1726910 (Migration)

[2018] AATA 3719

1726910 (Migration) [2018] AATA 3719 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726910

MEMBER:Kira Raif

DATE:16 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 July 2018 at 7:26am

CATCHWORDS
Migration – Cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Whether the ground for cancellation exists – Where the applicant has been convicted of two offences – Whether the visa should be cancelled – Purpose of a partner visa is to allow the applicant to remain in Australia with their partner – Where the applicant and his partner have separated – Where the applicant may suffer significant hardship on return to home country – Where protection claims were raised by the applicant late in the application – Protection claims can be appropriately considered in a Protection visa application – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa), Schedule 2

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148

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 26 October 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 applicant is a national of Lebanon, born [on a particular date]. He was granted the Partner (Provisional) visa on 1 March 2017 and entered Australia in April 2017. On 6 October 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(g) and r.2.43(1)(oa). The applicant provided a written response to the NOICC and his visa was cancelled on 26 October 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 5 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from another witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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)(g). 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.

5. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in September 2017 the Department received information from the [Police] that [in] September 2017 the applicant had been convicted of the following offences by [a] Magistrates Court:

   a.Intentionally causing injury – aggregate three months imprisonment

   b.Make threats to kills – a Community Corrections Order for 12 months to complete behaviour and rehabilitation/treatment programs.

7. The applicant does not dispute that he has been convicted of the above offences. The applicant explained to the Tribunal in oral evidence the circumstances of the relationship that led to violence. The applicant claims that his wife threw a phone at him and tried to scratch him and in response, he hit her. He consulted a lawyer who told him he was guilty. The applicant said he did not accept he was guilty of the second charge but the lawyer told him he had to plead guilty to both. The applicant’s evidence to the Tribunal is that he had appealed the convictions and the two convictions had been upheld on appeal. In such circumstances, the Tribunal finds the applicant’s assertion that he was not guilty of the second offence unhelpful. The Tribunal is also mindful that the ground for cancelation would arise irrespective of the number of convictions.

8. The evidence of the applicant’s witness is that the applicant is not a violent person and has ’no violence in his heart’. [Mr A] told the Tribunal that the applicant was under pressure for a long time and that may have resulted in violence. The Tribunal acknowledges that evidence but is mindful that there are convictions and the existence of those convictions is not in dispute. The Tribunal acknowledges [Mr A]’s evidence that he considers the applicant to be a good person.

9. The Tribunal finds that the applicant has been convicted of offences against the state law. The applicant held the Subclass 309 temporary visa. The Tribunal is satisfied there are grounds for cancelling his visa under s.116(1)(g) and r.2.43(1)(oa).

10. 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 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’.

    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

12. The purpose of a partner visa is to enable the visa holder to remain in Australia with his partner. According to the primary decision record, the applicant advised the Department on 5 October 2017 that he moved to [a particular state] while his partner lived in a different state and the delegate concluded that the applicant was no longer residing with his spouse.

13. The applicant told the Tribunal that they are still legally married but there is an AVO which expires in November. The Tribunal does not consider that the fact of the legal marriage is indicative of an ongoing spousal relationship in the circumstances where the applicant has been convicted of a violent offence towards his spouse and has an AVO in place. The applicant told the Tribunal that his wife contacts his family in Lebanon and tells them that she still loves him. There is nothing from the sponsor to confirm that to be the case and the Tribunal does not consider the applicant’s evidence probative or persuasive. There is no evidence before the Tribunal, other than the applicant’s unsupported assertions, that his partner continues to be committed to this relationship. The Tribunal is not satisfied on the evidence before it that there is a mutual commitment to the relationship by the applicant and the sponsor and the Tribunal does not accept the spousal relationship between them is ongoing, despite the existence of the marriage certificate.

14. The applicant claims he has suffered family violence. He has presented some evidence of the family violence but not the prescribed evidence of family violence for the purpose of obtaining the permanent visa. There are no children. The applicant is no longer able to fulfil the purpose of his travel and stay in Australia.

