Da Silva and Minister for Home Affairs (Migration)

[2019] AATA 68

Da Silva and Minister for Home Affairs (Migration) [2019] AATA 68 (25 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6424

Re:Mr Ricardo Rodrigo Gomes Da Silva

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:25 January 2019

Place:Sydney

The Reviewable Decision made on 1 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BS Subclass 801 Partner visa, is set aside.

In substitution, the decision to cancel the Applicant’s Class BS Subclass 801 Partner visa, is revoked.  

...........................[sgd]...........................

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – Revocation of visa cancellation – failure to pass character test – previous criminal offences – whether there is another reason why visa cancellation should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of the Australian community – the nature and seriousness of conduct – risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – expectations of the Australian community – best interests of minor children  – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside and a decision substituted

LEGISLATION

Migration Act 1958 (Cth), ss 499, 501, 501A, 501CA

CASES

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

SECONDARY MATERIALS

Direction no. 65 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA, cll 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14.2, 14.5

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

25 January 2019

THE REVIEWABLE DECISION

1.       Mr Da Silva seeks to have the cancellation of his partner visa revoked. 

2. On 11 April 2017 his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he had been sentenced to a term of imprisonment of 12 months or more and therefore did not pass the character test as defined in ss 501(6)(a) and s 501(7) of the Act, and he was serving a sentence of imprisonment on a full-time basis in a custodial institution.

3. He had the right to seek revocation of the cancellation decision pursuant to s 501CA(4) of the Act. He exercised that right. The delegate of the Minister for Home Affairs (the respondent) refused his application for revocation in a decision dated 1 November 2018. Mr Da Silva has asked the Tribunal to review that decision. He was not represented at any stage in the cancellation or review process.

ISSUES

4. That Mr Da Silva does not pass the character test is not in dispute. He has been sentenced to a term of imprisonment of 12 months or more and was serving that sentence in prison. In that circumstance, s 501(3A) of the Act provides that his visa must be cancelled.

5.       The only issue for the Tribunal to decide is whether there is another reason why the original decision should be revoked (ss 501A(4)(b)(ii) of the Act).

How the Tribunal must approach its task

6. Making a decision under s 501CA(4) of the Act:

·must be carried out in accordance with any written directions under the Act (s 499(2A) of the Act);

·involves an assessment and evaluation of the factors for and against revoking the cancellation.[1]

[1] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.

7.       Direction 65 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA applies (Direction 65). It sets out objectives, general guidance and principles, and guidance about exercising the discretion conferred by the provision and taking into account relevant considerations. 

8.       Part C of Direction 65 sets out primary and other considerations in respect of revocation requests. The Tribunal will consider each of those considerations in turn, after setting out a factual background.

FACTUAL BACKGROUND

9.       Mr Da Silva arrived in Australia from Portugal in 2005 holding a partner visa. His relationship with his then partner, who is the mother of his two older children (the first partner), broke down shortly before the birth of their second child in October 2008 because of his involvement with his second partner. Their eldest child was born in 2006. 

10.     Mr Da Silva’s criminal offending began shortly after the breakdown of the relationship with his first partner. He was charged with his first offence on 31 October 2008. He was charged with the offence of ‘learner/provisional driver driving with novice range prescribed content of alcohol’.[2] A summary of his criminal record set out in the National Police Certificate (NPC) is annexed to this decision. 

[2] G-Documents, p30.

11.     His relationship with his second partner resulted in the birth of two children, in 2010 and 2012. 

12.     From the New South Wales Police records and the evidence of Mr Da Silva and his first partner, it is apparent that he had moved from the Sydney area to the mid-north coast of New South Wales by 2012.

13.     The relationship with his second partner broke down around 2014.  He moved to Sydney to work in 2016.  His mother died in Portugal in March 2017 while he was in prison. Following his was release from prison on parole, he was taken into immigration detention at Villawood on 1 November 2017, subsequently removed to Christmas Island on 23 November 2017, and then returned to Villawood on or after 13 September 2018 and before 23 September 2018. 

PRIMARY CONSIDERATIONS

14.     Paragraph 13 of Direction 65 sets out the primary considerations to be taken into account when considering whether to exercise the discretion to revoke the cancellation given the specific circumstances of the case.

Protection of the Australian community

15.     The first primary consideration is the protection of the Australian community from criminal or other serious conduct. This in turn requires consideration of the nature and seriousness of the conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

16.     Taking into account the matters set out in paragraph 13.1.1, the Tribunal makes the following findings in relation to the nature and seriousness of Mr Da Silva’s conduct.  Mr Da Silva was charged with his first violent offence, assault occasioning actual bodily harm, on 30 August 2010. On the same day, following the assault, he was charged with ‘resist officer in execution of duty’.[3]

[3] G-Documents, p 29.

