1810854 (Migration)

[2018] AATA 4145

1810854 (Migration) [2018] AATA 4145 (29 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810854

MEMBER:Katie Malyon

DATE:29 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 29 August 2018 at 2:24 pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – risk to the health or safety of an individual – alleged violent behaviour to a work colleague – criminal charges dismissed – two previous convictions not disclosed – credible evidence of rehabilitation – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 378

Migration Regulations 1994, Schedule 2

CASES

Gong v MIBP [2016] FCCA 561
Qiao v MIAC [2008] FMCA 380
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732
Tien v MIMA (1998) 89 FCR 80   

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 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 11 April 2018 made by a delegate of the Minister for Home Affairs to cancel the secondary Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Bangladeshi national [name], 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] is or may be, or would or might be, a risk to the health or safety of an individual or individuals: in this case the delegate named a work colleague of [the applicant], [Mr A].

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 14 August 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from his wife, [named].  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  Both [the applicant] and [his wife] used the interpreter on occasions.  [The applicant] was represented in relation to the review by his registered migration agent, who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. Relevant to this case, these include the ground set out in s.116(1)(e) of the Act. 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?

7. A visa may be cancelled under s.116(1)(e) of the Act 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].

8. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e) of the Act, the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. In that case, the Court held that the term must be construed in the context in which it appears, that is, juxtaposed to the words ‘the health, safety’ of the Australian community: that is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way.[1]   It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   [1] Tien v MIMA (1998) 89 FCR 80, Goldberg J at [94]

   Background

9. [The applicant] arrived in Australia in October 2007 as the holder of a [temporary] visa and has remained in Australia since then on subsequent [similar] visas and, most recently, as the holder of a secondary Subclass 457 visa.  He and his wife [named] have been married for 17 years and have 2 children.  [One child] is [age] years old and [the other] is [age] years old.

10. On 11 April 2018, the delegate cancelled [the applicant’s] Subclass 457 visa on the basis that he had allegedly been engaged in violent behaviour involving a work colleague at a [business] in [Suburb 1] [in] December 2017.  The police report advises that [the applicant] allegedly had an argument with work colleague, [Mr A].  It is claimed he allegedly said “I will kill you” to [Mr A] and then pulled out [a weapon] which he then pointed at the alleged victim and threatened “I will kill you” again.  He then pushed [Mr A] causing him to trip on a step and fall sideways into [furniture].  [The applicant] then held the [weapon] to the [alleged victim] and, for a third time, threatened to kill him. 

11. At this point, 2 other workers came to the assistance of [Mr A] to stop further assaults.  The [business] Manager also came into the [work area] and attempted to get [the applicant] away from his victim before [the applicant] fled the premises and went to his own place of work at another nearby [workplace] owned by the same company as where the alleged incident occurred.  The police were called to the scene by [Mr A]. 

12. The police went to the other nearby [workplace] where [the applicant] was working, arrested him and took him into custody.  [The applicant] was charged with 3 offences: common assault; armed with intent to commit indictable offence; and, stalk/intimidate with intent to cause fear or physical harm. 

13. In response to the delegate’s Notice of Intention to Consider Cancellation (NOICC) sent 6 March 2018 and which sets out details of the alleged incident and charges as outlined above, [the applicant’s] representative provided assorted documentation to the Department including:

    1)Submission from his representative which states, inter alia:

    a)    [the applicant] was granted bail and, on that basis, he is not considered by the judiciary to be a risk to the health or safety of the Australian public.

    b)    charges in relation to [the applicant] remain pending and that he should be presumed innocent until proven guilty;

    c)    the Manager of the [business] where the alleged incident occurred has provided a character reference letter for [the applicant] in which he also claims he did not see anyone with any sort of a dangerous weapon and he continues to support [the applicant];

    d)    [the applicant] is the direct superior of the alleged victim and, if there were any work related performance issues, he could dismiss the alleged victim from employment without have to resort to physical violence; 

    e)    the impact on [the applicant’s] wife and his 2 young children if he is forced to return to Bangladesh; and,

    f)     the impact on [the applicant] personally if he is forced to return to Bangladesh where, based on information in the accompanying travel warning published by the Australian Department of Foreign Affairs (DFAT), life poses great danger.

