1619661 (Migration)

[2018] AATA 4434

1619661 (Migration) [2018] AATA 4434 (11 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619661

MEMBER:Bridget Cullen

DATE:11 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 11 September 2018 at 5:57pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – risk to Australian community – pending criminal charges – pleaded not guilty – remains in custody – letter of support from employer – degree of hardship – relationship with applicant’s son – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 348

Migration Regulations 1994 (Cth), r 2.12, Schedule 4, Public Interest Criterion 4013

CASES
Rani & Ors v MIMA (1997) 80 FCR 379

Tien & Ors v MIMA (1998) 89 FCR 80

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 10 November 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was granted a 457 Temporary Work (Skilled) visa on 2 January 2013 on the sponsorship of [Company 1]. But for its cancellation, his visa would have expired on 2 January 2017.

3. Up until about March 2015, the applicant was in a de facto relationship with [Ms A]. They have one son together, [Master B], who was born [date]. At the time of the first applicant’s entry to Australia, he was accompanied by [Ms A], her daughter, and [Master B] as dependent family members.  

4. The relationship between the applicant and [Ms A] broke down.  Subsequently, the applicant was charged by the Queensland Police with a raft of offences.  As at the time of decision, the applicant remains charged with the following offences:

   ·Criminal Code 1899 (Qld) s177(2) Contravention of Domestic Violence Order (on [date]);

   ·Criminal Code 1899 (Qld) s474.18(2) 7x Charges Improper use of Emergency Call Service – Vexatious (on [date]);

   ·Criminal Code 1899 (Qld) s474.17(1) 2x Charges Using a carriage service to menace, harass or cause offence (between [dates]);

   ·Criminal Code 1899 (Qld) s205(1) 3x Charges Disobedience to lawful order issued by Statutory Authority (on [date]);

   ·Criminal Code 1899 (Qld) s29(1) & 47(9) Breach of Bail Condition – Domestic Violence Order (between [dates]); and

   ·Criminal Code 1899 (Qld) s177 (2)(B) Contravention of Domestic Violence Order (between [dates]).

5. Although the applicant had been charged with the following offences:

   ·Criminal Code 1899 (Qld) s363(1)(a) Child Stealing and Enter Premises and Commit Indictable Offence Criminal Code 1899 (Qld) s421(2) (on [date]); and

   ·Criminal Code 1899 (Qld) s359E(1) & (3) (C) & 47(9) Unlawful stalking contravenes/threatens to contravene an order/injunction – Domestic Violence Offence (between [dates]),

   he was found not guilty of these charges [in] June [2018].

6. On the basis of the criminal charges, the delegate cancelled the applicant's visa under s.116(1)(e)(ii) of the Migration Act 1958 (Act). The delegate concluded that on the evidence before him, the applicant's presence in Australia may be a risk to [Ms A’s] safety under that section, and that the proper exercise of her discretion favoured cancelling the applicant's visa.

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

8. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant (“applicant”). The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

9. The applicant has advised the Tribunal that [Ms A] is now the holder of a partner visa, and both her daughter, as well as [Master B], are included as dependent applicants on that visa application.[1]

   [1] Submissions filed on Applicant’s Behalf, dated 8 February 2018, Folio 56.

10. The applicant appeared before the Tribunal on 9 February 2018 to give evidence and present arguments via videolink from the [Correctional] Centre, where he is in custody awaiting the hearing of the pending charges, as set out in paragraph 4, above.

11. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing in person.

12. 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

13. 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?

14. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

15. The Tribunal issued a summons to the Queensland Police Service (QPS) for the applicant's person history which was subsequently provided to it [in] February 2018, and an identical copy of the [February] 2018 material again [in] July 2018. The summons documents reflect that the applicant remains charged with those matters set out in paragraph 4, above.

16. The Tribunal wrote to the applicant on 13 June 2018, providing him with his Queensland Criminal History and seeking his response. The Tribunal did not invite the applicant to comment again, following receipt of the [July] 2018 material for the reason that it was identical to the [February] 2018 material that he was invited to comment on.

17. The Tribunal informed the applicant that the information is relevant to the review because it suggests that his presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. Depending on his response, the letter further informed the applicant that if the Tribunal relied on his Queensland Criminal History in making its decision, it may decide that the ground for cancellation exists under section 116(1)(e)(ii) of the Migration Act 1958, resulting in the Tribunal affirming the decision under review.

18. The applicant’s representative replied to the Tribunal’s invitation on 27 June 2018, relevantly as follows:

    With respect to [the applicant’s] criminal history, it is noted that but for the pending charges, [the applicant] has no prior convictions within the state of Queensland.

