1725001 (Migration)

[2018] AATA 2454

1725001 (Migration) [2018] AATA 2454 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725001

MEMBER:Kate Millar

DATE:17 May 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 17 May 2018 at 9:11am

CATCHWORDS

Migration – Cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Whether the grounds for cancellation exist – Whether the applicant may be a risk to the health or safety of an individual or individuals – Interim Intervention Order against the applicant – Intervention Order shows the applicant may be a risk to the health or safety of an individual or individuals – Witness credibility – Attempts to mislead the Tribunal – Whether the discretion to cancel the visa should be exercised – Compelling circumstances – Best interests of the child – Risk posed outweighs compelling circumstances – Decision affirmed

LEGISLATION
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth), ss 48, 116, 359AA, 359A, 375A

Migration Regulations 1994 (Cth), r 2.12

CASES

Gong v Minister for Immigration [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 [in] October 2017 made by a delegate of the Minister for Immigration 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) of the Act on the basis that [the applicant] had been charged with two counts of rape, one count of attempted rape and one count of aggravated assault against his spouse, and that therefore the presence of [the applicant] in Australia is or may be, or would or might be, a risk to the health or safety or an individual or individuals in Australia.

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 November 2017, 15 March 2018 and 8 May 2018 to give evidence and present arguments, and was represented in relation to the review by his registered migration agent.

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. The grounds include the ground set out in s.116(1)(e). This states that the Minister may cancel a visa if satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health and safety of an individual or individuals.

7. If satisfied that a ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled.

   SECTION 375A CERTIFICATE

8. A certificate under s.375A of the Act was issued in regard to information provide to the Tribunal by the Department of Home Affairs. The Tribunal considered the information, regarding the withdrawal of sponsorship of [the applicant], was relevant to the decision and may be reason or part of the reason for affirming the decision under review and as a result put this information to [the applicant] under s.359AA of the Act.

   SECTION 359A INFORMATION

9. At the first hearing of this matter, [the applicant] submitted that the charges against him had been withdrawn and that he anticipated that the intervention order would also be withdrawn.  He was invited to provide a Certificate of Record from the Magistrates Court to support his submissions.

10. [The applicant] provided a Certificate of Record showing the withdrawal of the charges and the withdrawal of the application for an intervention order and the revocation of the interim intervention order, together with a copy of a letter from his criminal lawyer attaching a Certificate of Record stating that ‘on page 2 of the certificate, it clearly indicates that the Intervention Order was withdrawn on 5 December 2017’.

11. The Tribunal obtained a further Certificate of Record from the Magistrates Court which showed a further interim intervention order had been made on 14 December 2017.  [The applicant] had not disclosed that he was again subject to an interim intervention order.

12. The information obtained by the Tribunal from the Magistrates Court was put to [the applicant] under s.359A of the Act. Specifically, that:

    ·He is subject to an interim intervention order made 14 December 2017. 

    ·The application was made by the police. 

    ·The order names [the sponsor] as the protected person. 

    ·It requires, among other things, for him not to have contact with [the sponsor] or be within 50 metres of her, or her residence, or her place of employment. 

    ·It requires him to vacate particular premises; and

    ·[The sponsor] has withdrawn her sponsorship of him.

13. [The applicant] was advised of the relevance and effect of the of the information  as follows:

    ·Section 116(1)(e) provides a ground for cancellation where the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health and safety of an individual.

    • The issuing of an interim intervention order is evidence that he may be a risk to [the sponsor].
    • If the Tribunal finds a ground to cancel his visa exists, it must consider whether to cancel his visa.
    • A factor it may take into account is his conduct toward the Tribunal.
    • On 21 December 2017, after the interim intervention order had been issued, he provided a Certificate of Record for [Matter Number 1] showing an application for an interim intervention order had been withdrawn.
    • He did not provide information on, or the certificate of record for, [Matter Number 2] where an interim intervention order was made.
    • He failed to disclose that his sponsor had withdrawn her sponsorship. 
    • A further factor the Tribunal may take into account is his continued eligibility for the visa.
    • The sponsor has withdrawn her sponsorship of him.  If he is no longer the spouse or defacto partner of his sponsor, a basis on which the visa was granted no longer exists.

