1812292 (Migration)

[2019] AATA 2045

1812292 (Migration) [2019] AATA 2045 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812292

MEMBER:Melissa McAdam

DATE:12 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 12 February 2019 at 10:42am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the safety of an individual in the Australian community – applicant charged with assault on wife – alleged victim planning to withdraw charges – couple reconciled – psychologist support – AVO lifted – decision under review set aside      

LEGISLATION

Migration Act 1958 (Cth), s 116
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

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 24 April 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 applicant was represented in relation to the review by his registered migration agent.

3. The applicant was granted the Subclass 500 (Student) visa on 7 September 2016.

4. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant might be a risk to the safety of his wife.

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

   Department’s Decision

6. The delegate’s decision to cancel the visa was submitted to the Tribunal by the applicant. The decision outlines the following:

   a.The applicant was issued with a Notification of Intention to Consider Cancellation (NOICC) of his visa on 2 March 2018.

   b.The applicant was charged by NSW police [in] January 2018 with assault occasioning actual bodily harm.

   c.According to the New South Wales police information, the alleged victim was the applicant’s spouse and that during a verbal argument with the victim the applicant  allegedly used his right hand to punch her to her face on [number] occasions. The victim’s face became swollen, bruised and lacerated. Following this incident, the police attended the property and the applicant was escorted to the local police station where he was subsequently charged with the above offence. 

   d.In addition to the police charges, an Apprehended Violence Order (AVO) was enforced on the applicant, naming his wife as the person who required protection from him. The AVO prevented the applicant and his spouse residing with each other.

   e.The delegate considered that the applicant’s alleged behaviour indicated that his presence in Australia may present a risk to the safety of an individual in the Australian community, namely his wife.

   f.The applicant provided a written response to the NOICC  that there were no grounds for cancellation of his visa for the following reasons:

   i.The NOICC defies and underestimates universal principles of criminal justice which state “an accused should be presumed innocent unless he or she is proved guilty”.

   ii.The Minister should not interfere in a sub judice matter.

   iii.The applicant has not yet been found guilty and requests the Department delay a decision regarding his visa until the final outcome in a Court of Law.

   iv.The alleged victim in this case is trying to withdraw the case.

   v.He submitted a copy of an email from the alleged victim, stating that she is planning to reconcile with the applicant and to drop the charges.

   g.The delegate considered the email from the alleged victim not credible and found there were grounds for cancellation of the applicant’s visa.

   Information on the Department file

7. According to police and court documents on the Department’s file:

   a.The applicant appeared in [a named] Court [in] April 2018 and was sentenced to a section 10 Bond for two years for the offence “assault occasioning actual bodily harm”. He was also required by the court to continue treatment with a qualified psychologist or psychiatrist for as long as the psychologist considered necessary.

   b.An Final Order Apprehended Domestic Violence Order against the applicant was made, naming his wife as the victim, with the following conditions:

   -    The applicant must not assault or threaten; stalk, harass or intimidate; and intentionally or recklessly destroy or damage property belonging to or in the possession of, the victim.

   -    The order is due to expire [in] April 2020.

   Information to the Tribunal

   Pre-Hearing submission

8. On 5 February 2019 the applicant submitted a written statement and a psychologist’s report to the Tribunal.  The written statement is signed by the applicant and by [name], the applicant’s wife. It contains the following:

   We are a married couple. We were married [in] November 2009.

   I [applicant’s wife’s name] came to Australia as a holder of student visa and my husband [applicant’s name] as a student dependent.

   We have a child from our relationship who currently resides in Nepal with our parents. We decided not to bring our child together as knew that the life as a student in Australia will be challenging. We did not want our child to face difficulties while residing in Australia.

   After our arrival in Australia my wife started to study [course name] at [named university]. I [applicant’s name] started to work as a [specified occupation] in a [business].

   We were facing difficulties being away from our child and family. I started to suffer from Anxiety.

   On the particular date [in] January 2018, I [applicant’s name] was a bit distressed. I had a small discussion with my wife over the issue of a get together being planned by our roommate.

   Because of my mental state I was not able to control myself and the discussion took a wrong end. After this incident I had visited [Psychologist A] several times for my mental health condition. The Psychologist now states that my mental health is getting better.

   Considering my mental health the court has granted me a s10 bond without convictions and ordered me to continue treatment from [Psychologist A] until it is considered necessary.

   I am a loving husband and a father who always give preference to family. I am not sure how I was involved physically. This might have happened because of my poor mental health.

   We both say that we do not have any issues about our relationship.

9. The psychological report is from [Psychologist A], dated [in] January 2019. It states the following:

   I am writing in regards to [applicant’s name], who has been under my care for psychological treatment and consultation to date.