    With respect to the pending criminal charges, we are instructed that [the applicant] was found not guilty of the charges of entering premises with intent to commit an indictable offence and child stealing [in] June 2018 in the District [Court].

    [The applicant] remains in custody for the remaining charges of unlawful stalking, attempting to pervert the course of justice, possession of an indictable quantity of dangerous drugs and related summary charges. He does not have bail on those charges. We understand that the DPP will be presenting the indictment for the remaining charges in the [District] Court [in] June 2018.

    We are instructed by [the applicant’s] criminal lawyer that the indictment does not include the drug possession charge, thus the DPP may no longer be proceeding with these charges. The remaining charges are unlawful stalking and attempting to pervert the course of justice. While no formal plea has been entered, [the applicant] has provided instructions that he intends to plead not guilty to those charges.

    We are further instructed that the trial would not get a listing until sometime in the first half of 2019.

    Given [the applicant’s] clean history but for the pending convictions and noting the fact that he has been found not guilty of the charges of entering premises with intent to commit an indictable offence and child stealing, together with his intentions to challenge the remaining convictions, our client reiterates the submissions dated 8 February 2018 and his evidence at the hearing. Our client maintains his innocence and he is rigorously defending the charges against him.

19. On 10 July 2018, the applicant provided a further response, which he mailed to the Tribunal from the [Correctional] Facility.  He writes as follows:

    Following the conclusion of my recent trial, I thought it wise to update you on my matter.

    As you are probably aware, and as I had previously advised you was likely to occur ,we received a directed verdict by the Judge of Not Guilty, due to a malicious prosecution.

    At the conclusion of trial, we expected all other charges to be dropped against me. Especially considering, both my ex-partner and constable [C] opened themselves up to indisputable perjury charges during the trial.

    The DPP however decided to drop drug charges against me but uphold the prosecution, but at a lower level, District court.

    The remaining charges are pervert the cause of justice, which we have a locked tight case that I encouraged justice, and the police have made malicious representation, and a stalking charge where we can prove that all that occurred was the police where made aware of the risks of the mother dealing drugs in the presence of my son. This is also a locked tight, proven defence, the child protection act overrides all other legislation in such circumstances. So there is no potential for me to be convicted, of either matter. We also have the transcript from officer [D], informing [Master B’s] mother she has been reported for drug dealing, and informing her if drugs are found in a concealed location in her car, and discovered without DNA or fingerprints, that I will be arrested. One month later, [Ms A] contacted [Officer D], to inform her drugs under exactly these conditions. It is now know, [Ms A] was with [Officer D], only 17 minutes previously at the [named] police station.

    The DPP have offered me a no sentence release, (As they have previously (since November 2017)) but on our refusal, as I am not guilty, they served an indictment. My lawyer feels that the only reason the DPP have not withdrawn the charge is due to my visa situation. He believes the DPP are hoping that they can delay the matter sufficiently, that my family and I either run out of funds, or lose motivation and decide to plead guilty and leave my son at risk as a not guilty verdict is ultimately fruitless. So I will plead guilty just to head home to the UK.

    The case is so weak, my lawyer believes the DPP have not considered that we can request a dismissal certificate or stay.

    This was matter was listed before the District court [in] June. My lawyer has informed me that the two remaining charges have no prospect of success. He informs me that I now have two options.

    1.    Remain incarcerated until a 2019 trial, then ultimately get proven not guilty, again by directed verdict.

    2.   Apply for a Stay or dismissal certificate, likely to be heard September or October 2018.

    My lawyer feels we have three options that will be successful if we move forward with a stay or dismissal.

    1.Abuse of process.

    2.Malicious prosecution.

    3.Frivolous and vexatious, ultimately doomed to failure.

    I asked him to progress with a dismissal certificate. So it is likely, I will be released without charge in the coming months. (September or October)

20. The applicant spoke freely about his relationship with [Ms A] in the hearing.  The tenor of his response to the allegations against him is conspiratorial in nature – he attempts to paint a picture that his son is in danger, and that [Ms A] plotted against him, in collaboration with law enforcement. 

21. While the Tribunal acknowledges that the applicant has been found not guilty of the charges of entering premises with intent to commit an indictable offence and child stealing, he remains in custody for the remaining charges of unlawful stalking, attempting to pervert the course of justice, possession of an indictable quantity of dangerous drugs and related summary charges.

22. As explained to the applicant in the hearing, it is not the role of this Tribunal to determine whether he is, or is not, guilty of the charges that remain.  The Tribunal acknowledges that the applicant asserts he is innocent.  There is no information in front of the Tribunal that objectively indicates that the applicant’s release is imminent, or that the charges have been, or are likely to be dropped. 

