Bhandari (Migration)

[2021] AATA 1306

Bhandari (Migration) [2021] AATA 1306 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Poshi Bhandari

CASE NUMBER:  2014611

HOME AFFAIRS REFERENCE(S):          BCC2020/568200

MEMBER:Kira Raif

DATE:19 February 2021

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 19 February 2021 at 1:16pm

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 –criminal convictions – mental health – medical condition– close relationship between the applicant and his daughter – best interests of the applicant’s child– financial and psychological hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 359
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 28 September 2020 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 had been granted the temporary Partner visa in Subclass 309 in December 2018. On 26 February 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) because the delegate formed the view that there were grounds for cancelling the applicant’s visa under s. 116(1)(g) of the Act. The applicant provided his written response to the Notice and his visa was cancelled on 28 September 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from a supervisor of the Family Service, the applicant’s sister and a friend. 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(g).

5. 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))

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  on 28 January 2020 the applicant was convicted of the following offences at Sunshine Magistrates Court:

   ·    Persist contra family violence NTC / Order (2 charges)

   ·    Contra-family violence Interim Intervention Order (3 charges)

   ·    Stalking (intent to cause physical harm)

8. The applicant had been given a Corrections Order for 18 months. The primary decision record indicates that the Family Violence Order (FVO) was given to protect the applicant’s former partner and child. It is stated that the court issued a Full FVO for a period of five years, protecting the applicant’s wife and child.

9. In his response to the NOICC and his submission to the Tribunal of 14 January 2021 the applicant admits that he had been convicted of offences and issued with a five year Family Violence Intervention Order on 28 January 2020, which is due to expire in January 2025. Following the hearing, the applicant provided to the Tribunal copies of both Interim and Final Orders.

10. The Tribunal finds that the applicant was a holder of a Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

11. 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

12. 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

13. The applicant states in his evidence to the Tribunal that he initially travelled to Australia on a Student visa and since that time he started a family in Australia and established a network of friends and his sister and daughter are Australian citizens. The applicant states that his intention is to reside in Australia permanently and he has lived in this country for over 14 years and is settled  here. The Tribunal acknowledges that evidence, although the Tribunal is mindful that the applicant has never been granted a permanent visa. In such circumstances, the Tribunal does not consider that the applicant can have an expectation of residing in Australia permanently, even if he has lived in Australia for many years and prefers to live in this country.

14. The applicant was a holder of a Partner visa. The purpose of a Partner visa is to enable the applicant to live in Australia with his partner. The evidence before the Tribunal is that the applicant’s relationship has broken down, and the applicant’s partner has been named as a protected person in the FVO that was issued in relation to the applicant. However, there is also an Australian citizen child and the applicant has provided to the delegate evidence of Family Court orders in relation to the child, allowing applicant supervised access to his daughter. In oral evidence the applicant told the Tribunal that he plays an important part in her life and wants to be in every aspect of her life and does not want her to feel abandoned.

15. If the applicant is able to maintain such contact with his daughter, the Tribunal accepts that the applicant may fulfil the purpose of the visa by maintaining a relationship with his child and that  the presence of that child in Australia may constitute a compelling need for the applicant to remain in Australia. The Tribunal does not consider that  the presence of the applicant’s sister and friends in Australia constitute compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

16. There is no evidence that the applicant had not complied with visa conditions.

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

17. In his responses to the NOICC and evidence to the Tribunal the applicant refers to his relationship with his daughter. The applicant submits that he had a close relationship with his daughter prior to the FVO and had been actively involved in all aspects of her life. The applicant states that he has been making the monthly Child Support payments.

18. The applicant told the Tribunal that if he leaves Australia, he will lose all access to his daughter and would not be able to enforce any court orders. The applicant states that the child’s mother is breaching court orders and they have an outstanding application before the court. The applicant states that his ex-wife does not want him to have any connection with the child and if he has to return to India, he would have no contact with the child for the rest of his life.