    2)Letter from criminal lawyer [Lawyer A] dated 13 March 2018 in which he states he is representing [the applicant] in relation to charges laid, that [the applicant] intends to plead not guilty and, in his opinion, “it is extremely unlikely that [the applicant] committed the crime claimed by the alleged victim and the case is likely to be dismissed by the Court”.  

    3)Statutory Declaration from [the applicant] dated 23 March 2018 in which he states, inter alia, he is not a violent man and has never been convicted of any violent offence in Australia or overseas and, further, he has never used any form of physical violence or punishment to his children, his wife or anyone else.

    4)Character reference letter dated 21 March 2018 from [name], [Manager] at the [business] where the alleged incident occurred.

    5)Additional character reference letters from the following:

    a)    [name], Public Accountant, dated 21 March 2018;

    b)    [name], [the applicant’s] medical practitioner, dated 21 March 2018;

    c)    [name], Accountant, dated 20 March 2018;

    d)    [name], real estate agent; 

    e)    [name], Counsellor with [a named agency] dated 20 March 2018;

    f)     [name] dated 20 March 2018;

    g)    [Director A], Director of the company employing [the applicant] dated 20 March 2018;

    h)    [name], [a manager] of [a] Medical Centre, dated 21 March 2018; and,

    i)   [name] dated 21 March 2018; and,  

    6)Travel warning smartraveler.gov.au – Bangladesh published by DFAT. 

14. At the time of the delegate’s decision on 11 April 2018, the charges in relation to [the applicant’s] alleged workplace incident [in] December 2017 were yet to be heard. Having assessed evidence provided, the delegate concluded that the alleged violent behaviour - including the use of the [weapon], along with verbal threats - indicates that [the applicant’s] presence in Australia may be a risk to the safety of an individual, namely the alleged victim, [Mr A]. Having concluded that the ground for cancellation in s.116(1)(e) of the Act exists, the delegate then considered whether the grounds for cancelling the visa outweigh the reasons for not cancelling the visa and concluded that the visa should be cancelled.

    Documentation lodged prior to the hearing

15. Although criminal lawyer [Lawyer A’s] letter of 13 March 2018 referred to above indicates that [the applicant] would pleaded not guilty in the matter which is listed at [Court 1] for [a date in] May 2018, no evidence was provided to the Tribunal of the outcome of that hearing. 

16. Accordingly, the Tribunal scheduled a hearing.  In its hearing invitation, the Tribunal requested [the applicant] provide the Tribunal with an updated bail report.  It attached a copy of his [Police] Criminal History – Bail Report dated [in] February 2018 obtained from the Department’s file which indicates that, [in] September 2011, he appeared before [Court 1] charged with a range of offences relating, principally, to 2 domestic violence incidents – the first [in] December 2010 and another, 2 weeks later, [in] January 2011 - which resulted in the following:

    
    
    

Offence Date	Court Date	Charge/s heard	Result
[date in].12.10	[date in].09.11	Common assault (DV) charges ………………………………. Destroy or damage property (DV)	Convicted.  No other penalty imposed.  12 month good behaviour bond and supervision by [the] Probation Service in relation to counselling or rehabilitation; report to [a local] Probation Office within 7 days
[date in].01.11	[date in].09.11	Contravene prohibition / restriction in AVO (Domestic) ……………………………….. Common assault (DV) ……………………………….. Destroy or damage property	Convicted.  No other penalty imposed. ………………………………………12 month good behaviour bond and supervision by [the] Probation Service in relation to counselling or rehabilitation for each offence; report to [a local] Probation Office within 7 days
[date in].07.11	[date in].07.11	Breach bail – apply to re-determine	Bail Order made

1. In response to the Tribunal’s hearing invitation, [the applicant’s] representative provided a letter from criminal lawyer [Lawyer A] confirming that he had appeared on behalf of [the applicant] at the [Court 1] [in] May 2018 before Magistrate [name] and that all 3 charges against him were dismissed.

2. Prior to the hearing, [the applicant’s] representative provided the Tribunal with the following documents:

   1)evidence of lodgement of an Australia Federal Police clearance for [the applicant].