17.     New South Police documents show that the offence was committed against a person who Mr Da Silva thought “had hit on” his second partner. He threatened to murder the victim over the telephone. Mr Da Silva and the victim subsequently arranged a meeting outside Bondi Police Station during which the assault occurred.  Mr Da Silva was reporting there as required by his bail conditions. Mr Da Silva’s second partner and a friend of the victim were present at the time of the assault. Mr Da Silva yelled at the victim who was speaking to Mr Da Silva’s second partner and then head- butted him in the face causing the victim’s nose to bleed and a cut to the crown of the nose. He received bonds for both offences.

18.     On 4 July 2012 Mr Da Silva was sentenced to imprisonment for nine months for the ‘assault occasioning bodily harm’, one month imprisonment for the ‘resist officer’ charge,  and four months imprisonment for  ‘drive while disqualified from holding a license’ charge.[4] On appeal, those sentences were set aside and community service orders were imposed.

[4] G-Documents, p 29.

19.     Mr Da Silva was sentenced to prison and served a prison sentence for the first time after committing two offences against his second partner: ‘contravene prohibition/restriction in avo (domestic)’ and ‘stalk/intimidate intend fear physical etc harm (domestic)’.[5] He thereby breached a bond that had been imposed in relation to an earlier offence of common assault against her (his second partner’s) mother. For that offence, he was sentenced to imprisonment for 6 months commencing 2 December 2014. That sentence was confirmed on appeal in the Taree District Court on 28 April 2015. The facts before the court were that, following a verbal argument, Mr Da Silva pushed the victim with both hands, she fell over, hit her head and was rendered unconscious for a short period of time but suffered no injuries. 

[5] Ibid p 28.

20.     Mr Da Silva described the incident involving his second partner’s mother as follows. It was the birthday of his youngest son. After work, Mr Da Silva was dropped off at the front of the farm house where his partner and the children lived. There was a dispute between him and his second partner about a telephone bill relating to his calls to his mother in Portugal. Mr Da Silva’s mother had called to say hello to the children and he wanted to make a call to her. The second partner’s mother approached him, not in a nice way, and he told her to just leave them to speak. Mr Da Silva said that he was trying to separate his second partner’s mother from himself and her daughter and did not mean to push her over. He agreed that following that incident, an AVO was issued against him in relation to the mother.

21.     On 28 April 2015, the Court also dealt with appeals against the severity of the sentences for the two offences against his second partner. He was sentenced to eight months in respect of both those offences, commencing 2 March 2015 and concluding on 1 November 2015. He was released on parole on 1 August 2015.

22.     The sentencing judge recited the facts of those offences. In summary, Mr Da Silva appeared out of the bushes at the victim’s workplace demanding to know about her relationship with another man, threatening to have some girls bash her up and also threatened to rape her in front of the other man. He grabbed her phone, on which she was recording the threats, got into her car and refused to get out, and said: “I will kill you and myself”.  

23.     According to Mr Da Silva, the next violent offence occurred in the early hours of 30 November 2016 in a “pub”. The offence was common assault. The facts of the incident were referred to by the magistrate in the Downing Centre Local Court on 12 January 2017.  Mr Da Silva pleaded guilty. He was intoxicated. The attack was violent, against an unknown victim, and was without provocation. Mr Da Silva punched the victim with a closed first to the left side of his head, causing him to stumble backwards, lose consciousness slightly before regaining stability. Security officers intervened and struggled to get Mr Da Silva off the premises, with Mr Da Silva being able to pick up a bar stool and throw it towards his victim and those trying to assist him, also tipping over a table. 

24.     Mr Da Silva was also charged with resisting police who made numerous efforts to restrain him, including using capsicum spray on a number of occasions.

25.     Mr Da Silva told the Tribunal the following about that incident.  He was affected by alcohol and drugs. He was dancing with a girl whose boyfriend was present. The boyfriend punched him first. He did not know either the girl or her boyfriend. He and the girl had just looked at each other and “connected”.

26.     The most recent and most serious offences involving violence occurred on 1 January 2017. The offences were two common assaults, one ‘armed with intent commit indictable offence’, one ‘assault occasioning actual bodily harm’; and a ‘resist officer in execution of duty’ charge.[6] The following facts are taken from the decision of the sentencing remarks made in the Taree Local Court on 3 April 2017. The sentencing remarks from the District Court are not available. Although referred to by the respondent’s legal representative, the Tribunal has not taken into account “narratives” produced under summons by the New South Wales Police Force and filed on 16 January 2019. They do not reflect accurately the facts before the Local Court.