   [The applicant] was diagnosed with 300.02 (F41.1) Generalised Anxiety Disorder (GAD), as outlined in the Diagnostic and Statistical Manual of Mental Disorders (5th ed.; DSM-5; American Psychiatric Association, 2013).

   [The applicant] has been actively seeking to determine the course of his anxiety, associated symptoms and manifesting behaviour for treatment with evidence-based psychotherapy. In our sessions thus far, [the applicant] has been treated with a combination of:

   ·          Cognitive-Behavioural Therapy (CBT; Beck, 1976)

   ·          Acceptance and Commitment Therapy (ACT; Hayes & Wilson, 1994).

   Overall, [the applicant] has achieved his goals of reducing and better managing his anxiety and reported feeling more positive. [The applicant] continues to develop the utilising of the appropriate coping skills when required. I have also been encouraging [the applicant] to continue his breathing exercises and have been referring him to his guided mediation resources that have been provided during the sessions.

   To date, [the applicant] has been engaged, and collaborative in therapy, and he has showed enough insight, motivation, and personal responsibility to learn to modify his behaviour. [The applicant] has also been pro-active in ensuring that he utilised the sessions for his continued positive personal development and improving his overall mental health.

   This indicates that [the applicant] was able to demonstrate the appropriate ability to take responsibility for his behaviour. Despite standard fluctuations, the intensity, duration and frequency of [the applicant’s] symptoms of anxiety, seem to have decreased with treatment.

   In my professional opinion, I believe that [the applicant] is genuine in his presentation and has been seeking to move on with his life, whilst maintaining steady positive progress in improving his mental health condition.

   To this end, [the applicant] has complied with all activities undertaken within the sessions and the homework required of him. He has attended all sessions on time and has been a willing participant. It is my opinion that [the applicant] had a genuine desire to reform his behaviour, realising the ramifications of his actions and associated consequences.

   Further, I can confidently say that [the applicant] has acquired all the skills presented to him during the sessions and therefore is fully equipped to refrain from angry outbursts, especially those leading to aggressive behaviours based on his anxiety.

   Tribunal Hearing

10. The applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [named].

11. The following is a summary of the information given by the applicant during the hearing:

    a.After the incident in which he was charged with assault he moved out of his wife’s home and lived with a friend.

    b.He believes his AVO was changed in April last year so he could resume residing with his wife. About a week after the order was changed he moved back into his wife’s home. They have continued to live together since then.

    c.He has had no other involvement with the police since the January 2018 incident.

    d.His relationship with his wife is now good and they have no misunderstandings.  He acknowledges and regrets what he did. He loves his wife.  They have been in a long term relationship.  They have an [age] year old son together.

    e.At the time of the incident he was anxious and his father was sick.

    f.He is consulting a psychologist and follows the psychologist’s  advice and treatment.  If he feels anxiety again he will apply the therapies he has learned.  He can speak with his friends and take advice from his wife.  If he feels stress he wil take advice and treatment from his doctor.

    g.Sometimes he and his wife disagree on small matters but it is okay. For example they like to eat different foods.

    h.He is happy with his wife.  In their relationship neither of them is ‘in charge’ of the other. He shares the cooking and cleaning at home.

    i.The Tribunal put to the applicant that the assault occurred because of a disagreement between him and his wife. The applicant responded that he had learned a lesson from that incident. Now he will ask why his wife does not agree and he knows to control his emotions.  If he becomes angry he knows he should go see his friends and keep to himself somewhere for a while.

    j.He does not think his wife has been fearful of him since the January incident.

    k.What he did was a mistake.  Nothing like that had ever happened in his life before. He is sure it won’t happen again.  He will not be a risk to his wife’s safety.

    l.He knows he is on a two year good behaviour bond and if he breaches this he will be punished and may go to jail.

12. The applicant agreed to the Tribunal taking evidence from his [wife] while he waited outside the closed hearing room. The following is a summary of the information given by [the applicant’s wife], during the hearing:

    a.Regarding the incident, her husband had not been like that before. Gradually he developed a drinking habit. Then they started having small arguments. Then that incident happened.

    b.They lived separately for some time.  They resumed living together on [a specified day] last year.

    c.It had been her idea to complain to the police but it was also her idea that they start living together again.  She wanted to give him another chance.  She thought he would  change because they have a son in Nepal.   They have a long term relationship and had known each other since she was in [grade] at school.  That was the single incident in the long period of their relationship together. 

    d.Since her husband moved back into the home there has not been any situation where she has been fearful of him. He has been trying very hard to change. It did not happen suddenly but it is happening over time.

