1806096 (Migration)

[2019] AATA 3767

1806096 (Migration) [2019] AATA 3767 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806096

MEMBER:Melissa McAdam

DATE:21 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 February 2019 at 11:48am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the health and safety of an individual – applicant charged with a criminal offence – family violence charges – damage to property – no communication with former partner – attending anger management programs – decision under review set aside        

LEGISLATION

Crimes (Sentencing Procedure) Act 1999, ss 9, 10
Migration Act 1958, ss 116

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 1 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant had been charged with a criminal offence indicating that “her continued presence in Australia may pose a risk to the health and safety of an individual in the Australian community, … her ex-partner.” The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

   Background Information

4. The applicant was granted a Subclass 500 (Student) visa on 24 July 2017.  The visa had an expiry date of 31 July 2018.

5. The delegate’s decision to cancel the visa has been submitted to the Tribunal by the applicant. The delegate’s decision outlines the following:

   a.The applicant was issued with a Notification of Intention to Consider Cancellation (NOICC) of her visa on 1 February 2018.

   b.The cancellation notice was based upon the applicant allegedly engaging in violent behaviour which led to charges of common assault and destruction or damage to property on [a date in] November 2017.

   c.In conjunction with these charges, an enforceable apprehended violence order (AVO) was initiated against her.  ‘[Mr A]’ was named as the person in need of protection.

   d.The police report stated:

   •     The visa holder and the alleged victim have been in a de facto relationship for approximately 4.5 months and the alleged victim moved in with the visa holder about two weeks after they started dating.

   •     On [a date in] November 2017, the police attended the visa holder’s residence around 11:15pm in relation to a verbal argument.

   •     The visa holder told the police that when she arrived home around 11pm, the alleged victim notified her that he was ending the relationship and was in the process of leaving the premises with his belongings.

   •     The visa holder then told the alleged victim that he owed two weeks of rent, which the alleged victim denied owing.

   •     Following the argument, the visa holder repeatedly attempted to prevent the alleged victim from leaving the premises until the dispute was resolved by grabbing his clothes, and attempting to physically restrain him from leaving the premises.

   •     As the alleged victim walked to his vehicle outside the premises, the visa holder used a piece of wood to smash the rear windscreen of his vehicle.

   •     Several witnesses to the incident confirmed that the visa holder damaged the alleged victim’s vehicle.

   •     The visa holder was arrested by police and later while under police custody, she stated that she only raised her hand to the chest of the victim in order to stop him leaving.

   e.The applicant provided a written response to the NOICC on 3 and 5 February 2018:

   •     She  acknowledged the seriousness of her offences but states that she is not guilty.

   •     She met the alleged victim after her relationship with her ex-husband ended due to domestic violence.

   •     The incident occurred because she and her ex-partner had relationship issues caused by his controlling behaviour.

   •     She provided several screenshots of text messages to demonstrate the alleged victim’s controlling and threatening behaviour towards her prior to the incident. She stated that she felt scared of the alleged victim.

   •     She stated that the alleged victim was supposed to move into her place on 29 August 2017 but moved into her place on 23 September 2017, notified her that he was leaving on [a date in] November 2017 and refused to pay his part for the rent.

   •     She denied that she damaged the alleged victim’s car and stated that he was trying to find someone to pay for repairs for his car, which was damaged a few weeks prior to the incident. She stated that the alleged victim hit a kangaroo while they were driving back from Wollongong, and then in the same week, a truck knocked his car and broke the driver side mirror and door. She stated that the alleged victim did not want to pay for excess on his insurance and falsely accused her of breaking the rear window of his car.

   •     She also provided character references from a friend and the student support officer of [a named college].

6. The Department determined the applicant would or might be a risk to the health or safety of an individual in the Australian community, namely her ex-partner, [Mr A].

7. According to police and court documents on the Department’s file the applicant was granted conditional bail and her next scheduled court appearance was to be at [a named] Court on 22 March 2018.

   Information to the Tribunal

8. With her application to the Tribunal the applicant included the following written statement:

   “I was accused wrongly for two crimes that I did not committed.  I am going to have the court date on 22th March then I will do everything to prove that I am not guilty.

   My ex partner threatened, stalking me and offended me a lot while we were together. I showed all messages to the counselor and she said it is psychology domestic violence but I did not know.

   He threatened so many times to send me back to Brazil, to kill himself if I broken up with him and it is what his doing now he is trying for all the ways to send me back to Brazil.

   I never have any criminal problem even here or in my country and just because I do not want to be with someone is not fair he react like this.

   It is clear that he is defame me.

   Please consider all my history in this beautiful and honest country, after almost 4 years I have my ties here and I really would like the opportunity to keep study and live my life in the right way as before.”

