Haynes (Migration)

[2020] AATA 4892

Haynes (Migration) [2020] AATA 4892 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arran James Haynes

CASE NUMBER:  2013449

HOME AFFAIRS REFERENCE(S):          BCC2020/1893422

MEMBER:Kira Raif

DATE:16 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 16 November 2020 at 5:34pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category) – risk to safety of Australian community – serious sexual offences and assault charges – not-guilty pleas, bail, surety and surrender of passport – small but real risk of similar conduct in future – mental health and treatment – economic and emotional hardship in detention and if returned to home country – long absence from home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)

CASE
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 26 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand, born in April 1965. He was last granted the Special Category Subclass 444 visa on 4 October 2018. On 27 July 2020 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 26 August 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thurkle and Ms Wilson, two witnesses nominated by the applicant. The applicant was represented in relation to the review by his registered migration agent.

4. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

6. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

7. In Gong v MIBP, Judge Smith considered that as s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence ‘may be a risk’, it can arise on the possibility that some event occurred in the past (at [41]). In this case, that possibility was supported by the laying of a number of charges against the visa holder. The Court held that there is no requirement that there be a determination of the guilt of a visa holder (at [45]).

   Does the ground for cancellation exist?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was last granted the Class TY Special Category visa on 4 October 2018. The Department received information from the WA police that the applicant has been charged with a number of offences in relation to his step-daughter:

   ·Knowingly sexually penetrate a child who was a lineal/de facto relative (4 counts);

   ·Indecently deal with a child who is a lineal/de facto relative (3 counts);

   ·Indecently recorded child who was a lineal relative or de facto child (1 count).

9. The applicant has been charged with offences in relation to his former partner:

   ·Common assault in circumstances of aggravation or racial aggravation;

   ·Deprivation of liberty.

10. The applicant has also been charged with the following offences:

    ·Possess child exploitation material (2 counts);

    ·Possess or copy an indecent or obscene article.

11. The primary decision record refers to the statement of facts provided by WA Police, which provides the following information with respect to the charges:

12. The applicant was in a relationship with his former partner and lived with her and her two children. The offences allegedly took place between April 2017 and May 2019, commencing when the alleged victim was aged 14. The offences are alleged to have taken place at the visa applicant’s home when the children’s mother was absent; one offence is alleged to have taken place in the bedroom and one is alleged to have taken place when the applicant was dropping off the child at school.

13. The police report indicates that during the search of the applicant’s family home, his electronic devices were seized and found to contain naked images of the victim. The victim was unaware the images were being taken. The electronic devices also contained images and videos of child exploitation material (CEM), bestiality and obscene articles. There were 332 images and 74 videos of CEM, depicting male and female children between the ages of seven to 15 years old. During the search of the applicant’s home, 58 pornography discs were also found in a backpack in a rear room of his house, described by other occupants as ‘Arran’s Man Cave’. Eighteen of the discs were found to be indecent or obscene.

14. It is alleged that on 18 May 2019, as a result of an argument, the applicant allegedly assaulted his de facto partner by throwing a mobile telephone at her and then held her against her will for four hours in their bedroom. As a result of the argument, the applicant was issued with a Restraining Order for two years, preventing him from contacting the victim and being within 100 metres of her. The applicant was released from custody in December 2019 and breached the order by approaching his ex-partner within 100 metres. As a result, the applicant was convicted of the following offences:

    ·Breach of protective bail conditions – s.51 of the Bail Act 1982;

    ·Breach of the Family Violence Restraining Order or Violence Restraining Order (VRO) – s.61(1) of the Restraining Orders Act 1997.

15. In his written submission to the delegate, the applicant stated that he pleaded not guilty to all charges and had been granted bail. The applicant states that his presence in Australia is not a risk to anybody. He has no contact with his ex-partner or the alleged victim. In his written communication to the delegate on 21 August 2020, the applicant refers to the allegations as ‘spurious accusations’ from his ex-partner and daughter and states that he intends to defend these and has been granted bail, his surety being his ex-partner’s sister.

16. The applicant states in his evidence to the delegate that he had arranged a surety and that his passport is held by the police, so he is not a flight risk. The Tribunal accepts that the applicant may not have an opportunity to travel overseas if he does not have a passport but the Tribunal does not consider that the risk to the community would only arise if the applicant was a flight risk.

