Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 3445

Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3445 (8 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3771

Re:Ashot Hovhannisyan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:8 September 2020

Place:Sydney

The reviewable decision of the delegate made on 25 February 2020 is affirmed.

............................[SGD]............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – where offending very serious – where there is risk of reoffending – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed 

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Mental Health Act 2007 (NSW)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

8 September 2020

BACKGROUND

1. The applicant was born in 1984 and is a citizen of Armenia. The applicant arrived in Australia on 14 April 2006 when he was 20 years old.

2. The applicant offended soon after arriving in Australia. Within three months of his arrival he was convicted of common assault for physically assaulting his ex-wife on two occasions.

3. The applicant was charged and convicted for a range of offences in relation to breaches of Apprehended Violence Orders (‘AVOs’), violence and domestic violence, which are set out in his Nationally Coordinated Criminal History Check of 9 September 2019 and which I have considered.

4. Notably, on 7 October 2016, the applicant breached his AVO in an incident where his ex-partner was forced to flee her residence with the children. On this occasion, the applicant was convicted of destroy or damage property and contravene prohibition/restriction in AVO (Domestic) and, on appeal, the Parramatta District Court sentenced the applicant to two prison terms of seven months to be served concurrently.

5. On January 2017, the applicant was again convicted of contravening his AVO and was sentenced to two terms of imprisonment of seven months to be served concurrently.

6. From 2018 to 2020, the applicant was cautioned multiple times by the police for shoplifting, behaving in an aggressive manner in public, including making threats to kill Australians as well as indecent exposure. I note that there were no formal convictions recorded for this conduct.

7. The applicant seeks review of the decision of a delegate of the Minister (‘the delegate’), made on 25 February 2020 under section 501(2) of the Migration Act 1958 (Cth) (‘the Act’), cancelling the applicant’s partner visa.

   THE ISSUES

8. The applicant has been sentenced on two separate occasions to two concurrent terms of imprisonment of seven months. Accordingly, as the total of the terms of imprisonment exceeds 12 months, the applicant has a “substantial criminal record” as defined in section 501(7) of the Act and therefore does not pass the character test.

9. At the hearing, the applicant claimed that the total of the terms of imprisonment only amounted to 11 months, but based upon the Nationally Coordinated Criminal History Check it is apparent that the terms of imprisonment were in excess of 12 months and that the applicant therefore does not pass the character test. If a person is found not to pass the character test, the discretion to cancel the visa must be considered. 

   THE LAW

10. As the applicant does not pass the character test set out in the Act, the issue the Tribunal must consider is whether to exercise its discretion under section 501(2) of the Act to cancel the applicant’s visa.

11. In making its decision the Tribunal must have regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 79’).

12. There are a number of relevant principles contained in paragraph 6.3 of Direction 79 that I have considered, which provide the framework within which the task of exercising the discretion is to be approached:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.

13. Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to cancel a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.

14. Those primary considerations pursuant to Direction 79 are as follows:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

15. Direction 79 also sets out other considerations that must be taken into account, which include, but are not limited to:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties to Australia;

    (c)impact on Australian business interests;

    (d)extent of impediments to the applicant if removed from Australia; and

    (e)impact on victims.

    THE EVIDENCE

    The applicant’s evidence

16. The applicant gave evidence that his only relationships in Australia were with his ex-partners, whom he now saw as “very good friends”. He also gave evidence of his familial relationship with his two biological children to these former partners and to the son of his ex-partner whom he regarded as a ‘stepson’.

17. The applicant gave evidence that he met his previous wife in Armenia. He said that they had dated for approximately five years whilst they were living in Armenia and they had married shortly before they arrived in Australia, at which time his previous wife was pregnant. Their daughter was born in Australia and the applicant said he thought she was born in approximately 2006. The applicant gave evidence that he had last seen his daughter a couple of years ago. He could not recall how often he had seen his daughter over the last 10 years but said that he had not had any contact with her since 2017. He said that this was because he was not in a position to support her.

