairness then the consideration of the Department’s processes is not relevant. As noted in MIMIA v Ahmed it is for the courts to pass judgement on the actions of the Minister (or implicitly his or her delegate).

12. Regarding the second matter raised, upon review of the circumstances of the application I am satisfied that the Tribunal has jurisdiction.

13. As such, regarding the substantive matter before this Tribunal, 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)(i) which reads:

    (e)      the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)       the health, safety or good order of the Australian community or a segment of the Australian community; 

14. 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.

15. At the outset of the hearing I asked the applicant the status of his court cases. I noted that under Australian law he does not have to answer questions about the offences he is alleged to have committed if his answers may tend to prove that he had committed an offence. I reminded him that if he did decide to answer the questions, the evidence he gives may be used against him in the criminal proceedings and that if he decided not to answer the questions that I would need to make a decision on the information available to me.

16. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    Does the ground for cancellation exist?

17. 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].

18. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

19. In considering whether the applicant is or may be a risk to the health, safety or good order of the Australian community I note that the applicant had a list of charges against him spanning multiple incidents which were the basis of the Department’s notice of intention to consider cancellation. The actual finalised outcomes as provided by the Representative from the Magistrates Court of Victoria shows a reduced list that had the possession of a firearm, burglary, retention of stolen goods and three counts of negligently deal with proceeds of crime withdrawn. The outcome of the remaining charges was consolidated into ‘Convicted and sentenced to an imprisonment term of 6 months’, as an aggregate sentence, as well as a 24-month community correction order and mandatory participation in treatment and rehabilitation programs.

20. Following the hearing and at the request of the Tribunal the applicant provided a National Police Certificate. This document included two further pending charges which were not disclosed by the applicant at the hearing. The second set of charges related to a burglary with the applicant being charged on the 26 June 2019 in Nunawading. The representative noted in a submission that the entirety of the offending occurred between June and September 2019 which was prior to the applicant’s incarceration and subsequent rehabilitation and separation from what were the drivers which led to his actions.

    Evidence provided at the January hearing

21. At the hearing the applicant stated that in total he has been arrested twice. The first time in December 2018 after he had an argument with a friend at the house of his partner Pilu and a window was broken. He said that following that incident he was taken to the police station and then released. The second time was on 18 November 2019, when he was remanded and subsequently served out his prison term through to May 2020. He has since been living with either his former girlfriend or his sister.

22. I asked the applicant to provide some context to the circumstances he faces. He explained that his aunt on his mother’s side with whom he was close passed away in 2016. She was living in Zimbabwe and was raped and murdered in a manner that caused him considerable grief. As a result of his grief he started hanging out with ‘bad’ friends and started taking drugs. This led to him first transitioning from full time work to part time work and then to being unemployed in mid-2018 and eventually turning to crime in 2019. The change from being employed to unemployed, according to the applicant, was because of his drug taking and being too high. He said that before this period, he would be working and busy with family until he was taken over by drugs and began to avoid his family and couldn’t even work.

23. At the same time and because of the drug taking his relationship with Pilu started to deteriorate. He said that he was a regular user of drugs for two years. Through this period, he admitted to neglecting his three children and not realising the impact of his crimes on others. At the hearing he associated this realization by noting that the harm that others did to him by murdering his aunt was in the same way the harm he was doing on others. The applicant said that he started to steal in early 2019 and was arrested for his criminal activity in November 2019.

24. Regarding the applicant’s relationship with Pilu and his three children, he explained that he was living with them until 2019 when she realised that he was on drugs. He kept denying it to her. He explained to the Tribunal that he subsequently broke up with her, despite having three children with her, for reasons that arose from his drug taking. He said that he felt that she was suffocating him while his friends were giving him drugs which made him feel good. He said that it wasn’t until he was in prison that he realised the impact it was having on his family. At the time, though, he didn’t acknowledge that he had a drug problem but rather blamed his partner and saw it as a choice. 

25. The applicant claimed that he had never used drugs before and had not been involved in crime in Zimbabwe.

26. The applicant’s father lives in the United Kingdom. The applicant claims that his father had tried to talk the applicant out of using drugs, but he would not listen. The applicant claims that he now speaks with his father on a daily basis.

