1719460 (Migration)

[2019] AATA 1701

1719460 (Migration) [2019] AATA 1701 (6 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719460

MEMBER:Nicola Findson

DATE:6 January 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 06 January 2019 at 9:05pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) visa – a risk to the safety of an individual or individuals – charged and convicted of serious offences against his wife – genuine relationship with his wife – applicant has two Australian citizen children – best interests of children – emotional and psychological hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189, 197C, 198

CASES
Gong v MIBP [2016] FCCA 561

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 22 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant’s presence in Australia is, or may be, or would or might be, a risk to the health or safety of an individual or individuals. That was in circumstances where, in particular (as set out in a Notice of Intention to Consider Cancellation (NOICC) dated 11 July 2017), the applicant had been charged with offences against his 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.

3. The applicant appeared before the Tribunal on 16 November 2018, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

5. The applicant is a citizen of Afghanistan, born in [year].  He was granted a Partner (Provisional) visa in March 2015 and entered Australia holding that visa in May 2015.  The applicant was granted his partner visa on the basis of his relationship with his wife, Mrs [A], an Australian citizen of Afghani descent, whom he married [in] January 2013.  Together, the applicant and his wife have two children, currently aged [ages]. 

6. The applicant provided to the Tribunal a copy of the primary decision record, for the purposes of his review application.  Prior to the hearing the Tribunal also received submissions, accompanied by documentary evidence.  That evidence included statutory declarations from the applicant as well as his wife, character references, reports and supporting statements from the applicant’s mother-in-law and officers of the Department of Justice (including a psychologist), and photographs.

7. The applicant was charged with two offences against his wife in April 2017.  The Court also imposed protective bail conditions on him, which remained in place up until he had his charges dealt with by the Court [in] September 2017.   In a submission to the Tribunal dated 15 October 2018, the applicant indicated that after the delegate made his decision to cancel his visa, he pleaded guilty to offences of threat to harm and aggravated assault occasioning bodily harm.  By way of punishment, a Community Based Order was imposed, as well as a sentence of a 7 month term of imprisonment, which was suspended for one year.  The submission also indicates that after the applicant was sentenced in respect of these matters, he pleaded guilty to charges arising out of breaching protective bail conditions, notwithstanding, he claims, the bail conditions were never interpreted to him and he did not understand them.  He was required to serve concurrent terms of imprisonment on 2 July 2018 for the breach of bail matters.

8. Since April 2017, the applicant has had regular access to his sons and has also reconciled with his wife.  The applicant resumed living with his wife and children after he was released from prison in July 2018.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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). 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?

11. A visa may be cancelled under s.116(1)(e) 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, 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. 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].

12. The applicant submits that while he denies he is a risk to the safety of his wife, he concedes that given his recent convictions, his presence in Australia may be considered a risk to her safety, despite that risk being minimal.

13. Based on the convictions recorded against the applicant, the Tribunal is satisfied that his presence in Australia may be considered a risk to the safety of an individual, namely his wife. 

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

15. 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’.

16. The Tribunal makes the observation that it formed a favourable impression of the applicant as a witness.  He gave his evidence in an open, straightforward manner without prevarication.  

    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

17. The applicant indicated in his written and oral evidence to the Tribunal that he travelled to Australia in May 2015, to be with his wife.  The evidence before the Tribunal is that the applicant now has two Australian citizen children with Mrs [A], and that they have lived together from the time he arrived in Australia up until April 2017 and since July 2018.  There is no evidence before the Tribunal that the applicant’s intention to travel to and stay in Australia was not for the purpose stated in his Partner visa application.  The Tribunal acknowledges, and considers it significant, that the applicant is able to fulfil the purpose of his travel to Australia by continuing to be in a genuine relationship with his wife and jointly caring for their children, and is of the view that this evidence weighs in favour of not cancelling the visa.