23. The Tribunal acknowledges that the applicant has expended a significant amount of money on privately funded criminal legal counsel. Regardless, the threshold in s116(1)(e)(ii) is a low bar – it requires the Tribunal to determine that the presence of the applicant in Australia is or 'may' be a 'risk', or would or 'might be', a 'risk' to the health or safety of an individual or individuals. If this test is met, the cancellation power is enlivened.

24. The information contained in the Queensland Police Service Court Brief sets out the case against the applicant.  It asserts a pattern of calculated stalking on the applicant’s part, following the demise of his domestic relationship with [Ms A], and a pattern of conflict in relation to the care arrangements for [Master B].  The Tribunal infers from the charges having been brought against him that the Queensland Police considered the evidence against him to be sufficiently probative to justify charging him with the offences he remains alleged to have committed, and that he has a case to answer on these charge. That the Queensland Police Service, which is an independent and authoritative body, decided to charge the applicant carries substantial weight with the Tribunal. On those grounds, the Tribunal finds that the applicant may or might have engaged in unlawful stalking of Ms Taylor, and the remaining charges he faces, as alleged.

25. Whilst trite, the Tribunal considers that a person's past behaviour points to how that person will or might behave in future.  The fact of the charges as set out here is sufficient for the Tribunal to conclude that the applicant's presence in Australia is or may be, or would or might be, a risk to the health or safety of [Ms A].

26. 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 power to cancel the visa should be exercised.

    Consideration of discretion

27. 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’.

    The purpose of the applicant's travel to and stay in Australia

28. The applicant entered Australia on a 457 visa. A 457 visa, as the program existed at the time of the applicant’s entry, enabled a business to sponsor a skilled worker if it could not find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation.

29. Whilst the applicant was working in the nominated role, and has experience in his area of work, he has been incarcerated since his arrest [in] September 2016, without bail.   As a consequence, he has been unable to fulfill the purpose of his travel to Australia.  The 457 visa would have, but for the cancellation, expired on 2 January 2017, more than 18 months ago as at the time of decision.

30. The applicant said that he wants to remain in Australia to work for [Company 1].  He has provided the Tribunal with a letter from [Mr E], [a Manager] of [Company 1].  Whilst [Mr E’s] letter does not appear on [Company 1] letterhead, he expresses a willingness to re-employ the applicant.  He acknowledges the charges against the applicant, and says that the applicant is, “an asset to the [Company 1] industry in Australia”. 

31. As the letter from [Mr E] is written in his personal capacity, and does not appear to be written with the actual authority of [Company 1], the Tribunal does not consider it to be a promise on the part of [Company 1] to re-employ the applicant.  As the applicant is incarcerated and unable to work for his sponsor, and the visa has expired, the Tribunal places little weight on this factor in the applicant’s favour.

    The extent of compliance with visa conditions and past and present conduct of the visa holder towards the department

32. There is no information before the Tribunal indicating that the applicant has breached any conditions attached to his visa, or that he has been uncooperative in his dealings with the department.  The Tribunal places some weight on these matters as factors in the applicant’s favour.

    Circumstances in which the ground for cancellation arose

33. The cancellation power under s.116(1)(e)(ii) was enlivened when the Queensland Police Service charged the applicant with various offences, including the stalking of [Ms A]. The applicant maintains his innocence.

34. In this review, the Tribunal is not tasked with deciding whether the applicant is guilty or innocent of the charge, nor does not have sufficient evidence before it to decide that matter. Accordingly, it is not able to assess whether the applicant will, or will not, be convicted on the charges that remain against him. On that analysis, this consideration is neutral.

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

35. The applicant relies primarily on the hardship relating to his future contact with his son, [Master B], now aged [age], as a factor weighing against cancellation. If his visa remains cancelled, he will need to return to the United Kingdom. That will limit his contact with [Master B] and deprive him of the opportunity to have a meaning relationship with his son.  Although the applicant expresses concern about leaving his friends in Australia (some of whom have provided him with positive character references), and returning to the United Kingdom, it is clearly his relationship with [Master B] that is his primary concern. 

36. The applicant has not seen [Master B] since 2015.  He asserts that his son is neglected, and potentially at risk of winding up in care.  He claims that his mother is not providing him with a safe environment.  The applicant has submitted letters from his mother and father, both of whom reside in the United Kingdom.  Collectively, these letters assert that the applicant is the “better parent,” and express a dim view of [Ms A’s] parenting abilities.  The applicant’s parents had limited opportunity to observe [Ms A’s] parenting once she began to reside in Australia with the applicant, but paint her to be a lazy parent who leaves [Master B] to watch television, and makes limited efforts to engage him.  Even if these matters are true, they would be insufficient as a basis to remove [Master B] from the care of his mother.