17. The applicant spoke about the circumstances leading to the charges in his oral evidence to the Tribunal. The applicant stated that the accusations made by his step-daughter are not true and did not happen and that is why he is going through the effort and the expense of a court hearing. The applicant states that the daughter would do anything to get her mother’s attention and his ex-partner herself does not believe the daughter’s accusations. The applicant states, in relation to the offences relating to his former partner, that he received text messages meant for her ex-husband by mistake and they had an argument. They were in the bedroom and he locked the door. She asked to go out and he said no but did not physically prevent her from going out and this situation resulted in the deprivation of liberty charge. The applicant said that his ex-partner threw a phone at him and he threw it back and it bounced off her, leading to the assault charge.

18. The applicant states that his ex-partner did not want the VRO and it was arranged by the police. His partner intended to approach the police to drop the VRO and they agreed to meet and discuss the matter and their meeting came to the attention of the police because of another incident, so he was brought to court for breach of bail. He did not understand the bail conditions and received a long lecture from the judge. The applicant states that there was a miscommunication with his partner as he believed she would drop the VRO and he mistakenly thought it was dropped and that they could meet. He did not deliberately breach any Australian laws but there was miscommunication or misjudgement on his part.

19. With respect to the CEM, the applicant said that he was looking at a photo sharing website which had many different types of photographs and he had copied some CEM. The applicant states that he was dealing with his own depression and sexual abuse and did not know how to handle it or who to talk to. The applicant states that he pleaded not guilty because he was gathering information and has no interest in children himself. The downloading of images was only for the purpose of gathering information.

20. The applicant states that he has never had any problems with the law and made one mistake of meeting his partner. Since these incidents, he has not had any issues on remand or while in detention. The applicant states he is not a risk to his fiancé and still loves her. He does not cause trouble to anyone and does not have any history of any problems. The applicant states that he grew up in a violent family and had experienced sexual and physical abuse himself and he is not a threat to anyone. He does not consume alcohol and drugs and has never had any other issues.

21. The Tribunal took oral evidence from Ms Thurkle (the applicant’s former sister in law). She told the Tribunal that she does not believe the applicant is a risk to the public or a flight risk. She is aware of the charges and the circumstances leading to the charges and she was a surety for him in the past. She believes the applicant is not a risk and is generally a helpful person. Ms Wilson, a friend and a former colleague of the applicant, told the Tribunal that the applicant has always been very supportive and good to talk to. She believes that the charges are out of character for him and that it is in his best interests to have the visa reinstated. Ms Wilson told the Tribunal the applicant has lived in Australia for over eight years and has built his home and his life here and he has nothing to go back to. The Tribunal accepts these witnesses’ evidence and accepts that they believe the applicant to be a good person and a person of good character. The Tribunal also acknowledges a number of character references presented by the applicant and accepts that some of his friends and colleagues believe the applicant to be of good character. The applicant provided to the Tribunal evidence of having participated in the ‘Men Choosing Respect’ program between December 2019 and June 2020 and the Tribunal accepts that evidence.

22. The Tribunal acknowledges that the applicant has not been convicted of the offences specified above and the applicant denies that many of these offences occurred and has pleaded not guilty. However, as the court confirmed in Gong, it is not the conviction that establishes the ground for cancellation.

23. The Tribunal places weight on the information contained in the police charge sheets, as set out in the primary decision record. The applicant claims that his step-daughter made up information about him. It is not necessary for the Tribunal to determine whether the events described in the police report occurred. The applicant does not appear to dispute that some of the events described in the police report did take place. The applicant appears to concede that during an argument with his ex-partner he locked the door and told her that she could not leave the room. The applicant appears to concede that a phone was thrown, although his evidence to the Tribunal was that his ex-fiancé threw it at him first. The applicant also appears to concede that he was in possession of child exploitation material, while claiming it was only for the purpose of gathering information and of no interest to him. In the Tribunal’s view, such conduct does demonstrate anti-social behaviour that has the potential of causing fear in, or harm to, another person.

24. The Tribunal also places weight on the applicant’s admission that he met with his partner while his bail did not permit such contact. The applicant claims he misunderstood the terms of the VRO, believed his partner had varied it and did not intend to breach bail. The Tribunal is of the view that the applicant would have been explained the requirements of bail when it was granted and the Tribunal is of the view that the applicant would have been aware of the contact restriction. The issuance of the restraining order indicates that an assessment was made that the applicant may pose a risk to another person – the applicant’s ex-partner - and that formal protective arrangements needed to be put in place. The breach of that order also suggests that the applicant engaged in conduct that had the potential of causing fear to another person.