    If the Tribunal relies on this information it would find, subject to his comments, that:

    • The issuing of an interim intervention order is evidence that he may be a risk to [the sponsor].
    • In failing to provide information that there is a current interim intervention order he has attempted to mislead the Tribunal.
    • As he is restrained from having contact with his sponsor and must not approach her, a basis on which the visa was granted no longer exists.

14. In response, [the applicant]’s newly appointed representative provided submissions, and as a result a further hearing was held.

15. [The applicant] said he did not attempt to mislead the Tribunal as he had provided a copy of the new intervention order to his previous migration agent, and the agent did not provide it to the Tribunal.  He said he provided the interim intervention order to his migration agent on 21 December 2017 but as he was looking for a new migration agent, the agent did not know whether he supposed to send it to the Tribunal or it would be sent by his new agent. 

16. In support of his evidence, after the hearing he provided a screen shot of an email to his previous migration agent on 21 December 2017 at 9:59 am which states it attached the interim intervention order made on 14 December 2017.

17. At 11:53 am the previous Certificate of Record, together with an email from [the applicant]’s criminal lawyer, was emailed to the Tribunal in support of the submission that the intervention order had been withdrawn.  The email from [the applicant]’s criminal lawyer states ‘As previously stated we do not have any further evidence about the criminal proceedings. We have provided you everything’.

18. A second email from the criminal lawyer to [the applicant]’s migration agent, provided by [the applicant] to the Tribunal states:

    Please find attached (*) the Certificate of record in respect to the Intervention Order.

    We note that on page 2 of the certificate, it clearly indicates that the Intervention Order was withdrawn on 5 December 2017.

    We do not have any further information to provide you and we also note that the grant of aid for [the applicant] has now been finalised and completed.

    On this basis, we are not able to enter into any further communications with you.

19. According to [the applicant] the interim intervention order was served on him on 15 December 2017 by police when he went to the house to collect his belongings.  This is also the date the pdf attachment of the interim intervention order attached to the email to his agent was created.  The interim intervention order was personally served on [the applicant] by police and had a court date of 9 March 2018 listed in it. [The applicant] had ample time after he was served with the interim intervention order to seek further advice on the effect of this order before he provided it to the Tribunal.

20. There was also ample time for the migration agent to seek, and [the applicant] to provide, further instructions between the time [the applicant] sent a copy to his agent at 9:59 am and the time the agent sent a response to the Tribunal at 11:53 am.  I do not accept that the migration agent acted without [the applicant]’s instructions in failing to provide the interim intervention order to the Tribunal.  I also do not accept there was confusion about who should provide the new interim intervention order to the Tribunal, given the migration agent advised that the intervention order was withdrawn after [the applicant] had provided the migration agent with the new interim intervention order.

21. I find that including information from [the applicant]’s criminal lawyer that there was no interim intervention order in place was a further attempt to mislead the Tribunal.  At this time [the applicant] and his migration agent were aware he had been served with another interim intervention order.  As I find he has attempted to mislead the Tribunal, I further find that I cannot rely on his oral evidence unless other information supports that evidence.  

22. The response also states that at the hearing of the interim intervention order the matter was adjourned until 9 March 2018 as his lawyer was on holidays.  The representative requested the hearing in this matter be held after this date, and a further hearing was held on 15 March 2018, at which the Tribunal was advised the hearing of the intervention order had now been adjourned to 3 May 2018.  On 3 May 2018 the interim intervention order was varied to release [the applicant] from having to attend an Abuse Prevention Program and to allow him to be within 50 metres from the protected person’s place of residence or employment for the purpose of his employment, as he says he is working as a taxi driver.  He said the order was supposed to also include a variation to allow him to go within 50 metres of the protected person; however, this is not what the order states and I do not accept this is the case in the absence of other supporting evidence.

23. At the hearing, it was submitted that [the applicant]’s relationship with his wife was undecided and that he would seek to improve his relationship with his wife when he is released.  Information from the Department was that his sponsor had withdrawn her sponsorship.  As [the applicant] has a daughter who is an Australian citizen, I accept that there is a basis for the visa despite the withdrawal of the sponsorship. 

    Does the ground for cancellation exist?

24. A visa may be cancelled under s.116(1)(e) if the Minister, or the Tribunal in the place of the Minster, 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.

25. This leads to the question of the threshold for this ground for cancellation, in particular when a person ‘may’ be a risk.  The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014  provides some clarification, and states the purpose of paragraph 116(1)(e) is:

    firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might on their arrival in Australia) be a risk to the safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm. 