27. After being released from jail in May 2020 the applicant stated that he has been taking the children to school, cooking and cleaning but he has not worked as his visa was cancelled. He claimed and his ex-partner confirmed that he would go to the kid’s house entering using a key that Pilu gave him. At the time of the first hearing he was living with his sister. When I tested the applicant on his knowledge of his children’s favourite foods and hobbies his answers aligned with those that Pilu gave.

28. At the hearing Pilu gave evidence. She stated that she learned of the applicant’s drug taking in February or March 2019. She explained that at the time she was pregnant with the youngest child and the applicant was not responding to her needs as a partner should. She said that she learned from his friend that he was taking drugs, but he initially denied it. During this period when he was on drugs, he would still watch the kids but was very unreliable, instead she turned to her mum for help. She told the Tribunal that before the drug taking began the applicant had been a good father.

29. As to his current status, Pilu believes that he has changed from his past bad habits and sees his actions such as getting help as evidence of this. She said that he has been a part of the family helping for 2-3 months but that he withdrew from the kids about a month prior to the first hearing after learning that she had started seeing someone else. Since then and through to the date of the first hearing he hadn’t been around to see her and the kids other than a get together at Seaford Beach. She thinks that he is trying to find his way and find a purpose. Before she started to see her new boyfriend, she claimed that he would be very active with the family and would be around regularly, including taking the kids over to his house as well as cleaning the house. But then he disappeared when he realised that they are not getting back together.

30. Pilu stated that she has no reason to suspect that he has been on drugs since he left prison and she doesn’t think that he has been in touch with his old friends.

31. I asked the applicant to comment on the evidence provided by his former partner. He said that when he would talk to his case officer for his CCO, he would talk about going back to his kids and keeping their family unit together, but this was shattered when he found out that she was seeing someone else. He said that he is trying to find something else in his life, so he decided to take a step back from any situation that could trigger him doing something that would send him back to jail. He said that he used to see his children every day but over the past month he has mostly called them on the telephone. I asked how he intends to help Pilu with the children if he doesn’t go to their house. He said that his plan for the future is that he gets a visa and that way he can work and support the children financially.

32. The applicant’s sister provided evidence. She said that she had a falling out with her brother in 2015 before he began taking drugs. The reasons were unrelated to this case. She subsequently visited him in prison and a few months after his release he moved in with her. She accepted him into her household which included her children because, she told the Tribunal, he deserved a second chance. The witness said that his behaviour has been good and that he is once again the brother that she lost. She said that he is a very good uncle to her children and that he takes them to the park, swimming and contributes by cooking and cleaning. She said that she has no reason to believe that he is back on drugs. She added that she has not seen any of his old friends.

33. I put to the applicant that he was 34 years old and it appears that he has involved himself in a pattern of criminal behaviour. I added that it is an age where I would have expected him to know better. He agreed. He said he wishes he could change it. He said that he is no longer in touch with his dealer. He has deleted their phone numbers and they have not visited him.

34. The applicant has attended five Alcoholics Anonymous/Narcotics Anonymous meetings as of 5 May 2020 according to a submission provided to the Tribunal which I accept as fact.

35. The applicant submitted a letter of support from an Alcohol and Other Drugs Counsellor. The letter notes that the applicant has attended four sessions of counselling in August 2020. The report notes that the applicant has reported no ICE use but has had a few lapses on cannabis. He has reported minimum use of alcohol. The report notes that the applicant has ‘acknowledged his feelings of grief and remorse for his past substance use’.

36. The applicant’s last day of ICE use was the day of his arrest on 13 November 2019.

37. In a forensic AOD Comprehensive Assessment of the applicant by Australian Community Support Organisation which was asked to undertake an assessment for the purpose of determining the correlation between his substance use and offending behaviour, relevantly the assessment notes that there is a direct relationship between the substance use and criminal behaviour. The risk assessment is listed as ‘low’. The document notes that the applicant self-reported, ‘smoking cannabis 3-4 times since his release from prison on 12/05/2020 and last smoked 1 joint and 1 cone, 1-2 months prior to this assessment.’

