Welanda Hettiarachchi (Migration)

[2023] AATA 2966

Welanda Hettiarachchi (Migration) [2023] AATA 2966 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akila Iromal Welanda Hettiarachchi

REPRESENTATIVE:  Mrs Geraldine Therese Adikari (MARN: 1805258)

CASE NUMBER:  2303414

HOME AFFAIRS REFERENCE(S):          BCC2022/5679285

MEMBER:Kira Raif

DATE:7 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 07 September 2023 at 7:05am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal convictions, community corrections order and fine – discretion to cancel visa – circumstances of offending in separate incidents – alcohol counselling and reconciliation with wife – wife’s own temporary visa due to expire next year, and intention to apply for permanent visa – hardship to employer – economic and social conditions in home country – legal consequences of cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 9 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Sri Lanka, born in April 1988. He was granted the visa in August 2022. In February 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate found that there were grounds for cancelling his visa under s 116(1)(g). The applicant provided a response to the NOICC and his visa was cancelled in March 2023. The applicant seeks review of the delegate’s decision.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

6. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 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))

7. 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled (Provisional) Subclass 485 visa in August 2022 as a secondary applicant. The visa was to be in effect until 24 August 2024.

9. It is stated that the Department had received information from the relevant authorities that in

   
   

   August 2022 the applicant had been charged with family violence offences committed against his spouse between July and August 2022 and a Family Violence Intervention Order was issued on 22 August 2022. The applicant was subsequently charged with additional family violence offences in relation to conduct that occurred in November 2022 in relation to his partner.

10. The primary decision record indicates that on 6 December 2022 the applicant was convicted at Kyneton Magistrates’ Court of the following offences in relation to his spouse:

01/08/22	Unlawful assault	Sentenced to a community corrections order for 12 months
	Make threat to kill
10/11/22	Contravene family violence intervention order – intimidate harm / fear	Sentenced to an aggregate term of imprisonment of four months and a supervised community corrections order for 12 months. Ordered to undergo an assessment and treatment for alcohol abuse and an offending behaviour program.
	Make threat to kill
	Persistent contravention of family violence NTC order
	Unlawful assault
	Commit indictable offence while on bail
	Contravene a conduct condition of bail
	Intentionally destroy property

1. The primary decision record indicates that the applicant lodged an appeal against the severity of the sentence and was granted bail pending the appeal. The appeal was due to be heard on 22 May 2023. In his written evidence to the Tribunal the applicant has indicated that in May 2023 Judge Carmody stood aside the sentence and re-sentenced him to a 12- month community corrections order.

2. On 14 December 2022 the applicant was convicted of further offences:

14/12/22	Contravene family violence final intervention order (committed on 11 and 12 December 2022)	Fine $750
Contravene a conduct condition of bail (committed on 11 and 12 December 2022)

1. The Tribunal finds that the applicant was a holder of a Subclass 485 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. 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 reg 2.43(1)(oa).

2. The Tribunal is satisfied that the ground for cancellation in s116(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

3. 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

4. In his written submissions to the delegate and the Tribunal the applicant states that he arrived in Australia as a holder of a student visa being dependent on his wife’s visa. It is stated that he and his wife have been living in Australia since January 2017 as a married couple and he has supported his wife for many years until she completed her studies and is now able to work.

5. The applicant states that he and his wife have been married since November 2015 and have lived a happy married life and he has been supporting his wife throughout her studies. They had lost their jobs during the pandemic and decided to move to a different state in the hope of finding suitable employment.

6. In his submission to the Tribunal of 22 August 2023 the applicant states that the AVO expires on 22 August 2023 and his wife has expressed her support for him and in July 2023 applied to the court to vary the condition of the AVO to allow communication. This was granted on 31 July 2023 and since that time the applicant and his wife had been in contact on numerous occasions. It is anticipated that they will live together once the AVO expires. The applicant states that if he is forced to leave Australia, he will lose the opportunity to prove to his wife that he is now a reformed man. With respect, the Tribunal is of the view that the applicant can prove that whether or not he resides with his partner (noting in particular his evidence that there has been, and can continue to be, telephone contact between them).

7. The Tribunal has had regard to the statement from the applicant’s partner which was submitted to the Tribunal on 22 August 2023. She also states that apart from the ‘issues’ last year, she and the applicant had lived a peaceful life and she is ready to give him a second chance. The applicant’s partner repeated that in her oral evidence to the Tribunal. The applicant also provided a statement in which he expressed hope to remain with his wife, start a family and have a peaceful life together. He states that he had undergone rehabilitation programs and stopped drinking.

