1809674 (Migration)

[2018] AATA 1957

1809674 (Migration) [2018] AATA 1957 (17 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809674

DIBP REFERENCE(S):  PNJ

MEMBER:Shahyar Roushan

DATE:17 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 17 April 2018 at 10:12am

CATCHWORDS
Migration – Cancellation – Bridging C (Class WC) visa ­– Bridging 030 (Bridging C) – Risk to Australian community – Criminal offences – Violence against women – Apprehended violence orders – Child’s best interest – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 28 March 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant is [age] year old national of India. He arrived in Australia on 20 June 2017 on a visitor visa. He subsequently held a Bridging C visa on the basis of an application for a protection visa.

3. The applicant is married to [Ms A]. Their daughter [was] born in [date]. The applicant’s wife and daughter are currently in Australia.  

4. According to the delegate’s decision record and a Police Fact Sheet provided to the Tribunal by the Department, [in] October 2017, the applicant was charged with the following offences: common assault (domestic violence); destroying or damaging property (domestic violence); and stalking or intimidation with intent to cause fear of physical or mental harm (domestic violence). The alleged victim in these offences was [Ms A]. The applicant was arrested in connection with these offences and, subsequently, the police applied for an apprehended violence order (AVO), which was granted and served on the applicant while in custody. The AVO specified, amongst other things, that the applicant must not assault, threaten, stalk, harass or intimidate the victim and that he must not approach or be in the company of the victim for at least 12 hours after drinking alcohol or taking illicit drugs.

5. Whilst residing in the community on bail, the applicant again allegedly engaged in violent behaviour. [In] January 2018, the applicant was arrested and charged with the following offences: two counts of common assault; stalking or intimidation with intent to cause fear of physical or mental harm (domestic violence); and two counts of contravening a prohibition or restriction specified in an AVO (domestic violence). The alleged victim in these offences was also [Ms A]. Whilst in custody, the applicant told the police that he had consumed alcohol before approaching his wife.

6. On 2 March 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC). The applicant did not respond to the NOICC.

7. On 28 March 2018, the delegate cancelled the visa under s.116(1)(e)(ii) of the Act on the basis that the applicant has been charged with criminal offences and his presence in Australia may pose a risk to the health or safety of an individual, namely [Ms A].

   Review application

8. On 7 April 2018, the applicant applied for a review of the delegate’s decision.

9. The applicant appeared before the Tribunal on 13 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

10. The Tribunal discussed with the applicant the privilege against self-incrimination before he gave evidence about the alleged offences referred to above. The Tribunal then proceeded to invite the applicant to comment on or respond to information in relation to the charges, giving particulars of information and explaining the relevance of the information to the review. The applicant was also advised that he may seek additional time to comment on or respond to the information.

11. The applicant told the Tribunal that the first set of charges were laid because he was drinking and he was angry. He was experiencing financial difficulties, which put him under stress. His wife was arguing with him because he was spending their money on buying alcohol when they did not have enough money to live on. He was arrested as a result of the argument. In January 2018, his landlord asked him to move out of their rented premises because of disturbance caused by his crying baby. He approached the local mosque and they offered to help. He then approached his wife, who was at the local supermarket, in the company of someone from the mosque to inform her of these developments. He was drunk at the time and when his wife smelt alcohol on him, she became angry. They had an argument in the supermarket and the employees called the police. He was then arrested.

12. The applicant also told the Tribunal that, [in] April 2018, he had appeared before a court and had pleaded guilty to some of the ‘minor’ offences, including common assault and destroying or damaging property. He said he had been advised by his lawyer that, if he were to plead not guilty in relation to all the offences he had been charged with, he would face a very lengthy legal process. He stated that his wife had attended the court hearing, telling the court that it was a ‘mistake’, her husband was drunk and ‘everything is ok’. As a consequence of pleading guilty, he was released on ‘good behaviour’. The applicant did not know if a conviction had been recorded. He also stated that a further AVO had been granted, which is enforceable until sometime in 2020. He said, under the AVO, he must not approach or be in the company of his wife for at least 12 hours after drinking alcohol.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

15. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(e)(ii). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

16. 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.