   2)a Statutory Declaration from [the applicant] sworn 9 August 2018 in which he states, relevantly:

   a)    charges against him for the alleged incident [in] December 2017 were dismissed (by [Court 1]);

   b)    he regrets his mistakes for the offences committed in 2010 and 2011 which resulted from a domestic dispute with his wife following a big argument with her.  He got really upset, physically assaulted her and broke her phone leading to a 12 month good behaviour bond;

   c)    he fully understands in both instances he was wrong.  He should have followed the law and not breached his bail condition (in July 2011): he is extremely sorry;

   d)    he has previously mistaken these domestic violence offences as domestic  matters but now understands these are criminal matters against him.  He accepts these offences are extremely serious and what he did was wrong and he is accountable for what he has done; and, 

   e)    he and his wife are still married and living happily together. He has not assaulted her or anyone else since then, including [Mr A].  

   3)a signed (but undated) Statement from [the applicant’s wife] in which she says, relevantly:

   a)    her husband of over [number] years and the father of her [children, aged] committed criminal offences against her [in] December 2017 and then breached his AVO on [a date in] July (sic) 2011;

   b)    at the time of the offences she was stressed because she [had specified medical conditions];

   c)    on [that day] she was very stressed and got into a heated argument with her husband.  It was the first time it resulted in physical violence against her and he broke her phone.  At the time, she was extremely upset and called the police to help resulting in a husband being charged and, in July (sic) 2011, she called police again after they got into another argument which resulted in him being convicted of breach of AVO;

   d)    her husband is a very good and kind hearted man.  He fully understands that he made these mistakes and, apart from these incidents, he has never harmed her or anyone else;

   e)    when he was charged with the offences [in] December 2017 at his workplace, she was very surprised to hear that it happened as she knows her husband is not a violent man by nature.  She does not believe he could have assaulted that person ([Mr A]); and,

   f)     she has fully forgiven her husband for what he did in 2010 and 2011: it was she herself who, at that time, suffered mood swings which contributed to his behaviour.  Since then, he has done nothing wrong and she fully believes he has learned his lesson will not any commit any offence ever again.

   Hearing

3. As noted above, both [the applicant] and his wife attended the hearing with [the applicant’s] representative.

   [The applicant] evidence

4. [The applicant] told the Tribunal that all 3 charges heard in the [Court 1] [in] May 2018 were dismissed and that he continues to work for his employer.  He also told the Tribunal that [Mr A] no longer works at either of the [workplaces] owned by his employer and so he has nothing further to do with [Mr A].  [The applicant] said he does not even know where [Mr A] is now working. 

5. Asked to explain how it was that he came to be charged with the offences in the first place, [the applicant] told the Tribunal that they were all trumped up charges and totally false.  He explained that [Mr A] and another employee who goes by [a nickname] wanted him out of the [business] so they framed him.  They hatched a plot, made totally false allegations and then called the police. 

6. [The applicant] apologised to the Tribunal for his criminal lawyer’s failure to forward to the Tribunal a copy of the decision of [the named Magistrate] of the [Court 1].  The charges were dismissed on the day of the hearing.  It was [the applicant’s] understanding that [Lawyer A] was going to forward the [Court’s] decision to the Tribunal.   

7. The Tribunal observed that, based on evidence provided including the letter from criminal lawyer [Lawyer A] that charges in relation to the alleged workplace incident had been dismissed and that [Mr A] no longer works at either [business] operated by [Director A] in [Suburb 1], it had formed a preliminary view that [the applicant] may not pose a risk to the safety of [Mr A] as contemplated by the delegate.  [The applicant] reiterated ‘all the charges were trumped up and just false allegations’. 

8. Nonetheless, the Tribunal expressed its concern that, on the one hand, in his Statutory Declaration sworn 23 March 2018 lodged with the Department in response to the NOICC [the applicant] had stated he has ‘never been convicted of any violent offence in Australia or overseas’ and, further, has ‘never used any form of physical violence or punishment’ to his wife and yet, on the other hand, his criminal history as outlined in the copy [Police] Criminal History – Bail Report dated [in] February 2018 attached to the Tribunal’s hearing invitation indicates that he has been charged with a range of offences relating to 2 domestic violence incidents.  [The applicant] told the Tribunal that it was a ‘verbal fight back’ on [dates in] December 2010 and [January] 2011 and there was no (actual) physical assault.  After getting bail [in] January 2017, he went off for counselling and no further incidents have occurred since then.  Initially, he was referred to a centre in [Suburb 2] for counselling but, there no places available, so he had to go to [Suburb 3] for the classes and do the exam.  [The applicant] said that the classes taught him what good behaviour is (in Australia) and how to conduct himself both at home and in the workplace.

