Maaz (Migration)

[2020] AATA 3976

Maaz (Migration) [2020] AATA 3976 (8 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Maaz

CASE NUMBER:  2010823

HOME AFFAIRS REFERENCE(S):          CLF2020/20991

MEMBER:Michael Ison

DATE:8 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 08 July 2020 at 2:57pm

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) – Subclass 020 (Bridging B) – bridging visas granted pending partner visa application – risk to safety of individual – charged with family violence offences and subject of intervention order – intention to plead not guilty – visa, study, work and relationship history – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(e)(ii), 119(1), 359AA

CASE

Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant is Mr Muhammad Maaz who is a 32 year old Pakistani national. The applicant arrived in Australia on 28 July 2008 as the holder of a Student (Subclass 572 Vocational Education and Training Sector) visa. The applicant was granted three subsequent Student visas. In 2016 the applicant married a woman who was born in Pakistan but according to the applicant is an Australian citizen.

3. On 15 August 2016 the applicant applied for a Partner visa. That application has not been determined. The applicant was granted a Bridging A (Subclass 010) visa at the time, having held six Bridging E (Subclass 050) visas since 22 December 2014.

4. On 20 September 2018 the applicant was granted a Bridging B (Subclass 020) visa and it was this visa that was cancelled by a delegate of the Minister.

   The primary decision

5. The applicant provided the Tribunal with a copy of the primary decision.

6. The applicant was served with a Notice of Intention to Consider Cancellation of a visa (NOICC) at 11am on 26 June 2020 at the Canberra City Police Station. At 11:14 am on that day the applicant was interviewed by the delegate and at 12:15 pm the same day the delegate handed the applicant a hand written Notification of Decision cancelling the applicant’s visa.

7. The Tribunal is satisfied the NOICC complied with the requirements of s.119(1) of the Act.

8. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant has been charged with family violence related criminal offences and in the delegate’s view the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

9. On 29 June 2020 the applicant applied to the Tribunal to review the decision of the delegate.

   The Tribunal hearing

10. The applicant appeared before the Tribunal on 3 July 2020 by video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

11. The applicant appeared by video link from the Villawood Immigration Detention Centre (VIDC). The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link.

12. At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal also explained the role of the interpreter as an aid to communication during the hearing and afforded the applicant an opportunity to object to the particular interpreter engaged by the Tribunal, which he did not. The Tribunal further informed the applicant that it would allow the applicant to address the Tribunal towards the end of the hearing on any matter the applicant felt was relevant to his review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Does the ground for cancellation exist?

    s.116(1)(e)(ii) - risk to an individual

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

16. According to the primary decision the applicant has been charged with the following criminal offences arising from incidents occurring between 3 April 2020 and 25 April 2020:

    ·Destroy or damage property (2 charges);

    ·Common assault;

    ·Use of a carriage service to menace, harass or offend;

    ·Assault occasioning actual bodily harm; and

    ·Breach of an After Hours Family Violence Intervention Order (FVIO).

17. The applicant told the Tribunal he has attended two hearings to date and there is a third hearing on 14 July 2020 in relation to the criminal charges. The applicant was not sure what the hearing on 14 July 2020 is but said he had pleaded not guilty to all charges except the breach of the FVO, which he says he self-reported, but then also told the Tribunal he has pleaded not guilty to all charges and intends “defending the [FVO] in court”. The Tribunal sought to clarify the situation with the applicant and proceeded on the basis the applicant has or intends to plead not guilty to all charges and to seek to have the FVO set aside.

18. The applicant told the Tribunal, which the Tribunal accepts, that he was granted bail in relation to the criminal charges with the main conditions of that bail reflecting the terms of the FVO that he cannot have any direct or indirect contact or communication with his wife, he cannot go within 150 metres of their apartment in Canberra or her work place and he has to generally stay away from his wife.