9. Information obtained by the Tribunal on 18 December 2018 from the Department’s Tribunal Liaison refers to the “final outcome provided by the NSW PLU [Police Liaison Unit] [in] May 2018”. In summary it states that on the charge of ‘Destroy or damage property’ the applicant was sentenced to a 12 month section 10 bond, to “attend for counselling, educational development, drug or alcohol rehab supervised by the NSW Probation Service” and to pay $[amount] “compensation”.  On the charge of common assault the applicant was sentenced to a 12 month section 9 Bond to “attend for counselling, educational development, drug or alcohol rehab supervised by the NSW Probation Service”. The AVO was given an expiry date [in] March 2019.

10. On 29 January 2019 the applicant informed the Tribunal in writing that she is pregnant and has been admitted to the emergency section of a hospital twice but everything with her unborn baby is fine. She also submitted a copy of her new Brazilian passport issued by the Sydney Consulate General.

11. On 11 February 2019 the applicant submitted the following documents to the Tribunal:

    ·    A Court Order Notice from the [Court 1], dated 7 August 2018, stating that her appeal of her sentence for Common Assault was upheld so that the Order was varied. She is “found guilty but without proceeding to conviction the matter is dismissed pursuant to Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.”

    ·    A letter from the Community Corrections Officer of the NSW Corrective Services, dated [in] July 2018, stating that termination of the applicant’s Bonds supervision has been approved as from [that date], so that she is no longer required to report to the Service.  Her orders remain in force until [April] 2019.

    ·    A letter from [Psychologist A], psychologist at [Agency 1], dated 23 January 2019. [Psychologist A] writes that the applicant has been attending counselling with her since April 2018; that she experienced domestic violence from her Brazilian ex-partner leading to his deportation; that she had a brief relationship in 2017 with a man who became controlling and possessive of her; that she decided to end the relationship; the man sent her abusive texts and calls; she is in a new relationship and is 12 weeks pregnant; that she suffers anxiety  and stress related to past trauma.

    ·    Invoice from [Agency 1], dated 30 July 2018, listing the applicant’s six appointments and fees paid for “Stress and Anger Management Counselling” during the period [May] 2018 to [July] 2018.

    ·    A Certificate from [Agency 1] stating that the applicant attended a Stress and Anger Management Program between [May] and [July] 2018.

    ·    An Interim Apprehended Domestic Violence Order issued [in] December 2018, against [Mr B] to protect the applicant.

    ·    A letter dated [in] April 2018 from [a named] social worker/counsellor at [a named] Hospital. She states that the applicant is a client of hers and has been referred to the service twice due to violence and trauma from her relationship partners. Her work has focussed upon safety and stabilisation for the applicant. She states that the applicant is well engaged and attends appointments regularly.

    ·    Character Reference letters for the applicant from work colleagues, friends and her course supervisor.

    ·    Approximately 70 pages of screen print outs of Messenger messages from her ex-partner [Mr A] in late 2017.

12. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments. The following is a summary of the information she provided at the hearing:

    a.The applicant explained that [Mr B] is her current partner and the father of her baby. The police initiated the ADVO against [Mr B], contrary to the applicant’s wishes, due to a misunderstanding. The applicant explained to the police that [Mr B] had not been violent to her and she was not in fear of him.  The police subsequently charged [Mr B] with resisting arrest.  The police have subpoenaed the applicant to give evidence in [Court 2] on 11 March 2019 in their prosecution of [Mr B].

    b.The applicant had legal representation in relation to her own Local Court matter. Her lawyer advised her to plead guilty because he or she thought it may be difficult to prove innocence and the applicant would be required to attend court several times which she could not financially afford.  Later when she spoke to an immigration lawyer he told her she should not have pleaded guilty.

    c.She complied with all her bail conditions before her court case was tried.

    d.The applicant appealed her sentence from the Local Court to the [Court 1]. The [Court 1] ordered that the assault charge against her be dismissed.

    e.She has not been charged with anything else or had any problems with the police since the November 2017 incident.

    f.She has had no communication with [Mr A] since [November] 2017.  However [Mr A] was present at the court when she was required to appear, on more than one occasion.  On these occasions she had no contact or communication with him, she just felt fearful.

    g.When she was in a relationship with [Mr A] she advised him to get counselling because of the trauma he experienced during the war years in [his home country].

    h.She has a few friends in Australia who are very supportive of her.  She is very religious and attends church.  She has also been on meditation retreats. She has learned mindfulness techniques from her counsellors.

    i.When she is upset or stressed she speaks with her friends and uses the meditative techniques. When she is angry she does not react physically she just waits for her emotions to pass or removes herself from a situation.

    j.For example she was with her current partner, [Mr B], when he was having a serious argument with his ex-wife over the phone.  [Mr B] then drank a whole bottle of vodka and became very agitated and furious.  The applicant told him if he did not calm down she would leave the household until he felt better. [Mr B] then held his arms wide against the door so she could not leave. The applicant called out help. She and [Mr B] spoke more and he became calmer and said yes she probably should leave for the evening. She was about to leave when the police arrived and said a neighbour had heard the applicant’s call for help and phoned the police. The applicant explained she had called out but she had not been hurt and she was not in fear. However the police decided to arrest [Mr B]. This was the incident which resulted in the ADVO being issued against [Mr B’s] and the charge against him  of resisting arrest. Even though this incident became very emotional the applicant did not react in any way physically.

    k.The Department issued a Bridging visa to the applicant some time last year.

    l.The applicant strongly disagrees that she might be a risk to the safety of [Mr A] or anyone else in Australia. She has never had any trouble before, in Australia or Brazil. She works in [a specified industry] so always had a clear police clearance for her work.

    m.She feels fearful of [Mr A] but her counselling is helping her to recognise the lack of objective basis for her fears, given she has not seen him again since her court appearances. [Mr A] was a very controlling and volatile person. Now if she ever sees him again she would walk or run away to avoid him.