9. Questioned about the breach of bail in [July] 2011, [the applicant] said this was a simple matter of his not being present at Court when the matter was heard.  There was apparently a Court order that he had to be present but he did not understand what was involved and, because he’d only been in Australia for less than 3 years, he did not know he needed to appear before the Court on that day.  The Tribunal notes that the [Police] Criminal History – Bail Report of [February] 2018 indicates that a Bail Order was made by the [named] Court [in] July 2017 and, accordingly, gives the matter no further regard.

   [The applicant’s] wife’s evidence

10. Initially, the Tribunal sought to resolve the issue of [the applicant’s wife’s] identity and the lack of evidence as to whether she had been the party who had signed the Statement referred to above at para [18].

11. [The applicant’s wife] showed the Tribunal her [Learner] Driver Licence which, the Tribunal observed, has a completely different signature from the Statement.  She explained that, on her Learner Driver Licence, she just singed with her initials.  Asked for other evidence of her signature, [the applicant’s wife] told the Tribunal that she did not bring her passport: however, her husband’s representative should have a copy of her passport on his laptop.  The Tribunal examined the signature of the passport of [the applicant’s child] born [on date] in Dakar, Bangladesh on the representative’s laptop and observed that it, too, was completely different from the signature on the Statement provided to the Tribunal.  [The applicant’s wife] advised that she signed her Bangladeshi passport using capital letters but that the signature in her Statement is her normal writing.  The representative provided an electronic copy of [the applicant’s wife’s] passport after the hearing.[2]  The witness appearing before the Tribunal confirmed that she is [name] born [on date] in Dakar, Bangladesh and that she is the wife of [the applicant].  The Tribunal provided a copy of the Statement referred to above at para [18] to the witness.  [The applicant’s wife] confirmed that she signed the Statement.  Based on the oral evidence provided as well as the photographic images in the passport and the [Learner] Driver Licence examined the Tribunal is satisfied the person appearing before it is [name],  [the applicant’s] wife.   [The applicant’s] representative later acknowledged he should have witnessed her signing a Statutory Declaration (instead of a Statement) and satisfied himself regarding her identity.   

    [2] AAT 1810854  f.60

1. The Tribunal then took oral evidence from [the applicant’s wife] after [the applicant] left the hearing room.  It expressed its preliminary view that, although it no longer had concerns that [the applicant] posed a risk to the safety of [Mr A] following dismissal of the charges by the [Court 1] [in] May 2018, there remained a residual concern that [the applicant] had denied he had ever assaulted his wife or been violent to her and yet his criminal record indicated he had been convicted of domestic violence twice, albeit more than 7 years ago. 

2. [The applicant’s wife] told the Tribunal that in 2010 she was very physically unfit, pregnant with her son, had high blood sugar issues and was stressed.  She said they were in a verbal fight and, when she threatened to call the police, they had a bit of a scuffle and her husband snatched the phone away from her.  She added he did not hurt her deliberately: he just pushed her in the process of trying to snatch her phone.  The Tribunal observed that, as a pregnant woman, even a push from her husband would appear to a reasonable observer to be a violent act.  [The applicant’s wife] replied that he just didn’t want her to call the police.  She added she called the police in December 2010 and again in January 2011 because she wanted to straighten him out.  [The applicant’s wife] said that he did not attack or assault her but she wanted him to be aware that this was a new country and he needed to know what acceptable conduct is here.  She added that, when the assault charges went to court, they were dismissed and he was given a good behaviour bond and had the benefit of counselling thereafter.  No further issues have arisen since then: he has been perfect. 

