1812966 (Migration) - [2018] AATA 3770

1812966 (Migration) [2018] AATA 3770 (20 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812966
MEMBER:Kira Raif
DATE:20 July 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 309 (Spouse (Provisional)) visa.
Statement made on 20 July 2018 at 4:11pm

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth)
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR 80

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

This is an application for review of a decision dated 2 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).
The visa applicant is a national of Nigeria born in [year]. He was granted the Partner (Provisional) visa in June 2015 and arrived in Australia in September 2015. On 28 March 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision
The applicant appeared before the Tribunal on 4 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The applicant was represented in relation to the review by his registered migration agent on a pro bono basis. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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 (Gong) at [41].
The expression ‘good order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3770
Decision Date: 20 July 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Partner (Provisional) (Class UF) visa, Subclass 309. The applicant, who was married to an Australian citizen and had two children from that relationship, as well as caring for a stepchild, faced cancellation of his visa due to being charged with criminal offences. The applicant argued that cancellation would cause considerable hardship to himself and his family, and that the best interests of the children were paramount. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding that a ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) existed. The Tribunal was required to consider various factors in exercising this discretion, including the purpose of the visa, the applicant's compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal also had regard to the best interests of the applicant's children, who were Australian citizens.

The Tribunal found that the ground for cancellation under section 116(1)(e)(i) was established, but that mandatory cancellation was not triggered. In considering its discretion, the Tribunal noted the applicant's compelling need to remain in Australia to be with his immediate family, including his two young children and stepchild, and that his children could not live in Nigeria due to safety risks. The Tribunal accepted that the applicant was fulfilling the purpose of his visa and that he had no known breaches of his visa conditions. Furthermore, the Tribunal found that cancelling the visa would cause extreme financial and emotional hardship to the applicant's family, as he was the primary breadwinner and his partner was a full-time student. The Tribunal also noted the applicant's difficulty in finding employment due to his visa status.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 309 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The purpose of the Partner visa is to enable the visa holder to remain in Australia with his partner. The applicant said that his permanent visa application remains ongoing. The applicant’s evidence to the Tribunal is that he has been married to an Australian citizen for five years and has two children from that relationship and he claims he also cares for a child from the sponsor’s previous relationship. [The] sponsor’s family live in [City 1] while his partner and children moved to [City 2] to be closer to him. The applicant told the Tribunal that he had few opportunities in Nigeria but he has more opportunities in Australia. He could have also stayed in [Country 1] with the family but thought they would have better opportunities in Australia. His children cannot live in Nigeria because of the safety risks and they are Australian citizens. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia and that the presence of his immediate family, including two young children and a stepchild, may constitute a compelling need for the applicant to remain in Australia.The extent of compliance with visa conditions The Tribunal is not aware of any breaches of the visa conditions. The applicant told the Tribunal that he has never been in trouble before and has never had any criminal charges. The applicant told the Tribunal he has been cooperative with the police. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) With respect to hardship, the applicant refers to the presence of his immediate family in Australia. The applicant states in his written submission to the delegate that his partner is a full-time student at TAFE and has been forced to relocate to [City 2] until the applicant’s matter is resolved. The applicant states that he is the breadwinner for the family and if the visa is cancelled, his family would be permanently separated from him. He will also be unable to provide for the family and that will cause extreme financial hardship to the family. The applicant told the Tribunal that he had been working and supporting his family. Now he has been granted a Criminal Justice visa and no institution would hire him with such a visa. He has not been able to find a job. The applicant said that he has no money to support the family. His partner has been trying to find a job and has been applying for jobs but it is difficult to find work. The partner’s evidence to the Tribunal is that she had job interviews and hopes to be offered a job soon.