19. In his written submission to the Tribunal of 14 January 2021 the applicant states that he and his family would suffer significant financial and psychological hardship if his visa is cancelled. The applicant refers to his past car accident, stating that his injuries caused him physical and mental health issues and he has been receiving medical assistance and support, including for mental health issues. The applicant presented several medical reports and the Tribunal accepts the evidence in these reports. The applicant states that this type and level of support will not be available to him if he is to depart Australia. In oral evidence the applicant stated that his treatment is covered by insurance and there is new technology used for treatment, which may not be available in India. He states that he lives in a small town in India and has no family support. No probative documentary evidence is provided by the applicant to support the claims that the applicant would not have access to adequate treatment and the Tribunal is not prepared to accept the applicant’s claims without probative evidence. Even if the applicant was unable to receive the same level of treatment as he receives in Australia, the applicant has not satisfied the Tribunal that he would not have access to adequate treatment. Neither has the applicant provided evidence of his financial situation, and evidence of the insurance arrangements, to establish what financial help may be available in the future.

20. The applicant refers to the presence of his sister and children in Australia and states that  they would suffer psychological and emotional hardship if he is not permitted to remain in Australia. The applicant presented to the Tribunal a statement from his sister who outlines her relationship with the applicant and the hardship her family would experience if the applicant does not remain in Australia and the same information was provided by the applicant’s sister in oral evidence to the Tribunal. It is submitted that the applicant’s sister and children rely on the applicant for support, especially since the sister’s separation. The applicant told the Tribunal that he spends much time with his sister’s children and takes them to sport and various activities and plays a father figure for them and he would not be able to have that relationship with the children if he is not in Australia. The applicant states that the children have little input from their father. The Tribunal accepts that evidence.

21. The applicant submits that his parents rely on his financial support as he is expected to support his parents as the only son. The applicant submits that he would not have the same opportunity to support his family if he cannot work in Australia. The Tribunal is prepared to accept that the applicant’s family, including his sister and her family, as well as his parents, and the applicant himself would experience various types of hardship if the visa is cancelled.

22. The Tribunal is mindful, as noted above, that the visa in question is a temporary visa only and in the Tribunal’s view, such considerations must be looked at in light of that fact. While the applicant may expect to live in Australia and meet his various obligations towards his family, the applicant has never been assessed for his eligibility to be granted a permanent visa and in the Tribunal’s view, until he is granted a permanent visa, he cannot expect to live in Australia permanently. In particular, there are a number of requirements for the grant of the permanent visa that go beyond the applicant’s relationship with the sponsor and the existence of the child. These include health assessment and, importantly, a character assessment. It cannot be assumed, in the Tribunal’s view, that the applicant will meet all the requirements for visa grant. It may happen, or it may not and it is not for this Tribunal to make that assessment. While the temporary visa is a pathway to a permanent one, the cancellation of the visa that is the subject of this review is a temporary visa only that does not allow the applicant to remain in Australia. As such, the Tribunal does not consider that the various obligations to which the applicant refers, and the expectations of his family, can be assessed on the assumption that the applicant is to remain in Australia permanently.

23. The applicant states that his child will face financial, psychological and emotional hardship if the cancellation of his visa is not set aside. The applicant states that he provides monthly child support payments exceeding $335, as well as payment for storing stem cells and fluid. The applicant states that once he returns to regular employment, he will be in a better position to provide for his daughter who will have better opportunities and benefit financially if the applicant is permitted to remain in Australia. The Tribunal accepts, having regard to the presented evidence, that the applicant provides financial support to his daughter and is prepared to accept that if he is employed, such payments may increase. The Tribunal also accepts the applicant’s evidence that he has every intention of supporting his daughter. However, the applicant has not presented evidence to satisfy the Tribunal that the daughter would experience hardship, should such payments be withdrawn. Thus, there is little documentary evidence about the financial circumstances of the child’s mother and the need for the applicant’s contributions. The Tribunal does not consider that the withdrawal of financial support necessarily results in financial hardship in circumstances where there is little or no evidence before the Tribunal about the child’s (or the mother’s) financial situation, income and expenses, an explanation of how the applicant’s funds are spent and whether funds from other sources, including government support, would be sufficient to cover the child’s needs. The Tribunal is not satisfied financial hardship would be caused to the child if the visa is cancelled.