    The extent of compliance with visa conditions

15. Nothing adverse is known about the applicant’s compliance with visa conditions.

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

16. The applicant told the Tribunal that he has lost everything in Lebanon, his job and health insurance, his house and everything he had and he would be unable to get a job if he returns. The applicant said people over the age of 27 and with no political affiliations cannot find a job in the army or the government. Even if that is the case, the Tribunal is of the view that the applicant’s employment need not be limited to the army or the government and he may be able to find a job elsewhere. The applicant said there are no jobs in Lebanon. He told the Tribunal he tried to find a job before coming to Australia and could not. He also said he rang some friends locally and they told him there is no work in his local area. The applicant presented no evidence of having searched for work either in his local area or any other area and of having been denied employment. The applicant also told the Tribunal that his brother was unable to find a job in the local area and even though he found a job far away, he is getting paid very little. The Tribunal finds that unhelpful since the applicant may have different qualifications, skills or experience, and the fact that his brother was only able to find a low-paid job does not reflect on the applicant’s own capacity to find a job. The applicant also suggested that because of his past employment, he could not get a job. Again, no evidence has been provided to support that assertion and in any case, the Tribunal is of the view that the applicant would be capable of living in a different area, being an independent adult, where there may be better employment opportunities. The applicant suggested that it would be hard for him to live in a different area because he would not have enough income to support his living expenses. The applicant has not presented any evidence of what work he could do, or what his income and living expenses would be.

17. The Tribunal accepts that the applicant has given up his job and everything he had in Lebanon. The Tribunal accepts that the applicant would need time to find a new employment and settle himself again in his home country. The Tribunal is not satisfied on the evidence before it that the applicant would be unable to obtain employment but the Tribunal is prepared to accept that it may take time and also that until the applicant finds a job, he may experience hardship. The Tribunal is mindful, however, that the applicant has not been granted a permanent visa and there can be no expectation of him being able to remain in Australia permanently until a permanent visa is granted. The Tribunal accepts that the applicant may have ’given everything up’ in Lebanon before coming to Australia but until he was granted a permanent visa, there was always a possibility that he would be required to return to Lebanon and the fact that he claims to have nothing left in Lebanon does not assist him in his entitlement for the visa.

18. In his written submission to the Tribunal of 14 June 2018 the applicant provided evidence of his attendance at a Relationship Education Program, a certificate of good conduct and a psychological report dated [in] April 2018 prepared by [Dr B]. The report outlines the applicant’s background and refers to his relationship with his partner. [Dr B] states the applicant suffers from chronic adjustment disorder with mixed anxiety and depressed mood. The report refers to the applicant feeling ashamed of what he has done. The report indicates the applicant was subjected to family violence. The Tribunal acknowledges that evidence. The Tribunal is mindful that as the applicant’s relationship with the sponsor has ended and there is an AVO in place, there appears to be little prospect of such conduct continuing. As for the applicant’s mental health, the Tribunal accepts that the applicant has been seeing the psychologist, however, there is nothing to suggest the applicant will be unable to access relevant treatment in his own home country. The applicant told the Tribunal that there is no free treatment in Lebanon and he refers to his father being unable to access treatment. The applicant said he would have to pay for the treatment and there is no money. The Tribunal is prepared to accept (despite the complete absence of any supporting evidence from the applicant) that accessing private health care may require funds but the Tribunal does not accept that public health care is not available in Lebanon and that the applicant, who claims to have no funds (but provided no evidence of that), would be unable to access health care because of his claimed lack of funds.

19. Overall the Tribunal is prepared to accept that considerable hardship may be caused to the applicant if he is required to return to Lebanon.

    Circumstances in which ground of cancellation arose

20. The ground for cancellation arises because the applicant has been convicted of an offence. In his written response to the NOICC the applicant states that he discovered that his wife was dealing with mental health issues and was obsessively jealous and paranoid but refused to seek professional help. The applicant states that on the day in question, his wife was screaming at him and accusing him of cheating; she threw her phone at him and hit him in the face. He lost control of his temper and actions, which is contrary to his nature as a quiet person. The applicant states that he feels deep remorse and depression as a result of his action and now requires medication for high blood pressure. He also sought help for anger management.  The applicant provided a number of letters confirming his participation in various programs. In oral evidence the applicant described his relationship with the sponsor and outlined problems in the relationship. The Tribunal is of the view that none of the conduct the applicant claims his wife engaged in justifies the committal of the offences of which the applicant had been convicted.