    Post-Hearing information

13. After the hearing on 18 February 2019 the applicant submitted a copy of the notification of a  grant of a Bridging Visa E on 17 May 2018 by the Department.

14. According to the Department’s Movement Records the applicant continues to hold a valid Bridging Visa.

    Does the ground for cancellation exist?

15. 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].

16. In considering whether the ground for cancellation is made, the Tribunal is required to determine if there is a possibility the person may be a risk to the community or an individual in Australia. In this matter the Department determined the applicant would or might be a risk to the health or safety of an individual in the Australian community, namely her ex-partner, [Mr A].

17. The applicant was charged and found guilty of the offence, destroy or damage property, and the offence, common assault.  In the Local Court she was sentenced to a section 10 bond for the first offence and a section 9 bond for the second offence.  Both bonds required her to attend supervised  counselling. On appeal the [Court 1] varied the sentencing order in relation to the common assault charge to a section 10(1)(a) dismissal of the charge.  Her supervision requirement was also lifted.

18. Section 9 on the NSW Crimes (Sentencing Procedure) Act 1999 states (in part):

    9 Conditional release orders
    (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the
    offender, if:
            (a) the court proceeds to conviction, or
            (b) the court does not proceed to conviction but makes an order under section 10 (1) (b).

    (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors:

    (a) the person's character, antecedents, age, health and mental condition,
            (b) whether the offence is of a trivial nature,
            (c) the extenuating circumstances in which the offence was committed,
            (d) any other matter that the court thinks proper to consider.
    …

19. Section 10 on the NSW Crimes (Sentencing Procedure) Act 1999 states (in part):

    10 Dismissal of charges and conditional discharge of offender

    (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
    (a) an order directing that the relevant charge be dismissed,
    (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),
    (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
    …

    (2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
    (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
    (b) that it is expedient to discharge the person under a conditional release order.

    (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

    …
    (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
    (a) the person's character, antecedents, age, health and mental condition,
    (b) the trivial nature of the offence,
    (c) the extenuating circumstances in which the offence was committed,
    (d) any other matter that the court thinks proper to consider.

20. Given the sentences imposed the Local Court did not proceed to a conviction on either charge and the [Court 1] has dismissed the assault charge. The Tribunal notes that in issuing the Section 10 orders the matters the Court is to have regard to include the person’s character and the trivial nature of the offence.  The Tribunal therefore presumes that these factors guided the Courts’ judgments.  The evidence before the Tribunal indicates that the applicant is largely a person of good character and that the incident that gave rise to the charges against her was an emotionally charged culmination point of a turbulent and brief relationship. There is no indication that the applicant has been otherwise threatening to her ex-partner or tried to harm him or anyone else. The details of the incident resulting in the charges against the applicant also do tend to possess a relatively trivial nature in view of the range of possible criminal behaviour.

21. The Tribunal accepts that the applicant has willingly attended and engaged with counselling sessions as well as meditation and mindfulness courses.

1. The Tribunal notes that the Department granted a Bridging visa to the applicant last year allowing her to remain and reside lawfully in the community while her review application was determined. 

2. The Tribunal accepts the applicant’s evidence that she has not initiated any contact with her ex-partner since the November 2017 incident and that she does not wish to have any contact with him.  The applicant’s counsellors have provided reports that the applicant is fearful of her ex-partner and she has confirmed this.  The Tribunal accepts this evidence.

3. During her hearing the applicant spoke of concern for her ex-partner’s mental health.  She did not present any desire for her ex-partner to suffer harm. The current evidence before the Tribunal does not indicate that the applicant has any wish or intention to harm her ex-partner or to endanger his health or safety.  To the contrary she wants nothing to do with him and wishes to avoid him in any situation which may arise.

4. Fifteen months has passed since the time of the incident resulting in the charges against the applicant. In that time there is no evidence that the applicant has threatened the health or safety of her ex-partner. 

5. There is no evidence before the Tribunal that the applicant may or might harm or try to harm her ex-partner in the future, apart from the existence of the charges to which she pleaded guilty. As stated this incident arose in what can be considered a contained and concluded context.

6. In view of the evidence before the Tribunal and the particular circumstances of this matter the Tribunal is not satisfied that the applicant now is or may be, or would or might be, a risk to the health or safety of her ex-partner, [Mr A]. 

7. The Tribunal is therefore not satisfied that the applicant is or may be, or would or might be, a risk to the health or safety of an individual in the Australian community.

8. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Melissa McAdam
   Member