24. The applicant refers to a close relationship and regular interactions with his daughter and he provided evidence of the Family Court Interim Order which allows him to visit his daughter three hours a week, to increase in April 2021. The applicant presented a statement from the Department of Health and Human Services (DHHS) indicating there would be no further investigation and states that there is no apprehension that the applicant posed a risk to his family or any other person, including his daughter, and this should be considered strongly in favour of setting aside the cancellation. The Tribunal does not consider this to be the case as considerations for DHHS are quite different that arise in relation to a visa cancellation. While the Tribunal gives weight to the DHHS assessment, the Tribunal also gives weight to the fact that the applicant has been issued with a five year protection order which remains in place.

    Circumstances in which ground of cancellation arose.

25. The ground for cancellation arises because the applicant has been convicted of an offence and has been a holder of a temporary visa.

26. In his response to the NOICC and his evidence to the Tribunal of 14 January and 18 February 2021 the applicant refers to his poor health as a result of accidents and he claims that it had affected his mental health, which resulted in the breaches of the FVO. The applicant states that at the time of the offending, he had been in challenging and stressful circumstances but he had taken steps to avoid such circumstances and had participated in a variety of programs and has been receiving treatment from health professionals. The applicant stated that he had been involved in accidents and suffered from pain and poor health as a result, leading to depression and PTSD and he states he was motivated by the desire to reconcile the relationship and see his daughter and he would not have otherwise breached the FVO. The applicant notes that the breaches were not violent. The applicant presented to the Tribunal a number of medical reports and the Tribunal accepts that evidence, although the Tribunal is not satisfied the presented evidence necessarily establishes a link between the applicant’s health and his conduct leading to the convictions.

27. In oral evidence the applicant told the Tribunal that he was granted a temporary visa and he wanted to go to the US for medical treatment while his wife wanted to move to Canada. He could not do that because he needed to stay in Australia due to the insurance payments. While he was overseas, his wife took a protection order against him. When he returned, he approached his wife because he missed his daughter and wanted to reconcile. He was not in the right frame of mind and was making wrong decisions. The applicant expressed remorse for his conduct. With respect to the intervention order, the applicant states that when an intervention order is issued, a child is automatically included. He had approached the Family Court for the Protection Order to be varied to allow him to have access to the child.

28. The applicant states in his evidence to the Tribunal that each breach of the Intervention Order was motivated by an attempt to spend time with his daughter and reconcile with his wife and his offences and charges are not violent and there is no history of violence or assault. The Tribunal finds that evidence problematic. The applicant was well aware of the existence of the intervention order and his obligations under it. The applicant appears to suggest that because of his own desires (to reconcile or see the child), his legal obligations were of no relevance. That is, the applicant put his own desires above his obligations under the law. In the Tribunal’s view the applicant’s reasoning shows a significant disregard for the law. It is also not apparent that the applicant is fully appreciative of the apprehension or fear that his conduct may have caused for others. The applicant states in his statements provided to the Tribunal that he is aware that he acted wrongly and regrets his decision to breach the protection order, referring to his poor mental state at the time of the breaches.

29. The applicant states that he has been regularly attending counselling sessions with Ongoing Change Out of Violence and he also completed a Men’s Behavioural Change course and Parents After Separation course. He continues to attend regular sessions with a psychologist and a psychiatrist. The Tribunal accepts that evidence. The applicant states that  the depression and anxiety resulting from the car accident were beyond his control and that his conduct, which was affected by his mental state, was also beyond his control. In his statement of 18 February 2021 the applicant refers to his respect for women and the love for  his family. The Tribunal accepts that this is so but the Tribunal is not satisfied that the applicant’s conduct, which included repeated, rather than a single breach of the Protection order, was beyond the applicant’s control, even taking into account the applicant’s mental and physical state. The applicant claims that he would not have breached the order, if he was not suffering from poor mental health but in the Tribunal’s view, the link between the applicant’s health and his conduct has not been convincingly established.

