Lewis (Migration)

[2017] AATA 2974

Lewis (Migration) [2017] AATA 2974 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin Gregory Jr Lewis

CASE NUMBER:  1714596

DIBP REFERENCE(S):  BCC2017/1426196

MEMBER:Kira Raif

DATE:30 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2017 at 10:59am

CATCHWORDS
Migration – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – Multiple criminal charges – Imprisonment – Presence in Australia a risk to safety or good order of community – Hardship – Limited access to children and health care – Greater weight on circumstances in which ground for cancellation arose – Outweighs other considerations

LEGISLATION
Migration Act 1958, ss 116, 116(1)(e), 140
Migration Regulations 1994, Schedule 2

CASES

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 29 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 the United States of America (US), born in February 1985. He was granted the Partner visa in Subclass 820 in January 2015. On 6 June 2017 the delegate issued the applicant with the 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 29 June 2017. The applicant seeks review of the delegate’s decision.

3.    The applicant appeared before the Tribunal on 28 November 2017 to give evidence and present arguments. 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. Relevant 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.

5. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

Does the ground for cancellation exist?

7.    The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant has been charged by the NSW Police with the following offences:

a.Assault occasioning actual bodily harm (DV) – 04/02/17

b.Contravene prohibition / restriction in AVO (Domestic) – 23/02/17

c.Contrive prohibition / restriction in AVO (Domestic) – 28/03/17

8.    The applicant told the Tribunal that he pleaded guilty to these offences and had been sentenced to 10 months imprisonment. The primary decision indicates that a 12 months Apprehended Violence Order (AVO) has been put in place from April 2017 with respect to the applicant, for the protection of the applicant’s partner and the applicant told the Tribunal the AVO also includes his son.

9.    The applicant provided a number of documents in response to the NOICC and additional materials to the Tribunal. The applicant provided a number of character references and employment references and the Tribunal accepts that those who provided reference for him may believe the applicant to be a good person and a non-violent person. The Tribunal also acknowledges information provided in Ms Chiapoco’s statement which suggests that the contact that constituted the breach of the AVO was initiated by the applicant’s partner and not the applicant.

1. In his written response to the NOICC the applicant refers to convictions in the US but claims these were minor misdemeanours, did not result in custodial sentence and if the offences were serious, he would not have been granted the Australian visa. In his oral evidence to the Tribunal the applicant said that he wanted to plead guilty to the offences but he wanted to vary the circumstances of the offences. He spoke to his lawyer who told him it was possible to amend the facts but failed to do that. The applicant said that he did “slap” his partner and he did contravene the AVO and for these reasons he pleaded guilty. The applicant said that on that day he had a ‘mental break’ and he slapped his partner. The applicant said it was the first time and out of the ordinary and he had never done anything like that before. He first contravened the AVO because he did not understand he could not be with his partner, he only thought he was not allowed to harm his partner, so he went to her house. He was then arrested and the police explained to him that he could not contact his partner. On the second occasion he knew it was against the AVO but he went to his partner’s house anyway when she called him. The applicant said the police took out the AVO in February 2017, it was not his partner who asked for it.

2. The applicant said that the delegate ‘alleged’ that that he was accused of family violence in relation to his former spouse, the sponsoring partner. The applicant said that he asked for separation and his ex-wife accused him of family violence and made things up against him. That matter went to trial and he was found not guilty and the magistrates dismissed all charges. The applicant said that he had never been convicted of any family violence offences either in the US or in Australia and it is incorrect to state that he has a history of family violence.  

3. The applicant said that in the US he had been accused of dealing in drugs, which he had not done and he ‘punched’ that person. He was found guilty of battery and was given 120 hours of community service and was ordered to go to anger management classes. The applicant said he was also arrested at a hotel in company with others and pleaded guilty to public intoxication and disorderly conduct. The applicant referred to the racist and violent society in the US. He claims he was in a hotel with his cousin when the police came in response to a noise complaint and they were charged with being drunk because of racism and because he was in an interracial relationship. The Tribunal finds these excuses unconvincing, given that the case would have gone through the criminal justice system and the applicant would have had the opportunity to explain the situation. The applicant said he did not have money for bail and could not take any more time from work, so he pleaded guilty. The Tribunal is not convinced that the applicant would have pleaded guilty simply because it was easier to do so, particularly if he claims the charges were entirely made up.