18. The applicant said he met his next partner in around 2007 after his release from jail. He said that their son was born in around 2008 or 2009. When questioned, the applicant said he thought it was 2009. He said the last time he saw his son was at the beginning of 2019. The applicant said he speaks to his son weekly, mostly about football and daily life. None of the applicant’s children had visited him in Villawood Immigration Detention Centre (‘Villawood’).

19. The applicant gave evidence that he had a ‘stepson’ who was his previous partner’s biological child, and that he saw him whenever he saw his biological son. He said he had weekly contact with his ‘stepson’ who he regarded as his son and said he had spoken to him recently via telephone.

20. The applicant gave evidence that apart from his daughter, son and ‘stepson’ he had no other children, nieces or nephews in Australia.

21. The applicant said that for a long time in Australia he did not have housing or support, and this had been one of the reasons he had not previously seen his children. He gave evidence that he had recently obtained housing commission accommodation prior to his detention and that his children would be able to see him at this accommodation if he were to be released in the Australian community, as the place had two bedrooms. He said he had this accommodation since 2018, and that before then he had lived in accommodation provided by Mission Australia. His children had not visited him at his apartment.

22. The applicant confirmed that he did not currently have a partner. He said that he loved his children and had a good relationship with them.

23. The applicant said that his mother lived in Armenia but was not in good health and his father was deceased. He had a brother who lived in Russia.

24. The applicant said that he had been taken to Villawood from St Vincent’s Hospital, where he was being treated for mental health issues. In particular, he said he suffers from schizophrenia, which he said he developed in Australia partially by stress caused by his criminal court proceedings. He said that he self-admitted to St Vincent’s Hospital because he was experiencing mental health issues and that he had been there for a couple of weeks receiving treatment.

25. The applicant said that he was on medication and had been on this medication for a couple of years. He said that this medication may have been prescribed for him as early as 2016. He was on three different medications but could not recall the name of those medications other than olanzapine.

26. The applicant said he last saw a psychologist approximately three months ago and that before then he had seen a psychologist in 2018. He said that he did not tell the courts or Corrective Services that he suffered from schizophrenia in any proceedings subsequent to his diagnosis.

27. When questioned about whether he had any reports on his condition from a treating psychologist, the applicant said that he did have reports but had not felt any need to submit the reports to the Tribunal, despite acknowledging that he had a number of opportunities to do so.

28. The applicant also said that he had sought help in relation to his mental health from Mission Australia and had completed a number of courses, including courses related to anger management and domestic violence. The applicant did not submit any reports from Mission Australia to the Tribunal or any other documents of courses he had undertaken to address his offending conduct. The applicant recalled a number of requests for him to submit relevant evidence to the Tribunal but said that he was not going to go through all the paperwork as it was too depressing and he would go with his belief that the system would treat him fairly.

29. The applicant said that most of his offences were just “accidental” and that they were really the result of arguments. The applicant said that most of his offences were accidental except for one, which was when he had grabbed his partner’s hair. He said that he had pulled her hair to try and get her away from him during an argument. The applicant said his only mistake was to touch her hair. He said he did not really remember anything about what caused the argument that resulted in the broken chair.

30. The applicant said he had never threatened his ex-partner and said he was unsure why she would have told the police that he had threatened to harm her and her children. He said it was a coincidence that his ex-wife had made similar complaints to police, including telling the police in 2006 that the applicant had threatened to kill her if he were sent back to Armenia. He said that his ex-wife suffered from anxiety but said that he had never threatened to do something to her on the basis that if she did “this” he would do “that”. The applicant said that she suffered from very severe anxiety and goes “on and on” and throws things, but that if the applicant did anything he was in the wrong.

31. The applicant said that although he had understood the conditions of an AVO, he did not previously understand the consequences of breaching these conditions. In particular, he said that he had returned to the home where he had lived with his ex-partner because he had nowhere else to go. He also said that his ex-partner had invited him to return. He said he now understood the consequences of breaching AVOs.

32. The applicant said that prior to receiving disability pension he had been employed for around eight months in the construction industry and he had also been employed finding customers for educational colleges. He also said that he had done some voluntary work with Mission Australia.

33. Under cross-examination, the applicant said that apart from his mental health issues he had also experienced a back and neck injury, which he said doctors had told him could have resulted in his being paralysed. The applicant did not give details about how the injury had occurred nor any ongoing treatment regime. The applicant also did not produce any evidence of these injuries to the Tribunal.