    Evidence from the hearing in July

38. Due to the need for post hearing submissions and claims made in those submissions a second hearing was arranged.

39. Pilu appeared in person at this hearing and gave evidence. She believes that because the applicant couldn’t work, he was finding life hard. He has been speaking with the children over the phone a lot, though he hasn’t seen the children. This, she said, was a choice that both of them made. She explained that she wanted him to focus on himself and his rehabilitation. She said that they had met as a family three times this year, twice in a park and once, as noted at the earlier hearing, at a beach. She said that she wanted him to slowly ease into the life of the children as she wants to protect the children from being hurt. She said that the children get very emotional when they see that he is leaving following one of his visits. She said that the older two children are really attached to the applicant. She said that these children adore their father. She couldn’t image their life without the applicant. One of them reverted to wetting their bed twice after seeing their father. Pilu believes that it was because the child was crying all night, missing their father. She mentioned how the children often ask for their father. The youngest also cries when he leaves according to Pilu.

40. Pilu has continued in her new relationship that was first flagged at the initial hearing. She said that they do not discuss her partner or his relationships. She said that at the last hearing it was still new to the applicant but that he appears to now have accepted it.

41. She said that she wants to see the applicant taking on greater responsibility with the children when he is settled in a home and has a job. She would hope that he would take the children to sports. She explained that before the drugs took over his life the applicant would take her eldest son (from another man) to the basketball five times a week.

42. She said that it is hard raising the children on her own. She is raising the children and managing a small cleaning business. She told the Tribunal that she wants to return to studying and has signed up for a course. Her hope is that the applicant will be able to provide some support to the family whether financially or through his time. If he was able to provide financial support, she said that she would be able to pay for things such as swimming lessons or other sports activities which she can’t afford now. She gave another example of the role he could play being that, recently, when her youngest was sick she had to take her out of childcare and as a result she needed to cancel her cleaning jobs. Had he been settled she would have been comfortable relying on him to look after the child.

43. Pilu believes that the applicant has matured and has moved away from his drug taking. She believes that he is acting tentatively as he is unsure of his position relative to his children and her. She believes that he has not returned to any crime or drug taking. She said that she knows that he doesn’t see his old friends. I asked how she knew that. She said that she grew up in Doncaster where his old friends were and that she knows all the people there and none of them have indicated that he has returned. She confirmed that she would continue to provide emotional support to the applicant’s rehabilitation.

1. The applicant gave evidence of his progress through his rehabilitation programs. He said that he is only yet to complete his men’s behavioural program. Although he has attempted to register there is a long waiting list. Otherwise, he has completed his drug and alcohol program as well as the LINCS program.

2. The applicant’s claims regarding the men’s behaviour program was confirmed through a letter from Anglicare Victoria that states that he has attended two intake appointments and that he is on a waitlist.

3. He claims that he has not used ICE since being remanded in November 2019 which amounts to over 18 months as of the time of this decision. The applicant admitted to smoking marijuana six or eight times since he was released from prison.

4. He said that he is looking forward to getting his visa and working. He said that without work he can’t continue with anything relating to his children.

5. The applicant explained that over the past several months he has been voluntarily training with a renderer. He said that he has been attending five days a week. He said that he has been offered a job once his visa is approved. Otherwise, he plays volleyball.

6. The applicant said that he has received emotional support from an Anglican service provider referred to by the men’s behaviour program and a friend from his church network named Nicholas. He also speaks with his father on a daily basis. His father gives him support and encourages him to continue to work hard and be patient. The applicant said that he continues to go to church on Sundays and he helps with activities such as delivering groceries to single mums.

7. The applicant has a remaining issue before the courts with an appearance due on 6 August 2021 to resolve the last remaining charge of fraudulent use of a credit card stemming from 2019. The applicant said that his lawyer and the prosecutor are negotiating a sentence of community service and a fine.

8. The applicant said that he wishes he could change everything that he had done. He said that he is now aware of the trauma he put others in as he considers how it would be if someone did the same to him or his family. He said that he wants to teach his children what is wrong and what is right.