[6] Ibid p 27.

27.     Three friends of Mr Da Silva’s second partner arrived at her residence on 30 December 2016. Two of her friends were female and one was male. Mr Da Silva returned to the residence on 31 December 2016 and there were no issues between him and his second partner or her friends. About 4 am on 1 January 2017, Mr Da Silva returned to the residence and stormed into the kitchen in any angry mood and proceeded to smash beer bottles and a small fan. One of the friends approached Mr Da Silva to calm him down. She was pushed away. That was a common assault offence.

28.     The assault occasioning actual bodily harm related to Mr Da Silva behaving aggressively towards his second partner and pushing her around the kitchen. While speaking to him, she telephoned her mother and told her about his behaviour.  He yelled: “You’re a snitch.  You’re calling the police, go ahead all (sic) them, you’re a bitch, you fucked my life, you ruined my life”. Mr Da Silva grabbed her arms, pushed her forcefully, causing her to lose balance and fall backwards through a glass window, thereby sustaining lacerations to her left arm and forearm.  She bled extensively and was assisted by one of her friends. 

29.     The next common assault offence occurred when another friend took hold of Mr Da Silva’s arm and attempted to stop him. 

30.     The ‘armed with intent’ offence arose from Mr Da Silva following another friend out of the house and picking up an axe that was leaning against the external wall. Mr Da Silva rocked the axe back and forth while saying: “Don’t mess with me. I don’t care if I go to gaol, you don’t know who I am. Who are you, do you want to fight me? Come at me, come at me”.  Mr Da Silva continued to walk towards the friend waving the axe around.

31.     The ‘resist police officer’ offence arose as follows. When the police arrived, Mr Da Silva walked out of the house wearing no shirt and shoes.  As they approached and introduced themselves, Mr Da Silva pumped his chest out, clenched his fist and proceeded to walk towards them yelling “Why, why, why?”  When told he was under arrest, he continued to yell “Why?”, tensed his body, tending to push out his chest. Police sprayed him with capsicum spray.

32.     Mr Da Silva told the Tribunal that he was upset at the time of those offences because he had gone from Sydney to the mid-north coast to spend family time with his second partner and their children and was not told that she was having friends over for a party.  He was also not told that his children would be picked up by their maternal grandmother and only found that out when he saw her drive away with them before the friends arrived.

33.     Mr Da Silva has a history of driving offences from 2009 until 2016, including four ‘drive while disqualified’ offences, two of which occurred on the one night. 

34.     The Tribunal views Mr Da Silva’s history of criminal offending very seriously. His most recent offences are the most serious. Four of the five incidents where Mr Da Silva has committed violent offences involved his second partner, including the common assault against an older person, his second partner’s mother. He has committed offences against the police while they were performing their duties. The sentences of imprisonment reflect the increasing seriousness of his offending from 2014. 

35.     Cumulatively, his offending shows that when his emotions are stirred he can be violent and threaten violence. In these circumstances he lacks the capacity to control his actions.    

36.     That he lacks control when he is emotional is reinforced by one incident his first partner talked about, although she strongly supports the revocation of the visa cancellation. When asked about an apprehended violence order that had been issued, she told the Tribunal that after she and Mr Da Silva’s relationship had ended, she became involved with her now husband. In about 2010, he was with her and Mr Da Silva’s two children for the first time at the home she and Mr Da Silva had shared, when Mr Da Silva arrived. She called her parents and the police because she said that Mr Da Silva was very “hot-headed” and “very emotional”. When asked what she meant by “hot headed”, she said that she could “see fumes coming out of his ears; he was like a pit bull ready to attack”. Mr Da Silva’s partner also stated that he screamed: “who is that in my house with my children?”. The Tribunal accepts that the apprehended violence order was not proceeded with and no further issues arose. Her present husband wrote a letter of support for Mr Da Silva.

37.     The Tribunal notes that the first partner’s mother said that she and her husband had purchased the house where Mr Da Silva and his first partner lived.

38.     Mr Da Silva’s lack of control is exacerbated when he is affected by alcohol or drugs. He was affected by alcohol and drugs at the time of the 30 November 2016 incident. He was also intoxicated at the time of the 1 January 2017 offences.