34. The applicant was cross-examined as to the other recorded incidents after his release from custody in 2017, including stealing, aggressive conduct in public, threats to kill Australians and public indecency. The applicant said that he was mentally not there, but that he recalled receiving treatment from his psychologist and being prescribed medication as early as 2016. He told the Tribunal that the charges in relation to public indecency had not resulted in any conviction and that the reported behaviour had occurred whilst he was in his own home, although he acknowledged that others could see him through the window at the time.

35. The applicant said that his life had been damaged by his visa cancellation, which he described as “ridiculous”. He said it was very depressing in Villawood and that he was being punished again, as he had already served his jail time. He said he was “just a normal guy” and that his life was already turned upside down before he was taken to Villawood and that it was all “too much”. The applicant said he loved his children and just wanted to get on with his life in Australia.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community

36. The Tribunal is required to consider two issues in relation to the primary consideration of the protection of the Australian community. Firstly, the nature and seriousness of the applicant’s conduct to date and secondly, the risk to the Australian community if the applicant were to commit further offences or engage in other serious conduct.

    Nature and seriousness of conduct

37. The applicant’s criminal history began shortly after he arrived in Australia at the age of 20 when he was convicted of common assault on 29 June 2006 for physically assaulting his ex-wife on two occasions. The pattern of violent offending and recorded incidents by the police continued up until the applicant was placed in immigration detention, although I note that there were no formal convictions recorded since July 2017.

38. Many of the applicant’s offences were offences of violence and domestic violence, either against his ex-wife or a previous partner.

39. In May 2006, the applicant physically assaulted his ex-wife on two occasions, including grabbing and squeezing her by her throat, pushing her against the fridge and making threats to kill her and her family.

40. On 30 March 2007, the applicant was convicted of three counts of contravening AVO conditions by making threats of physical violence to his ex-wife in November and December 2016 while still subject to the good behaviour bond.

41. On 27 June 2016, the applicant physically assaulted two security guards working at a Shopping Centre and was convicted of two counts of common assault and one count of having an offensive implement in a public place.

42. On 4 July 2016, a provisional AVO was granted for the applicant’s ex-partner after the applicant admitted to grabbing her by her hair, dragging her into the bedroom and pushing her onto the bed. A day later on 5 July 2016, the applicant was found at his previous partner’s residence in contravention of this AVO and he was again found there on 12 July 2020.

43. On 19 July 2016, the applicant was convicted of common assault and two counts of contravene prohibition/restriction in AVO (Domestic). He received custodial sentences of five months and seven months respectively, but these were suspended with good behavior bonds imposed subject to supervision and counselling.

44. On 7 October 2016, less than two months later, the applicant again breached the AVO by entering his ex-partner’s residence, and his ex-partner was forced to flee the residence with her children because of the applicant’s behaviour. As a result of this incident, on 1 November 2016 the Blacktown Local Court convicted the applicant of destroy or damage property and contravene prohibition/restriction in AVO (Domestic) and imposed a good behaviour bond. On appeal, the Parramatta District Court varied those orders and the applicant was sentenced to two prison terms of seven months to be served concurrently.

45. On 18 January 2017, the applicant again breached his AVO conditions and on 20 January 2017, the Blacktown Local Court convicted the applicant of contravening the AVO. He was sentenced to two terms of imprisonment of seven months to be served concurrently.

46. Of particular concern in this offending conduct and the applicant’s evidence at the hearing was the applicant’s complete disregard of AVOs taken out against him by his partners. There were at least six convictions for contravening AVOS between 2006 and 2017.

47. It is also of concern that his domestic violence took place in the presence of his children, including physical assaults. The ongoing mental health effects for those who are the victims of domestic violence or are witness to domestic violence are usually lifelong and impact all aspects of their lives

1. For the most part, the applicant either sought to diminish the seriousness of his offending conduct or to present himself as the victim. He expressed no concern or regard for the victims, including his children. This is particularly serious in light of the fact that crimes of a violent nature against women or children are viewed very seriously: clause 9.1.1(1)(b) of Direction 79.