25. The applicant’s representative submits these were unique circumstances and the applicant’s circumstances are now different because he has had no contact with his ex-partner since January 2020 and he now understands the terms of the VRO. As noted above, the Tribunal does not accept the applicant was previously unaware that the VRO did not permit him to have contact with his partner, particularly as there was no evidence of it being varied and as the terms of the VRO would have been explained to the applicant at the time of its issuance. The Tribunal is also of the view that the applicant would have been aware that his conduct – including conduct relating to the incident with his ex-partner, and the downloading of CEM – was not consistent with Australian laws. While the applicant may not have contact with his partner and may not have the opportunity to engage in the same conduct in relation to her, the Tribunal is concerned that he may engage in similar conduct in relation to other persons. Further, the downloading of CEM is not dependent on the applicant’s relationship with his partner.

26. The applicant’s representative also submits that the applicant has now had the opportunity to obtain mental health treatment and had several sessions with a psychologist. The Tribunal accepts that this is the case, although the applicant claims that his contact with mental health professionals has been limited since his detention. The Tribunal accepts the applicant’s evidence that he has no history of offending and the present charges appear to be his first brush with the law. The Tribunal accepts the applicant’s evidence that he has never been involved with the police or the criminal justice system in any other way. The Tribunal acknowledges that the applicant had been granted bail and his evidence that the surety bail had been reduced because he was assessed as not being a risk. (The Tribunal is mindful, however, that the considerations for the grant of bail are quite different to those that arise in a cancellation case such as the present one.) The Tribunal acknowledges that there are several third parties who have provided character references to the applicant, including the sister of the applicant’s ex-partner and his friends and work colleagues. The Tribunal accepts the applicant does not appear to have had any problems with the law prior to the incidents, and with the migration laws of any country. Nevertheless, the Tribunal has formed the view that the applicant engaged in anti-social behaviour, knowingly and intentionally. The Tribunal is of the view that the risk of the applicant engaging in similar conduct in the future in relation to others is more than negligible and is a real risk, however small.

27. Having regard to all the circumstances, the Tribunal finds that the applicant’s presence may be a risk to the safety of a segment of the Australian community (in particular, children) or to an individual (should the applicant resume contact with his ex-partner). For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

28. There are no matters specified in the Act or Migration Regulations 1994 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

29. The applicant states in his declaration of 21 August 2020 that he had been ‘head-hunted’ for a large project while in NZ and had been involved in a large project since he moved to Australia about eight years ago. The applicant states that he has been a hard-working and productive member of the Australian community and had been paying taxes. He believes in working hard and in an honest job. The applicant states that his employer is aware of the charges and has ‘stood by’ him. The applicant refers to the work and study he has completed. In his subsequent evidence to the Tribunal, the applicant confirms that his employer would allow him to return to work if he is released from detention.

30. In oral evidence the applicant said that he had been supported by his employer, who was aware of the charges but believed these were out of character. The applicant states that he has not been back to New Zealand for many years, except for holidays, and believed Australia would be his home.

31. The applicant states that he had been living in Australia for eight years and for about 12 years prior to that he lived in the UK, so he has not lived in New Zealand for 20 years. The applicant states that he has no home and no friends in New Zealand. He has a ‘strange’ relationship with his mother, and he would have to start from scratch, find a place to live and find a job if returned to New Zealand. The applicant states that before departing New Zealand, he used to rent a place and he may be able to rent again but he is more concerned now about finding a job because he is older. The applicant states that he can support himself for a short while and he does not want to rely on hand-outs.

32. The Tribunal accepts that the applicant does not presently have a place to stay and a job in New Zealand and that he may have little or no support in that country, which he has not lived in for 20 years. However, the Tribunal is of the view that the applicant would be able to re-establish himself in his home country. In particular, the Tribunal is not satisfied that the applicant would be unable to rent a home and to find gainful employment. The applicant has not presented evidence of having applied for jobs and of having been denied jobs.

1. The applicant refers to his contribution to Australia, including the donation of blood and plasma and the Tribunal accepts that evidence.

2. The Tribunal accepts that the applicant travelled to and stayed in Australia in order to pursue employment and other opportunities. These opportunities may be lost if the visa is cancelled and if the applicant was required to leave Australia.

3. The applicant no longer appears to be in an ongoing relationship with his partner although the applicant told the Tribunal that he still loves his partner and if the charges are resolved, he thinks the relationship may resume. The Tribunal accepts that the applicant prefers to live and work in Australia but the Tribunal is not satisfied there is a compelling need for the applicant to remain in Australia.