9. While I am largely of the view the applicant has turned a corner and is intent on focusing on resetting his life away from drugs and crime the statutory test is a low bar. I must ask the question of whether the applicant ‘is’ or ‘may’ be a risk. Despite being identified as a low risk by the Australian Community Support Organisation, being clean from drugs for nearly two years, having a strong relationship with his children and having a support network, based upon his past record which was driven by an extremely addictive drug, I find that he ‘may’ be a risk to the Australian community. As such I am 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

10. 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’.

11. The applicant has had his subclass 820 visa cancelled by the delegate which is the cancellation under consideration. The applicant has remained in the community on a bridging visa tied to his subclass 801 visa which is yet to be resolved. This is a relatively rare situation. When applicants apply for a partner visa their single application is taken to be for both the provisional 820 and the permanent 801 nevertheless, they remain separate visas. The applicant was granted an 820 and has had it cancelled, but his application for the 801 remains pending. This is relevant as when turning my mind to the discretionary elements, the consequences of cancellation are different depending upon whether he has a further visa application pending or not.

12. Specifically, in the instance where the applicant has a subclass 820 visa and it is cancelled but the applicant is granted a bridging visa associated with another pending application of another visa the consequence of cancellation of the 820 visa is not immigration detention but rather reversion to the bridging visa granted with the pending 801 application. A bridging visa held by a non-citizen will cease to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect: s. 82(3). A bridging visa that has ceased to be in effect in this way (but in relation to which the specified period of effect has not expired or the specified event upon which it ceases has not occurred), is reactivated if its holder does not hold a substantive visa that is in effect, and the non-citizen relevantly does not hold any other bridging visa: s 68(4). 

    The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

13. The visa holder’s reason for remaining in Australia centres on his three children with Pilu, Carmelo, 5 years old, Kiara 3 years old and Kyrie who is 2 years old. The older two children are very attached to their father and according to their mother they have problems adjusting when they are separated from him.

14. The applicant was described by his former partner as a good father prior to his drug taking. She has expressed a clear desire to share the parenting with him if his visa situation was resolved and he had a job and was settled. The applicant has prepared himself to be able to work by undertaking training. The applicant himself has expressed on multiple occasions a desire to play a positive role in the lives of the children. In addition to the desire of the mother of his children for the applicant to play a role in their futures and the need of the children, as expressed by their mother, to have a father the applicant himself desires to be an engaged father.

15. I note scholarship on the positive benefits of engaged fathers includes that kids:

    are less likely to drop out of school or wind up in jail, compared to children with absent fathers and no other male caretakers or role models. When children have close relationships with father figures, they tend to avoid high-risk behaviors and they’re less likely to have sex at a young age. They’re more likely to have high-paying jobs and healthy, stable relationships when they grow up. They also tend to have higher IQ test scores by the age of 3 and endure fewer psychological problems throughout their lives when fatherhood is taken seriously.[2] (links to each claim is provided in the source)

    [2] Joshua Krisch, ‘The Science of Dad and the ‘Father Effect’: There are data-driven reasons why kids do better with a father figure in their lives,’ Fatherly, 11 May 2021 >

    Arising from the expressed desires of the parents and independent evidence regarding engaged fathers I place substantial weight against cancelling the applicant’s visa for the purpose of the applicant’s stay in Australia.

    The extent of compliance with visa conditions

16. Based upon the evidence available to the Tribunal there is no indication that the applicant has breached any visa conditions. As this is a bare minimum expectation of all visa holders, I place limited weight against cancelling the applicant’s visa.

    Degree of hardship that may be caused to the visa holder and any family members

17. The applicant’s ex-partner and mother of his children said that if his visa was cancelled it would be very hard for her and the kids. She said that he is a good father and that the kids would miss him. She said that they love their father. I note that the children have struggled with being separated on a temporary basis from their father, that one has reverted to wetting their bed and others find it difficult to leave when their time is over.

18. As noted above Pilu is struggling financially and would benefit from any support the applicant can provide, particularly as she pursues her intention to return to studies. In addition, Pilu noted how she is unable to provide some opportunities to her children including swimming lessons and other sports activities.

19. Considering that the mother of the applicant’s three children is struggling to manage both in terms of time and finances and the children themselves have responded adversely to temporary separation from their father, I place considerable weight against cancelling the applicant’s visa for the reason of the hardship the children and mother will endure if his visa was cancelled.