2. The applicant’s violent conduct towards his previous partners must be viewed extremely seriously, particularly as it occurred over such a long period of time and without regard to the legal regime put in place to protect people from domestic violence.

3. The applicant has also been convicted of violence against ordinary members of the public and security personnel in the course of their duty at a shopping centre in Blacktown. Furthermore, the applicant has been convicted of property offences, drug offences and driving without a license.

4. The pattern of the applicant’s offending is serious and cumulative in nature and is reflected in the increasing severity of his offences up until July 2017. Imprisonment is a penalty of last resort, and there were custodial sentences imposed on the applicant on two individual occasions.

5. From 2018 to 2020 the applicant was arrested and cautioned by police on a number of occasions for shoplifting, behaving in an aggressive manner in public, including making threats to kill Australians, as well as indecent exposure, but no formal conviction was recorded. It is also disturbing that Corrective Service records indicate that the applicant made threats to kill people along with inappropriate racist comments whilst in prison.

6. I note that at the hearing the applicant did raise issues of mental health but there was no contemporary evidence put before the Tribunal and no evidence as to how any mental illness may have influenced his behaviour.

   Risk of reoffending

7. In assessing whether the risk to the Australian community is unacceptable, Direction 79 requires the Tribunal to have regard to the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct and the likelihood of the person engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the person reoffending. I note that Direction 79 states that the Australian community has a lower tolerance for risk of future harm as the potential for future harm increases.

8. Domestic violence is a very serious crime which causes both physical and psychological damage. The applicant’s disregard for AVOs put in place to protect his ex-wife and ex-partner alongside his failure to comply with court obligations in relation to his good behaviour bonds is of serious concern. I note the remarks regarding the applicant’s behaviour in his pre-sentencing report dated 20 January 2017:

   [The applicant’s] response to case management by Community Corrections has been poor. His reporting has been unacceptable; not only is his reporting unreliable when he does report he is argumentative and resistant to case management directives.

9. It is also of concern that at the hearing the applicant said that most of his offences were “accidental”. He said that he “just had arguments” and that he had accepted his punishment but that he was a “normal guy”. The applicant said that he has done his time and that he did not understand what the consequences were for breaching AVO conditions at the time.

10. On 12 July 2016, for instance, when the police were contacted in relation to a domestic violence incident, the applicant was cautioned about his right to remain silent and asked about his knowledge of the AVO in place. The applicant said to the police “I don’t give a fuck about the AVO, the magistrate would not look me in the eye. I am a free man and I can do whatever I like”.

11. At the hearing, the applicant said that he had experienced mental health issues from 2015 and that he had been taken to Villawood from St Vincent’s Hospital where he was receiving treatment for his mental health issues. The applicant said he developed schizophrenia in 2015 as a result of his being before the Courts when he was in Australia and that he had taken himself to St Vincent’s Hospital to seek help. The applicant said that he could not see why he was currently detained in Villawood.

12. The applicant said that he had also sought help from Mission Australia and had participated in a number of courses with them. He said he never informed the courts nor Corrective Services that he suffered from schizophrenia. He said that he last saw a psychologist approximately three months ago. The applicant did not present any evidence in relation to his mental health issues.

13. It is relevant that when the applicant was sentenced before the District Court on 7 April 2017, the judge did not accept that mental health was a cause of the applicant’s offending conduct on 7 October 2016 nor that it was appropriate to deal with the applicant under section 32 of the Mental Health (Forensic Provisions) Act 1990 NSW. In considering the applicant’s mental health, his Honour said that the most recent medical report provided to the District Court from Justice Health dated 14 October 2016 stated that “[the applicant] currently does not present with symptoms of mental illness as defined in the New South Wales Mental Health Act 2007”.

14. In the evidence before the Tribunal, it appears that the applicant has recently also refused to participate in counselling programs, despite expressing a willingness to engage in counselling in July 2016. Of particular concern is that the applicant failed to attend his appointments when he was referred to Wentworth Forensic Clinic by his Community Corrections Officer in October 2017.

15. I am also concerned that there was no credible of objective evidence presented by the applicant was to his mental health state and the impact his condition might have on any further offending.