39.     In addition to offences involving violence and his driving offences, Mr Da Silva has convictions for property offences and a drug offence from early in his criminal offending history.

40.     There were two documents from Portuguese authorities before the Tribunal.  One was a Criminal History Certificate issued on 19 May 2005 stating that Mr Da Silva had no previous convictions.  Another was a translation of a document from “Lisbon 5^th and 6^th Criminal jurisdictions” addressed to Metropolitan Police Command dated 19 January 2007  stating that Mr Da Silva was accused of committing two crimes involving theft on 15 March 2005, and two crimes of illegal possession of property that had been declared contumacious on 8 January 2007, which had several consequences including prohibition from obtaining official documents. 

41.     In relation to the second document, there was a letter dated 9 September 2011 from Mr Da Silva addressed to “Rose”, with no address, describing how his application for a new passport had been delayed for many months and  that there was a problem in Portugal. His first partner travelled to Portugal in July 2011 and obtained the document. He claimed that two of his child hood friends named him as an accessory to the crimes so they could get reduced sentences and that he had legal advice including that he could present his case if he returned.

42.     The respondent did not rely on this document. The Tribunal gives it no weight in relation to his criminal offending. 

43.     There was no suggestion that Mr Da Silva had been formally warned or made aware in writing about the consequences of further offending in terms of his migration status before the cancellation of his visa.

44.     The respondent referred to no incidents of misbehaviour while Mr Da Silva was in prison.

45.     The Client Incident Report shows that Mr Da Silva has been involved in some incidents involving various degrees of violence while in immigration detention but has not been charged with a crime. 

46.     He was moved from Villawood Immigration Detention Centre (VIDC) to Christmas Island Immigration Detention Centre following his attack on another inmate on 16 November 2017.  This is the most serious incident while Mr Da Silva was in detention.  The incident report was prepared following review of CCTV footage. Mr Da Silva followed the victim into a room, struck him in the upper body approximately five or six times with closed fists. The victim fell to the ground.  Mr Da Silva kicked the victim at least once. The victim was transported to hospital for medical assessment and returned early the next day. 

47.     Mr Da Silva spoke and wrote about this incident. He was sitting next to the victim in the computer room and saw that he was looking at young children on the screen.  He asked if they were his children.  After the victim left, another detainee told him that the victim was a paedophile. He thought about his own children and the families of the victims and felt sick.  His evidence suggested that the other inmate initiated the attack and he joined in. That is not supported by the contemporaneous incident report.

48.     The respondent referred to an incident on 10 August 2018 where one prescription pill, six smoking instruments, one sharp instrument and approximately ten litres of alcohol were found in a room that Mr Da Silva shared with another detainee.  Mr Da Silva denied knowing anything about the items found.  There is no information in the records to show that he did. 

49.     On 23 September 2018, during a major disturbance in a dormitory, multiple detainees were seen to have injuries, including Mr Da Silva who had a cut lip but declined medical and police intervention and refused to have his injury photographed.  When he was being removed by staff, one of the staff was hit on the left check. 

50.     On 24 September 2018, Mr Da Silva was subjected to a minor assault by two different detainees, declined medical assistance but was given an ice pack for the two small lumps on each side of his head.  He was removed from that dormitory. 

51.     Later on the same day, he was observed on CCTV hitting another detainee on the side of his face for no apparent reason. Detainees were assaulting each other and staff intervened including stopping that victim from assaulting Mr Da Silva. Mr Da Silva was taken from the dormitory and interviewed.  He refused to answer questions and appeared to be under the influence of an unknown substance. He was moved to a High Care Accommodation Unit (HCA) for 24 hours for the “good order of the centre”.

52.     Mechanical restraints were applied to him when he was moved when he was non-compliant and tried to struggle away from officers. 

53.     His time in HCA was extended because he was “non-compliant”, demanding to come out of his room.  A record of the same day shows that he denied that he had threatened staff and was frustrated because he had not been able to speak with his children or receive visitors. He was told that he was in HCA due to his behaviour and that he would get his phone when it was located; in the meantime he accepted the offer to use a landline to call his family.

54.     On 27 September 2018, Mr Da Silva was involved in a physical altercation with another detainee over the room they shared. Both suffered injuries. Mr Da Silva said that the victim was trying to kick him out of the room where he had arrived the previous night and had come at him. The victim sustained numerous facial injuries including swelling above his left eye, a split lip to the inside of his mouth, and injuries to his neck and right shoulder. He was taken to hospital for treatment. Mr Da Silva agreed to move to another room to de-escalate the situation and avoid further trouble. He was on a Behavioural Management Plan implemented the previous night.  Continued adverse behaviour could result in further restrictions being imposed.