8. In oral evidence, the applicant stated that if he was to return to Sri Lanka, he would be separated from his partner and the family would be destroyed or separated. It is his first offence and he and his wife feel that they need each other.

9. The applicant told the Tribunal that the AVO was put in place around August 2022 and about 4–6 weeks before its expiry, his wife made contact with the police to change the conditions of the AVO to allow them to have contact. When asked why there was a delay in her doing so, the applicant told the Tribunal that his mother-in-law had an accident in Sri Lanka and his wife was providing financial support to her parents but the Tribunal is not satisfied that the provision of such support would have prevented the applicant’s spouse from seeking a variation to the AVO earlier, if she had any desire to do so. The applicant’s partner offered a different explanation, stating that she wanted the applicant to learn from his mistakes and complete rehabilitation before she was ready to forgive him. In her post-hearing statement to the Tribunal the applicant’s spouse stated that there were several reasons she could not reunite with the applicant earlier. She states that she wanted to give him sufficient time to understand his mistakes and to teach him a lesson, despite feeling worried and lonely, and also to give him sufficient time for rehabilitation, knowing that he was ordered by the court to undergo a rehabilitation program. The applicant’s spouse refers to her own ill-health and her mother’s health, which had affected her significantly. The spouse states that she also concentrated on her skills assessment. Once she was able to, she had applied to change the conditions of the AVO and they have been living together once the Order had expired.

10. In the Tribunal’s view, the fact that it took the applicant’s spouse nearly 11 months to seek the variation of the AVO does not suggest that she was willing to re-establish her relationship with the applicant until recently and that she was simply prevented from re-establishing the relationship by her mother’s health. That view supported by the oral evidence and the written submissions of the applicant’s spouse who confirmed that in addition to health concerns, there were other reasons that delayed the re-establishment of the relationship, such as giving time for the applicant to recognise his misconduct and to complete rehabilitation. It is of some concern to the Tribunal that the applicant appears not to recognise his wife’s concerns when suggesting that it was only her mother’s health that was an issue.

11. Nevertheless, the Tribunal accepts that the applicant and his partner have reconciled and now live together. The Tribunal accepts that if the applicant was to leave Australia as a result of his visa being cancelled, that may lead to the separation of the applicant and his partner (although the applicant also told the Tribunal that his wife might return to Sri Lanka, her evidence to the Tribunal is that she would remain in Australia and pursue a permanent visa).

12. The Tribunal is of the view that the separation of the applicant and his partner would be temporary, given the fact that the applicant’s spouse holds a temporary visa that is due to expire in about 12 months. At the end of that period she may be required to leave Australia unless she is granted another visa. She has indicated her intention to apply for a temporary and then a permanent visa and to sponsor the applicant, should his visa be cancelled.

13. The Tribunal accepts that though the presence of his spouse in Australia may constitute a strong reason for the applicant to remain in Australia given the circumstances of their relationship in the past – including repeated family violence and a period of separation for close to one year – the Tribunal does not consider this to give rise to a compelling need for the applicant to remain in Australia. The Tribunal finds that this consideration weighs slightly in favour of the applicant.

    The extent of compliance with visa conditions

14. There is no evidence of the applicant not complying with visa conditions. The applicant states in his submission to the Tribunal that he has been living in Australia for over six years and significant weight should be given to his past compliance with visa conditions. The Tribunal gives some weight to that factor in favour of the applicant.

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

15. In his written submissions the applicant states that if his visa is cancelled, it would cause hardship to his employer Voyager Caravans. The applicant submits that he has been a valuable part of their team since joining the company and he would be hard to replace. He provided in his response to the NOICC and to the Tribunal a statement and a declaration from his employer supporting these claims. The applicant stated that he employs one person to assist him with the overload of work and this employee would lose her livelihood if his visa is cancelled.

16. In his written submission to the Tribunal the applicant also refers to the contribution he has made to the Australia economy and the hardship that has been caused to his employer due to the cancellation of his visa as he would be hard to replace. There is little evidence before the Tribunal to show what steps the employer has taken to replace the applicant, or to train other staff to perform the job that the applicant had performed. There is very little probative evidence to support the applicant’s claim that he would be hard to replace and that the cancellation of his visa has caused hardship to his employer.

