1507479 (Migration)

[2015] AATA 3043

1507479 (Migration) [2015] AATA 3043 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507479

DIBP REFERENCE(S):  BCC2015/1194036

MEMBER:Hannah McGlade

DATE:8 July 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 08 July 2015 at 3:10pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant had been charged by South Australia police with the criminal offence Threats to Kill. The offence related to the applicant’s wife and child. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

6. 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)(i). 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?

7. A visa may be cancelled under s.116(1)(e)(i) 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.

8. The applicant is this matter has been charged by South Australia police with a criminal offence being Threats to Kill. The offence concerned the applicant’s wife and son. This is a very serious offence and the department file contains information from the police as to the offence. The applicant told the tribunal he would plead guilty to the offence.

9. The tribunal finds that the applicant has been charged with a serious offence being Threats to Kill his wife and child and that his presence in Australia may be a risk to his wife and child, and moreover, to other persons, in particular women and children.

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

11. There are no matters specified in the Act or Regulations 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’.

12. The applicant told the tribunal he would be attending court on the 17th of July and he would be entering a guilty plea. He said he cannot live without his family and he apologises and wishes to have a chance to be with his family. He has a young son born in Australia. It will be very hard for him to leave his son.

13. The applicant said that he was under the influence of alcohol and he will not use alcohol again. His brother and representative told the tribunal that the applicant also suffered depression as a result of an incident in India. He said he had spoken to the applicant’s wife, who has an intervention order, and she wishes for the applicant to be given another chance.

14. According to the applicant, he has a very good track record in Australia, having been employed as a driver. He has never had an altercation or incident at his work.

15. The tribunal notes that the applicant has expressed remorse and promised not to abuse alcohol, which he believes explains his conduct. Also, he claims this was out of character.

16. The tribunal has reviewed the department file and the information concerning the police charges. This is a very serious offence and circumstances that clearly posed a high risk (with the possibility of loss of life) to the applicant’s wife and child. The tribunal is concerned that there is a real possibility that the applicant may continue to be a risk to the safety of his wife and child, and moreover, other persons (in particular women and children) in Australia. The tribunal accepts there will be hardship to the applicant upon the visa being cancelled. Notwithstanding, due to the serious nature of the offence and the risk that the applicant may continue to pose to his wife, child and other women and children in Australia that he may form relationships with, the tribunal has decided that the visa should be cancelled.

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

    DECISION

18. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.

19. The Tribunal has no jurisdiction with respect to the second named applicant.

    Dr Hannah McGlade
    Member