55.     Mr Da Silva provided a letter from the victim of that assault dated 4 January 2019 in which he stated that he caused the problem because he did not want anyone’s company at that time and was hostile. The victim also said that he had since learned that Mr Da Silva “was a good bloke”, had apologised to him the next day, and they were currently attending church together.

56.     That is the last entry on the Client Incident report which states that Mr Da Silva had been in detention for 427 days. The Tribunal finds that the report was issued on about 3 January 2019. 

57.     There were no reports of incidents of concern while Mr Da Silva was on Christmas Island or after 27 September 2018. The Tribunal finds that the incidents in Villawood from 24 to 27 September 2018 occurred shortly after Mr Da Silva returned there and reflect initial difficulties in settling in. It infers that having returned to Sydney where his family could visit him after a period of about 10 months on Christmas Island, he was anxious to see them and was frustrated, particularly when he was unable to telephone them while in HCA. It also infers that tensions arise in detention centres. Nevertheless, the most recent incidents are concerning because Mr Da Silva acted and reacted with his fists.

The risk to the Australian community

58.     Clause 13.1.2 addresses consideration of the risk to the Australian community should a non-citizen commit further criminal offences or engage in other serious conduct. The Tribunal notes that clause 13.1.2(1) talks about consideration of whether the non-citizen represents an unacceptable risk of harm.

59.     Should Mr Da Silva engage in further criminal conduct or violent conduct similar to that  while in detention, individuals may be harmed physically, psychologically or financially.  The extent of that harm is reflected in the evidence set out above.  

60.     Mr Da Silva’s violent offending and the incidents in detention involving violence result from his lack of capacity to control his physical reactions when he is emotionally upset. His driving offences arise from his disregard of the law. His resisting police officers reflects both his lack of control and his disregard for authorities. His property offences and drug offences reflect his disregard of the law. The Tribunal is not as concerned about those offences which appear early in his criminal record, as it is about the more recent and more serious offending which includes violence.

61.     Mr Da Silva relied on documents showing his qualifications and various programs he had undertaken to demonstrate that he has taken steps to reform himself and improve his work capacity. He told the Tribunal that he is qualified to spray paint motor vehicles and has worked in that field. He has not provided any documentation but the Tribunal accepts that he has some experience in that field. He holds a Certificate II in Construction which was completed on 24 March 2016.

62.     Mr Da Silva has claimed that he was drinking alcohol heavily for a couple of years before 1 January 2017. The Tribunal accepts that was so and intoxication was a factor in the November 2016 and January 2017 offences. He has fervently expressed his shame, regret and intention not to reoffend and to be a role model for his children, including wanting to teach them to drive, which, given his driving record, reflects a lack of insight by Mr Da Silva. He has tended to blame other people and misunderstandings for some of his offences, which is not consistent with the facts of the offences accepted by the courts. The Tribunal finds that he lacks insight into how other people react to his actions. For example, understanding that being threatened with an axe would be frightening. 

63.     While in prison he completed an Equips Foundation Program on 13 September 2017 which involved 20 sessions. He has registered for the Transition Reintegration and Community Connection (On TRACC) program. The Tribunal gives that no weight because the program applies to parolees. Mr Da Silva’s sentence ended on 1 July 2018. The period of parole has now ended. On its face, he is no longer eligible for the program and it will not apply to him if he is released into the community from detention. 

64.     Mr Da Silva completed a DOIT Drug and Anger Management Program on 28 June 2018.  However, the Tribunal notes the incidents that occurred in detention in September 2018, after he had completed that program.

65.     The Tribunal takes into account the very favourable and supportive letters and oral evidence from Mr Da Silva’s first partner and her parents, and the supporting letters from various individuals including a prison chaplain, a former employer, his partner’s husband and sister. It notes that his first partner and her husband initially provided employment for and housed Mr Da Silva for a period after his release from prison the first time, although the disruption to their routine resulted in other accommodation being found for him. His two older children have also provided letters expressing their wish that he remain in Australia.  His first partner’s parents have also assisted him in the past.

66.     It takes into account the evidence of the first partner and her parents to the effect that Mr Da Silva’s relationship with the second partner was the biggest mistake of his life. The evidence is clear that his offending escalated significantly during that period and she was the victim or present during most of his violent offences.  He was responsible for that offending.

67.     Taking into account all the material before it, the Tribunal agrees with the view of the writer of the Pre-Sentence Report dated 29 March 2017, prepared for the Taree Local Court, assessing Mr Da Silva as a medium risk of re-offending. The incidents in September 2018 reinforce the Tribunal in making that finding.