    Past and present behaviour of the visa holder towards the department

21. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

22. There is nothing to suggest that there would be consequential cancellations under s.140.

    Whether there are mandatory legal consequences

23. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

24. There are no children who would be affected by the cancellation of the visa.

25. The applicant told the Tribunal that he worked in the army in Lebanon and was a ‘secret agent’ and Hezbollah wanted him to leave his job. The applicant also ‘remembered’ in the course of the hearing that their house had been bombed several times by the extremists. In his submission to the Tribunal of 13 July 2018 the applicant made additional claims, suggesting his life was in danger because of his work and his religion.

26. It is of significant concern to the Tribunal that the applicant’s claims have escalated with time. In his written response to the NOICC of 18 October 2017 the applicant made no reference to any harm he now claims to have suffered in his home country, even though the NOICC expressly invited the applicant to provide information on discretionary considerations including Australia’s international obligations. The applicant provided some information in oral evidence to the Tribunal and more claims were made in post-hearing submissions. In the Tribunal’s view, if the applicant’s claims were true, he would have referred to these events much earlier when given the opportunity.

27. The Tribunal is also mindful that the applicant has not sought protection in Australia. His Partner visa was cancelled in October 2017, more than nine months earlier. If the applicant was genuinely fearful for his safety and well-being in Lebanon, he may have taken steps to ensure he would be allowed to remain in Australia, for example by applying for a protection visa. The applicant told the Tribunal that he was not aware of protection visas or did not think these applied to him. In the Tribunal’s view, if the applicant was truthful in his claims of having experienced significant persecution in Lebanon, he would have taken steps to make inquiries about protection since his Partner visa was cancelled when the applicant would have recognised the possibility that he may have to leave Australia.

28. The applicant provided to the Tribunal from the local priest which refers to the applicant being a person of good character and being subjected to ‘extreme danger and threatening’ by the terrorists and other materials which, the applicant claims, prove that his house was damaged. The Tribunal acknowledges that evidence.

29. Ultimately, the Tribunal notes that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is nothing to suggest that the applicant would be prevented from validly applying for or being granted a protection visa. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.

30. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant held a temporary visa and had been convicted of an offence. The Tribunal accepts that hardship would be caused to the applicant if the visa is cancelled, including difficulties the applicant may face with re-establishing his life in Lebanon. The Tribunal acknowledges his evidence that he has given everything up in Lebanon before coming to Australia, although the Tribunal is also mindful that the applicant has never held a permanent visa. The Tribunal accepts that the applicant has completed a counselling program and claims to have been receiving ongoing treatment. The Tribunal acknowledges his expression of remorse. The Tribunal acknowledges the applicant’s evidence with respect to the circumstances in which the ground for cancellation arises in that the applicant claims to have been subjected to family violence and reacted to violence from his partner. The Tribunal acknowledges the applicant’s evidence that he has not been convicted of any other crimes in any country and that he considers himself to be a non-violent person. As noted above, the Tribunal does not consider such conduct, even if it did occur, justified the offenses which the applicant had been convicted of. The applicant has been cooperative with the Department and there is no evidence of any breach of visa conditions. The Tribunal has formed the view that the cancellation of the visa would not breach Australia’s international obligations. There are no consequential cancellations.

1. The Tribunal accepts that there are circumstances that would suggest that the visa should not be cancelled. Against these considerations, the Tribunal notes that the offences of which the applicant has been convicted are serious and involve violence towards another person. One of these, on the applicant’s own evidence, resulted in a custodial sentence. There remains an AVO in place to protect the applicant’s former partner. In the Tribunal’s view, these circumstances outweigh others.

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

   DECISION

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

   Kira Raif
   Senior Member