Kowalczyk (Migration)

[2021] AATA 1241

Kowalczyk (Migration) [2021] AATA 1241 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Michael Kowalczyk

CASE NUMBER:  2000632

HOME AFFAIRS REFERENCE(S):          BCC2017/474906 BCC2019/5315322

MEMBER:Kira Raif

DATE:1 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 01 March 2021 at 3:14pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – ground for cancellation – risk to safety of Australian community or individual – common assault – breach of a Domestic Violence Order (DVO) – consideration of discretion – presence of children in Australia – degree of hardship – circumstances giving rise to non-compliance – violence and threats of violence – significant custodial sentence – risk of reoffending – degree of rehabilitation – best interest of child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 18 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Canada, born in January 1992. He had been granted a Partner visa in subclass 820 on 9 July 2018. On 12 November 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant’s presence in Australia is or may be a risk to the safety of others. The applicant provided his response to the NOICC and his visa was cancelled on 18 December 2019 under s. 116(1)(e) of the Act. However, the Tribunal has formed the view that another ground for cancellation relevant here arises under s. 116(1)(g) and r. 2.43(1)(oa).

3. The applicant appeared before the Tribunal on 29 January 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

5. 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. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. As noted above, the delegate’s decision was based on the cancellation ground set out in s. 116(1)(e). However, on 3 December 2020 the applicant informed the Tribunal that he has pleaded guilty, and has been convicted of the following offences in the Brisbane District Court: common assault and breach of a Domestic Violence Order (DVO). The applicant informed the Tribunal that he was sentenced to 300 days imprisonment for the common assault and breach of the DVO while the remaining charge of choking / suffocation / strangulation was dropped.

7. The Tribunal finds that the applicant was a holder of a Subclass 820 visa, which is a temporary visa other than a Bridging visa and a Special Category vias. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

8. 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

9. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

10. The purpose of a Partner visa is to enable the applicant to remain with his spouse. In his submission to the delegate the applicant refers to being a caring and loving father and that he hopes to reconcile with his partner. However, the applicant is the subject of a domestic violence protection order and his partner is a protected person. There is no evidence before the Tribunal to indicate that the sponsor wishes to reconcile or that she has any intention of doing so and in his submission to the Tribunal of 22 December 2020 the applicant concedes that he will not pursue reconciliation and that his former partner has now commenced a relationship with another partner. The applicant told the Tribunal that he and the sponsor were ‘working on the relationship’ until December 2020. The applicant states that his partner has mental health issues and in December 2020 she had varied the Protection Order so and there has been no contact between them since that time. The applicant states that while he was in jail, his partner wanted to be in a relationship with him but due to her mental health issues and drug use, she is struggling and that may be because of being separated from him.

11. There is no evidence before the Tribunal that the sponsor has any intention of reconciling and the applicant concedes that it is unlikely that a reconciliation will take place soon. The Tribunal finds that the applicant cannot fulfil the purpose of being with his partner in a spousal relationship. However, there are children from the applicant’s relationship with the sponsor and the applicant may be eligible for the grant of a permanent Partner visa on the basis of having parental responsibilities in relation to the Australian children, provided other requirements for visa grant are met.

12. The applicant’s evidence to the Tribunal is that he has had a close relationship with his elder daughter before his detention and regular contact with the children while in detention prior to the Order being varied in December 2020. He was unable to have contact with the children since that time. In his submission to the Tribunal of 26 February 2021 the applicant provided evidence that the temporary Protection Order has been varied to allow him contact with the children in certain circumstances and the applicant confirms that he and his former partner intend to engage in mediation and court proceedings to enable him to have access to the children.

13. The Tribunal is of the view that the presence of children in Australia may constitute a compelling need for the applicant to remain in Australia but only in circumstances where the applicant does undertake a parental role in relation to the children or may adopt such a role in the future.