68.     Considering the harm that Mr Da Silva’s conduct has caused, the Tribunal takes into account that physical harm to females has occurred when he has pushed them rather when he has hit them.  He has hit men, both with his fists and with his head. Taking into account the nature of the harm suffered by his victims, physical, psychological and financial, the Tribunal does not consider that his conduct and the harm that would be caused it if were to be repeated is so serious that any risk that it may be repeated may be unacceptable.

The best interests of minor children in Australia affected by the decision

69.     The Tribunal accepts that Mr Da Silva has a strong attachment to all of his four children but finds that he has a particularly strong bond with his eldest child who is aged 13. It also accepts that his attachment with his oldest son, the son of his first partner who is now aged nine is strong. Both children have written letters supporting their father’s remaining in Australia. The support from his first partner and her family supports that finding.

70.     Mr Da Silva has played a positive role in the lives of both children since their births, despite his criminal history and is likely to continue to do so. The Tribunal accepts the first partner’s evidence that he saw his children about eight times a year when he lived on the mid-north coast. The evidence does not suggest that they visited him in prison or since he has been in detention, although his oldest child now uses technology including skype which allows audio/visual communication. The Tribunal accepts that he has had regular and frequent contact by telephone and digital technology while in prison and in detention. If he were to reoffend and return to prison, the personal contact would again be more limited.  If he returns to Portugal he could continue contacting them by telephone or digital means but visits may not occur at all in the foreseeable future.

71.     Those children are growing up with another father figure whom they also call Dad or Daddy, who treats them like his own children, including supporting them financially.  He and the first partner have a daughter. The first partner said that her husband is 100% a father figure to her older two children. The family unit consists of the first partner, her husband and the three children.

72.     The Tribunal finds that the best interests of both children would be served by Mr Da Silva remaining in Australia.

73.     The Tribunal accepts that Mr Da Silva has lived with the two younger children from their births until about 2014 and did have a role in their lives thereafter, particularly before he moved back to Sydney in 2016. He spent time with them over the 2016/2017 Christmas/New Year period. The Tribunal has taken into account Mr Da Silva’s evidence that the relationship with his second partner ended later than 2014, but does not find his evidence reliable in light of other evidence, including that he rented a flat to stay in, and his criminal offending against his second partner.  

74.     Mr Da Silva has been the subject of a full non-contact Apprehended violence order that prevents contact with his second partner and their children which has been in place since February 2017. It expires in February this year. He has had no contact with them since they left the house on or about 31 December 2016. Given their ages, Mr Da Silva has not been in contact with them for a significant period.

75.     There is no evidence about his second partner’s relationship status, that is, there is no information to indicate whether any other person plays a parental role in their lives.

76.     There is no suggestion on the evidence that the children witnessed any of the offences Mr Da Silva committed against the second partner.  There is no evidence to suggest that he has mistreated the children in any way. The Tribunal infers that he has treated them as he has his older two children who both love him.

77.     Mr Da Silva said that he has researched the internet looking at legal means to have contact with his two younger children, including through mediation or court applications.  Given his history of criminal offending against his second partner and the AVO, his prospects of success are doubtful. Another apparent difficulty is his lack of financial means to achieve his desired outcome.  The evidence is that Mr Da Silva has a history of limited financial means. The first partner said that he has never contributed to the financial support of his two older children, but did pay when he took them out.  His evidence about his work and being paid a small amount for playing football while on the mid north coast is to the same effect. 

78.     Mr Da Silva’s return to Portugal would probably end his chances of getting in contact with those two children until they are older and may decide for themselves to contact him.

79.     The Tribunal considers that it is in the best interests of both the younger children that the cancellation decision be revoked.

Expectations of the Australian community

80.     The primary consideration “expectations of the Australian community” weighs against revocation.[7] 

[7] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [16].

OTHER CONSIDERATIONS

81.     There is no suggestion on the evidence that the following considerations are relevant:

(a)International non-refoulement obligations;

(b)Impact on Australia business interests.

Strength, nature and duration of ties

82.     The strength, nature and duration of Mr Da Silva’s ties with Australia weighs in favour of revoking the cancellation of the visa.  He has been in Australia since was 18 years old.  He is close to his two older children and the family of the first partner.   

83.     He has a grandmother, two aunts and three cousins in Portugal. His mother died in March 2017. His father was abusive and apparently played little part in a substantial period of Mr Da Silva’s life.  

