De Barros (Migration)

[2020] AATA 1500

De Barros (Migration) [2020] AATA 1500 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ernani Flavio De Barros

CASE NUMBER:  1927311

HOME AFFAIRS REFERENCE(S):          BCC2019/3347328

MEMBER:Michael Cooke

DATE:23 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 23 April 2020 at 12:08pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – criminal convictions and imprisonment – discretion to cancel visa – study record and intention to complete study and return to home country – circumstances of offending – steps to rehabilitation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had a prescribed ground for cancelling his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from several supportive friends of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(g) - prescribed ground

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

   Consideration of any claims/submissions made by the applicant and findings and reasons relating to relevant prescribed ground.

8. The applicant’s representative forwarded the following submission addressing the applicant’s situation as follows:

   RE: Ernani Flavio De Barros - ATT Case No. 1927311

   We thank the Presiding Member for the opportunity to provide further submissions. We would like to elaborate on a few crucial points raised at the hearing.

   We attach the following for your kind consideration:

   Psychological Assessment

   ·Letter from Mrs Stephanie-Lee Alvarenga

   ·Letter from Ms Michelle Calvalcanti de Albuquerque

   ·Letter from Diego De Souza e Silva

   ·Letter from Mr Daniel Dante Maron

   ·Custody Management Record

   Applicant's remorse

   At the outset, we would like to stress that Mr De Barros genuinely regrets his offending and has shown remorse for his actions. He has taken steps to ensure it will not happen again. For example, he has enrolled in 'Taking Responsibility - A Course for Men.' This is an eighteen-session group program run by Relationships NSW aimed at assisting men who have been abusive to build safe relationships with their partners. By enrolling in this program, he has taken responsibility for his actions and demonstrated that he takes his rehabilitation seriously.

   Mr De Barros underwent a clinical interview and psychological testing with Mr Eddy Kleynhans, a Sydney and Melbourne-based clinical development psychologist. Mr Kleynhans made the assessment that his prognosis is favourable and "the risk of him committing another violent crime in Australia is rather low and non-existent."

   The psychologist's report dated 11 March 2020 states as follows:

   "Moreover, I am of the opinion that even though his violent acts he was charged with last year were alcohol-fuelled, he does not suffer from an Alcohol Abuse Disorder.

   Risk for recidivism. Given his low score on the Novae° Anger Scale as well as a different perspective on relationships (i.e. that he would be more assertive rather than aggressive in relationship situations) as well as character references I am of the opinion that his risk of reoffending is on a "Low" level. In fact, he has no priors based on violent crimes. Moreover, he decided to refrain from alcohol use as it has an adverse effect on his behaviours.

   He also feels ashamed by his actions (conviction and incarceration) as he would like to be a good role model to his daughter during her formative years, which caused him to feel guilty and also perpetuating his stress.

   Given the aforementioned circumstances, Mr De Barros would like to have the character criterion waived, which would allow Mr De Barros to remain in Australia where he could continue his tertiary, as I am of the opinion that the risks of harming anyone in the Australian community lean more towards a low level of recidivism as well as risk."

   Applicant is a genuine student

   Secondly, we refer to the Record of Decision which our client received on 26 September 2019. Under the heading "Purpose of the visa holder's travel to and stay in Australia, the Minister's delegate took into account the following:

   Our client lodged an application for a Student (subclass 572) visa on 1 December 2015, three months after his arrival.

   He was granted a Student (subclass 572) visa on 29 January 2016 for the purposes of completing a Diploma of Leadership and Management with an expected completion date of 30 March 2018 and an Advanced Diploma of Leadership and Management with an expected completion date of 1 March 2019.

   He has had multiple conformations of enrolment cancelled due to non-commencement of his studies.

   He has only completed a Certificate III and Certificate IV in Business since the grant of his visa.

   The delegate found that our client had made unsatisfactory course progress and gave this a little weight in favour of cancelling his visa.

   At the hearing, we reiterated that Mr De Barros has been continuously enrolled since his first student visa was granted and annexed his Conformations of Enrolment (CoEs) as evidence. Contrary to what the learned delegate found, he did not cancel "multiple" CoEs. The only time his enrolment was cancelled is on one occasion in 2019 on account of his jail sentence. Mr Daniel Dante Maron gave evidence in his capacity as our client's student agent to explain why Mr De Barros had not completed his diplomas as expected. His diploma was deferred because the education institution determined that he needed an extra six months of language training, but this should not reflect poorly on our client's genuine engagement with his studies in Australia.