    Privilege against self-incrimination

19. As the criminal charges filed against the applicant have not been determined the Tribunal explained to the applicant that he has a privilege against self-incrimination. The Tribunal explained to the applicant the nature and reasons for the privilege and that it meant he did not have to answer questions about the circumstances that led to him being charged. The Tribunal further explained if the applicant chose to put forward his version of events then, as Tribunal proceedings are recorded, the Australian Federal Police could obtain that recording and use it against the applicant in his criminal proceedings. Importantly, the Tribunal explained to the applicant that if he chose not to answer the Tribunal’s questions about the circumstances that led to him being charged with criminal offences, the Tribunal would not make adverse findings or draw adverse inferences against the applicant because it is his legal right not to do so. The applicant indicated to the Tribunal that he understood the privilege and how it operated in this review.

    Information adverse to the applicant

20. The Tribunal shared with the applicant information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review in accordance with the procedure set out in s.359AA of the Act.

21. The Tribunal read the following to the applicant during the hearing:

    The Tribunal has information before it, which it has not received from you, that would be the reason or a part of the reason for the Tribunal to affirm the decision of the delegate to cancel your Bridging B visa that is under review.

    I am going to give you an opportunity to comment on or respond to that information before the Tribunal forms a view about it.

    The particulars of the information are that on the Dept file are two undated documents known as Statement of Facts provided by the Australian Federal Police. The first Statement if Facts alleges you were charged with 5 criminal offences:

    oCharge 1 on 3 April 2020 – destroy or damage property;

    oCharge 2 on 3 April 2020 – destroy or damage property;

    oCharge 3 on 22 April 2020 – common assault;

    oCharges 4 on 24 April 2020  – use of a carriage service to harass or menace or offend;

    oCharge 5 on 25 April 2020 –assault occasioning actual bodily harm.

    The document outlines the circumstances leading to those charges. In summary the document states you and your wife have separated but remained living together, putting your application for a Partner visa in jeopardy.

    Your wife bought you a new mobile phone and you subsequently gave it back to her, but on 3 April 2020 during an argument you grabbed the phone off her and threw it on a tiled floor, rendering it unusable.

    You then grabbed your wife’s laptop and also threw that down on the tiled floor, rendering it unusable.

    On 22 April 2020 you threatened your wife by saying you “will do the worst thing possible” to her and her family while you held the Quran and subsequently grabbed her by the shoulders and forcefully pushed her backwards onto a bed where your wife struggled to free herself and said she couldn’t breathe. You then struck your wife to the back of the head twice even though you are aware she suffers a medical condition typified by high pressure on her brain caused by excess fluid.

    On 24 April 2020 you used WhatsApp to send your wife threatening messages including attacking your wife’s brothers who live in Australia.

    On 25 April 2020 you acted threateningly toward your wife, threw a number of objects at her including a metal coffee thermos, causing your wife to call the police. You then slapped your wife forcefully on the left side of her face over her ear and grabbed her when she attempted to crawl away from you. Your wife was subsequently admitted to hospital and diagnosed with a perforated left ear drum.

    On that same day the police obtained an After Hours Family Violence Order. That order was served on you at 11am on 25 April 2020.

    The second Statement of Facts alleges that in the afternoon and evening of 25 April 2020 you phoned your wife 23 times and sent her 11 text messages. Police arrested you that evening and viewed the call logs on your phone and on your wife’s phone. You participated in an interview that evening and admitted to making the calls and sending the messages, saying you had not read the Family Violence Order.

    On Monday 4 May 2020 the police sought to further interview you, but you declined to be interviewed.
    This information is relevant to your review because it is relevant to both whether there is a ground for the cancellation of your visa and if there is a ground for cancellation, whether the discretionary considerations weigh in support or weigh against the cancellation of your Bridging B visa.

    Do you understand the relevance of the information to your review?

    The consequence for your review if the Tribunal relies on the information in those Statement of Facts is that the Tribunal could find there is a ground for the cancellation of your visa under s.116(1)(e)(ii).

    The other consequence for your review of the Tribunal relying on the information in the charge sheets is that the Tribunal could separately form the view as the charges are so serious involving several separate episodes of physical violence, threats including threats to kills, harassment and menacing behaviour toward your wife that the balance of the discretionary considerations weigh in support of the cancellation of your Bridging visa rather than against its cancellation, which would cause the Tribunal to affirm the decision of the delegate that is under review.

    Do you understand the consequences for your review if the Tribunal relies on the information?