    The extent of compliance with visa conditions

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

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

15. in his written response to the NOICC the applicant refers to the emotional hardship that he, the sponsor and their families would suffer if his visa is cancelled and if he was required to leave Australia. The applicant states that his wife’s parents would also suffer if the family was to leave the country. However, as the applicant’s relationship with the sponsor appears to be longer in place, the Tribunal considers there is very little or no chance of the sponsor and the children relocating to Canada as a result of the visa being cancelled, so there would not be hardship to the sponsor’s parents resulting from the entire family relocating to Canada.

16. The applicant refers to his employment in Australia and states that his wife would suffer financial hardship if his visa is cancelled. The applicant told the Tribunal that his partner had limited employment and he was supporting the family financially prior to his detention. The applicant states that he had some savings which his partner had relied on since his detention and when the savings are finished, his partner may experience financial hardship. The Tribunal does not accept the applicant’s evidence that his partner would experience financial hardship because there is little information before the Tribunal about the sponsor’s financial situation, income and expenses. The applicant’s evidence to the Tribunal is that she receives Centrelink benefits and had been employed in the past. The applicant has not satisfied the Tribunal that he would be unable to find gainful employment in Canada and support his family, as he told the Tribunal he would. As such, the Tribunal does not accept the sponsor and children would experience financial hardship if the visa is cancelled.

17. The applicant refers to the hardship of being separated from his children. In oral evidence the applicant refers to the close connection he has with his children and the hardship of being separated from them. The applicant told the Tribunal that his ex-partner thinks he is a good father and she wants him to be with the children and part of their lives. The applicant refers to a close relationship he has with his daughter and their mutual love for each other. The Tribunal is mindful that the sponsor had put in place an order prohibiting the applicant from having contact with the children, which may not support the applicant’s claim that she wants him to have contact with the children, however, the Tribunal acknowledges the statement from the sponsor, provided by the applicant in his submission of 26 February 2021, supporting the applicant’s contact with the children. The Tribunal also notes her indication that she is willing to engage in court proceedings and mediation. In the Tribunal’s view, if the applicant’s former partner was supportive of the applicant’s presence in children’s lives, the parties could have come to that agreement without the need for mediation and court proceedings. The applicant claims that due to his ex-wife’s mental health issues, that is the only way she can deal with it. There is no probative medical evidence before the Tribunal to support that assertion and the Tribunal is not prepared to accept that the former partner’s interactions with the applicant or her plans for his interaction with the children are governed by her mental health issues.

18. Nevertheless, the Tribunal accepts that considerable hardship would be caused by the cancellation of the visa, which is likely to result from the applicant being separated from his children.

19. In his response to the NOICC the applicant also refers to the length of his stay in Australia and he told the Tribunal that he planned to have stayed in Australia for the rest of his life. The Tribunal accepts that the applicant has been living in Australia for over four years and that he has settled in Australia. The Tribunal accepts that the applicant has formed social and employment ties in this country. The Tribunal accepts that the applicant prefers to remain in Australia as he had the intention of living here permanently. However, the Tribunal does not consider the period of 4,5 years to be a lengthy period and while the applicant may wish to live in Australia permanently, the Tribunal is mindful that he has never held a permanent visa. In the Tribunal’s view, there can be no expectation of permanent residence in Australia before a permanent visa is granted.

    Circumstances in which ground of cancellation arose.

20. The ground for cancellation arises because the applicant has been convicted of offences against the law of the state. The circumstances of the offensive conduct are described in the primary decision record based on the information received by the Department from the Queensland Police Service.

21. The primary decision record indicates that on 20 December 2019 a DVO was issued, naming the applicant as a respondent and the applicant’s wife as the aggrieved and his child as an additional protected person. It was alleged that on 6 June 2019 the applicant engaged in an argument with his spouse which turned physical. It is alleged that the applicant had twisted her nipple, punched her on the arm several times and disposed of her phone without permission.