    Past and present behaviour of the visa holder towards the department

1. There is information before the Tribunal that indicates that the applicant’s relationship with his first partner may not have been genuine. In accordance with s. 359A of the Act, the Tribunal informed the applicant of the statement prepared by his first partner suggesting they never had a genuine relationship. In his response to the Tribunal of 16 December 2020 the applicant provided to the Tribunal a copy of his marriage certificate which had previously been provided to Immigration (the Tribunal notes that the validity of the marriage is not at issue) and the applicant states that his marriage to his first partner was not contrived and they had a genuine relationship, which did not last as he was a victim of family violence and the sponsor’s drug use. The applicant states that he had previously provided evidence of his relationship with the first partner in the visa application. The Tribunal acknowledges that documentary evidence of the relationship had been provided with the first application. However, the Tribunal is of the view that such documentary evidence may be readily available whether or not there is a genuine spousal relationship. For example, the parties may declare to authorities such as banks, real estate agencies and others that they are in a genuine relationship and both names appear on the documents. However, no verification is ever conducted by such authorities. Similarly, if there is agreement among parties to evidence a genuine relationship, as the applicant’s former partner appears to suggest in her statement, then it is possible to provide other evidence such as photographs and various statements. In this case, the Tribunal is of the view that the applicant had self-interest in declaring his previous relationship genuine and the Tribunal gives greater weight to the information provided by his former spouse, who claims that there was never a genuine relationship and that she had another relationship while claiming to be in one with the applicant.

2. The Tribunal also places weight on the haste with which the applicant’s relationship with the first sponsor ended and his relationship with the second partner began. Information in the primary decision record indicates that the first Tribunal affirmed the decision to refuse to grant the applicant the Partner visa in September 2017. In June 2018 the applicant made the application for another partner visa based on his relationship with the new spouse. It took the applicant nine months to end his relationship with the first partner, commence a committed relationship with the second partner and prepare his Partner visa application. The applicant claims he had been subjected to family violence by his former partner and informed the Department and the Tribunal about the breakdown of his first relationship. It is not apparent from the evidence before the Tribunal that he did and in his post-hearing submission to the Tribunal the applicant concedes that he did not inform the Department about the breakdown of his relationship. Having regard to the evidence of the applicant’s first partner, the Tribunal is of the view that there was never a genuine relationship between the applicant and his first partner and, having realised that he would be unable to obtain a visa on the basis of that claimed relationship, the applicant sought other options by commencing another relationship.

3. The applicant’s submission to the Tribunal is that the nature of his relationship and the content of the allegation has been considered by the previous Tribunal which decided to give no weight to the allegation and for that reason the present Tribunal should also give it no weight. However, the decision that is presently before the Tribunal is independent of any earlier factual findings, as is the present Tribunal. The Tribunal is not bound by any reasoning or finding of fact made by the previous Tribunal. It must consider the present case on the basis of the evidence that is before it, and that may not be the same evidence as was before the previous Tribunal. As such, the Tribunal does not accept the applicant’s argument that it should give no weight to the circumstances surrounding his first relationship.

4. The Tribunal has formed the view that the applicant has not been truthful with the Department when claiming to be in a genuine spousal relationship with his first partner.

   Whether there would be consequential cancellations under s.140

5. There are no persons affected by the consequential cancellation under s. 140.

   Whether there are mandatory legal consequences

6. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas and would have limited opportunities to make visa applications onshore.  The applicant may also be subject to an exclusion period if he was to make an application offshore.