    The Tribunal has not formed any views yet about the information in the Statements of Facts. The Tribunal will not form any view until it hears from you. I invite you to comment on or respond to the information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request.

    Do you want to comment on or respond to the information I have just provided to you now or would you like additional time to consider it before you respond?

22. The applicant indicated to the Tribunal, at the relevant times, that he understood the relevance of this information to his review and understood the consequences for his review if the Tribunal relied upon this information.

23. The applicant did not seek additional time before commenting on or responding to the information the Tribunal shared with him.

24. The Tribunal reminded the applicant about his privilege against self-incrimination before he responded and also explained to the applicant that it is not the Tribunal’s role in this review to determine his guilt or otherwise in relation to the criminal charges and the Tribunal has no view about such matters.

25. The applicant responded that there are lots of “ups and downs” in the information the Tribunal shared with him, he feels especially the dates are not correct and he is defending all charges and knows he will come out not guilty.

26. The applicant told the Tribunal the criminal charges relate to the same thing and are in court now but if he had done those things he would or could have harmed his wife already and he has not. The applicant said the allegation he held the Quran is not true and the allegations he harmed his wife are not true and he has not contacted his wife since he found out he could not.

27. The applicant told the Tribunal he also wanted the Tribunal to know that he was working in the community throughout the COVID-19 global pandemic and put his life at risk to serve the community. The applicant also told the Tribunal that he has life insurance and his wife is the beneficiary of that policy so if anything happens to him his wife will benefit. The applicant said these circumstances show he has no underlying intention to harm his wife and that he is not a threat to the community. The Tribunal reminded the applicant that his Bridging visa was cancelled because the primary decision maker found he was a risk to the health and safety of his wife, not to the community or a section of the community.

28. The applicant also gave evidence that his wife is the most preferred person for him, she is in his heart and the only problem they have apart from the usual ups and downs is with the applicant smoking and since he has been in immigration detention he has quit smoking as he wants to be a better person for his wife. The applicant said he loves his wife and she loves him and he is the one who knows her health better than anyone as she has significant health problems including kidney problems and suffering migraines.

29. The applicant said his he knows his wife misses him because he has received text messages from his wife but has deleted them and not told the police about them because he does not want to ruin his family. The Tribunal sought a more detailed explanation of this evidence from the applicant. The applicant told the Tribunal that his wife called him a couple of times since he has been detained but he did not answer her calls because of the FVO and she texted him once but they have both deleted that message. The Tribunal accepts this evidence.

30. The applicant told the Tribunal his marriage was an arranged marriage that got off to a strong start with the blessings and prayers of both families and should have a strong end. The applicant said he believes the criminal charges and his detention is all a misunderstanding and his relationship with his wife will come out of this even stronger. The applicant said he knows his wife will be suffering while he is detained and he knows what emotions she will be feeling. The applicant told the Tribunal that his wife has “mental health problems” for which she takes three to four tablets per day.

31. The applicant said he applied for the Partner visa in 2016 and his wife controls everything in relation to that application but for him it is not about the Partner visa, it is about his love for his wife and not losing her.

32. The applicant told the Tribunal his family want his wife to reconcile with him but he has told them to stop communicating with her about that because he respects and wants them to respect and follow Australian law and the applicant wants to come out of this situation with a clean record as he has been in Australia for 12 years and has never had any issues until now.

33. The Tribunal accepts the applicant’s evidence about the circumstances of his marriage and his love for and commitment to his wife.

34. The Tribunal does not accept all of the applicant’s evidence, particularly his evidence about his wife’s views, not because it does not believe the applicant, but because the Tribunal did not have the opportunity to hear from the applicant’s wife and does not have any statement from her. The Tribunal makes no adverse inferences against the applicant in this regard as it recognises the applicant is the respondent to a FVO protecting his wife that prevents him from communicating with her or using anyone else to communicate with her on his behalf.

35. The Tribunal directly asked the applicant if he is a risk to the health or safety of his wife. The applicant responded that is not the case, he loves his wife and loves women and cannot harm them. The applicant said he co-operated fully with the Australian Federal Police when they sought to interview him and that there is no way he could harm his wife and he never thinks like that.