22. On 17 October 2019 it is alleged that the applicant and his wife had an argument and the applicant attempted to slam a door on her arm. It is alleged that the applicant grabbed his wife by the throat and pushed her into the wall. His wife was pregnant at the time. It is alleged the applicant’s daughter observed the threatening behaviour. The Tribunal acknowledges the applicant’s evidence that the charge of suffocation has been withdrawn and places no weight on that element of the description of that incident.

23. It is alleged that after leaving the premises, the applicant sent derogatory and threatening messages to his wife, threatening to kill. In his submission to the Tribunal of 3 December 2020 the applicant states that he was a victim of family violence but, being a man, did not seek help. The applicant states that on each occasion there was an argument, he had left the family home.

24. The Tribunal is mindful that the applicant pleaded guilty to the offences and has been found guilty. The Tribunal considers the conviction to be evidence that the offence has been committed. The Tribunal has also considered the psychological report, submitted by the applicant on 28 January 2021. The applicant denies some of the factual circumstances set out above, stating the schedule of facts was not an agreed schedule of facts. The applicant states that he did not choke, strangle or smother his partner but did push her against the wall. The applicant submits that when he threatened to kill his partner and the police in a text message, he was angry and upset. Thus, the applicant appears to concede that there was some violence and threats of violence perpetrated by him towards his partner.

25. In his submission to the Tribunal the applicant claims that the penalty of 300 days for the offences of assault and breach of DVO were described as manifestly excessive by his criminal defence lawyers and are subject of an appeal. The applicant states that he was not punished for one breach of the DVO and the charge of choking was withdrawn. The applicant states that the nature of the penalty indicates that his conduct was on the very low end of the scale of seriousness. The applicant refers to his voluntary engagement in rehabilitation programs since his imprisonment and his commitment to continue such engagement and treatment if he is allowed to remain in Australia. The Tribunal does not accept that a custodial sentence of 300 days can be said to be indicative that his conduct was on the lower end of the scale of seriousness. In the Tribunal’s view, a custodial sentence of that duration reflects the seriousness of the offending conduct and while the applicant claims the sentence was manifestly unreasonably, there is no evidence before the Tribunal that at the time of this decision, it has been overturned.

26. In his submission to the Tribunal of 22 December 2020 the applicant sought to quantify the risk to his former partner, stating that their relationship was toxic and that he himself had been a victim of domestic violence during the relationship but did not pursue cross orders. The applicant states that he is committed to rehabilitation. In his submission to the Tribunal of 28 January 2021 the applicant provided evidence of having completed a number of courses and the Tribunal accepts that evidence.

27. The psychological report which the applicant presented to the Tribunal indicates that the applicant concedes there was an incident involving violence, damage to his partner’s property (phone) and threats to kill. The applicant told the Tribunal that the threat was not serious, and he never meant it. The applicant states that after he said those things, his wife picked him up and drove him to work, so she knew it was not serious. The applicant suggested that his wife called the police because of her mental health issues and spiteful attitude. The applicant expressed regret for what has happened and states that he has changed. In the Tribunal’s view, it is entirely possible that a threat made in the context of an argument, when there was prior violence, may well have been perceived as being serious. It is possible that it caused the victim to be fearful or apprehensive about her safety or well-being.

28. The applicant told the Tribunal that he was under stress due to work and relationship and did not know how to deal with his emotions. Since doing various courses, he knows how to deal with emotions. The applicant states that he does not want his children to experience what he had experienced as a child. The applicant told the Tribunal that at the time of offending, he was drinking and smoking as a way of dealing with stress, but he now knows there are other ways of dealing with stress. The applicant states that while in jail, he was offered drugs and alcohol but he did not take these. The applicant states that the stress and emotions in detention are stronger than what he has experienced in the community and drugs and alcohol are readily available. The Tribunal acknowledges that evidence but is of the view that  life in detention would be different to life in the community and while the applicant claims to have avoided drugs and alcohol while in detention, he has not spent time in the community, since the conviction, to test his resolve and his claimed ability to handle stressful situations.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s.140

30. There are no persons whose visas may be cancelled 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 and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

31. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some visa application that he may wish to make offshore. The applicant’s eligibility for the permanent visa would also be affected if he is not the holder of a temporary visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution upon return to Canada. The Tribunal finds that Australia’s non-refoulement obligations are not engaged in this case.