   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

7. With respect to Australia’s protection obligations, the applicant states that his ex-wife’s father threatened to kill him and he wanted to get an AVO against him but because they are overseas, it was not necessary. The applicant states that he has not had any contact with his parents in law since that time and he has not received any threats. When asked why he believes he would still be of any interest to his father in law, the applicant said that he did not know but the situation was different in India. The Tribunal finds the applicant’s claims to be very vague and entirely unsubstantiated. The Tribunal is also of the view that the applicant can live in an area away from his father in law where any threat, if such threat exists, would be minimised. The applicant states that India works differently and ‘you never know’ but in the Tribunal’s view, such claims do not establish any real basis for a finding that  the applicant would be subjected to harm, or that he is genuinely fearful of harm.

8. The Tribunal is also concerned that the applicant made that claim for the first time in his oral evidence to the Tribunal and in the Tribunal’s view, if the applicant was genuinely fearful for his safety, he would have mentioned these matters much earlier, for example at the time he provided detailed response to the NOICC or since his visa was cancelled. The applicant explained to the Tribunal that he did not understand what was needed but the Tribunal is mindful that the applicant was ably represented in this review and has provided multiple and detailed written submissions to the Tribunal prior to the hearing. These do not mention the threats from the father in law and in the Tribunal’s view, if that evidence was truthful, such threats would have been mentioned earlier. Such threats appear to be a recent invention of the applicant.

9. The Tribunal does not accept that there were threats made against the applicant, either by his father in law or by any other person, even if it is possible that  some unpleasant words were spoken following the family violence and the Intervention Order. In the Tribunal’s view, the risk of any harm is non-existent, given the passage of time since the separation, the applicant’s lack of contact with his ex-wife and her family and the possibility of relocation.

10. The applicant also told the Tribunal that he is willing to return to India, provided he can bring his daughter with him. That supports the Tribunal’s view that the applicant does not have a genuine fear of harm and that there is no risk of any harm. The Tribunal finds that  non-refoulement obligations do not arise in this case.

11. The applicant states in his response to the NOICC that  the cancellation of his visa would affect his daughter as she would be deprived of having a relationship with her father. The applicant provided evidence that the Family Court granted him supervised access to the child which will increase with time. The applicant also refers to the DHHS assessment that no further investigation is required, stating that it is indicative that he has been assessed as not being a risk to the child. The applicant submits that he is a dedicated and involved parent who has a positive relationship with his daughter and he refers to the observation report completed by Family Contact Service in December 2020.  

12. The applicant states that electronic communication would not be a sufficient substitute for personal interactions and if he cannot remain in Australia, he cannot enforce the court orders enabling his access to the child. The applicant presented a statement from his family lawyers who states that the child is not at risk of harm, abuse or neglect in the presence of the applicant. It is stated that if the applicant is removed from Australia, he would be unable to enforce orders or commence proceedings in case of contravention. The Tribunal accepts that may be the case.

13. The applicant told the Tribunal that he has an outstanding application before the Family court to be heard in February 2021, and he would not be able to enforce such orders if he was to leave Australia. The Tribunal accepts that evidence.

14. The applicant presented to the Tribunal a statement from his treating psychologist who states that the applicant expressed a desire of having a relationship with his daughter and maintain a supportive link to his daughter, which would be beneficial to the child. The applicant described the activities he has with his daughter and referred to the adverse effect that separation would have on his daughter.

15. Having regard to the various third party statements, including importantly the statement from Family Contact Service, that it is in the best interests of the child to be with his parents. The Tribunal also received oral evidence from Ms Keegan of the Family Contact Service who spoke positively about the applicant’s interactions with the child. The Tribunal also acknowledges that the interests of the applicant’s niece and nephew may be adversely affected if the applicant is not permitted to remain in Australia.