17. The applicant did not provide the Tribunal with any documents or other evidence in relation to his plea, the court orders or the AVO. Nevertheless, the Tribunal accepts the applicant’s evidence that he has pleaded guilty to committing the offences of common assault and destroying or damaging property against his wife.

18. The applicant’s evidence at the hearing, however, suggested a lack of insight into the gravity of his actions and how they might have impacted his wife. In particular, the Tribunal found it concerning that the applicant described the offences he had pleaded guilty to as ‘minor’ and that he had only pleaded guilty to avoid a lengthy legal process. As it was put to the applicant, the offences he had pleaded guilty to involved violence against his wife and it was difficult to see how they could be characterised as ‘minor’. He responded that common assault meant that he had ‘just slapped her on the face’. The applicant also referred to his wife’s purported supporting evidence at his court hearing that he was just drunk, it was a mistake and ‘everything was ok’. However, [Ms A] did not attend the Tribunal hearing and the applicant stated that he had not seen or contacted his wife since his court hearing [in] April 2018. This assumes significance in the light of the applicant’s evidence that the AVO granted does not prevent him from communicating or residing with his wife as long as he does not approach her at least 12 hours after drinking alcohol.

19. Moreover, the Tribunal has considered the fact that the offences the applicant had been charged with in January 2018 involved breaching the AVO issued against him in October 2017.

20. Having considered the evidence before it, the Tribunal is satisfied that the presence of the applicant in Australia is or may be a risk to the health or safety of an individual, namely [Ms A].

21. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(3) 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

22. There are no matters specified in the Act or Migration Regulations 1994 that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia

23. With regard to the purpose of the applicant’s travel and stay in Australia, the applicant arrived in Australia on a visitor visa and, subsequently, applied for a protection visa. His Bridging C visa was granted in conjunction with his application for a protection visa in order for him to await the determination of his application lawfully in the community. The Tribunal understands that his protection visa application is under consideration by the Department and the applicant has a need to remain in Australia to learn the outcome of that application. The cancellation of the applicant’s Bridging C visa does not necessarily mean that he would be unable to remain in Australia, albeit in immigration detention, in order to await the determination of his protection visa application. The Tribunal does not consider it unreasonable for the applicant to remain in immigration detention as a consequence of being found to be a risk to an individual in the community. The Tribunal gives this factor little weight. 

    The extent of compliance with visa conditions

24. There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions of his Bridging C visa. The Tribunal gives this factor some weight. 

    The degree of hardship that may be caused to the visa holder and any family members

25. The applicant told the Tribunal that his wife and child only receive $170 in financial assistance at present and they do not receive any Centrelink benefits. He said, if he was not in detention, he would try and find a job to support his family. The applicant, however, also told the Tribunal that, before his arrest and detention in January 2018, he was not working in the community because his visa conditions did not permit him to work. When this was put to him at the hearing, he stated that he intended to approach the Asylum Seeker Centre to ask the Department to grant him work rights. The applicant did not explain why he had not made such a request before the cancellation of his visa. As already noted, [Ms A] did not attend the hearing and the Tribunal did not have any information in relation to her circumstances or how the cancellation of her husband’s Bridging C visa has financially impacted her. According to the applicant’s evidence, however, their domestic arguments had touched upon the fact that the applicant was spending portions of the family’s limited financial resources on purchasing alcohol. The Tribunal was not persuaded that [Ms A] and her daughter are in a greater financial difficulty now compared to the period prior to the cancellation of the applicant’s Bridging C visa.

26. Furthermore, the Tribunal reiterates that, according to his evidence, the applicant had not seen or contacted his wife since his court hearing [in] April 2018, despite not being prevented from communicating with his wife under the applicable AVO.