2. The applicant’s children reside in Australia and he has a mother in Canada. He has no other close family. The principles of family unit may require the applicant to be with his children, although the Tribunal is also mindful that the applicant has close family (his mother) in his home country.

3. The applicant refers in his written evidence to the Tribunal to the various Conventions, including ICCPR. The applicant claims in his submission to the Tribunal that he has a close relationship with his elder daughter and has been providing support to her and her mother. He states the second child was born while he was in prison and the relationship has been limited as a result. The applicant states that he only saw his younger daughter on video but he is keen to have a closer relationship with her. The applicant states that if his visa is cancelled, he would have limited opportunities to remain in Australia and play a role in his children’s lives. The applicant states that his removal from Australia would remove the option of shared parental care, which is necessary in circumstances where the mother may be indisposed to care for the children and he claims his permanent absence from the children would be detrimental to them. The applicant states that the children are in the care of their mother and he is concerned about their welfare as the mother was investigated by the Child Safety authority to determine whether the children are in need of protection, given the mother’s use of illicit substances and her relationship with a drug user. The applicant claims that it is in the best interests of the children that the visa is not cancelled.

4. The applicant’s evidence to the Tribunal is that Child Safety authority had conducted an investigation, took the children away from their mother for a short period and then returned the children to their mother. In the Tribunal’s view, that indicates that the mother has been assessed as not being a risk to the children. On the other hand, the Tribunal is mindful that there is a protection order in place in relation to the applicant and that order initially named the applicant’s daughter as a protected person, although it has been varied since its initial issuance and in his post-hearing submission the applicant provided evidence of changes to the order, made on 18 February 2021, which allow some contact between the applicant and the children.

5. The Tribunal accepts that the cancellation of the visa may cause the applicant’s departure from Australia and the application of an exclusion period, should the applicant wish to make an application for a visa in the future. However, the Tribunal does not consider that the applicant’s removal from Australia would result in his permanent exclusion from Australia. There is nothing preventing the applicant from seeking another visa in the future, even if that  process is subject to an exclusion period and character assessment. The Tribunal is mindful that if the applicant was seeking a permanent visa in subclass 801, that visa will also be subject to a character assessment. Thus, the Tribunal does not consider that the cancellation of the visa will necessarily result in permanent separation of the applicant and his children.

6. The applicant told the Tribunal that he had never committed violence towards his daughter and she was added to the protection order as a precaution. The applicant states that he has had contact with his children before the Order was varied in December 2020 and he is confident he would be successful in reinstating that Order. The Tribunal accepts that there does not appear to be any evidence of the applicant being violent towards the children. However, the Tribunal is of the view that violence may be caused if children observe violent arguments or other family violence between their parents. That is, it is not only the direct violence that may be harmful to children and that view is supported in the report of the applicant’s psychologist of 22 January 2021. The applicant told the Tribunal that he would not be in a relationship with the children’s mother but any argument or violence or thereat or violence can occur during any interaction and not only a spousal relationship and if the applicant is to share custody of the children with their mother, there are likely to be some interactions between them. The applicant told the Tribunal that he is now a better person and he refers to the various courses he completed. The Tribunal accepts that the applicant may genuinely believe that but notes that the applicant’s behaviour has not been tested when the applicant lives in the community and his interactions with his former partner had been limited and in the particular circumstances of the applicant’s detention.

7. As noted elsewhere, the Tribunal has formed the view that the risk of reoffending continues, even if that risk is minimal. Given the nature of the applicant’s interactions with his former partner, the fact that the child had been named as a protected person and the effect that the witnessing of violence may have on children, the Tribunal has formed the view that the best interests of the children, at present when such risk continues, would not be best served by the applicant’s close relationship with the family. It is possible that this would change in the future, when the applicant has lived in the community and has demonstrated his full rehabilitation but at present, the Tribunal considers there to be a risk of the children witnessing family violence or threats of violence, which would not be in their best interests.