    Any other relevant matters

16. In his evidence to the delegate the applicant refers to his injuries and health condition, stating that he has been receiving treatment and had multiple operations. The applicant states that he has been unable to work as a result and had relied on payments from the Transport Accident Commission but hopes to be able to return to full-time work. The applicant presented to the delegate a variety of medical report and the Tribunal accepts the applicant’s evidence. The applicant states that as a result of his injuries, he experienced depression, PTSD, stress and isolation and these matters had affected his mental health at the time he breached the intervention order. The applicant states that he had completed a number of courses and continues to participate in programs, as well as regular sessions with a psychologist and a psychiatrist to manage his mental health issues. The Tribunal accepts that evidence.

17. The applicant states that if his visa is cancelled, he will suffer financial hardship. The applicant states that his parents are retired and rely on him as the only son for financial support. There is little documentary evidence before the Tribunal to show that the applicant’s parents rely on him for financial support. The Tribunal notes the applicant’s evidence that following his car accident he has been unable to work and has been relying on payments for financial support. The applicant claims in response to the NOICC that following recent treatment he hopes to be able to resume full-time employment but the applicant’s evidence indicates that in recent years his income was reduced due to his inability to work. the applicant has not established that his parents had suffered hardship as a result. There is also little evidence before the Tribunal about other options, such as any savings that the applicant or his parents may have, the support that may be provided by the applicant’s sister and the applicant’s ability to find employment and support his parents if he was to live in India. In these circumstances, the Tribunal is not satisfied that the applicant’s parents would suffer financial hardship if his visa is cancelled.

18. The applicant also states that the cancellation of the visa will result in psychological hardship, particularly as he had previously experienced mental health issues and has been receiving treatment. The Tribunal accepts that some psychological hardship may be caused to the applicant if his visa is cancelled, although the Tribunal also places weight on the fact that the applicant has been a holder of a temporary visa and has never held a permanent visa. Until he has been granted a permanent visa, there can be no expectation that the applicant would be able to remain in Australia permanently. It is thus premature to state, in the Tribunal’s view, that the applicant must remain in Australia or that he will suffer psychological hardship if he is not permitted to remain in Australia. The applicant has not been permitted to remain in Australia. The Tribunal is mindful that while the applicant may be entitled to the grant of the permanent visa despite the breakdown of his relationship with his partner because of the child of the relationship, he would need to meet other requirements such as character and health and there may be others. It cannot be assumed that the applicant will be granted a permanent visa. In such circumstances, the Tribunal is of the view that any hardship from the cancellation of a temporary visa which may result in the applicant having to leave Australia must be viewed in light of the fact that the applicant has never had a right to remain in Australia permanently.

19. The applicant submits that his sister would experience hardship if his visa is cancelled as he provides care and support to her and her children following the breakdown of her relationship. The Tribunal is prepared to accept that  the applicant may be providing some care and support to his sister and her children, however, the Tribunal does not consider that care and support can only be provided when parties reside in close physical proximity. While physical support may not be available if the applicant is not in Australia, the Tribunal is of the view that any emotional support can continue and need not cease if the applicant was not in Australia. It is not uncommon for people to provide emotional support through electronic and other forms of communication and the Tribunal is of the view that this can occur in the present case.

20. The applicant also submits that he would experience significant hardship because of the length of time he has spent in Australia. The applicant notes that he arrived in Australia in 2007 and since that time he has formed communities and has family and friends in Australia. The Tribunal accepts that this may be the case however, as noted above, the Tribunal places greater weight on the fact that the applicant has never been granted a permanent visa and a permission to remain in Australia permanently. The applicant lived in Australia holding a series of temporary visas, first Student visas and then a temporary Partner visa. As noted above, the Tribunal is of the view that  irrespective of the length of time the applicant has spent in Australia, there can be no expectation that he would be able to remain in Australia permanently until he has been granted a permanent visa.

21. Nevertheless, the Tribunal accepts that  hardship may be caused to the applicant and those around him if he is required to leave Australia, because the Tribunal accepts that the applicant has ties in Australia and because he would need to re-establish himself in his home country.