   Mr De Barros is a genuine student who has sought to improve his employability by taking 'part in Australia's world-renowned education system. I-le has done so with the admirable motive of providing a better future for his daughter Emanuela and has made commendable progress towards fluency in English since he first came to Australia on 2 September 2015. We humbly ask the Tribunal to allow him to finish his studies in Australia so that he does not disappoint his family by returning to Brazil empty-handed.

   Best interests of applicant's daughter

   Mr De Barros' daughter Emanuela is currently living in Brazil with her grandmother and will turn 4 in April 2020. Australia is a signatory to the United Nations Convention on the Rights of the Child, opened for signature 10 December 1984, 1577 UNTS 3 (entered into force 2 September 1990). The Migration Act 1958, being a statute of the Commonwealth, should be read in conformity with Australia's treaty obligations where possible: Minister of State for Immigration v Teoh (1995) 183 CLR 273 at 287. Therefore, we respectfully submit that the Minister should apply s.116 with regard to Art 3.1 of the Convention:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

   The Department should have regard to the best interests of Mr De Barros' daughter in deciding whether to use its discretion not to cancel his visa, even though Australia's obligations under international conventions do not restrain administrative power: Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 per French J at 59.

   Applicant is not a danger to the community

   In a letter dated 18 November 2019, The Tribunal wrote to our client informing him that the Police Report on the events of 18 May 2019 was relevant to the consideration of the decision whether to cancel the visa. His presence in Australia "may constitute a continuing threat to the safety of [Mr De Barros'] wife and members of the resident Brazilian community."

   At the hearing, several members of the Brazilian community who count themselves among Mr De Barros' friends and associates gave evidence that they found him to be a person of good character and that he did not pose a danger to the community. Mr Daniel Dante Maron, Ms Stephanie-Lee Alvarenga, Mr Diego De Souza e Silva and Mr Demilson Braga told the tribunal that the behaviour that led to Mr De Barros' criminal conviction was out of character and his intoxicated state was a contributing factor in his offending. Mr De Barros' friends told the tribunal that he has not touched alcohol since the incident.

   We respectfully submit that Mr De Barros does not pose a threat to the continuing safety of his ex-wife because he has complied with the conditions of his AVO since his release from prison on 8 August 2019 and has not attempted to contact his ex-wife in any way. He gave evidence at the hearing that their separation is now well and truly in place. Mrs Stephanie-Lee Alvarenga is a friend of the couple and is still in touch with Mr De Barros' ex-wife. She gave evidence at the hearing that there has been no conduct between the couple since Mr De Barros' release.

   We acknowledge the seriousness of domestic violence offences. However we respectfully submit that our client was convicted of assault occasioning actual bodily harm where he still believe that the incident occurred out of his character and was accidental. When considered cumulatively with the other mitigating factors and our submission below, our client's conduct is not so serious and as a result he is not a risk to his wife or the Australian community.

   The learned Member expressed concerns that Mr De Barros' offending on 18 May 2019 was not an isolated incident because there was a previous incident that led to him being convicted of two counts of Common Assault (Domestic Violence) and being fined $400 on each charge. We respectfully submit that the first incident was connected to the second and the provocative conduct of Mr De Barros' brother in law was a significant contributing factor in both incidents. He has not been independently violent outside of those incidents. He did not positively encourage the circumstances that led to him attending an alcohol-fuelled party with his now ex-wife at which the tensions between Mr De Barros and his brother in law were high. He was reluctant to attend that party and counselled by friends not to attend. However, he made the mistake of attending and feels great shame and regret over his actions while intoxicated at that party.

   We ask the Tribunal to take into account the character evidence that Mr De Barros does not have a violent character. His friends have described him as a kind, thoughtful friend who is aware of the pain his actions have caused and deeply regrets the poor choices he has made. His actions do not demonstrate a pattern of increasingly serious offences. We believe the character evidence suggests that Mr De Banos is not a threat to the resident Brazilian community. On the contrary, he is a valued member of that community.

   Furthermore, in the Custody Management Report, Mr De Barros was described as "calm and compliant with police." There has been no adverse information in regards to his behaviour while incarcerated. Our client has spent time in the community since his release from prison on 18 August 2019. During these seven months, he has behaved in a manner consistent with the expectations of the Australian community. He has not re-offended and he has cooperated with the Department in all immigration matters.

   Conclusion

   Cancellation of Mr De Barros' visa will have onerous consequences as it will remain on his record for life and make it difficult for him to travel in the future. It will also mean that Mr De Barros is forced to return home not having fulfilled his promise to his family to obtain qualifications so that he can commence working in the hotel industry job which is waiting for him when he returns to Brazil. Without finishing his studies, he will be unable to work in that job and his ability to provide for his daughter will be compromised. At the hearing, Mr De Barros humbly sought permission to remain in Australia long enough to fulfil his academic objective.