   The extent of compliance with visa conditions

4. There is no evidence of any non-compliance with visa conditions.

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

5. In his submission to the delegate, the applicant states that he has been living in Australia for approximately eight years; he had been ‘head-hunted’ while in New Zealand and employed throughout the period of his residence in Australia; and he has paid taxes and made other contributions to Australia. The applicant states he is a productive and hard-working member of the community and came to Australia to build a better life. The applicant refers to the courses he has completed and described the nature of his employment. The Tribunal accepts that evidence and acknowledges that the applicant’s removal from what he has achieved in Australia is likely to cause considerable hardship.  

6. The applicant states in his submission to the delegate that the period of his immigration detention may not be counted towards his [criminal] sentence if he were sentenced to a term of imprisonment. The applicant states that the trial may not take place before late 2021, and in his evidence to the Tribunal the applicant confirmed the trial will not commence before September 2021. The Tribunal accepts that the cancellation of the visa, which has resulted in the applicant being detained, means that the applicant would be unable to continue with his employment and he is likely to remain in detention for a lengthy period before his trial. The applicant also states in his evidence to the delegate that if he is detained, he would be unable to work and pay for his criminal defence. The Tribunal accepts that these circumstances would cause hardship to the applicant.

7. The applicant claims that his mental health has been deteriorating and he has been seeing a psychologist for depression and anxiety. He claims in his submission to the delegate that if he is placed in detention, his mental health may deteriorate even further. There is no independent evidence before the Tribunal to indicate that since his detention, the applicant’s mental health has deteriorated and the applicant’s evidence to the Tribunal is that he has had access to mental health professionals while in detention and he has been given medication. The applicant’s evidence is that he has some, albeit more limited access to, mental health care during detention. The applicant also refers to having anxiety, depression and bi-polar disease. The Tribunal accepts that detention, in particular potentially lengthy detention, may adversely affect the applicant’s health.

8. The applicant’s treating psychologist, Mr Dick, states in his report that it is in the best interest of the applicant if he is able to continue with his employment. The Tribunal accepts this professional opinion and, as noted above, accepts that ongoing detention of the applicant could cause him considerable hardship.

9. In his written evidence, the applicant refers to the time he has spent on remand, stating that he was a model prisoner who did as he was told and never caused problems, had two jobs and mentored young offenders. The applicant referred to the courses he has completed while in detention. The Tribunal accepts that evidence.

10. In oral evidence, the applicant states that if the visa is cancelled, he will be in detention at least until September 2021 (the date of his trial) and he never wanted to be a drain on society. The applicant referred to the detriment his long detention would have on his mental health and states that he does not have to be in detention and does not want to rely on public funds.

11. Overall, the Tribunal accepts that considerable hardship would be caused to the applicant if the visa is cancelled, including hardship associated with detention, health, loss of employment, and other opportunities, and financial and emotional hardship.

    Circumstances in which ground of cancellation arose

12. The grounds for cancellation arise because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety of an individual or individuals and may be a risk to the safety of segments of the Australian community.

13. The applicant described the circumstances leading to the charges in his written submission to the Tribunal of 3 November 2020, as well as his oral evidence to the Tribunal. The applicant concedes there was an incident relating to his ex-partner but denies there was any physical violence. The applicant also states that the allegations made by his step-daughter are false and he states that he will defend these allegations at the upcoming trial. The applicant admits to breaching bail conditions when he met with his ex-partner to discuss removing the VRO and the applicant claims there was a plan for him to return home to stay with his partner but due to the allegations from the daughter, that was not possible. The applicant admits having CEM in his possession but claims it was for information gathering purposes. The applicant repeatedly told the Tribunal that he has no history of any convictions, that he had never had any trouble with the law and even though the charges look ‘horrendous’ on paper, he does not need to be detained.

    Past and present behaviour of the visa holder towards the Department

14. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

15. There are no persons in Australia whose visas will be subject to cancellation under s.140.

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

16. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia, although he is likely to be required to remain in Australia to await his trial. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there are very limited options for the applicant to seek a visa in Australia. The Tribunal accepts that in relation to some visa categories, the applicant may be subject to an exclusion period if he was to make an application offshore.

    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

17. The applicant has one biological child over the age of 18 and the Tribunal finds that he is not a child for the purpose of this consideration. Further, the applicant told the Tribunal he has not had contact with his son for some years. The applicant did in the past live with his partner’s children but that relationship has broken down and the Tribunal is not satisfied the applicant continues to have any role in relation to these children, particularly given the nature of the allegations against him. The Tribunal finds there are no children whose interests would be adversely affected by the cancellation of the visa.