    e.He has regular appointments with his psychologist. He asks her to remind him of the appointments in case he forgets.  He has reduced his drinking by 90%. He now goes to the gym and keeps busy. He listens to music and frequently talks to their son in Nepal.

    f.Her husband regrets the incident. She is confident it won’t happen again. He is trying his best to change himself.  He doesn’t involve himself in small arguments or pick on her anymore. He involves himself in the household, cooking and cleaning, and helps her. He is taking cooking lessons.

    g.She and her husband disagree sometimes. For examples they have different tastes in the movies they want to watch.  Sometimes they argue.  But she discusses things without any fear and they talk things through until they agree on something. 

    h.For example they disagreed on whether they should bring their son to Australia. She really wants to bring her son to Australia but their student life here is a struggle so her husband disagreed with this. Eventually they both compromised and decided that as soon as she finishes her studies they will bring their son here.

    i.Since her husband has moved back into her home she has not felt worried he may hurt her. This is because of the changes in him.

    j.Her husband does not stop her doing the things she wants to. He does not stop her going out or seeing her friends. She has not felt she has to change her behaviour or what she wants to say because of him.

    k.Sometimes her husband is stressed from his work. He then talks to his friends and tries to work out ways to make his boss happy.  He no longer throws tantrums when he is stressed as he did in the period leading up to the incident.  He might ignore her and have time to himself but he does not throw tantrums.

    l.She does not think her husband is a risk to her safety. The change in him has been gradual and is therefore real.

    m.Her husband still sees his psychologist. He likes the psychologist and appreciates the friendly atmosphere the psychologist creates.  Her husband has a lot of respect for the psychologist and calls him whenever he has some questions.

    n.She does not want her husband’s visa cancelled.  She is studying and he supports her both financially and with household chores.  They have a son and a loan to repay in Nepal. He also supports his parents in Nepal as he is their only son. Their son lives with his family.  Her husband also gives her psychological support and support from every angle. 

    o.They knew each other from a very young age. They got married in 2009 and had a baby in [year]. For study she had to come here. Everything happened in a short period of time so they had a period of instability when the incident occurred.  But now they are both very mature.  They don’t argue over the small matters They try to resolve situations together.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

    Does the ground for cancellation exist?

    Section116(1)(e) - risk to Australian community or individual

14. 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].

15. 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 safety of his wife.

16. The applicant was charged with a serious offence, assault occasioning actual bodily harm. The Tribunal notes that the Magistrate who decided the applicant’s matter sentenced him under s.10 of the NSW Crimes (Sentencing Procedure) Act 1999.

17. Section 10 on the NSW Crimes (Sentencing Procedure) Act 1999 states:

    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.
    …

    (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.

18. In the Tribunal’s view the offence committed the applicant cannot be described as ‘trivial’.  As described in the police information it was a violent attack by the applicant on a vulnerable person, his wife.

19. The Tribunal considers it significant, that a few months after the applicant’s assault upon his wife, the Court varied the AVO against him so that they could resume living together. The Tribunal notes the applicant’s wife evidence that this was at her initiation. There is no indication that this variation was opposed by the police or prosecution. The Tribunal considers this indicative of an absence of fear by the court that the presence of the applicant in his wife’s home would or might be a risk to her safety.

20. The applicant’s wife gave detailed and persuasive evidence that the applicant has worked hard to address the behaviour and emotions that caused him to commit the offence.  She has observed changes in him which she considers durable. She described them both as acting maturely and cooperatively.

21. The Tribunal accepts the applicant and his wife’s evidence that the assault in January 2018 was the only incident of violence by her husband throughout the many years of their relationship and that it remains so.

1. The Tribunal accepts that the applicant regrets his actions and has taken positive steps to ensure he does not repeat his violence.  The Tribunal notes the applicant’s psychologist’s confidence that the applicant “has acquired all the skills presented to him during … sessions and … is fully equipped to refrain from angry outbursts, especially those leading to aggressive behaviours based on his anxiety.”

2. The evidence before the Tribunal indicates that the applicant’s violent behaviour in January 2018 occurred at a time when he was unable to manage his anxiety and reactions.  Since that time he has undergone counselling and treatment to address the risk he will again be violent to his wife.

3. The Tribunal gives substantial weight to the applicant’s wife’s evidence that she is not fearful of her husband and that he has given her no cause to worry for her safety since the incident. The applicant’s wife impressed the Tribunal as a thoughtful, considered witness. She acknowledged the importance of her decision to proceed with the charge against her husband but strongly disagreed with the basis for the cancellation of his visa.

4. 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 safety of his wife. 

5. No evidence that the applicant is a risk to others in Australia is before the Tribunal. The Tribunal is therefore not satisfied that the applicant 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.

6. 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

7. 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