16. In my opinion, the applicant’s repeated disregard of AVOs, his apparent resistance to rehabilitation efforts within the criminal law system and the threats reported even whilst the applicant was being detained in prison, together with his failure to accept the seriousness of his offences, mean that there is a significant risk of the applicant reoffending  and that there would be a serious risk of harm to the Australian community if the applicant were to reoffend.

17. Overall, this primary consideration weighs heavily in favour of cancelling the applicant’s visa.

    Best interest of minor children

18. The applicant has two biological children in Australia, his daughter born in November 2005 with his ex-wife and his son born in 2009 with his ex-partner. The applicant also said that he has a close relationship with another minor child in Australia, namely his ex-partner’s son from another partner, who he said was also born in 2009. He said he sees this minor child as if he were his son and treats him accordingly.

19. The applicant has no other children in Australia and has no nieces or nephews in Australia.

20. The applicant said that he has a good relationship with his ex-wife and ex-partner and said that he was allowed to see his children in the community. There was no evidence before the Tribunal from either the applicant’s ex-wife, ex-partner or children about the nature of their relationship.

21. The applicant was not sure of the date of birth of his daughter whom he said he thought was born in 2006, nor his son who he thought was born in November 2009.

22. The applicant said that he last saw his daughter a couple of years ago. He thought it might have been in 2017 but was not sure. The applicant was also unsure as to how often he had seen his daughter over the last 10 years. The applicant said that the reason he had not seen his daughter since 2017 was because he was homeless and unable to support her.

23. The applicant said that he had seen much more of his son than his daughter. He last saw his son at the beginning of 2019. He said that his son does not visit him in detention but that he talked to him on the phone. The applicant said that he told his son he did not know why he was in detention. The applicant said that he spoke to his son on a weekly basis and that they talked about football and daily life.

24. The applicant said that he had similar contact with his ‘stepson’ who he saw when he saw his son. He said he had weekly contact with him and had recently spoke to him on his mobile phone.

25. The applicant said that he did not meet his son or ‘stepson’ at the mother’s residence, but that when he saw them, he did so at a shopping centre.

26. The children had not visited the applicant at his home, which he had been provided by the Housing Commission, but he said that he would like them to visit him there when he was released and that he had a spare bedroom. In this regard, it is of concern that the police visited the applicant’s residence in relation to two complaints about indecent exposure/acts of public indecency which allegedly occurred at his residence. The applicant did not deny the behaviour, but I note that there was no formal conviction recorded. The applicant said the charges were dropped because although he was visible from the outside, the behaviour occurred inside his own home.

27. The applicant’s relationship with his children must be seen within the context of domestic violence, which was perpetrated on the applicant’s respective partners and on at least one occasion in his son’s presence. He also appears to have had limited contact with his children, especially in recent years. There was no evidence before the Tribunal from either of the applicant’s partners nor any other evidence that would indicate that the applicant had played a major parental role in the children’s lives or contributed financially to their upbringing.

28. On the evidence presented, it is in my opinion appropriate to be cautious about the applicant playing a positive role in the lives of his children given his previous behaviour, his lack of reflection or remorse and tendency to perceive himself as the victim.

29. Despite the limited evidence before the Tribunal, however, I find that it is in the best interest of the applicant’s children and ‘stepson’ that they have an appropriate ongoing relationship with the applicant who expressed his love and concern for them. This relationship would be best fostered if the applicant were able to remain in Australia. I give moderate weight to this consideration which weighs in favour not cancelling the applicant’s visa.

    Expectations of the Australian community

30. In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to current paragraph 9.3(1) of Direction 79.

31. The applicant has been convicted of a long history of violent offences and has displayed a disregard for the Australian legal system, particularly the laws in place to protect the public from domestic violence. Having regard to the provisions of paragraph 9.3(1) of Direction 79 and the applicant’s long criminal history of offences, including violence and domestic violence offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.

32. The impact of domestic violence cannot be downplayed. It has extremely harmful effects on its victims, specifically the applicant’s ex-wife and ex-partner and their children, who no doubt witnessed the domestic violence growing up.