18. The applicant does not claim that Australia’s protection obligations arise with respect to him.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

19. While the Subclass 444 visa is not a permanent visa, it allows the applicant to remain in Australia.

20. The applicant told the Tribunal that he has an adult son but has not had any contact with him for over 10 years and is not aware of his whereabouts. There is no evidence that he is in Australia. The applicant does not have other close family in Australia. His evidence to the Tribunal is that his former partner has been supportive and he hopes the relationship can resume. The Tribunal does not accept that such a relationship exists at present or that such a relationship constitutes a tie to Australia. The Tribunal does not consider that the applicant has strong family ties in Australia.

21. The applicant referred to his employment, stating that he has the competence and expertise to contribute to very large projects and his work is to the benefit of Australia. The Tribunal acknowledges the support the applicant has received from his employer and accepts that he may be able to return to his employment if his visa is reinstated. The Tribunal accepts that the applicant has considerable employment ties to Australia.

    Any other relevant matters

22. In his response to the NOICC and oral evidence to the Tribunal the applicant refers to his employment and states he is a productive member of society and not a risk to anyone. He states that his company is aware of the charges and are ‘willing to stick by’ him. The applicant provided to the Tribunal a number of character references. The Tribunal accepts that the applicant’s employer has been supportive and is willing to offer employment to the applicant. The Tribunal also accepts that that those who prepared these references believe the applicant to be a person of good character.

23. The applicant refers to his long absence from New Zealand and lack of employment, accommodation, friends or family support. As noted above, the Tribunal accepts the applicant would experience some hardship upon returning to New Zealand, although the Tribunal has formed the view that the applicant may be able to re-establish himself in his home country, having past experience, language skills and familiarity with the country.

24. The applicant states that he should not be defined by allegations and charges and there is more to him. He has contributed to the Australian community. He has been granted bail and he is not seen as being a danger to the public. He has been given permission to go near the airport and his surety has been lowered. He is not a risk and does not deserve to be in detention. The applicant refers to his contribution to Australian society and that he considers Australia his home. The applicant states that he has spent “much money” on lawyers because he wants to defend the charges but he wants to remain in Australia and he is not a risk to anyone; there is no reason for him to remain in detention.

25. The applicant’s representative submits that the applicant is not a risk but in any case, the waiver should be exercised in his favour. The serious charges have to be balanced against the ‘overwhelming’ evidence in support of the applicant, particularly the supporting evidence from the sister of the former partner, who has supported the applicant emotionally and financially. As noted elsewhere, the Tribunal acknowledges the considerable support the applicant has received from friends and work colleagues, as well as his former employer.  

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal accepts that considerable hardship would be caused to the applicant if the visa is cancelled. Importantly, the Tribunal accepts that the applicant would face a potentially lengthy period in detention and that he would have limited access to mental health care and other care while in detention. The Tribunal accepts the applicant will lose his Australian employment if his visa is cancelled and that he may have difficulty re-establishing himself in New Zealand, given the length of time he has spent outside of New Zealand. The Tribunal accepts the applicant has strong employment ties in Australia, as well as supportive friends. The Tribunal accepts that if the applicant were to return to Australia in the future, there will be limitations and restrictions on his future travel and visa options. The Tribunal accepts that for a variety of reasons, the applicant will experience considerable hardship if the visa is cancelled. The Tribunal accepts that the applicant’s preference is to stay in Australia and that he intended to make Australia his home. The Tribunal accepts the applicant has made a contribution to the community. The Tribunal also accepts that the applicant has been granted bail and he (and others) do not consider him to be a risk. There are strong reasons why the visa should not be cancelled.

27. However, the Tribunal has given greater weight to the circumstances in which the ground for cancellation arises and the nature of the applicant’s conduct. The applicant appears to concede that as a result of his conduct towards his former partner, she was fearful. The applicant appears to concede that he had breached the VRO, although he claims it was due to a misunderstanding. The applicant also appears to concede that an amount of child exploitation material was found in his possession. The Tribunal acknowledges the applicant’s evidence that he had made mistakes and that these actions do not represent his character. The Tribunal considers these events to be significant because in the Tribunal’s view they show the applicant’s disregard for the safety and well-being of others and also for Australian law.

28. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. The applicant does not have strong family links to Australia. The Tribunal has also formed the view that despite some hardship, the applicant will be able to re-establish himself in his home country.

29. The Tribunal finds that the nature and significance of the charges and the nature of the applicant’s conduct are in favour of the cancellation and outweigh, in the Tribunal’s view, other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kira Raif
    Senior Member