1. The applicant submits that has review proceedings on foot in the Family Court in relation to the care of [Master B].   There is no further information before the Tribunal about these proceedings, or the progress of them.  It remains then, that since 2015, [Master B] has only resided with his mother. 

2. The Tribunal accepts that the applicant being separated from [Master B] would cause him relevant hardship. The applicant’s desire to spend time with his son was made clear to the Tribunal.  The Tribunal acknowledges the views of the applicant’s parents, and his friends and former co-workers, that the applicant is a loving father.   The Tribunal weighs that in the applicant's favour. However, there are other matters that slightly reduce slightly the weight the Tribunal can give this hardship in the circumstances.

3. Firstly, a 457 visa is a temporary one that does not create an expectation of a permanent stay in Australia. Failing any further application by the applicant to extend his stay in Australia, he was always going to return to the United Kingdom once his 457 visa expired on 2 January 2017. The Tribunal notes that the applicant intended to apply for permanent residency, but any expectation of it being granted is merely speculative on his part.

4. Secondly, returning to the United Kingdom does not necessarily mean that the applicant will be deprived indefinitely of the opportunity to see [Master B]. The Tribunal is unable to determine what contact would be allowed in the context of Family Court orders, as that information is not available to the Tribunal.  The United Kingdom is a safe, Western democracy from which travel to and from Australia is readily available.  But for some potential short term restrictions that the Tribunal addresses below, the applicant would likely be able to return to Australia to visit [Master B].  Under the right conditions, [Master B] could travel to the United Kingdom to visit the applicant and his paternal grandparents.

5. The Tribunal weighs hardship in the applicant's favour, however reduces the weight for the reasons explained above.

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

6. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas for which the applicant may apply. They are not subject to the s. 48 restriction.

7. Consequently, s. 48 limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant's future application actions into account.

8. Public Interest Criterion (PIC) 4013(3) in the Regulations provides that a person is affected by a risk factor if a visa previously held by the person is cancelled because the Minister was satisfied that a ground mentioned in s.116(1)(e) applied to the person. In that event, PIC 4013 operates by mandating that a visa application made within three years of that person's visa being cancelled under s.116(1)(e) will be refused unless one of the stated exceptions apply.

9. The Tribunal has taken into account that potential restriction on the applicant's future Australian visa applications and weighed the issue in his favour. The Tribunal does not have sufficient evidence before it to assess whether the applicant is likely to avail himself of an exception to the PIC's operation such as compelling or compassionate circumstances justifying a further visa grant. The applicant may well be able to avail himself of that exception given [Master B’s] presence in Australia. Conversely, the Tribunal has taken into account the possibility that the applicant will not be able to make out an exception to the PIC and also weighed that in his favour.

10. However, to be balanced against that is the plain intent of PIC 4013 to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review.

    Whether there would be consequential cancellations under s.140

11. The information before the Tribunal indicates that [Ms A] is now the holder of a partner visa, and both her daughter, as well as [Master B], are included as dependent applicants on that visa application. The Tribunal places little weight on this factor in the applicant’s favour.

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

12. In considering whether to exercise its discretion to cancel the applicant's visa, the PAM3 policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations, and to take Australia's international obligations into account. These include Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC). At common law, the best interests of the Australian children are also a relevant consideration in a review such as this one.

13. Article 3(1) of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative and legislative bodies, the best interests of the child shall be the primary consideration. Article 5 requires state parties to respect the responsibilities, rights, and duties of the extended family in a manner consistent with the evolving capacities of a child. Article 9 provides that children shall not be separated from their parents against their will. Article 24 concerns the right of a child to enjoy the highest attainable standard of health.

14. In effect, those articles of the CRC provide that the Department (and the Tribunal) should consider the interests of children affected by their decisions.

15. The applicant's visa being cancelled could bring forward the applicant's return to the United Kingdom. That will remove him from geographic proximity to [Master B]. Potentially, that invokes Article 9 of the CRC by separating the applicant from his son. The Tribunal gives that some weight, but the weight is limited. As stated above, the applicant is in Australia on a temporary 457 that would have expired already, but for the cancellation.

    Any other relevant matters

16. The applicant has completed a range of courses since he has been incarcerated, and has performed positively.  Whilst this reflects positively on the applicant’s abilities to undertake study, the Tribunal places little weight on this as a factor in his favour here, for the reason that his purpose in Australia was to work for his sponsor, not undertake study.

    Conclusion on discretion

17. The Tribunal has considered the appropriate exercise of its discretion carefully. 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 457 (Temporary Work (Skilled)) visa.

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

    Bridget Cullen
    Member