22. The applicant submits that the subclass 309 visa is a pathway to permanent residence and the decision to cancel that visa should be considered analogous to cancelling a permanent visa. The Tribunal does not accept that this is so. A subclass 309 visa is not a permeant visa and, as noted above, there are many requirements for the grant of the permanent visa beyond the existence of a relationship and a child, that the applicant would have to meet to be granted the permanent visa. He has not been assessed against these criteria and cannot assume that he would be granted the permanent visa. While a decision to cancel the subclass 309 visa will undoubtedly affect the applicant’s application for the permeant visa, the cancellation of the temporary visa cannot be equated to the cancellation of the permanent visa.

23. The applicant refers to his strong family, business and supportive ties to Australia, his support network, his sister and her children with whom he interacts frequently. The applicant’s sister gave oral evidence to the Tribunal stating she has received great support from the applicant and him being a good father, brother and son. The Tribunal accepts there is a strong relationship between the applicant and his sister and her family. The Tribunal accepts he spends time with this niece and nephew and provides emotional, financial and physical support to his sister and her family. As noted above, the Tribunal accepts that considerable hardship would be caused to the applicant’s sister by the cancellation of the visa. The Tribunal acknowledges the evidence of Mr Singh who refers to having supportive contact with the applicant and the help he had provided. The Tribunal accepts that  the applicant has formed close friendships in Australia.

24. The applicant refers to close ties in Australia and limited family connections in India (although his evidence is that he has parents in India who rely on him). This evidence has been addressed above. The Tribunal accepts that the applicant has a close relationship with his sister and provides support to her family. The Tribunal accepts that hardship is likely to be caused to the applicant’s sister and children if the visa is cancelled. These considerations must be viewed, however, in light of the fact that the visa in question is a temporary visa.

25. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa because he has been convicted of an offence. The Tribunal considers the offence of family violence to be serious and although the applicant claims the breaches of the Family Protection Order were not violent, any threat of violence must also be taken seriously. While the applicant refers to his links to Australia, the support he provides to his sister and his parents, the Tribunal gives these matters little weight because the visa in question is a temporary visa and the applicant had never been given permission to remain in Australia permanently. The Tribunal considers there are strong grounds for cancelling the visa.

26. However, there are also mitigating factors in this case. In particular, the Tribunal accepts the extensive medical evidence relating to the applicant’s condition prior to his offending and while the Tribunal is not convinced that an unequivocal link between his medical condition and offending has been established (and the Tribunal does not accept that  the offending was beyond the applicant’s control), the Tribunal acknowledges that there is a possibility that the offending conduct had resulted from the applicant’s poor health, including mental health. The Tribunal places significant weight on the fact that the applicant had voluntarily engaged in several programs to assist him with managing his conduct in the future, including regular sessions with health professionals. There is no evidence of reoffending in the past 12 months and while that period is relatively short, it may be an indication of the applicant’s rehabilitation.

1. The Tribunal also places significant weight on the applicant’s relationship with his daughter. There is evidence from third parties, which the Tribunal finds persuasive, which refers to a close relationship between the applicant and his daughter and the benefit of that  relationship for the child. In the circumstances of this case, and despite the family violence, the Tribunal has formed the view that the presence of the applicant in his daughter’s life would be in the best interests of the child. The Tribunal also accepts that the applicant has positive interactions with his sister’s children and provides support to his sister’s family.

2. The Tribunal has found that  considerable hardship would be caused to the applicant and his family if the visa is cancelled. The Tribunal is mindful that the applicant’s conduct will also be considered when assessing whether he passes the character test, so should the applicant re-offend, his future conduct will be relevant to such an assessment.

3. On balance, the Tribunal gives greater weight to the best interests of the children who would be affected by the cancellation, the hardship that the applicant and his family would experience as a result of the cancellation and, importantly, the applicant’s willingness to engage in various rehabilitation programs and the progress he appears to have made as a result of such engagement. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

4. The Tribunal acknowledges the very helpful submissions made by the applicant’s representative Wickham Lawyers.

   DECISION

5. 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