4. The applicant told the Tribunal that he has two other charges in the US. One was for the misuse of a credit card. The applicant said that his then partner gave him her credit card to buy groceries but they had an argument and she prohibited him from using her credit card but he used it anyway. As a result he was charged with the misuse of the credit card and had to pay a fine. Another offence was a violation of a protection order. The applicant said that he and his ex-partner had a relationship but her father was not happy with the relationship and took a protection order against him. When he was with this ex-partner, the father called the police and he was fined. Again, the Tribunal finds this evidence unconvincing. The Tribunal does not accept that a protection order would have been issued simply because his ex-partner’s father did not like him.

5. The Tribunal considers it problematic that the applicant appears to have little remorse for his conduct. The applicant’s evidence is that all of his offences in the US were the result of the racial discrimination and other circumstances that were against him, rather than any aspects of his conduct. The Tribunal acknowledges the applicant’s evidence that he has never been incarcerated in the US but the Tribunal also notes that the threshold for s.116(1)(e) to be engaged is fairly low – that the applicant’s presence is or may be, or would or might be, a risk. Lack of past incarcerations does not establish the absence of the risk, in the same way as the applicant’s present custodial sentence does not necessarily establish that the risk exists. The Tribunal does not consider that such risk is established merely by the nature of the punishment imposed by courts.

6. The applicant’s evidence to the Tribunal is that he has never been violent towards anyone and has never been convicted of violence against others and what he did to his partner was out of character. He said that is the only occasion that involved family violence. The Tribunal is mindful, however, that the applicant has been convicted of other offences and some of these do involve violence, albeit not in a domestic situation. He was convicted of the charge of battery and the applicant’s evidence is that there was a protection order in the US arising from a previous relationship and the Tribunal is not convinced by the applicant’s evidence that the only reason it was issued was because his ex-partner’s father did not like him.

7. The applicant told the Tribunal he had been sentenced to 10 months imprisonment as a result of the assault conviction against his partner. In the Tribunal’s view, the severity of the punishment reflects the seriousness of the offence. The applicant said that he was drunk at the time, both he and his partner were shocked by what he did and despite the assault, his partner pleaded with him to come back and help with their child, which he did eventually.

8. The Tribunal has considered the psychological report which the applicant presented to the delegate. The clinical psychologist indicates in the report that the applicant poses ‘low risk for committing future violent offences’ relative to others violent offenders. However, that is not a test prescribed by s.116(1)(e). The Tribunal is not required to compare the risk posed by the applicant to other violent offenders. It is necessary to consider whether the applicant’s presence may be a risk, not whether he poses a greater risk than any other person. Further, the psychologist does not suggest that there is no risk of re-offending. Rather, the report refers to ‘low risk’. The Tribunal notes that the wording of s.116(1)(e) is very broad. If the presence of the applicant in Australia ‘is or may be or might or would be’ a risk, then the provision is engaged, even if that risk is low. An assessment that the applicant poses a ‘low risk’ suggests that at least, his presence “may be or would or might be” a risk to others, including his partner.

9. The applicant told the Tribunal that he did disclose his criminal history in the US when he applied for the Partner visa and he was granted the visa, which indicates that he has never been considered violent. The Tribunal is mindful, however, that considerations for the grant of the Partner visa, including any character assessment, are quite different to those that are relevant to establishing whether grounds exist for cancelling a visa under s.116(1)(e). That is, the fact that the applicant had been granted the Partner visa after disclosing his convictions does not establish, in the Tribunal’s view, that the grounds for cancellation cannot exist. Further, the applicant had been charged with, and pleaded guilty, to additional offences in Australia so his circumstances had changed since the applicant was granted the Partner visa.