    the extent of compliance with visa conditions

18. The information before the Tribunal indicates that the applicant’s Partner visa was not subject to any conditions. 

19. The applicant’s written submission to the Tribunal, however, highlights that at the time he breached his protective bail conditions (which conditions were imposed after he was charged with offences against his wife) the applicant was the holder of a Bridging visa E, which was subject to condition 8564.  That condition requires that the visa holder must not engage in criminal conduct.   It is submitted that while the applicant pleaded guilty to the breach of bail offences and was punished by a period of imprisonment, the bail conditions were never interpreted to the applicant in the Pashto language and he did not fully understand the serious legal and immigration consequences associated with breaching them.  At his hearing, the applicant indicated to the Tribunal that he had abided by his bail and visa conditions up until a few weeks prior to being dealt with by the Court in relation to the offences against his wife.  Further, he indicated that the telephone SMS contact with his wife which led to the breach of his bail conditions was in relation to her seeking financial assistance from him in relation to their unwell child.

20. In the circumstances, the Tribunal gives this factor some weight towards the applicant’s visa being cancelled.

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

21. In this case, it is submitted that the cancellation of the applicant’s visa means his inevitable departure from Australia, with little to no prospect of a return, or him being detained on an indeterminate and ongoing basis.  It was indicated to the Tribunal that the applicant’s wife and children would not accompany him to war-torn Afghanistan, if he was to be removed there, given the danger they claim they would face.   On the basis of the evidence before it, the Tribunal is satisfied that any separation of the applicant from his family, arising from the visa cancellation, will cause significant financial, psychological and emotional hardship to the applicant, his wife and their two children.  

22. The Tribunal observes that on 11 October 2017, following the applicant’s sentencing in relation to the offences against his wife and after being charged with breach of protective bail condition offences, a delegate decided not to cancel the applicant’s Bridging visa as he was satisfied that the reasons not to cancel the visa outweighed the grounds for cancellation. The delegate’s decision records that the applicant would be subject to significant hardship if his visa was cancelled; his wife had requested that he return home and that “she has no fear for her safety”; and that ongoing separation of the applicant and his family would result in “psychological and/or emotional damage” to his Australian citizen wife and children. 

23. The evidence before the Tribunal is that prior to being convicted of the offences against his wife, the applicant was employed as a [occupation] and his family was financially stable.  The Tribunal was told that after the delegate decided to cancel the applicant’s visa, his wife became reliant on welfare payments to cover rent and childcare expenses.  The Tribunal accepts that if the visa is cancelled, the applicant will be unable to maintain employment in Australia and that would have an adverse financial effect on his family. 

24. There is also evidence before the Tribunal indicating that the applicant’s term of imprisonment was psychologically harmful to him and that both he as well as his wife were caused substantial emotional distress during the time they were forced to be separated. In this particular case, where the applicant’s relationship with his wife has endured and they jointly care for their children, the Tribunal is satisfied that there is considerable emotional and psychological hardship that would be done to the applicant and his wife if the visa is cancelled.  In addition to the emotional and psychological hardship due to a permanent and ongoing separation from one another, the applicant’s wife would become the sole carer for their young children; she would be unable to continue the [studies] she commenced when the applicant was released from prison; and she would experience financial hardship.

25. The Tribunal also accepts that there is sufficient evidence to indicate that the applicant’s two children would suffer hardship as a result of being denied the opportunity to maintain a parental connection with their father, if the visa is cancelled. The Tribunal considers that the best interests of the children in this case are a relevant consideration, and inclines it towards allowing the applicant to remain in Australia in order to ensure that they continue to have close contact with their father, and that their mother is supported throughout their upbringing.

26. The Tribunal gives this factor significant weight towards the visa not being cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. The ground for cancellation arose because the applicant was charged, and has now been convicted, of serious offences against his wife. 

28. The Tribunal does not accept that the circumstances in which the ground of cancellation arose were beyond the applicant’s control and considers that this factor weighs against the applicant.

    past and present conduct of the visa holder towards the department

29. The delegate noted that there is no indication that the applicant has been anything other than cooperative with the Department.  The Tribunal considers that this is a factor that weighs in the applicant’s favour.

    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

30. As set out above in this decision record, if the visa were cancelled, the applicant would be liable to detention and involuntary removal from Australia as soon as is reasonably practicable, pursuant to s.189 and s.198 of the Act.  It is submitted that given his concerns about returning to Afghanistan, a country he fled in 2008, this will likely mean a long period of indeterminate detention for the applicant. 