26. In Gong v Minister for Immigration [2016] FCCA 561 Judge Smith states at paragraph 41 that:

    there does not have to be … any direct, solid or certain foundation before the power to cancel a visa can arise.  In other words, it can arise on the possibility that some event occurred in the past.  In this case, the possibility was supported by the laying of charges. 

27. In this case the possible event was [the applicant]’s behaviour towards his [wife] and the possibility of him being a risk to her health and safety.

28. 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?

29. 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.

30. At the time of the delegate’s decision, [the applicant] had been charged with offences against [the sponsor].  These charges have now been withdrawn or discontinued, and therefore do not show whether or not he may be a risk to [the sponsor].

31. However, even after the withdrawal of the charges and his release from prison a further interim intervention order was made to prevent [the applicant] approaching [the sponsor].  This shows the possibility that [the applicant] may be a risk to the health and safety of [the sponsor]. 

32. The Tribunal obtained further information on the withdrawal of the sponsorship of [the applicant] from the Department.  This information includes that his sponsor fears for her life and that of her daughter, as it is stated [the applicant] was overheard talking to his mother about killing [the sponsor].  It is stated that [the applicant] installed cameras around the house and made false allegations about [the sponsor]’s character.  It is stated the police were called in 2017 after episodes of violence towards [the sponsor]. 

33. This information was put to [the applicant] under s.359AA of the Act. In response he said that he has been in Australia since 2015 and it is only after a long period [the sponsor] says she feels endangered by him. He said he loves his wife and child, so much so that the assets were put in her name. He denies ever having been aggressive to [the sponsor], and said that her father has a history of beating her mother, and her mother was beaten by him at their wedding party. [The sponsor] told [the applicant] that if he ever did this to her she would call the police. [The applicant] agreed the police were called in 2017 but said he came home from work because his wife was sick and [the sponsor] said his parents had been making bad comments about her and she no longer wants to be in the marriage or to sponsor him. He said he left the home. His response does not explain why the police were called.

34. [The applicant] also later said that when the police came to the house [the sponsor] had been staying with a friend for four days.  The friend’s husband told him that [the applicant]’s wife and mother do not get along, and that he should send his mother back to India.  [The applicant] said it should be obvious this would hurt him. 

35. [The applicant] said his wife was often sick and left their daughter in his care when she was in hospital.  He says this shows he is not a danger to his daughter. 

36. He also pointed to an amendment to the terms of the interim intervention order on 3 May 2018, which now states he is not to approach within 50 metres of the boundary of the place of residence or place of employment of the protected person unless in the course of his employment.  The amended interim intervention order also releases him from the obligation to complete the Abuse Prevention Program, and [the applicant] said this was because he had already completed this course.  [The applicant] said it was intended that the order be amended to allow him to attend his place of worship; however this was not recorded in the interim intervention order.   He submits the changes to the terms of the interim intervention order show he is not a risk to [the sponsor]’s health and safety.  I do not agree.  While what is before me is the question of whether [the applicant] may be a risk to the health and safety of another person, and not whether an intervention order is in place, the interim intervention order does continue to prevent him approaching [the sponsor] (among other things), and I do not agree that a change to its terms shows he is not a risk to her health and safety.  

37. In further submissions after the hearing, it is submitted that as [the applicant] was not charged with threats to kill or harm [the sponsor] or their daughter and as other charges were withdrawn it is plausible that the content of the statutory declaration making these allegations is untrue.  I am not prepared to make that assumption, particularly in light of an ongoing interim intervention order. I do not have to consider whether [the applicant] did or did not make threats to kill [the sponsor] or their daughter, the test before me is whether he may be a risk to their health and safety.  That it is reported in a statutory declaration that he made threats to kill them indicates that he may be such a risk. 

38. On the basis of the interim intervention order made against [the applicant], and information that [the sponsor] fears for her life and that of her daughter, I am satisfied that [the applicant] may be a risk to the health and safety of [the sponsor].

39. 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

40. There are no matters specified in the Act or Migration Regulations 1994 (the 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’.

41. [The applicant] said he was studying [particular courses] in India when one of his relatives told him about [the sponsor], and that she was a permanent resident of Australia.  Their marriage was arranged by relatives. They married in India [in] February 2014 after which [the sponsor] stayed for 20–25 days.  [The applicant] arrived in Australia in May 2015.