17. The applicant refers to his unique skills and past employment and states that he will be able to use his skills and knowledge to the benefit of the community. The applicant told the Tribunal that he has been recognised as a model employee in 2020 and his employer remains supportive and the job is still available to him if his visa is reinstated. The applicant states that he has not been able to work since his visa was cancelled in March 2023 and the employer found others to replace him but the others are not as good as him.

18. The Tribunal accepts that the applicant is highly valued by his employer and that the employer is willing to offer him a job if the applicant is able to engage in employment. However, the Tribunal does not accept the applicant’s claim that his employer would experience hardship if his visa remains cancelled, noting the applicant’s evidence that he has not been working since March 2023 and has been replaced by his employer. Despite the applicant’s claim that the others are not as good as him, there is no evidence to indicate that the employer has experienced enduring hardship as a result of the applicant’s visa being cancelled.

19. The applicant states that Sri Lanka does not have a comprehensive support system as exists in Australia and if his visa is cancelled, he will lose the opportunity to seek the help he needs to get his life back. The Tribunal finds that submission unpersuasive, noting that the visa in question is a temporary visa only which does not permit the applicant to remain in Australia permanently or even for a lengthy period. The primary decision record indicates that the visa would have ceased in August 2024. The applicant’s evidence to the Tribunal is that his wife intends to apply for a permanent visa (and he would be included in that application or sponsored for a visa later on) but there is no guarantee that the applicant would be granted a permanent visa in Australia.

20. Significantly, the applicant has not provided probative evidence to support his claim that adequate support will not be available to him in Sri Lanka. It is not sufficient to state that help is not available. The applicant presented no evidence of any research as to what may be available and why that help is not sufficient or appropriate.

21. The applicant refers to his connections to his employer, his wife, friends and family, stating they will all suffer greatly if he is forced to leave. He states that if the visa is cancelled, he could not prove to his wife that he is a changed person. As noted above, the Tribunal is not convinced that the applicant can only demonstrate his willingness to change, and that he is a ‘new person’, by remaining in Australia. The Tribunal is of the view that he would equally be able to do so if he was to return to Sri Lanka, even if it was to lead to the geographical separation with his partner. Similarly, the Tribunal is of the view that the applicant will be able to maintain his connections to friends and family whether or not he continues to live in Australia.

22. The applicant states that his wife intends to pursue a permanent visa (he was not sure which) and he intends to be included in that visa but does not know if he could make the application from overseas in light of his criminal convictions. The Tribunal is mindful that the convictions would remain, whether or not the applicant’s visa is reinstated. On the limited evidence before it, the Tribunal is not satisfied that the applicant would lose the opportunity of seeking another visa in the future as a result of his visa being cancelled (while acknowledging that he might have to make the application offshore, would be subject to an exclusion period and that it may take a lengthy period before the applicant would be able to return to Australia, if ever).

23. The applicant told the Tribunal that they had postponed having children due to the visa issues and there may be a further delay if his visa is cancelled. Assuming the applicant’s partner will not accompany him to Sri Lanka, the Tribunal notes that neither the applicant nor his partner have been granted a permanent visa so the ‘visa issues’ remain. Neither suggested that they have immediate plans to start a family. The Tribunal does not consider that in these circumstances, these plans would be delayed by the cancellation of the applicant’s visa (as opposed to other visa processes).

24. The applicant spoke about the hardship that would result from the separation with his wife. He states that his wife was like a mother to him. The Tribunal is mindful that the applicant and his partner had been separated for close to 12 months while the AVO was in place and there is little probative evidence to indicate they have experienced any significant hardship. Indeed, the evidence of the applicant’s partner is that she did not want to change the conditions of the AVO to enable contact because she wanted the applicant to reflect on what he had done. The applicant states that this period made him realise the mistakes that he had made and the Tribunal accepts that now that the couple have reconciled, their preference is to remain together.

1. The applicant told the Tribunal that if his visa is cancelled and if he has to return to Sri Lanka, his wife wants to return to Sri Lanka with him but he is discouraging her because her plans of establishing her future in Australia would fail. The applicant states that he wants his wife to remain in Australia. It remains unclear whether the applicant’s partner would return to Sri Lanka, if the applicant is required to leave Australia but the Tribunal notes that if she was to return to Sri Lanka, the applicant’s claims about the hardship of separation are of limited value. The applicant’s partner told the Tribunal she would remain in Australia to pursue her permanent residence and if that is the case, the Tribunal accepts that there may be a lengthy separation between the applicant and his partner. The Tribunal is generally prepared to accept that in the circumstances where the couple appear to have reconciled, such separation may cause a degree of hardship to both.