3. In her evidence, [the applicant’s wife] also said that verbal arguments often escalate to physical fights in Bangladesh and this has is happened in his family.  She said she ‘merely wanted to warn him that he can’t do what he was doing in that part of the world to her’.  The Tribunal sought clarification of this comment as it appeared [the applicant’s wife] had given evidence that her husband had a history of domestic violence prior to his arrival in Australia.  The interpreter apologised and explained it was her error in misinterpreting [the applicant’s wife’s] evidence.  The Tribunal asked [the applicant’s wife] whether her husband had ever been violent to her in Bangladesh.  She categorically denied this.  [The applicant’s wife] added that he has seen violence in his home country but she trusts him implicitly and, since early 2011, his conduct has been perfect.  This is why she was so surprised and disbelieving when he was charged with assault offences at work: this was not the husband she had come to know.

4. The Tribunal put to [the applicant’s wife] its concerns regarding the possible risk to her safety.  She replied that the couple have been married for more than 17 years and, apart from the 2 incidents referred to above due to her poor health, [the applicant] has been a model husband and father to their children.  There have been no incidents since early 2011 when her husband went for counselling in [Suburb 3].  She added that he is aware that such conduct is a very serious offence in Australia. 

5. [The applicant’s wife] concluded her evidence to the Tribunal by saying that she really hopes the Tribunal can set aside the delegate’s decision.  She explained that, after the month or so when her husband was in jail pending the bail application following the alleged workplace offences, she had to move out of the apartment in [Suburb 4] that they have shared for more than 9 years.  Once her husband stopped earning money and they had to find funds to pay the court and the lawyers assisting with the impending case in [Court 1], she was not able to afford the rent for their unit in [Suburb 4].  In the end, [the applicant’s] boss was really helpful and provided money required to get her husband bail.  However, as a result of all the financial pressure when he was in jail for a month or so, she and their children moved to live with her sister: it is such a small unit that only she and the children can stay there so that now they just get together as a family during the day because there is no room for her husband to stay with them at night.  Instead, her husband is sleeping at a friend’s place.  Hopeful that the Tribunal will set aside the delegate’s decision, [the applicant’s wife] said that she and her husband have been looking for accommodation near their old home in [Suburb 4] so that the children can continue to go to [their current school] and, in the words of the couple’s [age] year-old [child], they can all live as a family together again.  [The applicant’s wife] said she and her husband have found a place to rent but do not want to sign the lease until such time as the Tribunal makes its decision.  She also told the Tribunal that she applied for permanent residence in Australia nominated by her employer in April 2018 and, of course, her husband is included in the application.    

6. By way of final comment, an emotional [the applicant’s wife] told the Tribunal she is feeling secure now that her husband is trustworthy: she has observed his conduct now for more than 7 years after the counselling sessions at [Suburb 3]and he now fully understands the law following his attending those sessions.

   Documentation lodged after the hearing

7. After the hearing, [the applicant’s] representative provided the Tribunal with the following evidence:

   1)Australian Federal Police (AFP) Clearance dated [in] August 2018 confirming [the applicant] was convicted by [Court 1] [in] September 2011 in relation to the following offences:

   ·Common assault (DV), 2 charges

   ·Destroy or damage property (DV), 2 charges

   ·Contravene prohibition/restriction in AVO Order, 1 charge

   ·Contravene prohibition/restriction in AVO Order, 1 charge

   The AFP clearance confirms [the applicant] was convicted on each count and was ordered to be on good behaviour for 12 months.  No other penalties were imposed.

   2)signed letter from [the applicant’s] employer [Director A] dated 20 August 2018.

   [Director A] confirms [the applicant] has worked for him for more than 7 years as [an occupation] during which time he has had the opportunity to closely observe and interact with him and other staff working together. 

   In that time he has never found him to have any behavioural issues.  He is aware the criminal case against him was dismissed [in] May 2018 because the case against him was proved to be false.  [Mr A] (the alleged complainant who initiated the false allegations) is no longer employed in his [business]. 

   [Director A] requests the Tribunal not to cancel [the applicant’s] visa as he is a very important and valuable employee at his [business].

   3)Statutory Declaration from [Declarant A], the sister of [the applicant’s wife], sworn 20 August 2018.

   [Declarant A] states she has known her brother-in-law [the applicant] for more than 15 years since his marriage to her elder sister.  She is aware of the domestic violence incidents in 2010 and the AVO issued against him which was preached in 2011.  He was punished by being placed on a good behaviour bond and had to go for counselling.  After counselling, he learned his lesson and, since then, he has not done anything wrong.  She used to visit her sister’s house in [Suburb 4] nearly every day - it was minutes away from her apartment in [Suburb 2] – and didn’t see anything wrong.