84.     The respondent argued that Mr Da Silva has extensive family support in Portugal.  While he has listed members of his family as requested in the Personal Circumstances Form, the evidence does not indicate what, if any support, they would be able to provide to him.

Impact on victims   

85.     The Respondent has not relied on the consideration “Impact on victims”.  Given Mr Da Silva’s criminal history against his second partner and that any action he takes to have contact with their children will necessarily involve her, the Tribunal finds that this consideration weighs against revoking the cancellation decision.

Extent of impediments if removed

86.     Mr Da Silva raised no impediments to his removal to Portugal in the documentation.  He is 32 years old and in good health. While he has family members in Portugal, the Tribunal does not accept that he has strong family support there. There are no language or cultural barriers given that he grew up and was educated there. He can access the same services and opportunities as any other resident of Portugal. He has obtained some skills in Australia in spray painting and construction that are transferrable and wold assist him in gaining employment. The Tribunal accepts that he would have some difficulties re-establishing himself there. This consideration weighs marginally in favour of revoking the cancellation decision.

CONCLUSION

87.     The primary considerations, protection of the Australian community and expectations of the Australian community and the consideration of the impact on victims weighs in favour of not revoking the mandatory cancellation of Mr Da Silva’s visa. However, the Tribunal considers that the best interests of his four children should be given greater weight, given the length and closeness of the relationship between the older two children, particularly the oldest child, and that the opportunity would be lost for Mr Da Silva to pursue contact with his two younger children.  He was their father figure until 31 December 2016.  It is in their best interests that Mr Da Silva should have the opportunity to seek to re-establish his relationship with each of those children. In making those findings, the Tribunal repeats that it does not accept Mr Da Silva’s conduct and that harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. If he reoffends his visa may be cancelled.  

88.     The other considerations, strength, nature and duration of ties and impediments to removal also weigh in favour of revocation.

89.     Accordingly, there is another reason why the cancellation decision should be revoked.

DECISION

90.     The Tribunal sets aside the reviewable decision and substitutes for that decision the decision that the cancellation of the Applicant’s Class BS Subclass 801 Partner visa is revoked.

91.     I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[sgd]...............................

Associate

Dated: 25 January 2019

Date(s) of hearing:	17 and 18 January 2019
Applicant:	In person
Solicitors for the Respondent:	Mr T Hillyard, Sparke Helmore Lawyers

ANNEXURE

Annexure 1 – Summary of Applicant’s National Police Certificate dated 15 December 2017  

Court date	Offence	Sentence
5 February 2009 Fairfield Local Court	Destroy or damage property <=$2000 – t2	s.9 Bond: 18 months and $1,286 compensation
2 April 2009 Liverpool Local Court	Learner/provisional   drive   with   notice range pca – 1st offence	Fine $500 costs – court: $73 disqualification: 6 months commencing 02/04/09
5 August 2009 Hornsby Local Court	Possess prohibited drug	Dismissed: s.10
13 December 2010 Downing Centre Local Court	Goods  in  personal  custody  suspected being stolen Drive while disqualified from holding a licence Destroy or damage property <=$2000 – t2	Community service orders: 100 hours Fine: $79  bond s.9: 2 years disqualification: 2 years commencing 13/12/10 (Call up) bond s.9: 12 months find : $400 – court: $79find: $400 costs – court: $79
7 March 2011 Downing Centre Local Court	Resist officer in execution of duty – t2 Assault occasioning actual bodily harm – t2	Bond s.9: 18 months costs – court:$79 Bond s.9: 18 months costs – court: $79
4  July  2012 Forster Local Court	Assault occasioning actual bodily harm – t2 Resist officer in execution of duty – t2 Driver while disqualified from holding a licence	Imprisonment: 9 months commencing 04/07/12 concluding 03/04/13; non parole period with conditions: 6 months commencing 04/07/12 concluding 04/01/13 release subject to supv severity appeal lodged Imprisonment: 1 month commencing 04/07/12 concluding 03/08/12; severity appeal lodged Imprisonment: 4 months commencing 03/01/13 concluding      02/05/13 disqualification: 2 years commencing 13/12/12 concluding 12/12/14 severity appeal lodged.