2. The applicant told the Tribunal that his wife used to have a government job in Sri Lanka and if she was to return to Sri Lanka, she would not be able to return to that job. The Tribunal accepts that this may be the case, but also notes the evidence of the applicant’s partner that she does not intend to return to Sri Lanka but will remain in Australia to pursue a permanent visa. The loss of employment in Sri Lanka would thus appear to be of no consequence for the applicant’s partner. The Tribunal also notes that the loss of government employment was the result of the couple’s decision to migrate to Australia rather than due to the cancellation of the applicant’s visa.

3. The applicant told the Tribunal that he could not do the same work or work as a carpenter in Sri Lanka as he does in Australia due to the economic hardship and because the same tools are not available. He would be not able to better his skills. Even if that was the case, the applicant’s evidence is that he had previously been employed in the finance sector in Sri Lanka and there is no suggestion that the applicant would be unable to use his other skills to find gainful employment. The applicant told the Tribunal that he finds work in the caravan industry more fulfilling and enjoyable. The Tribunal acknowledges that this may be the case. The applicant has not provided any probative evidence to satisfy the Tribunal that caravan construction work would not be available to him but even if that was the case, the Tribunal does not consider that the applicant’s claimed inability to work in a particular field of caravan construction would amount to hardship.

4. The applicant told the Tribunal that his plan was to live in Australia, have children and have his own business in the future. That would not be possible if his visa is cancelled. The Tribunal accepts that this is so, however, even if the applicant’s visa is reinstated, that does not guarantee his ability to remain in Australia. conversely, if the applicant’s visa is cancelled, that does not preclude the applicant from seeking other visas in the future (subject to the limitations set out below).

5. The applicant’s partner in her statement indicates that if she is to return to Sri Lanka permanently as a single or divorced person, it would have negative effect on her parents and it would be difficult for her to face friends and neighbours. It is unclear why she would need to return to Sri Lanka as a single or divorced person, as there is no suggestion that the parties would separate irrespective of the visa held by the applicant.

6. The applicant’s partner also refers to the economic depression, lack of employment and other hardship that  would be caused by return to Sri Lanka. These claims have been addressed elsewhere in relation to the applicant and, in relation to his partner, the evidence is that she would remain in Australia and apply for a permanent visa, so the Tribunal does not accept that such hardship (unemployment, poor economic situation etc in Sri Lanka) would apply to her even if the applicant’s visa is cancelled.

   Circumstances in which ground of cancellation arose

7. The ground for cancellation arises because the applicant has been convicted of offences and had been a holder of a temporary visa. In his declaration provided in response to the NOICC and in his submission to the Tribunal of 22 August 2023 the applicant acknowledges his offending behaviour and states that he takes full responsibility for the charges.

8. In his declaration the applicant states that he and his wife had a happy life until the ‘incident’ occurred last year. He states that they were facing numerous problems during COVID and lockdowns and both decided to start a new life in a different state. The applicant states that on the night of the incident he had quit his job and was in a state of distress and under a lot of stress as he could not get the funds to support his and his wife’s parents’ visit to Australia. The applicant states that he never acted in this manner before and is ashamed of his offences. In oral evidence, the applicant told the Tribunal that he was not able to see his parents for a number of years and was stressed by the separation from his parents, financial hardship and due to work related issues. The applicant’s partner in her post-hearing submission also states that she may have contributed to the applicant’s depression by not allowing him to travel to see his parents and she refers to a safe and happy relationship between them other than the incidents in question.

9. With respect to the August 2022 offences, the applicant described his desire to travel to Sri Lanka to see his family and said that he thought his wife was interfering and preventing his travel. His wife denied having contact with his uncle so he held his wife by the shoulder and shook her and asked her to tell him what conversations she had with his family or he would kill her. The police were called and his wife reported that she was scared. The applicant told the Tribunal that on that occasion he was sober.

10. With respect to the November 2022 offences, the applicant states that he was under pressure and was drinking and had lost his job. He told his wife that his plans to bring his parents to Australia could not eventuate because of the August incident and about the loss of job and while drunk, he slapped his wife three times, smashed her phone and threatened to kill her. The applicant states that he was drunk and could not recall what happened and only found out when the police told him the following day.