   Her sister has 2 little kids and, when her brother-in-law was in jail (for a month), her sister had lots of problems including financial difficulties.  It was hard for her to look after the kids and work so the 3 of them moved in to her [Suburb 2] apartment.  They had no choice.  Since his release from jail, her brother-in-law has since moved to a friend’s pace in [another suburb].  Her brother-in-law comes to her place and spends time with the kids: he misses them a lot.  Her sister and brother-in-law are looking for a unit to resume living as a family.

   [Declarant A] trusts her [brother-in-law], because he has kept his promise.  He has not fought with her sister for the last 7 years.  She also believes that he now knows how to maintain the family because she sees that he is more responsible now than before.

   Consideration of evidence

8. The question for the Tribunal to consider is whether the presence of [the applicant] in Australia is, or may be, or would or might be, a risk to the health or safety of an individual.

9. It is clear that, when the delegate was considering cancelling [the applicant’s] visa on the basis of the risk that he may pose to the safety of an individual in the Australian community, the delegate appropriately considered the fact that charges were pending in relation to an alleged violent workplace incident involving [Mr A].  The charges involved a serious assault with intent to cause fear or physical harm.  However, those charges were dismissed on the day by the Magistrate on date of the hearing in [Court 1] [in] May 2018.  Based on evidence provided, [Mr A] no longer works with [the applicant].  Further, [the applicant] has the ongoing support of his employer.  In the circumstances, the Tribunal finds that the health and safety of [Mr A] is not at risk. 

10. The Tribunal has considered whether the health or safety of other work colleagues of [the applicant] is at risk.  It notes [the applicant] appeared to be able to clearly articulate the benefits of the counselling and training he has undertaken following the earlier domestic violence incidents of more than 7 years ago involving his wife.  He appeared to the Tribunal to be able to rationalise dealing with the behaviour of others which may not accord with his views: in relation to his wife, for example, he said he no longer argues with her at all. 

11. Furthermore, the multiple character references referred to above at para [13] refer to his pleasant, polite and kind nature as well as his good moral character.  In particular, the Tribunal notes the reference from his employer, [Director A] dated 20 March 2018, who states that he has known [the applicant] for more than 7 years and has closely observe [the applicant] interact at the various [workplaces] where he has worked.  [Director A] says he has never found [the applicant] to display any behavioural issues that could be termed objectionable and nor has he been informed about any such behaviour.  Further, he has always found [the applicant] to be responsible, hard-working and friendly both with staff and with customers.  As the business owner, he collects feedback regarding staff relationships and, based on that feedback, he firmly believes [the applicant] is a man of good character and of a non-violent nature.  These sentiments are echoed in the other character references provided.  [Director A] reiterates the sentiments of his letter dated 20 March 2018 in his letter lodged with the Tribunal after the hearing dated 20 August 2018.  He also observes that the protagonist of the alleged violent incident [Mr A] no longer works at his [business] and he urges the Tribunal not to cancel [the applicant’s] visa as he is a very important and valuable employee at his [business]. 

12. Also lodged with the Tribunal after the hearing is [the applicant’s] AFP clearance confirming that, in respect of each of the charges heard by the [Court 1] [in] September 2011 outlined above, [the applicant] was convicted of each offence but no penalty was imposed although he was placed on a good behaviour bond for 12 months. 

13. In the circumstances, the Tribunal concludes there is no evidence before it that [the applicant’s] presence in Australia may be a risk to the health or safety of his work colleagues.

14. Notwithstanding the Tribunal finds that [the applicant] is not a risk to the safety and health of [Mr A] or his work colleagues, it has nonetheless considered whether, having regard to [the applicant’s] past criminal history, there is a risk - a possibility, as contemplated by Smith J in the decision in Gong v MIBP [2016] FCCA 561 - that he may assault his wife at some time in the future. 