31. In addition, it is submitted that s.48 of the Act means that a decision to cancel the applicant’s visa will leave him with limited options to apply for further visas in Australia.  He may be eligible to lodge a protection visa application but will be subject to immigration detention while that application is being assessed (including an assessment under the character provisions of the Act).

32. It is further submitted that the applicant would be affected by a risk factor mentioned in subclause (3) of Public Interest Criterion 4013 for a period of three years after a decision to cancel was made. If the applicant were to apply for another visa to Australia following a cancellation under s.116(1)( e) he would need to demonstrate that compassionate or compelling circumstances that affect the interests of an Australian citizen exist to justify granting the visa within three years from the date of cancellation.

33. The Tribunal accepts the applicant’s submissions that the abovementioned consequences of cancelling the applicant’s visa are extremely serious, particularly when viewed in light of the impact they could have on the applicant’s ability to see his family in Australia.  It gives this factor significant weight towards the visa not being cancelled.

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

34. The applicant made submissions to the Tribunal in relation to Australia’s international obligations. Particular reference was made to Australia’s non-refoulement obligations under the Refugees Convention as well as Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).  It was submitted that the legal and practical reality is that a visa cancellation in this case will result in the applicant - who has previously been recognised as a refugee in [another country] - facing indefinite immigration detention (the implications of which are known to be extremely detrimental) or being returned to a country he knows he is not safe in.  The delegate’s decision indicates that an International Treaties Obligations Assessment (ITOA) would be completed before a decision to remove the applicant was made, and therefore, a decision to cancel the visa “would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention”.  However, the Tribunal notes the applicant’s submission that the applicant’s concerns about returning to the country he fled in 2008 and Australia’s non-refoulement obligations must be considered by the Tribunal, particularly given that it is not mandatory for the Department to complete an ITOA before deciding on the applicant’s removal: s.197C of the Act. 

35. The applicant’s submission also referred to the Convention on the Rights of the Child 1989 (CROC).  Article 3 of the CROC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  Article 9 of the CROC concerns the principle that children not be separated from their parents against their will except in specified circumstances.  In addition, Article 23 of the ICCPR provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.  In considering the CROC and ICCPR, in particular the Articles referred to by the applicant as well as the policy guidance of the Department on these matters in the context of cancellations, the Tribunal considers that the best interests of the child in this case are a relevant consideration, and inclines it towards allowing the applicant to remain in Australia in order to ensure that a parental connection between his children and him is maintained.

36. The Tribunal has taken into account that the consequences of the cancellation of this visa are that the applicant is likely to be placed into immigration detention until the Department makes a decision as to his removal from Australia, which is of unknown duration, and that he will be separated from his children on a permanent basis.  The Tribunal considers that there is scope for potential breaches of international obligations if the applicant’s visa remains cancelled and accords this consideration significant weight.

    any other relevant matters

37. There were other relevant matters highlighted in submissions – including evidence as to the applicant’s good character and support for him. There is evidence before the Tribunal that the applicant has taken active steps towards rehabilitation and minimalisation of risk since being punished in relation to the offences - he has undertaken courses; completed the Community Based Order imposed on him; and engaged well in sessions with a psychologist.  There is evidence before the Tribunal, from both the applicant’s wife and mother-in-law, that the applicant is a supportive husband.  There is also evidence that the applicant is a contributing member of the community and has recently secured employment in order to support his family.    

38. The applicant told the Tribunal that while he is ashamed of his behaviour that led to the delegate making the decision to cancel his visa and he has lost a great deal because of it, he has learned from his experience and is positive about moving forward and providing the best life he possibly can for his wife and children.

1. The Tribunal has found that there are grounds for cancelling the temporary visa held by the applicant as he has been convicted of serious offences against his wife.  However, when the Tribunal moves from considering the circumstances in which ground of cancellation arose to considering the other factors discussed in these reasons, especially those concerning the applicant, his wife and their Australian citizen children, the Tribunal ultimately concludes that the visa should not be cancelled because there are factors of sufficient weight in favour of not cancelling the applicant’s visa to make that outcome the preferable decision.   

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

   Nicola Findson
   Member