36. The applicant told the Tribunal that he and his wife both work for Wilson Security, at different locations. The applicant told the Tribunal the charges are baseless and he wants to see the medical evidence that he harmed his wife. The applicant said his wife went to work the next day after he allegedly harmed her and she has continued to work since.

37. The applicant told the Tribunal that he knows where his wife is working, knows where she lives and where she gets food so if he had intent to harm her he could have but he does not have such intent. The Tribunal accepts that the applicant loves his wife but did not find the applicant’s evidence convincing that he has never harmed his wife or that the information the Tribunal shared with him is false.

38. The Tribunal notes that the applicant is the respondent to an FVO where his wife is named as the protected person and this order of the Magistrate’s Court was obtained by the Australian Federal Police. This indicates to the Tribunal that both the court and the Australian Federal Police thought that the risk the applicant may harm his wife was significant enough to justify the Australian Federal Police seeking the order and significant enough that the court saw fit to issue the order, which on the applicant’s evidence remains current.

1. The Tribunal notes that the Federal Circuit Court of Australia decision in Gong[1] establishes that the possibility that something has occurred in the past is relevant to the Tribunal assessing, as it is required to do by s.116(1)(e), whether there may be a risk of certain conduct occurring in the future and this possibility of something having occurred in the past can be supported by the filing of criminal charges.

   [1] Gong v Minister for Immigration & Anor [2016] FCCA 561

2. Judge Smith explained the relevant law in the following terms:

   42.While some might disagree with the scope of [s.116(1)(e)], there is no challenge in these proceedings to the power of the Parliament to enact it, and I find that that is the effect of the plain and ordinary meaning of the words in their context and so is the construction required by the correct approach to the issue: Theiss v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

   43.… The applicant contended that, if sub-s.116(1)(e) were construed so as to be engaged by the laying of charges, the common law right of the presumption of innocence would be abrogated. There was some debate about the precise scope of the common law right in question. However, I do not need to resolve that issue.

   …

   45.The difficulty with the applicant’s argument is that, even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of the prosecution’s onus of proof: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20; R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8. There is no requirement in it that there be a determination, one way or another, of the guilt of a visa holder and there is no requirement that the visa holder be compelled to give any evidence.

   …

   51.[It was] also argued … that the Tribunal wrongly focussed on the past whereas the statute focusses on the future. I disagree with the submission that this reveals error. What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future. Similarly, where the statute asks whether there “may be a risk”, the possibility that something occurred in the past may have some logical bearing on the answer to that question.

3. Judge Smith in Gong was careful to distinguish that the filing of criminal charges, while able to support a possibility that some event occurred in the past, does not justify a finding by the Tribunal that there is a reasonable basis for the charges. The Tribunal does not make such a finding in this review.

4. The Tribunal finds that there is a ground for cancelling the applicant’s Bridging visa under s.116(1)(e)(ii) because the issuing and currency of the FVO and the filing of criminal charges against the applicant indicates to the Tribunal that there is a possibility the applicant behaved in the past toward his wife in a manner that was a risk to her health and safety such that the Tribunal is of the view that the applicant may be a risk to the health and safety of his wife in the future.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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

6. 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 Procedural Instructions, formerly known as its Procedures Advice Manual, ‘General visa cancellation powers’.

7. The headings below are taken from the Department’s Procedural Instructions and are used for convenience only.

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

8. The applicant explained his visa and study history in Australia, his marriage to his wife and their residences in different cities over time, their recent history and employment in Canberra and their plan to have children in the future, although they do not have any children at present. The applicant told the Tribunal that his wife is an Australian citizen but did not provide any evidence to support this claim. The Tribunal recognises the FVO prevents the applicant from communicating with his wife at present and accepts the applicant’s evidence that his wife’s immigration status in Australia permits her to sponsor the applicant for a Partner visa.

9. The Tribunal asked the applicant if he has a compelling need to remain in Australia. The applicant told the Tribunal that his compelling reason is to stay with his wife, anywhere in the world.

10. The Tribunal accepts that the applicant has applied for a Partner visa and that his wife has significant health issues, which the applicant has told the Tribunal he has in the past and wants in the future to continue to support his wife in managing those issues. The applicant told the Tribunal that as far as he is aware his wife is still sponsoring him for the Partner visa.