15. The Tribunal has considered the oral evidence of [the applicant] and [his wife].  It also notes the letter from [Declarant A], [the applicant’s] sister-in-law, in which she indicates that she has known and observed her brother-in-law for many years.  She is aware of the domestic violence incident which occurred in 2010, the AVO issued against him and the fact that he breached that in early 2011.  Since being placed on a good behaviour bond and going for counselling, he has done nothing wrong and she trusts him.  In addition, [Declarant A] states that she has observed her brother-in-law is a more responsible person now.

16. While the Tribunal acknowledges that the risk of recidivism tends to decline over time, and it notes [the applicant’s] statement (confirmed by [the applicant’s wife]) that he has not argued with his wife since early 2011, it is nonetheless concerned that, based on [the applicant’s] past pattern of behaviour, there is a risk – albeit remote - he might physically assault his wife in the future.  In this regard the Tribunal accepts that, based on [the applicant’s wife’s] evidence as corroborated by her sister, such a risk would be remote.  The Tribunal found [the applicant’s wife] to be a credible witness who genuinely acknowledged the concerns articulated by the Tribunal regarding for her safety.  Although the 2 incidents of domestic violence towards his wife occurred more than 7 years ago, [the applicant] completed a series of behavioural counselling courses and there have been no incidents since then, the Tribunal finds that, based on [the applicant’s] past pattern of behaviour, there is a risk - albeit a remote risk– that he might possibly assault his wife in the future.

17. For this reason, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether [the applicant’s] Subclass 457 visa should be cancelled.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.  Where exercising a discretionary power the Tribunal is required to have regard to any relevant lawful policy, in this case, the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, as a relevant consideration.  However, policy is not binding on the Tribunal.[3]  This was supported in Re Drake and MIEA (No 2) where Brennan J stated ‘the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case’. [4]Justice Brennan also stated:

    In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.[5] 

    [3] See, for example, Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995)

    [4] (1979) 2 ALD 634 at 644

    [5] Ibid at 642

19. While policy sets out a number of factors that may be considered when deciding whether it is appropriate to cancel a visa, in the circumstances of this case the Tribunal considers it highly relevant that the 2 domestic violence incidents occurred within the space of 2 weeks more than 7 years ago and, importantly, there is overwhelming and credible evidence from [the applicant’s wife] of her husband’s rehabilitation. 

20. The Tribunal also notes the bail conditions imposed on [the applicant’s] release from detention [in] January 2018 require that, relevantly, he: forfeits cash of $4,000; resides at an address in [Suburb 4] (notably, this is the same address on [the applicant’s wife’s] Learner Driver Licence and the address where she and [the applicant] advised the Tribunal they have lived together as a family for 9 years); significantly, complies with the curfew requiring him to remain at home from [dates in] January 2018 - [February] 2018 between the hours of 11:00 pm and 5:00 am unless in the company of [the applicant’s wife] (emphasis added).  Furthermore, the bail report indicates that [the applicant’s wife] has agreed to forfeit further $4,000 if her husband fails to appear before the court when required to do so.  It is evident to the Tribunal that, based on the support of his wife and employer, [the applicant] was granted bail after 5 weeks of detention so that the family could resume living together from [a date in] January 2018 at their [Suburb 4] home. 

21. The court would have been fully aware of [the applicant’s] criminal history including domestic violence when considering his release on bail and, in the opinion of the Tribunal, would not have insisted he continue living with his wife and the couple’s children if it had any real concerns regarding [the applicant’s wife’s] safety. 

22. Significantly, all the evidence points to [the applicant] having a strong and loving relationship with his wife since he completed counselling and rehabilitation training in 2011 and, although the Tribunal has found that there is a remote risk of domestic violence, the decision to release him on bail in late January 2018 on condition that he resume living with his wife as well as the evidence of love and support from his wife [name] in her oral evidence to the Tribunal and the letter from his sister-in-law [Declarant A] lodged with the Tribunal after the hearing indicate that the risk of recidivism of any such domestic violence incident is extremely low.  Furthermore, the Tribunal notes oral evidence from an emotional [the applicant] that it is his desire to continue to live with and support his lovely family, particularly as they now look forward to their future in Australia following lodgement by [the applicant’s wife] of her permanent residence visa application sponsored by her employer. 

23. Having regard to the circumstances as a whole and for the reasons outlined above, the Tribunal concludes the preferable decision is that [the applicant’s] visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Katie Malyon

    
    Member