42. On arriving in Australia he worked at [a particular business] for 18 months and then started [a particular] course in the middle of 2016.  He could only complete one month of this course as he became sick and had to leave the course.  By this time [the sponsor] was pregnant and he thought he would leave the [course] and just work.  His [daughter] was born [in] February 2017.

1. [In] July 2017 he was arrested for various charges, which have since been either withdrawn or discontinued.   He was remanded in custody for approximately four months and on his release from remand was taken into immigration detention.  He was released from immigration detention in or around January 2018. 

   The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

2. The purpose of [the applicant]’s travel to Australia was to live as the spouse of [the sponsor].  As she has now withdrawn her sponsorship, the basis for the visa no longer exists.  However, [the applicant] also now has a child who is an Australian citizen, which is an alternative basis to remain in Australia on a Subclass 100 visa.

3. [The applicant] said he came to Australia to have a good future and for any children to have a better future.  He said he has a compelling need to remain in Australia due to the birth of his [daughter] [in] February 2017.  [The applicant] provided a photograph of a birth certificate naming him as [his daughter]’s father, together with photographs of him at her birth.    

4. [The applicant] has not had contact with his daughter since he was arrested [in] July 2017.  He was granted assistance from Legal Aid to proceed to mediation; however, a certificate has been provided stating that it would not be appropriate to conduct family dispute resolution.  It was stated he does not have funds to pay for representation to lodge proceedings in the Federal Circuit Court, and has not done so.  He has completed a post-separation parenting course which ran from [a particular date in] February 2018.

5. [The applicant] was further granted legal aid to pursue mediation through Legal Aid in December 2017.  He had an intake interview for mediation on 7 May 2018, and said that the next step is for Legal Aid to contact [the sponsor] to see if she was prepared to mediate. 

6. [The applicant] submits he needs to remain in Australia to re-establish contact with his daughter.   His daughter is now one year of age.  [The applicant] was charged with the offences against his wife [in] July 2017, and was remanded in custody.  This was a matter of months after the birth of his child, and he has had little contact with her.

7. Given I have found [the applicant] has attempted to mislead the Tribunal in regard to his interaction with the criminal justice system, I consider any claims he makes about his future intentions need to be carefully evaluated.  However, as he has only had contact with his daughter in her first months and has otherwise been in custody or restricted by the interim intervention order, it is not difficult to gauge the depth of his commitment to his parenting role.  He has sought the grant of legal aid to establish contact with his daughter and has also attended a parenting course.

   The extent of compliance with visa conditions

8. There is no information before me to show [the applicant] has not otherwise complied with the conditions of his visa.     

   The degree of hardship that may be caused  

9. In his response to the information provided to [the applicant] under s.359A, [the applicant] submits his mental and emotional states have deteriorated because of the ‘long stream of unfortunate events’ from July 2017 and his prolonged separation from his daughter.

10. [The applicant] said the biggest hardship would be separation from his child.  At the first hearing he said likes his wife and cannot be without her; however, at a subsequent hearing he said he no longer wanted contact with his wife, but did want contact with his daughter. 

11. I accept that separation from his daughter would cause significant emotional hardship to [the applicant] and potentially also to his daughter. 

12. [The applicant] provided a medical certificate stating that due to domestic issues his wife made allegations about him which were detrimental to his mental health.  It states he has been provided with support and counselling and is taking anti-depressant medication. 

13. [The applicant] said it would be dangerous for him to go back to India if other people knew about the case against him, and that his wife’s side of the family would not leave him alone.  He said his wife is from a different area in India from him as she is originally from Punjab and he is from Uttarakhand, which is a long distance from Punjab.  He said that his wife’s parents have been threatening his parents. 

14. The cancellation or the revocation of the cancellation of his visa will not affect the relationship between his parents and his wife’s parents, as the history of the relationship will remain the same whether or not his visa is cancelled.  In regard to potential harm to [the applicant], if he fears harm if he returns to India, he may apply for a protection visa and seek to meet the criteria for this type of visa.

    The circumstances in which the ground for cancellation arose.  