10. The Tribunal finds that the applicant has acted violently towards his partner, his own evidence is that he had ‘slapped’ his partner multiple times although he claims it was out of character and that he was ‘protecting his son’. The applicant also admits that he had breached the AVO because he continued to have contact with his partner and visit her home even after he was made aware that he was not allowed to do that. The Tribunal acknowledges the applicant’s evidence that the contact had been initiated by his partner and he visited her home because she asked him but the Tribunal notes that the applicant was well aware there was an AVO and that he was not allowed to visit her home, irrespective of who initiated the contact. The applicant had also been convicted of other offences in the US which, on his own evidence, include violence to others, such as battery and was also the subject of an AVO in the US and had breached the AVO. Even though the applicant had not been imprisoned for these offences, that does not detract from the fact that the applicant did engage in criminal conduct and inappropriate behaviour.

11. The applicant told the Tribunal that he committed a violent offence when he was 18 when he was convicted of battery and again when he was violent to his partner and there had been nothing in between, for 13 years he had done nothing wrong and there is no ongoing pattern of violence. The applicant claims there is no ongoing pattern of violence. The Tribunal acknowledges that the convictions for violent offences occurred many years apart and may not suggest a pattern but the Tribunal is concerned with the applicant’s repeated breaches of the law, which have been ongoing. In the Tribunal’s view, that conduct does indicate the applicant’s willingness to breach the law and to act in an anti-social manner. The Tribunal is mindful that for the purpose of determining the risk, as required by s.116(1)(e), the conduct need not be limited to physical violence. The Tribunal is also concerned about the applicant’s ability to deal with complex situations.

12. The applicant spoke about his difficult childhood and its impact on his behaviour. The applicant told the Tribunal that he had been seeking professional help before his detention. These matters are also reflected in the pre-sentencing report. The Tribunal acknowledges that evidence and is prepared to accept that the applicant has taken some steps to change his behaviour. The Tribunal also notes the applicant’s evidence that he had participated in anger management courses in the past, which did not necessarily affect his behaviour as the applicant has convictions after that participation. Generally, the Tribunal is not satisfied that the steps the applicant took would be sufficient to ensure that violent or inappropriate conduct is not repeated.

13. The Tribunal finds that the applicant had engaged in anti-social and at times violent conduct. He has been the subject of multiple AVOs; there is presently one in relation to his partner and he referred to one in the US and there is evidence that he had breached the conditions of these AVOs. The applicant is serving 10 months imprisonment as a result of assault on his partner. The applicant’s multiple convictions indicate his willingness to breach the law. In all these circumstances, the Tribunal has formed the view that the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety of the Australian community or to the safety of an individual or individuals. The Tribunal finds that the ground for cancellation in s.116(1)(e) exists.

14. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

1. There are no matters specified in the Act or Migration Regulations 1994 that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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

1. The purpose of a Partner visa is to enable the visa holder to remain in Australia with his partner. The applicant’s evidence to the delegate and the Tribunal is that his relationship with his sponsoring partner has ended and he is now in a different relationship. The applicant claims there was never violence in his relationship with the sponsoring partner and the allegations made by his sponsoring partner about the violence were untrue and had been dismissed in court. The Tribunal accepts that the applicant has not been convicted of any offences relating to the sponsoring partner and places no weight on any allegations of violence.

2. The Tribunal is mindful that the applicant has a child from his relationship with the sponsoring partner and he may be entitled to the grant of the permanent Partner visa because of the birth of the child, irrespective of the fact that his relationship with the sponsoring partner has ended. The Tribunal is satisfied the applicant is able to fulfil the purpose of his visa. The Tribunal is also prepared to accept that the presence of two young children may constitute a compelling need for the applicant to remain in Australia.