27. The Tribunal, therefore, is of the view that this factor does not weigh against cancellation of the visa.

    The circumstances in which ground of cancellation arose

28. The evidence provided by the applicant indicates that he has pleaded guilty to offences of common assault and destroying or damaging property.  These offences were committed against his wife. In his evidence to the Tribunal, the applicant did not directly address the offences he had pleaded guilty to. When he did refer to the offences, however, he sought to refer to extenuating circumstances, such as being drunk or under financial stress, or describing the offences as ‘minor’, even though he acknowledged that they had involved striking his wife on the face. He did not show any insight into the seriousness of the offences or the fear that they must have caused his wife. As already noted, an AVO remains in force to protect [Ms A] until 2020. The Tribunal, therefore, does not give this factor any weight in the applicant’s favour. 

    The applicant’s past and present behaviour towards the Department

29. There was no evidence before the Tribunal to indicate that the applicant’s past and present behaviour towards the Department has been anything other than cooperative. The Tribunal gives this factor some weight. 

    Whether there would be consequential cancellations under s.140

30. The applicant told the Tribunal that his wife and child have now been granted Bridging E visas and remain in the community on the basis. This is consistent with information contained in the Department’s movement records, indicating that the applicant wife was granted a Bridging E visa on 29 March 2018. There is no evidence before the Tribunal to suggest that the cancellation of the applicant’s visa would result in the cancellation of the Bridging E visas granted to his wife and daughter. The visas do not appear to have been granted on the basis that they were members of the family unit of the applicant.

31. The evidence before the Tribunal does not suggest that there would be any consequential cancellations under s.140 of the Act as a result of the cancellation of the applicant’s visa. Accordingly, this factor does not weigh against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences

32. The cancellation of the applicant’s Bridging C visa would result in the applicant being unlawful and liable to detention. In addition, as noted by the delegate, the effect of s.48 of the Act would be to limit the applicant’s options so far as any further visa application is concerned, and Public Interest Criterion 4013 could prevent the grant of a further visa for three years. However, the cancellation would not affect the assessment and consideration of the applicant’s protection visa application. In addition, the applicant is eligible to apply for a Bridging E visa. Whilst the applicant may not be granted a Bridging E visa, he is not prevented from making a valid visa application without the Minister’s intervention. The Tribunal places little weight on this consideration.

    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

33. With regard to non-refoulement, as already noted, the applicant has made an application for a protection visa, which is currently under consideration by the Department. It is not yet determined whether he is a person in respect of whom Australia has protection obligations or whether he would be likely to be removed from Australia. This factor does not weigh against the cancellation of the applicant’s visa.

34. The Tribunal has considered the best interests of the applicant’s daughter. The applicant told the Tribunal that his wife and child are suffering without him. His daughter was ill and they were not receiving any help from the community. If he were to be released, he would be able to help by taking his daughter to the doctor or by working to financially assist his family. The Tribunal accepts that the applicant’s daughter would benefit from having close contact with her father. However, the Tribunal is also cognisant of the fact that [Ms A] is their daughter’s primary carer and an AVO remains in force to protect [Ms A] until 2020, indicating that the applicant may continue to be a risk to her safety. Whilst the Tribunal accepts that it is in the best interests of the applicant’s daughter that she continues to have close contact with her father, the Tribunal is not satisfied that, in this case, this is so compelling as to weigh against cancellation. The Tribunal gives this factor some weight. 

    If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties in Australia

35. Given that the applicant’s Bridging C visa is temporary in nature, this factor is not relevant.

    Conclusion

36. The Tribunal finds that the ground for cancellation in s.116(1)(3) exists. In relation to whether the visa should be cancelled, having carefully considered the evidence before it, the Tribunal is of the view that the factors mentioned, whether individually or cumulatively, are not of sufficient weight for the Tribunal to exercise its discretion not to cancel the visa.

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Shahyar Roushan
    Senior Member