11. With respect to the breaches of the Family Violence Orders in December 2022, the applicant states that this was a genuine mistake for which he takes full responsibility. In his submission to the Tribunal the applicant states that he had accidentally called his wife when looking at Facebook photos and he terminated the call immediately and had sent a message to his wife to apologise and to state that it was a mistake. The applicant states that the police and the magistrate accepted it was a mistake.

12. The applicant states that his conduct was out of character and his actions were not caused by poor character but were made by a person who made rash and immature decisions and suffered a lapse of judgment. He has no prior offending. The applicant refers to his past employment and the skills which he can use to contribute to the community.  The Tribunal is mindful, however, that there were three separate incidents which resulted in convictions and even if the last incident was an unintentional breach, that cannot be said in relation to the first two. In the Tribunal’s view, the repeated offending three months apart cannot be said to be a result of a lapse of judgment or a rash decision.

13. The applicant refers to his involvement in the community and his voluntary activities and his involvement in alcohol counselling. The applicant refers to his desire to self-improve and make positive change in his life, including improving family relationships, legal issues and managing risky behaviours. The applicant states that his participation in these sessions indicates his acceptance that he needs help to correct his behaviour. It is stated that he is willing to undergo further programs relating to his behavioural issues and hopes he can remain in Australia to seek the help that he needs. The applicant provided in his response to the NOICC a character reference from his employer and evidence of his involvement with the Australian Community Support Organisation. The applicant had repeatedly expressed his remorse.

14. The applicant provided in his response to the NOICC a statement from the specialist counsellor. The Tribunal accepts that the applicant had completed a number of sessions and accepts his willingness to continue to participate in further rehabilitation. The Tribunal is mindful that the first offending in August 2022 did not result from the applicant’s use of alcohol, as he told the Tribunal he was not drunk at the time.

15. The applicant states that other than the present convictions, he has never been in trouble with the law. (The applicant provided to the Tribunal his Sri Lankan police certificate.) He has not reoffended since the last breach in December 2022. He is truly remorseful and wants an opportunity to remain with his wife in Australia. The Tribunal accepts that evidence.

    Past and present behaviour of the visa holder towards the Department

16. Nothing adverse is known about the applicant’s behaviour towards the Department and the applicant claims that he has been cooperative in his dealings with the Department.

    Whether there would be consequential cancellations under s 140

17. The applicant had been granted a visa on the basis of meeting the secondary visa criteria. There are no consequential cancellations 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

18. 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 he would have limited opportunities to make visa applications onshore due to the limitations imposed by s 48. The applicant may also be subject to an exclusion period if he was to make an application offshore.

    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

19. There are no children who would be affected by the cancellation. The applicant told the Tribunal that his life would be ruined if he was to return to Sri Lanka as he would not be able to start a new life or start a business due to the poor economic situation in Sri Lanka. The Tribunal found the applicant’s claims to be vague and unpersuasive. The Tribunal does not consider that these give rise to Australia’s protection obligations.

20. As for the principles of family unity, the Tribunal is mindful that if the applicant’s visa remains cancelled, he will be eligible to seek another visa in the future to be reunited with his partner, should she decide to remain in Australia. The Tribunal also notes that the applicant’s partner holds only a temporary visa at present which would necessitate her departure from Australia unless she is granted another visa.

21. The Tribunal finds that Australia’s international obligations would not be breached as a result of the applicant’s visa being cancelled.

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

22. The visa in question is not a permanent visa.

    Any other relevant matters

23. In his submission to the Tribunal the applicant refers to his involvement with the Australian Community Support organisation. He refers to his participation in the MYAF program for assistance with his alcohol use and counselling and his attendance at counselling sessions. He provided to the Tribunal evidence of his engagement with these services and a statement from Ms Amira Al Halabi of MYAF confirming the applicant’s engagement with counselling sessions. The applicant states that he has been actively participating in these sessions and accepts the need to correct his behaviour. He is willing to undergo further programs and hopes he can remain in Australia to seek the help that he needs.

24. The applicant states that he had complied with the community corrections order. He provided in his submission to the Tribunal a number of character references, which include statements from his parents, brother and brother-in-law, former teacher, his doctor and friends. The Tribunal accepts that those who provided these references believe the applicant to be a person of good character.