The extent of compliance with visa conditions

1. Nothing adverse is known to the Tribunal about the applicant’s compliance with visa conditions.

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

1. The applicant outlined in various submissions the circumstances of his childhood and the abuse he claims to have suffered and he states he has no family in Chicago to return to. The Tribunal is of the view, however, that the applicant is an independent adult and there is no obvious reason why he could not obtain employment, support himself and live independently even if he has no family support in the US. He has done so prior to his entry to Australia.

2. The applicant told the Tribunal he cares for his two children and has a close relationship with them. The applicant told the Tribunal that if he is removed from Australia, that will affect his children’s future and there is an exclusion period if his visa is cancelled. The Tribunal is prepared to accept that being separated from his two children in Australia is likely to cause significant hardship to the applicant and possibly his children. The Tribunal also acknowledges that an exclusion period may apply as a result of a cancellation.

3. The applicant said he provides financial support to his present partner and sponsoring partner and the children. The Tribunal is prepared to accept that but there is little evidence to satisfy the Tribunal that his partner and sponsoring partner cannot support themselves financially without the applicant’s financial contribution as they may have other income from employment and may be entitled to various other payments, including from Centrelink. The Tribunal acknowledges the applicant’s evidence that it is his responsibility, and not the government’s, to take care of the children, but the Tribunal is not convinced that the applicant’s desire to financially support his children gives rise to hardship.

1. The Tribunal acknowledges the applicant’s evidence that he has ‘given everything up’ when he came to Australia but as noted above, the Tribunal is not convinced that the applicant would have any difficulty re-establishing himself in his home country, even despite the racism and prevalent crime to which the applicant refers. In particular, the Tribunal does not accept the applicant’s evidence that he would be unable to find employment in the US, as his own evidence is that he has been working since the age of 15, even if his income may be lower than what he earns in Australia. The applicant refers to a high unemployment rate and lack of connections but that has also been the case in the past when the applicant did get employment. The applicant told the Tribunal he has graduated from college and was always able to find a job. There is no evidence to suggest that the applicant had sought employment and was refused employment. The Tribunal is not satisfied the applicant would find it difficult to find employment in the future.

2. The applicant also told the Tribunal he would have nowhere to live in Chicago and he would be homeless. The Tribunal does not accept the applicant’s evidence that the applicant would have difficulties re-establishing himself in his own country, including finding gainful employment, even if he has to move to a different city or a different state. The applicant said he has no support network in the US but the Tribunal is mindful that the applicant is well familiar with the environment, has a college education and language skills which would enable him, in the Tribunal’s view, to re-establish himself in his own home country.

3. The Tribunal does not accept the applicant’s evidence that he cannot live in the US. Nevertheless the Tribunal accepts that having to leave Australia and separation from the children, may cause considerable hardship to the applicant.

Circumstances in which the ground of cancellation arose.

1. The applicant told the Tribunal that he came to Australia to be with his sponsoring partner and he sold everything before he travelled to Australia. He sought immigration advice and they were told they had to get married, which they did. They purchased a house in May 2015 because there was poor family dynamic between his sponsoring partner and her family and he found it difficult to live with them. The applicant said that this partner was controlling and he was not allowed to see anyone or do anything other than work and his sponsoring partner accused him of cheating and of abusing her but he had been found not guilty. The applicant said that even though there was an AVO at the time (which was subsequently dismissed with the charges), his sponsoring partner came to his house anyway and wanted to maintain the relationship with him. As noted above, the Tribunal acknowledges that the applicant has not been convicted of any offence relating to his sponsoring partner and accepts his evidence that the charges had been dismissed. 

2. The applicant’s evidence to the Tribunal appears to be that the convictions in the US occurred because of various factors that were external to him. The applicant told the Tribunal that he had never been violent to anyone and his conduct in Australia that led to the conviction was out of character. As noted elsewhere, the Tribunal does not accept the applicant’s explanations that his convictions in the US were due to factors that were external to the applicant or that these involved no wrong-doing on his part. The applicant’s records indicate ongoing breaches of the law.