   Any other relevant matters

8. The applicant refers to his contribution to the community, stating that he is well regarded by others. The applicant provided to the delegate a number of character references. The Tribunal accepts that those who provided references believe the applicant to be a good person. The Tribunal also acknowledges references from the applicant’s supervisor and work colleagues. The applicant refers to his employment prior to detention, stating that he had worked as an construction labourer and subsequently as an estimator and he has the promise of continued employment if his visa is reinstated. The applicant refers to having a good relationship with his employer and an offer of a job. The Tribunal accepts that the applicant was previously employed and may again be employed if he holds a visa and remains in Australia. The Tribunal accepts the applicant has employment ties and social ties in Australia. The Tribunal accepts that the cancellation of the visa may result in the applicant being unable to work in Australia and that may also cause hardship to the applicant.

9. The applicant provided evidence of his participation in several rehabilitation programs and he told the Tribunal that he believes these courses have shown him how to be a better person and better manage his behaviour. The applicant claims he is a different person now. The Tribunal accepts that the applicant had completed courses and believes himself to be a better person. Whether or not the applicant’s future conduct will be different can best be determined, in the Tribunal’s view, once the applicant has had the opportunity to live in the community and interact with others in the community, including his former partner.

10. The applicant submits that he has strong ties to Australia, considering the length of his residence in this country and he has made a positive contribution to the Australian community through employment. The Tribunal accepts that evidence.

11. The applicant claims that the cancellation of his visa would cause him significant distress and detriment if he is to leave Australia as he would be separated from his children and, given their age and the nature of his relationship with the children, there is no certainty that the distance could be ameliorated by his former partner moving to Canada or visiting Canada. The Tribunal accepts that if the applicant is to leave Australia, this would cause separation from his children. These matters are addressed elsewhere but essentially, the Tribunal accepts that the applicant may experience hardship as a result of his visa being cancelled.

12. The applicant provided to the Tribunal a psychological report dated 22 January 2021. The report sets out the applicant’s personal background and the circumstances leading to the issuing of the DVO and the convictions. The applicant concedes that there was violence and threat of violence and expresses remorse for his actions. It is stated that the applicant has gained insight into his behaviour and is better able to cope with the different situations. He has been of good behaviour while in detention and has participated in several rehabilitation programs and psychological counselling. The report outlines the applicant’s medical and psychological condition and the risk of reoffending, essentially stating that the applicant would need support and psychological intervention to be able to implement the strategies to reduce the risk of reoffending. It is stated that the applicant would likely experience significant distress and may relapse in terms of depression and substance abuse if he is deported and be forced to separate from the children. It is also noted that separation may cause negative psychological outcome for children, as does domestic violence. The Tribunal acknowledges the information in the report and accepts the professional opinions expressed therein. Importantly, the Tribunal accepts that the applicant had engaged in various programs since his detention and that he considers himself to be a better person but the Tribunal places weight on the professional opinion of the psychologist that the applicant needs ongoing support and professional intervention to maintain his resolve. The applicant told the Tribunal that if he is released from detention, he intends to continue to see a psychologist.

13. The applicant informed the psychologist that his partner’s attempted to self-harm and that the Child Protection Services became involved and took the children out of their mother’s care. The applicant refers to his former partner’s use of illicit drugs. As noted above, the applicant’s evidence to the Tribunal is that after an investigation, the children had been returned to their mother.

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant was a holder of a temporary visa and has been convicted of offences against the law of a state.