   We ask the Tribunal to take into account the holistic picture of the evidence given by Mr De Banos and his character witnesses at the hearing. We also hope that these further written submissions will be of use to the Tribunal's decision making process.

   Reg. 2.43(1) – Prescribed ground

   Reg 2.43(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))

9. In considering the information before it the Tribunal is satisfied that there appears to be a ground for cancelling the visa holder’s Bridging Visa A (subclass 010) under Section 116(1)(g) of the Migration Act, utilising Reg. 2.43(1)(oa) of the Migration Regulations 1994 (‘the Migration Regulations’). This is because he has been convicted of criminal offences against the laws of the state of New South Wales (NSW) being the following:

   8 April 2019

   ·Common Assault (domestic violence) (2 charges) On each charge: Fined $400.

   16 July 2019

   ·Destroy or damage property (Domestic Violence) (2 charges)

   ·Contravene Prohibition/ Restriction in Apprehended Violence Order (Domestic) (2 charges)

   ·Assault occasioning actual bodily harm (Domestic Violence) (2 charges)

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

    Consideration of discretion             

11. In considering whether a Bridging A visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging A visa should be cancelled.

12. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

13. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

14. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.

    Consideration of relevant primary and secondary considerations, and any other relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·the purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia

15. The applicant originally came as a Tourist and then transitioned to a Student visa. The applicant argues that he has a compelling need to remain in Australia to complete his studies. He declares no long-term reasons to remain in Australia and has indicated his strong desire to return to Brazil where he has been promised a job in a hotel.

16. The Tribunal gives this consideration some favourable weight to the applicant.

    ·the extent of compliance with visa conditions

17. The delegate found that the applicant has a less than satisfactory Student visa condition compliance history. However, his student agent has rebutted the delegate’s finding. He gave the Tribunal a comprehensive and satisfactory explanation of the applicant’s student history at the hearing indicating he has not breached visa conditions attached to his Student visa. The is no evidence of any recent visa compliance issues.

18. The Tribunal gives this consideration significant favourable weight to the applicant.

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

19. The applicant has argued that he will suffer significant financial, psychological and emotional hardship if he is unable to complete his studies. He claims that loss of potential income and qualifications will impact his future relocation to Brazil. His (Brazil-based) daughter’s future prospects will be impugned (vicariously) because he won’t have the futuristic income from a good job that he needs to maintain her.

20. In considering this purported hardship the Tribunal makes certain observations. Firstly, the principal reason that the applicant has not finalised his qualifications is due to his incarceration. His incarceration was caused by his serious criminal behaviour involving (in particular) family violence. This criminal behaviour had been preceded by an earlier incident of family violence which led to the applicant being convicted and fined. Rather than learn from this episode, and stay on the right side of the law, the applicant chose to reoffend much more seriously. Suffice to say as a result of that latter violent behaviour he was jailed.

1. The Tribunal acknowledges that the applicant may suffer some hardship both short and long-term from cancellation. He may be forced to quit his studies and be prevented from concluding them. However, it should be noted that he has secured some qualifications in Australia already. He will not return to Brazil empty handed. He could possibly finalize his studies, electronically, from Brazil with the consent of his Australian education provider. The Tribunal thus gives any financial hardship consideration little favourable weight.

2. Psychologically, the Tribunal notes the suggestion “cancellation would affect the applicant as he would be “forced to return home not having fulfilled his promise to his family to obtain qualifications so that he can commence working in the hotel industry”. The suggestion is that he would be unable to take up the position has been promised. The Tribunal whilst acknowledging that suggestion, observes that he will have some qualifications plus he has acquired significant carriage of the English language. Thus, the Tribunal gives this hardship consideration little favourable weight.

3. Regarding any collateral or vicarious hardship that would befall his daughter, futuristically, the Tribunal finds that this claim is remote. His daughter lives with her grandmother and is the product of a previous relationship in Brazil. There is no indication that this situation would be any different when the applicant returns to Brazil. The Tribunal gives this consideration minimal favourable weight to the applicant.

4. The Tribunal has weighed up the applicant’s hardship claims in the light of his criminal offences and criminal history and gives these considerations minimal favourable weight to the applicant.