3. The psychological report which the applicant presented in response to the NOICC sets out the circumstances of the offence in Australia. Essentially the applicant claims he and his partner and another person consumed a lot of alcohol, had an argument about the newborn child’s breastfeeding and the applicant hit his partner a few times across the face. The applicant told the Tribunal that at the time he thought he was protecting his son but he now understands what he did was wrong. In the Tribunal’s view, even if the applicant believed he was protecting his child, assaulting his partner was hardly the appropriate way of handling the situation and the applicant would have been well aware of that. 

4. With respect to the breach of the AVO, the applicant claims the contact was initiated by his partner who wanted to reconcile and the applicant told the Tribunal that he returned to the family home because his partner found it difficult to look after the child and be by herself and she wanted his support. The applicant also said that the first time he breached the AVO, he did not understand that he could have no contact with his partner. The Tribunal acknowledges that the applicant may have been responding to his partner’s wishes but at least after the first breach, he was well aware that contacting his partner was against the law. The applicant appears to have been unconcerned by that fact.

5. The applicant told the Tribunal that at the time when the assault occurred, he was experiencing several issues and he was already upset. He said his partner was drinking while breastfeeding and he knew it was not right and he thought at the time he was protecting his son.

6. In oral evidence the applicant reiterated the issues relating to his upbringing, which are outlined in the psychological report. He said he did not receive appropriate support for mental health issues and had no friends to talk to or support him and what happened to him had affected him. The applicant said he suffers from Post Traumatic Stress Disorder (PTSD) and the situation with his partner had triggered it. He could not get medical help in the US but he has sought help in Australia.  The applicant said there are underlying issues that can be fixed. He has been receiving treatment for the PTSD and takes medication for depression.

Past and present conduct of the visa holder towards the Department

1. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The applicant told the Tribunal he has always complied with the Department.

Whether there are mandatory legal consequences

1. 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. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The applicant may be subject to an exclusion period. The applicant told the Tribunal that these matters would cause him problems because he will not be able to work or see his children or continue with the medical help. The Tribunal is mindful that if the applicant has no other visa, he is unlikely to be able to remain in Australia but he may be able to make another visa application.

Whether there would be consequential cancellations under s.140

1. There are no persons in Australia whose visas will be subject to cancellation under s. 140 of the Act.

Whether any international obligations would be breached as a result of the cancellation

1. The applicant spoke about the poor situation in the US, lack of employment opportunities, crime and racism. The Tribunal is not convinced on the limited evidence before it that these matters give rise to Australia’s protection obligations. However, if the applicant believes Australia owes him protection obligations as a result of these or other matters, the Tribunal is mindful that the applicant is eligible to make an application for a protection visa where his claims would be assessed. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

2. The applicant spoke in oral evidence about the close relationship he has with the children and the various activities he has with the children, as well as financial support he has provided to his partners. The applicant said he has weekly supervised contact with his older son and while his younger son is included in the AVO, it will end in April 2018, a few weeks after his release and his partner wants them to be together.

3. The Tribunal accepts that the applicant hopes to maintain a close relationship with his two children and that he is legally able to do that, once the AVO has expired. The Tribunal is concerned, however, that if the applicant is to engage in violent behaviour in the future, such conduct may adversely affect the children. The applicant has been issued with the AVO in relation to his partner (the applicant claims his partner had been uncooperative with the police and wants to resume the relationship) in the presence of the child and the applicant had been convicted of breaching the AVO on two occasions. If the violence is to occur in the presence of a child, even a young child, the Tribunal is not convinced that witnessing such violence of one parent against another would be in the best interests of any child.

4. The applicant raised concerns about his inability to obtain further documents, including court transcripts and other materials. The Tribunal acknowledges that the applicant has limited access to documents while he is incarcerated but the Tribunal accepts the applicant’s evidence about the circumstances of the breakup of his previous relationship and the fact that his earlier charges in Australia brought about by his sponsoring partner had been dismissed. The Tribunal also accepts the applicant’s evidence outlining his convictions in the US, although not his reasons for the convictions.