15. [The applicant] said all he knew is that he went to work, did what his employer asked him to do and looked after his wife and child.  He said he does not hold his wife responsible for the charges as she has been ill.  He said he took a lot of time off work to look after [the sponsor] when she was pregnant as she had [a particular medical condition] and had to have an operation.  She also had a caesarean birth.  

    The past and present conduct of the visa holder towards the Department and Tribunal

16. The Tribunal consider [the applicant]’s conduct in failing to disclose a subsequent interim intervention order shows a disregard for the review process and reflects poorly on him

    Whether there are mandatory legal consequences of cancelling the visa

17. If [the applicant]’s visa is cancelled, there are limited visas for which he can apply for within Australia (s.48 of the Act and r.2.12 of the Regulations). If his visa is cancelled he may only apply for another visa of a type permitted. This includes a protection visa.

18. If [the applicant] leaves Australia, he may need to meet character considerations for future visa applications. 

    Whether there would be consequential cancellations under s.140

19. There are no consequential cancellations that would occur.

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

20. The Tribunal is acutely aware that [the applicant] has a very young daughter whose interests are affected by this decision.  He says he has not had any contact with his daughter since he was charged in July 2017, when she was approximately five months old.  She is now approximately 15 months old. 

21. Article 9 of the Convention on the Rights of the Child states that State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  It goes on to state at Article 9(4) that where separation results from action initiated by the State Party, such as deportation, the State Party will provide parents information about the whereabouts of the absent parent.

22. In this case, the interests of [the applicant]’s [daughter] have been carefully considered.  She is very young.  While the cancellation of the visa will not in itself lead to the deportation or detention of [the applicant] as he may apply for other types of visa, it should be acknowledged that this may be an outcome of this decision. 

23. [The applicant] has attempted mediation with [the sponsor] on one other occasion; however, the mediation service provider issued a certificate for the purposes of the Family Law Act 1975 stating that that mediation was not appropriate. This indicates that the prospects for a favourable outcome from mediation are low. 

24. [The applicant] was granted legal aid funding in December 2017; however, the legal aid funding granted is limited to another attempt to mediate.  At the hearing on 8 May 2018, [the applicant] said he had undertaken an intake interview for mediation at 5:00 pm the previous day.

25. He provided a copy of the letter regarding he grant of legal aid.  This states that certain action is required from him within seven days, and then from his lawyer within 28 days.  This period would have expired in March 2017.  On being asked whey there had been a delay in instituting proceedings, [the applicant] said his legal aid was cancelled for a period as he was working as a taxi driver; however, he has now established that he cannot fund this matter so his legal aid was reinstated.  He said he had not delayed taking action to see his daughter.

26. In submissions provided after the hearing, it was stated he had merely been complying with the advice of his lawyer.  It is acknowledged a previous attempt at mediation was unsuccessful, but that the advice of his lawyer was that a further attempt should be made before commencing proceedings.  The term unsuccessful is not entirely accurate, as the service found it was inappropriate to conduct a mediation process.  His lawyer states in advice to his migration agent dated [in] April 2018 that he is not optimistic that a negotiated outcome can be achieved.    

27. [The applicant] has attended an eight session parenting program “Circle of Security” [in] March 2018. 

28. [The applicant]’s contact with his daughter may be affected if he leaves Australia as a result of his visa being cancelled.  This will make direct physical contact with her on a regular basis difficult, and makes for a difficult decision in this case

29. It would not prevent him taking action to see his daughter through mediation or through the courts, nor would it in itself prevent him having contact with his daughter.  There are other ways in which he can seek to have contact with his daughter, including applying for other visas from offshore and seeking contact through electronic means. 

    CONCLUSION

30. It has been found that [the applicant] may be a risk to his wife and child; however, this is only a possibility of a risk.  He has a very young child and his ability to see his child may be affected if, as a result of the cancellation, he is required to leave Australia.  He asserts he will be at risk from his wife’s parents if he returns to India. There is nothing to indicate he has previously breached the conditions of his visa.

31. However a person has expressed a fear of serious harm, and this is supported by SA Police applying for an interim intervention order.  [The applicant]’s conduct toward the Tribunal weighs against exercising its discretion in his favour.  He may continue to seek access to his daughter from outside Australia and may seek to visit Australia to see his daughter if there are compelling or compassionate circumstances.    

32. Having carefully considered all of the information before it, the Tribunal has concluded that the visa should be cancelled.

    DECISION

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kate Millar
    Member