1 August 2012 Taree District Court	Resist officer in execution of duty – t2 Assault occasioning actual bodily harm – t2 Drive while disqualified from holding a licence	(call up) conviction confirmed: in lieu community service order: 200 hours (call up) conviction confirmed: in lieu community service order: 200 hours Conviction confirmed: in lieu community service order: 200 hours disqualification 2 years commencing 13/12/12 concluding 12/12/14
11 June 2014 Downing Centre Local Court	Common assault	Imprisonment: 6 months suspended on enter bond s.12: 6 months supv nsw prob service
27 February 2015 Taree Local Court	Common assault Stalk/ intimidate intend fear physical etc harm (domestic) – t2 Contravene prohibition  /  restriction  in avo (domestic)	(call up) imprisonment : 6  months commencing 02/12/14 concluding 01/06/15; severity appeal lodged Imprisonment: 14 months commencing 01/06/15 concluding 31/07/16; non parole period: 10 months commencing 01/06/15 concluding 31/03/16; severity appeal lodged Imprisonment: 14 months commencing 01/06/15 concluding 31/07/16; non parole period: 10 months commencing 01/06/15 concluding 31/03/16; severity appeal lodged
28 April 2015 Downing Centre Local Court	Common assault (dv) – t2 Contravene  prohibition  /  restriction  in avo (domestic) Stalk / intimidate intend fear physical etc harm (domestic) – t2	Order confirmed: imprisonment: 6 months commencing 02/12/14 concluding 01/06/15 Order varied: imprisonment: 8 months commencing 02/03/15 concluding 01/11/15; non parole period with conditions: 5 months commencing 02/03/15 concluding 01/08/15; release subject to supv Order varied: imprisonment: 8 months commencing 02/03/15 concluding 01/08/15; release subject to supv
25 November 2016 Downing Centre Local Court	Driver       motor     vehicle during disqualification period – 1st off Driver       motor     vehicle during disqualification period – 1st off	Community    service   order:   50 hours; disqualification – driver: 2 years Community    service   order:   50hours; disqualification – driver: 2 years
12 January 2017 Downing Centre Local Court	Resist  or  hinder  police  officer  in  the execution of duty Fail to  appear in accordance with bail granted acknowledgment Common assault – t2	Imprisonment: 3 months commencing 12/01/17 concluding 11/04/17; severity appeal lodged Section 10a conviction with no other penalty Imprisonment: 9 months commencing 12/04/17 concluding 11/01/18; non- parole period with conditions: 6 months commencing 12/04/17 concluding 11/10/17; release subject to supv; severity appeal lodged
3 April 2017 Taree Local Court	Assault occasioning actual bodily harm (dv) –t2 Resist office in execution of duty – t2 Common assault – t2 Common assault – t2 Armed  with  intent  commit  indictable offence – t1	Imprisonment: 16 months commencing 02/01/17 concluding 01/05/18; non parole period with conditions: 10 months commencing 02/01/17 concluding 01/11/17; release subject to supv; severity appeal lodged Bond s9: 30 months supv nsw prob service obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to taree community corrections upon release from  custody; severity appeal lodged Imprisonment: 6 months and 30 days commence 03/04/17 conclude 01/11/17; severity appeal lodged Imprisonment: 6 months and 30 days commence 03/04/17 conclude 01/11/17; severity appeal lodged Imprisonment 18 months commencing 02/01/17 concluding 01/07/18; non parole period with conditions: 10 months commencing 02/01/17 concluding 01/11/17; release subject to supv; severity appeal lodged
14 June 2017 Downing Centre District Court	Common assault – t2 Resist   of   hinder   police   officer   in execution of duty Resist officer in execution of duty – t2 Common assault – t2 Armed  with  intent  commit  indictable offence – t1 Assault occasioning actual bodily harm (dv) – t2 Common assault – t2	Order  confirmed:  imprisonment:  9  months commencing 12/04/17 concluding 11/01/18; non parole period with conditions 6 months commencing  12/04/17  concluding  11/10/17; release subject to supv Order confirmed: imprisonment: 3 months commencing 12/01/17 concluding 11/04/17 Order confirmed: bond s9: 30 months commencing 03/04/17 supv nsw prob service Order confirmed: imprisonment: 6 months and 30 days commencing 03/04/17 concluding 01/11/17 Order confirmed: imprisonment: 18 months commencing 02/01/17 concluding 01/07/18 non parole period with condition: 10 months Order confirmed: imprisonment: 6 months and 30 days commencing 02/01/17 concluding 01/11/17; non parole period with conditions: 10 months commencing 02/01/17 concluding 01/11/17; release subject to supv Order confirmed: imprisonment: 6 months and 30 days commence 03/04/17 conclude 01/11/17.
30     August 2017 Downing Centre Local Court	Driver  motor   vehicle during disqualification period – 1st off	(call up) imprisonment: 6 months commencing 28/02/17