33. Given the applicant’s long criminal history, the nature of the offences and the fact that there is a risk of the applicant reoffending, I give substantial weight to this consideration which weighs in favour of cancelling the applicant’s visa.

    Nature and duration of ties in Australia

34. The applicant arrived in Australia when he was 20 years old and has lived here for approximately 16 years. During this time, the applicant has been in two relationships. His relationship with his ex-wife started whilst he was still living in Armenia and the couple were married there before coming to Australia. He met his ex-partner in Australia when he was released from jail in approximately 2006.

35. The applicant says that his ex-wife and ex-partner are now his good friends in Australia. The applicant gave evidence that he had largely lost contact with his ex-wife from around 2017. I note that neither gave evidence at the hearing nor provided a letter of support on the applicant’s behalf.

36. The applicant’s relationships with his biological children and ‘stepson’ is a relevant factor, and they will likely be adversely impacted if he is returned to Armenia.

37. The applicant appears to have worked only intermittently whilst in Australia and primarily in the construction industry. The applicant thought that he was working in construction in approximately 2018 but could not recall any other details. He is currently on a disability pension and has had periods on Centrelink benefits when he was not in custody. The applicant said his housing was provided to him by the New South Wales Department of Housing.

38. There was no evidence of the applicant having developed close ties in the Australian community and the applicant is not in any current relationship.

39. I accept the applicant’s evidence that he has had an association with Mission Australia and has attended various courses run by that organisation. It has also offered him accommodation when he had nowhere to live. There was no evidence of any ongoing association with Mission Australia or of any courses he said he had taken with the organisation, but I accept that it is there as a potential support for him should he need it.

40. Despite the lack of objective evidence, I also accept the applicant’s evidence that he has been receiving treatment for his mental health issues and that he is currently on a range of medications prescribed by his General Practitioner.

41. Overall, the applicant’s ties to the Australian community do not appear to have been well developed over the time that he has resided in Australia, perhaps partly explained by the fact that he began to offend so early after his first arrival in Australia. Mental illness may explain some of the difficulties he may have experienced in forming close ties in Australia, but on the applicant’s evidence his illness did not develop until around 2015 and was diagnosed when he was in jail in 2017.

42. I find the applicant has limited ties to the Australian community and I give this consideration moderate weight in favour of non-cancellation.

    Impediments to removal

43. The applicant has lived in Australia for a shorter period than he has lived in Armenia. He went to school in Armenia and met his first wife there.

44. There are no evident cultural or language barriers to the applicant returning to Armenia. It is also likely that any previous work experience would be as relevant and useful to gaining employment in Armenia as would be the case in Australia.

45. The applicant has family in Armenia. Although details were somewhat vague, he said that his mother is currently living there and that she is suffering from dementia.

46. Evidence was provided to the Tribunal by the respondent’s representative as to the significant expenditure on mental health care and services in Armenia and the availability of facilities to assist the applicant with the management of his ongoing mental health issues should he be returned. I accept this evidence.

47. There was some limited evidence provided to the Tribunal that the applicant had also suffered a back and neck injury in Australia. There were no details as to the nature of the injury, how it was sustained or if any ongoing treatment was being provided. It would appear that there are treatment options in Armenia for this, but I accept that the applicant may receive better care in respect of this injury if he were to remain in Australia.

48. The applicant may also face difficulties in relation to obtaining housing if he is unable to live with his mother in Armenia. However, there was no evidence provided to the Tribunal as to any assistance that might be available.

49. I give this consideration limited weight in favour of not cancelling the applicant’s visa.

    CONCLUSION

50. In this case, for the reasons outlined the seriousness of the applicant’s offending, the likelihood of his reoffending and the expectations of the Australian community is not outweighed by the other considerations, including the best interests of his minor children, any ties he has developed in Australia and the impediments he may face if returned to Armenia.

51. Accordingly, the correct and preferable decision is to affirm the decision of the delegate made on 25 February 2020.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

.............................[SGD]...........................................

Associate

Dated: 8 September 2020

Date of hearing:	27 August 2020
Applicant:	In person (by video conference)
Solicitors for the Respondent:	Mr M Gao, Australian Government Solicitor