11. In the applicant’s circumstances, the Tribunal does not find the applicant has a compelling reason to remain in Australia. At present the applicant is prevented from seeing or communicating with his wife due to the FVO, which the applicant indicated would remain in place until the criminal charges filed against him are resolved. It would make little practical difference in the Tribunal’s view to the assessment of the applicant’s application for a Partner visa whether he is in Australia or Pakistan.

12. There is no information before the Tribunal that a Criminal Justice Stay Certificate has been issued that would effectively prevent the applicant departing Australia.

13. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa but in the circumstances of the applicant having criminal charges pending and there being extensive domestic and international travel restrictions due to the COVID-19 global pandemic at the time of this decision, the Tribunal gives this consideration only modest weight.

    The extent of the applicant’s compliance with their visa conditions

14. The applicant told the Tribunal that he has complied with the conditions of the various visas he has held while in Australia. There is no information before the Tribunal to indicate that the applicant has been found to have breached a condition of a visa he has held.

15. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

16. The applicant told the Tribunal being detained in immigration is taking a mental toll on him because his mother is very ill in Pakistan and could die any day, the applicant feels the loss of freedom particularly as he believes the charges are baseless, he is losing out financially and also feels he will not be able to prepare properly to defend the criminal charges filed against him. The applicant told the Tribunal he has had to borrow AUD2,500 so far to defend the criminal charges filed against him.

17. The applicant told the Tribunal that he misses his wife and knows she would be missing him and it is very hard for them to reconcile while he is in immigration detention.

18. The applicant also told the Tribunal he misses the community in which he lives and to which he has contributed rather than taken during the COVID-19 global pandemic. The applicant gave evidence he is a very good cook and does all the cooking at home and is able to prepare cooked food on a “big scale” using cauldrons and during the COVID-19 global pandemic his community was distributing food to those in need. The applicant expressed that being in his community and contributing and giving back is very important to him mentally and socially. The applicant expressed frustration, while restating his respect for Australian law, as to how someone who contributes to his community in the manner he does could be thought to have done the things he has been accused of.

19. The applicant told the Tribunal he has lived in Australia for 12 years and believes he should be trusted and held credible and that he will continue to obey the law while he lives in Australia.

20. The Tribunal accepts that the applicant is experiencing significant financial and emotional hardship while he is detained in immigration and although there is no formal diagnosis or medical information before the Tribunal, the Tribunal accepts the applicant’s evidence he is also experiencing considerable psychological hardship.

21. The Tribunal asked the applicant what hardship, in the broadest sense, would cancellation of his visa cause his wife. The applicant told the Tribunal his wife is facing a lot of difficulties and she wants to reconcile with the applicant, but that has to be done in a lawful manner. The applicant told the Tribunal that his wife has continued to work, including throughout the COVID-19 global pandemic. The Tribunal asked the applicant about his ongoing relationship with his wife. The applicant told the Tribunal that the relationship is absolutely still there and even though they are not in contact their families are and he feels this experience will make their relationship stronger. The Tribunal accepts that the applicant is of the view that the cancellation of his visa and remaining in immigration detention would cause his wife emotional and potentially psychological hardship.

22. The Tribunal asked the applicant what hardship, in the broadest sense, would cancellation of his visa cause his family in Pakistan. The applicant told the Tribunal his parents are 70 years of age, do not work and are dependent on the applicant as their only son. The applicant told the Tribunal he does not send money back to his parents regularly, but does do so when they need financial support, and after his last pay sent them AUD300. The applicant feels the emotional hardship will be even greater for his parents because they chose his wife for him.

23. The applicant expressed concern over his mother’s health and also the situation in Pakistan with the COVID-19 global pandemic as the applicant said everything has closed down in Pakistan, even the banks. The applicant told the Tribunal that Pakistan has the third highest COVID-19 mortality rate of all affected countries.

24. The Tribunal accepts that the applicant’s parents are suffering considerable emotional hardship and will suffer some financial hardship if the applicant’s Bridging visa is cancelled and the applicant remains in immigration detention.

25. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.

    The circumstances in which the ground for cancellation arose. Were the circumstances in which the ground for cancellation arose was beyond the applicant’s control?