5. The Tribunal acknowledges the applicant’s evidence that his partner invited him to resume the relationship and visited him multiple times and if she thought he would harm her or the child, she would not have done that. It may be the case that the applicant’s partner does not subjectively believe that she could be harmed, however, that is not sufficient. It is not uncommon for those who have been subjected to family violence to wish to continue relationships for a variety of reasons, which may include financial considerations or the desire for care and support for themselves and the children. That does not necessarily satisfy the Tribunal that a risk does not exist.

6. The applicant asked the Tribunal to take evidence from another witness. The applicant said this person would tell the Tribunal she believes him to be a good person and a non-violent person and that she would have no hesitation of letting him live in her house. The Tribunal accepts that this witness believes the applicant to be a good and a safe person. As noted above, the applicant provided a number of character references to the delegate and the Tribunal acknowledges that others also believe the applicant to be a good person. The applicant said this witness would also support his claim that the contact that led to the breach of the AVO was initiated by his partner. The Tribunal accepts that evidence although, as noted above, the Tribunal is of the view that the applicant was the subject of an AVO and was well aware that he was not allowed to make that contact and it was his responsibility to ensure compliance, irrespective of who initiated the contact.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa because his presence in Australia is or may be, or would or might be, a risk, to the safety of an individual – his partner, or to the safety or good order of the Australian community, given the applicant’s criminal conduct. The Tribunal acknowledges that considerable hardship may be caused by the cancellation because the applicant has been living in Australia for a number of years and is settled in this country and claims to have given everything up in the US. He has an opportunity for ongoing employment and has assets in Australia and claims to have nothing in the US. Most importantly, the applicant has two young children in Australia and the Tribunal accepts that the cancellation of the visa may prevent the applicant from having a close relationship with his two children and will affect his ability to see his children as often as he now does (or intends to after he is released from detention). The Tribunal does not accept the applicant’s evidence that he would find it difficult to find a job in the US or support himself and the children but the Tribunal is prepared to accept that the applicant’s financial circumstances may change as a result of the cancellation. He may also experience other forms of hardship, including limited access to relevant health care. The Tribunal acknowledges that the applicant has been cooperative with the Department and has complied with visa conditions. The Tribunal accepts his relationship with his two children will be adversely affected if the visa is cancelled and if the applicant cannot be physically present in the same country as the children, although the Tribunal is not necessarily convinced that the best interests of the children would be adversely affected by the cancellation. The Tribunal also places weight on the applicant’s evidence that he sought professional help before his detention and has been prescribed medication. All these considerations suggest that the visa should not be cancelled.

8. Against these considerations, the Tribunal notes that the applicant has engaged in behaviour towards his partner that resulted in the conviction for assault occasioning actual bodily harm and a sentence of 10 months imprisonment. There is also an AVO in relation to his partner and child, although the applicant claims his partner is keen for him to return. Although the applicant claims he has never been violent before since the age of 18 and has no other convictions for violent crimes, the Tribunal notes that on his own evidence, the applicant had been convicted of several offences in the US, some of which included violence towards others and he also engaged in other criminal conduct, which may suggest either general willingness to breach the law or the applicant’s inability to cope with difficult situations. The Tribunal is concerned that such conduct, over a number of years, implies a risk to those around the applicant, not only his partner. 

9. The Tribunal is mindful that the applicant appears to have little remorse about the circumstances of his offences in the US and the breaches of the AVO in Australia. Although he claims that he is not a violent person, he did engage in violent offences and, equally significantly, in repeated breaches of the law over a significant period of time. The Tribunal places greater weight on the circumstances in which the ground for cancellation arose, which the applicant himself described as involving abusive conduct towards his partner in the presence of their child. In the Tribunal’s view, such matters outweigh other considerations.

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

DECISION

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

Kira Raif
Senior Member