    Circumstances in which ground of cancellation arose.

20. The applicant claims that the circumstances surrounding his offending arose from his drug taking. This is supported by assessment reports including the forensic AOD Comprehensive Assessment of the applicant by Australian Community Support Organisation which found that there was a direct relationship between substance abuse and his criminal behaviour.

21. Research on ICE use and violent behaviour has established a direct causation between the two:

    The study, published in the journal Addiction, found only 10 per cent of the users were violent when they were not taking the drug, but 60 per cent were violent when they used the drug heavily.

    "We found that the drug dramatically increases the risk of violence," Dr McKetin said. "It is clear that this risk is in addition to any pre-existing tendency that the person has toward violence."

    Dr McKetin said heavy ice use altered the chemicals in the brain that are responsible for controlling emotions such as aggression.

    "When you add this drug, it's like adding fuel to the fire,'' Dr McKetin said.[3]

    [3] Dan Harrison, ‘Study links ice to violence’, The Sydney Morning Herald, 6 March 2014 >

    The applicant said he began his drug taking because of his aunt’s death in Zimbabwe and negative influences by unsavoury friends.

22. As noted, there is a direct clinical and scholarly link between ICE and the applicant’s criminal behaviour which is reinforced by the applicant not having a criminal history prior to his ICE addiction nor since his exit from prison. While ICE has an insidious impact upon an individual’s ability to make reasoned decisions, this does not absolve personal responsibility to avoid drugs in the first place. For this reason, I place limited weight against cancelling the applicant’s visa on the basis of the circumstances surrounding the grounds of cancellation.

    Past and present behaviour of the visa holder towards the department

23. The applicant was unlawful for three years (2011-2014). When his then student visa expired, he claims that he was scared to go to the Department of Immigration. I put to him that this suggests that he struggles to deal with adversity, such as not wanting to deal with his visa ending or his aunt dying which appears to have led to, respectively, him running away and taking drugs. He responded that he learned in prison that the answer isn’t to run away but that he needs to seek help. He noted that there are a lot of organisations he can turn to for help.

24. I place some weight in favour of cancelling the applicant’s visa for the reason that he was unlawful for three years despite his subsequent acknowledgement of his transgression.

    Whether there would be consequential cancellations under s.140

25. There is no evidence before this Tribunal that indicates any consequential cancellations and as such place no weight on this element.

    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

26. As this is a cancellation of a subclass 820 visa and the applicant has a pending subclass 801 visa along with an accompanying bridging visa the applicant would not be detained nor removed from Australia.

27. Arising from the visa being cancelled, the applicant would be barred from applying for all but a prescribed list of visas under s 48 of the Act. This would not affect the applicant’s partner visa nor would it affect the applicant were he to raise concerns about returning to Zimbabwe in the context of a protection visa.

28. If this visa is cancelled the applicant may be affected by Public Interest Criterion 4013 which would limit him applying for certain visas within three years of the cancellation, which was January 2020. This would lead to additional hardship on the children and his ex-partner as he would be unable to visit temporarily and maintain a relationship with his children.

29. When considered collectively I place some weight against cancelling the applicant’s visa based upon the mandatory legal consequences arising from such action.

    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

30. Cancelling the applicant’s s.c.820 visa would not lead to the breach of any international obligations including non-refoulement, family unit and best interests of the child as the applicant would remain in the community on a bridging visa until his remaining s.c.801 visa was finalised.

31. There are no other relevant matters.

32. I note that the applicant has been clean from ICE for over 18 months. He has expressed remorse and has support networks in place. He has planned for his future including by moving away from his former friends and beginning to upskill so that he can establish himself independently and be able to play a role in his children’s lives. I found earlier that the applicant’s risk level is low but such that it nevertheless exceeds the bar of ‘may be’ a risk to society. When considering the circumstances as a whole and noting the considerable and repeated weight I have attributed to the discretionary elements which involved the applicant’s children alongside the positive views held by their mother towards the applicant’s future role in the children’s lives, despite their separation, I find that the benefits that will accrue to the three Australian citizen children and their mother far outweigh the limited risk that the applicant poses to society and the harm that he has already inflicted on his victims. As such I conclude that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Denis Dragovic
    Senior Member