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

5. The circumstances in which ground of cancellation arose were that the applicant was fined once and incarcerated (subsequently) for criminal offences involving family violence. He has had a complete marital relationship breakdown. Unfortunately, the history of the relationship indicates that the ground of cancellation was not ‘beyond the applicant’s control’ because he had previously been convicted and fined following an earlier family violence incident. He also breached the terms of an Apprehended Violence Order imposed on him. The principal event, was one where, he informs, he was actively discouraged by others from attending. Nevertheless, despite their entreaties he went ahead and participated. This proved to be an egregious mistake. Significantly he proceeded to inebriate himself. He then (in a drunken state) performed various violent acts at the party. The latter activities led to serious criminal charges and subsequent convictions and, tragically, to incarceration. What makes matters worse is that his jailing was unsurprising. He had already been convicted and fined at Newtown Court for a previous family violence charge.

6. The applicant, it appears, prior to the two Court matters, had no criminal history. The Tribunal gives this information favourable weight to the applicant. Subsequently, remorsefully and in mitigation, he has blamed the sequence of events on a disastrous marital situation coupled with his (then) brother-in-law’s animosity to him. Into that volatile mix (he insists) went the lubrication of alcohol and emotional triggers such as pejorative comments about his machismo from his ex-wife and other perceived slights. These circumstances it is claimed all triggered a series of criminal events over the course of one evening.

7. The Tribunal has heard and read all the mitigating factors submitted by the applicant - both oral and written - and through the aegis of his psychologist and supportive witnesses at the hearing. His decision to quit drinking, his attendance at behaviour management sessions and his favourable jail report have all been considered. The Tribunal finds them to be laudable practical initiatives to cure the problem and considers them favourably. However, when weighed against the seriousness and number of charges involved in his incarceration - not to mention his prior family violence conviction at Newtown Court House - the Tribunal, overall, gives this consideration little favourable weight to the applicant.

   ·past and present behaviour of the applicant towards the Department

8. The Tribunal is unaware of any improper or poor behaviour towards the Department. The Tribunal gives this consideration significant favourable weight to the applicant.

   ·whether there would be consequential cancellations under s.140

9. Not applicable.

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

10. The applicant (were the cancellation to be affirmed) would become unlawful and be liable to indefinite detention or removal. Due to the application of s.48 of the Act he would be prevented from applying for another substantive visa while in Australia. The applicant would be subject to PIC 4013 which presents a further consequence. He would be prevented from applying for another visa for three years from when his visa is cancelled.

11. The Tribunal gives this consideration favourable weight to the applicant particularly in view of his previous term of imprisonment.

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

12. The Tribunal is not aware of any international obligations, including non-refoulement which would affect the applicant. He has made an argument that the best interest of his child (in Brazil) would be affected by cancellation. He has suggested his Brazil-based daughter would be affected futuristically by his inability to earn the income he would earn if he were to secure the qualifications he seeks to gain. As a result (presumably) her best interests would not be served as she would not enjoy the standard of living, he could futuristically supply, if he were to achieve his professional dream. The Tribunal has considered this claim but is satisfied that such a consideration is too remote and presumptive to force a breach of the Convention.

13. The Tribunal gives this consideration a little favourable weight to the applicant.

    ·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties

14. Not applicable.

    ·any other relevant matters

15. The applicant has provided a plethora of testimonials from his friends all of which maintain that he is essentially an excellent and reliable person who has unfortunately made a series of awful mistakes and which are totally out of character. They argue that despite this setback - and thanks to pro-active personal and professional intervention - he is now a totally changed person.

16. He, in turn, blames his criminal behaviour on a poor marriage, excessive alcohol consumption, provocation and being in the wrong place at the wrong time. Immaturity has also been suggested as an issue. His former wife is some years older than he. The witnesses (and he) argue that the applicant has undergone a metamorphosis since his incarceration. The dangerous violent person he once was has been replaced by a solid responsible citizen. This new person wants to finalize his divorce, complete his vocational studies and return to Brazil to work in his chosen profession with the hope of a good standard of living on the horizon. He also intends to be a good father to the child he has with a former partner and who is now cared for by her grandmother in Brazil.

17. The Tribunal has viewed the visa and personal history of the applicant in Australia. This includes the testimonials in his favour, his psychological report and the claims of genuine remorse and rebooting of his personality.

18. The Tribunal has weighed up all the relevant considerations and findings. It has found a positive view of the applicant’s claimed personal transition and has given it favourable weight.

19. Nevertheless, the Tribunal remains unconvinced that this consideration outweighs his criminal history in Australia. This is particularly so as he had been given an earlier opportunity to reform.

20. Considering the circumstances as a whole the Tribunal concludes that the visa should be cancelled

    DECISION

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Michael Cooke
    Senior Member