26. The circumstances in which the ground for cancellation arose are set out in paragraphs 16 to 18 and 21 of these reasons.

27. In summary, the circumstances are that the applicant has been charged with five family violence related criminal offences, is the respondent to an FVO and is subject to conditions of bail that reflect the conditions of the FVO.

28. The Tribunal accepts that the detailed allegations set out in paragraph 21 of these reasons are just that, unproven allegations. The Tribunal makes no findings of fact in relation to those allegations and draws no adverse inferences against the applicant based on those allegations.

29. The circumstances include that the Australian Federal Police, who attended the applicant’s apartment, were sufficiently concerned for the safety of the applicant’s wife that they applied for the FVO and the Magistrate’s Court was sufficiently persuaded by those concerns to issue the FVO and to replicate the FVO conditions in the applicant’s conditions of bail.

30. There is no information before the Tribunal that the circumstances in which the ground for cancellation arose was beyond the applicant’s control, noting that the applicant has denied the allegations and gave evidence he intends to defend the criminal charges.

31. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it great weight.

    The past and present behaviour of the applicant towards the Department

32. The applicant told the Tribunal that in his 12 years in Australia he has had no problem with the Department or Australian authorities and he has always respected them. The Tribunal accepts this evidence.

33. The primary decision maker found the applicant “has been co-operative and polite in dealing with [Australian Border Force] today”.

34. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

35. The applicant’s evidence is that no-one is dependent upon his visa. The Tribunal accepts this evidence.

36. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

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

37. The Tribunal explained to the applicant what the mandatory legal consequences would be if his Bridging visa was cancelled, including that he would become an unlawful non-citizen under s.189 of the Act and be liable to be detained and could be deported from Australia under s.190 of the Act, although the Tribunal noted the applicant has applied for a Partner visa that has not yet been decided.

38. The Tribunal told the applicant cancellation of his Bridging visa would also mean that s.48 of the Act applies which would prevent him from applying for some visas, but would not affect his application for the Partner visa.

39. The applicant told the Tribunal that the cancellation of his visa is a very big thing for him and he has never been an unlawful non-citizen in his time in Australia since 2008. The applicant said that if in the worst case he is deported he wants to return to Pakistan with a clean slate because having a criminal record is a big and unusual thing.

40. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

41. The applicant told the Tribunal that he has not and does not intend applying for a Protection visa and if the COVID-19 global pandemic is brought under control in Australia and Pakistan there is no reason that he cannot return to Pakistan, although he does not want to return as a person with a criminal record because he knows in his heart he has not done anything wrong.

42. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

43. The applicant’s visa is a temporary visa.

44. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Any other relevant matters

45. In his closing evidence to the Tribunal the applicant said he has tried to explain his situation truthfully and has always been honest with the police, the Department and authorities. He said he trusts Australian courts and will respect the decisions made, including if his visa is cancelled and in relation to his criminal charges, noting that if he is convicted of the criminal offences he expects his visa would be cancelled anyway.

46. The applicant told the Tribunal he has not harmed his wife or anyone and he finds it very painful to be detained in immigration detention, where it feels like he is being punished already and serving a jail sentence even though he has not been convicted of anything.

47. The applicant told the Tribunal his relationship with his wife is genuine and he has a lot of respect and love for his wife. The applicant said he accepted his wife in the past and will die with love for her in his heart even despite the criminal law charges and it is all a misunderstanding. The applicant reiterated that he would never hurt his wife and that she would say the same and he is ready to defend himself against the criminal charges, The applicant said he believes he will come out of that situation okay, even though he is facing court.

48. The Tribunal has considered this evidence in these reasons for decision.

    Conclusion

49. Considering the applicant’s circumstances as a whole, the Tribunal concludes that the applicant’s Bridging visa should be cancelled under s.116(1)(e)(ii) of the Act.

50. The Tribunal finds that the considerations that weigh in support of the cancellation of the applicant’s visa, namely the applicant’s lack of compelling reason to remain in Australia and the circumstances in which the ground for cancellation arose, outweigh those considerations which weigh against the cancellation of the applicant’s visa.

    DECISION

51. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    Michael Ison
    Senior Member