15. The Tribunal acknowledges that there are strong reasons why the visa should not be cancelled. The applicant has been living in Australia for a number of years, had engaged in gainful employment and has formed connections to this country. Most importantly, the applicant has two children in Australia and the Tribunal accepts his evidence that he wants to have a meaningful role in the children’s upbringing. The Tribunal accepts that  the present protection orders allow some contact between the applicant and his children and the Tribunal accepts the evidence that the applicant and his partner intend to engage in further proceedings to enable more meaningful interactions between the applicant and his children. The applicant has expressed remorse for his past conduct and has actively engaged in rehabilitation programs. The Tribunal acknowledges, and gives weight to the fact that  the applicant appears to be committed to rehabilitation and the psychological report confirms his level of self-awareness and the degree of rehabilitation. The Tribunal accepts that  a degree of hardship would be caused if the visa is cancelled. All these factors weigh against the cancellation.

16. However, the Tribunal has decided that greater weight should be placed on other considerations. The Tribunal places significant weight on the circumstances in which the ground for cancellation arose. The applicant has been convicted of assault and he concedes that his behaviour towards his former partner involved violence and threats of violence. The applicant has been given a significant custodial sentence (even though he claims it was manifestly unreasonable, there is no evidence of it being overturned at the time of this decision), which signifies the seriousness of his conduct. The applicant also concedes that he had breached the family violence orders which, in the Tribunal’s view, may be indicative of the applicant’s disregard for the law and, significantly, the welfare of others.

17. The Tribunal accepts that the applicant had actively sought, and engaged, in various rehabilitation programs and he claims to have reformed and to be regretful of his past conduct. The applicant claims he is no longer using illicit substances. However, the Tribunal is mindful that the applicant has been in custody since the offending conduct took place. He spent time in criminal custody and has been in immigration detention after that. That is, the Tribunal is of the view that the applicant’s claimed resolved to avoid alcohol and illicit substances and not to engage in violent or threatening conduct has not been tested in the community. Since the sentence, the applicant has not lived in the community and in the Tribunal’s view, that is a relevant consideration in assessing the level of rehabilitation and the risk of re-offending. In the Tribunal’s view, and in particular, having regard to the psychologist’s report, the Tribunal finds such a risk continues to exist, even if any risk of reoffending has been significantly diminished as a result of the applicant’s participation in various programs and his stated resolve not to re-offend. The Tribunal is mindful of the professional opinion of the psychologist who indicates that the applicant would need help if he was to form future relationships. It does not suggest that at present, the applicant has been fully rehabilitated.

18. The Tribunal accepts that the applicant intends to gain greater access to his children and that both he and his former partner expressed an intention to engage in mediation and other proceedings to enable such contact. However, at present, such contact is minimal. As noted above, the Tribunal is concerned that there remains a risk of violence or threats of violence, even if that risk is minimal. Once the applicant has had the opportunity to live in the community and has established that any risk of reoffending is non-existent or acceptable, a different conclusion may be reached with respect to the applicant’s interactions with his children but at present, the Tribunal has formed the view that the best interests of the children would not be adversely affected if the visa is cancelled. The Tribunal is mindful that the applicant may be able to continue communication with his children even if he does not remain in Australia and also that the applicant may be able to seek other visas in the future, although there can be no guarantee that he will be permitted to return to Australia.

19. The Tribunal also places weight on the fact that the visa in question is a temporary visa only. The applicant has not been granted a permanent visa and cannot assume that he would be permitted to remain in Australia, even despite the presence of his children here. For example, the applicant would have to be assessed against the character provisions for the grant of the Permanent visa. It is not for this Tribunal to determine whether the applicant would be eligible for the permanent visa but the Tribunal does consider it relevant that the applicant has never been granted permission to remain in Australia permanently, so there can be no expectation at present that he would be able to maintain his links to this country, including to his children, employment, community and others.

20. Overall, the Tribunal places greater weight on the circumstances in which the ground for cancellation arose. The applicant has shown disregard for the law and had engaged in offensive conduct which was serious and involved violence and threats of violence towards another person. The Tribunal finds that such matters outweigh other considerations. 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 820 (Spouse) visa.

    Kira Raif
    Senior Member