25. The applicant submits that he wants to prove to the Australian government that he is a reformed person. To the extent that the Australian government needs to see whether the applicant is a reformed person, the Tribunal is of the view that it is not necessary for the applicant to remain in Australia to prove that. The applicant’s transformation can equally effectively be proven if the applicant was to reside overseas and not engage in any criminal conduct. The Tribunal notes that the visa in question is a temporary visa and if the applicant or his partner were to apply for a permanent visa in the future (and if the applicant is included in that application), an assessment would then be made as to whether the applicant passes the character test. That would involve an assessment as to whether the applicant is likely to engage in criminal conduct in Australia and the applicant’s ability to abstain from criminal behaviour would be relevant. In the Tribunal’s view, it is not necessary for the applicant to remain in Australia to prove that he is of good character.

26. The applicant told the Tribunal that he has completed counselling and stopped drinking alcohol. As noted above, the applicant’s evidence to the Tribunal is that the first offending in August 2022 occurred when he was sober and the offending conduct was not due to his use of alcohol. Thus, while the applicant’s participation in alcohol-related programs may somewhat reduce the risk of reoffending, that is not necessarily the case if the applicant has not addressed other causes of his conduct. However, the Tribunal accepts that the applicant has completed a number of courses and the Tribunal considers it is likely that the risk of reoffending has significantly reduced as a result.

27. The applicant’s partner gave oral evidence to the Tribunal stating that she supports her husband and wants to include him in her future visa application that she intends to make. She said that if the applicant has to leave Australia, she would remain in Australia, obtaining her permanent residence and then she would sponsor the applicant for the visa. The applicant’s partner told the Tribunal that the applicant no longer smokes or uses alcohol and she wants to give him another chance. The representative also submits that weight should be given to the applicant’s attitude to correcting his behaviour. He has had 12 months to reflect on his mistakes. There are also consequences to both the applicant and the sponsor if the visa is cancelled.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that there are grounds for cancelling the visa.

29. In considering whether or not the visa should be cancelled, the Tribunal accepts that hardship may be caused to the applicant and his partner by the cancellation, particularly if it was to lead to their separation for what may be a lengthy period. The evidence before the Tribunal is that the applicant’s partner would remain in Australia and pursue a permanent visa and then sponsor the applicant and if all these applications are successful, it may be several years before they are reunited. The Tribunal accepts that they have now reconciled and therefore that a lengthy separation may cause hardship to both. The Tribunal also accepts that there may be a degree of hardship caused to the applicant by having to return to the country where he would need to re-establish himself, seek new employment, etc. These factors weigh in favour of setting aside the cancellation.

30. The Tribunal does not consider that, in the circumstances of this case, the presence of the applicant’s partner gives rise to a compelling reason for the applicant to remain in Australia. The Tribunal does not consider that Australia’s international obligations would be breached as a result of the cancellation. The Tribunal acknowledges that there are legal consequences to the cancellation, including limited visa options for the applicant in the future. The Tribunal accepts, and gives significant weight, to the fact that the applicant had completed several rehabilitation programs and has expressed his willingness to continue with these. The Tribunal has found that the risk of reoffending may have reduced. These factors also weigh in favour of setting aside the cancellation.

31. However, the Tribunal has decided to give greater weight to other considerations and, most significantly, the circumstances in which the ground for cancellation arises. The applicant had been convicted of a series of offences, which occurred over the period of about four months and involved distinct and separate incidents. The applicant described that during the first incident he shook his wife and threatened to kill her. She reported being scared as a result. During the second incident he slapped his wife, smashed her phone and also threatened to kill her. These are serious incidents and serious conduct involving violence and threats of violence in relation to another person. That conduct seems to have been entirely unprovoked and the fact that the applicant engaged in multiple incidents about three months apart does not support his contention that the incidents were the result of rash decisions. The Tribunal considers this weighs very heavily in favour of the cancellation.

32. The applicant claims he has now reformed and both he and his partner spoke about the absence of such conduct since the incidents above. However, the Tribunal is mindful that they have been living together for a very short period since the AVO has expired and in the Tribunal’s view, that short period is insufficient to establish that the applicant has now changed.

33. The Tribunal notes that the applicant holds only a temporary visa that is valid for another year. Much of the hardship to which the applicant refers assumes that he would be entitled to remain in Australia (he refers to his plans to start a business, have a family, obtain Australian citizenship, etc.) but that cannot be assumed.

34. Having considered all the circumstances, and acknowledging that there are a number of considerations that weigh in favour of setting aside the cancellation, the Tribunal has decided to give the greatest weight to the circumstances in which the non-compliance occurred. The Tribunal has determined that, in the circumstances of this case, this consideration outweighs others.

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

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif
    Senior Member