The Applicant committed a number of offences between August 2011 and June 2017, the most serious of which was dealt with in February 2015, which was an occasion of domestic violence involving the Applicant's wife. His child was also present.
I, however, regard this as an offence of situational violence, that is, violence which occurred in the specific circumstances of the breakdown of his relationship with his then wife. It was not violence at large. He has committed no other offences of violence. The Respondent accepts this. So much can be discerned from the moderate sentence of suspended imprisonment for seven months which was imposed. A breach of the domestic violence sentence was dealt with in June 2017 with an imprisonment period of 12 months, three months of which was to be served in custody. This was because, on various occasions, the Applicant had committed further but in my view, relatively minor offences. There was no increase in the seriousness in his offending nor cumulatively do I consider the offences overall as being worryingly serious. No offence was committed whilst in immigration detention.
[2]
The harm to the community is the likelihood of commission of further minor offences: property, driving, and the use of drugs. I regard the likelihood, however, as remote, having regard to the evidence that I have accepted as to the Applicant's reformed behaviour.
In considering the risk of harm to the Applicant's former wife, I regard the likelihood of further behaviour of that type as extremely remote. It was situational violence brought about by the breakdown of the relationship. The Applicant was sufficiently distraught at the time to threaten self-harm. I am satisfied on the evidence that he loves his son. In my opinion, he is also not disposed nor capable of perpetrating any harm on his son who is now 10 years old.
Overall, I do not regard the Applicant as likely engaging in further criminal or other serious conduct or that he will reoffend.
[3]
I have concluded that a decision to revoke the decision to cancel the Applicant's visa is in the child's best interest. The child is now 10 years of age.
In considering the best interests of the child, I must take into account the following factors.
Although in the past, because of his drug habit, the Applicant had a less than ideal relationship with his child, that has become far more meaningful with contact both personally whilst in immigration detention and by telephone contact. As well, clearly the Applicant wishes to play a positive parental role in the future.
I accept his determination and the evidence of his former wife is to similar effect. Having regard to the view I have formed about the Applicant's prior conduct on the one occasion when he behaved violently in the child's presence, there is nothing to suggest that he will be other than a positive influence in the future.
I further accept the evidence that the original offence came about because the Applicant was trying to make contact with his son albeit in misguided circumstances.
I regard separation of the Applicant from the child as having a likely devastating effect on a 10-year-old male. There is no evidence of any other male figure in his life. The former wife is supportive of future contact. She has promoted contact whilst the Applicant has been in immigration detention. Although it would be possible for the child and the Applicant to undertake telephone contact in the circumstances, I regard that as highly undesirable when it would be far preferable for the child to know his father in a much more vivid way. Although the child lives with his mother, I regard normal contact with his father to be essential for the child's well-being and development.
Furthermore, I infer from the former wife's evidence that the child, who asks often about his father, is desirous of having a proper relationship with him.
While the Applicant did commit an offence of violence in the presence of his child, I am persuaded by the former wife's attitude that the Applicant is not likely to do any harm or visit physical or mental abuse on the child.
There is no evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct to which I have referred.
I am persuaded that the interests of the child weigh heavily in the overall consideration of the various competing factors whilst giving due weight to the primary considerations of the nature and seriousness of the conduct and the risk to the Australian community. These carry, in my view, substantially less weight in this case.
It is relevant to note that, although I have referred to the Applicant's drug-taking as such, it was brought about by an injury and initially by the use of prescription medication and then overuse of opioids. The Applicant is not, in my estimation, someone who falls within the traditional categorisation of "drug addict".
[4]
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere may be appropriate to not revoke the mandatory Visa cancellation. Non-revocation may be appropriate simply because the nature of the character, concerns or offences are such that the Australian community would expect that the person should not hold a Visa.
I have regard to these considerations in assessing the facts of this application. No clear test is legislated in terms of this primary consideration even though the expectations should be those of reasonable fair-minded citizens acquainted with all the facts. I am prepared to accept that those expectations would ultimately be in favour of the Applicant.
I will deal now with the other considerations.
[5]
International non-refoulement obligations and impact on Australian business interests
[6]
These are of no relevance in this case.
As to the strength, nature and duration of ties, in this matter, there is a strong and significant bond between father and child. The Applicant has limited family ties in Australia. He has a sister who lives in Australia while most of his family reside in Iran. The Applicant has some working history in Australia although due to his criminal offences, he has also had to rely on Centrelink benefits. He has made a limited, positive contribution to the Australian community.
Most of his family live in Iran. He has lived in Australia for only nine years. As to the extent of impediments, if removed, I am prepared to accept the Respondent's submissions that the Applicant suffers from an injury from which he developed reliance on oxycodone. Removal to Iran, so the Respondent accepts, could cause some impediment to his health. Further, returning the Applicant to Iran, in my view, will not create any language or cultural barriers. The Applicant would be unlikely to be isolated.
Overall, these considerations, collectively at best, are, apart from the strong and significant bond between Applicant and child, rather neutral in their impact in the Applicant's favour.
[7]
The Applicant does not pass the character test. The sole issue for determination is whether I am satisfied that there is another reason why the original decision should be revoked. Having regard to the views I have formed and on application of the principles and requirements of Direction No. 65, I am satisfied there is another reason. This is founded in the view I have formed of the remote likelihood of commissions of further offences the remoteness of risk to the Australian community, the extreme unlikelihood of any offence of violence being committed against the former wife or any other Australian citizen. I take into account the view I have formed that the Applicant is now and is likely to remain, drug-free. I place considerable weight on the interests of the Applicants 10 year old child who resides in Australia. For these and all the other Direction No. 65 matters to which I have referred, I conclude that the original decision should be revoked.
[8]
The decision under review be quashed. Order that, in lieu thereof, that the cancellation of the Applicant's visa be revoked.
[9]
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC