1820785 (Migration)

[2018] AATA 3772

1820785 (Migration) [2018] AATA 3772 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820785

MEMBER:John Billings

DATE:28 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa.

Statement made on 28 August 2018 at 6:12pm

CATCHWORDS
Migration – Cancellation – Business Skills (Class EB) (Provisional) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – Whether the applicant is or might be, or would or may be, a risk to the Australian community or a segment of the Australian community or the health and safety of an individual or individuals – Where the applicant has committed family violence multiple times – Ground for cancellation exists – Whether the visa should be cancelled – Degree of hardship does not outweigh grounds for cancellation – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e), 140
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013

CASES
Gong v MIBP [2016] 561
Newall v MIMA [1999] FCA 1624

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 16 July 2018 made by a delegate of the Minister for Home Affairs under s.116 of the Migration Act 1958 (the Act) to cancel the Class EB Subclass 188 -  Business Innovation and Investment (Provisional) visa held by the applicant, [Mr A]. 

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate was satisfied that the presence of [Mr A] 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. The delegate had regard to criminal charges laid against [Mr A]. Since the decision was made to cancel the visa, a number of the charges were withdrawn and [Mr A] pleaded guilty to remaining charges and was sentenced: see below.

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

4. [Mr A] applied for review on 17 July 2018.  He provided a copy of the primary decision to the Tribunal. 

5. In circumstances described below, [Mr A] has been in immigration detention since July.  In early August [Mr A] verbally informed an officer of the Tribunal that he had requested or consented to voluntary removal from Australia but on 8 August the Tribunal received an email from [Mr A]’s former representative stating that [Mr A] had withdrawn consent to be voluntarily removed. 

6. [Mr A] appeared before the Tribunal on 16 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B] in person, [Mr C] by telephone in Australia, and members of [Mr A]’s wife’s family by telephone in Iran – her [father], her [mother], and her adult [brother].  The witnesses also made written statements in support of the application for review.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.  [Mr A] elected to give evidence in English for the most part. 

7. [Mr A] was represented in relation to the review by his registered migration agent.  The representative attended the hearing.  The representative made oral submissions at the hearing and made written submissions before and after the hearing.    

8. [Mr A] is [a particular age and a] national of Iran.  He is married with four children.  His wife and children are in Australia.  The present whereabouts of his wife and children have not been disclosed to him. 

9. [Mr A]’s wife is [a particular age].  [Mr A] and his wife were married in 2000 and thereafter lived in [Country 1].  [Mr A]’s wife is his first cousin.  (The family members who gave oral evidence are therefore [Mr A]’s uncle, aunt and cousin).  It was an arranged marriage.  [Mr A]’s children - two daughters, a son, and another daughter - are [of varying age]. 

10. [Mr A] first entered Australia on 20 June 2016 holding a [temporary] visa.  He departed Australia the following month.  On 16 August 2017 he was granted the Class EB Subclass 188 visa that has been cancelled.  He next arrived in Australia on 27 September 2017.  He was accompanied by his wife and children as secondary visa holders.  [Mr A] departed and re-entered Australia on a number of occasions in 2017 and 2018.  Most recently, he departed Australia on 15 April 2018 and re-entered on 9 May 2018.

11. The primary decision records that the Department was informed on 8 June 2018 by [State 1] Police that [Mr A] had been charged (on or about [a particular date in] May 2018) with the following offences:

    ·Five counts of make threat to kill

    ·One count of threat to inflict serious injury

    ·One count of intentionally cause injury

    ·Three counts of assault with instrument

    ·Three counts of unlawful assault

12. The primary decision refers to a summary of the circumstances provided by police.  It was alleged that on [a particular date in] April 2018 [Mr A] read through his eldest daughter’s mobile phone messages and found a message from a boy.  He became enraged and told his wife that he would take his eldest two daughters to Iran for arranged marriages to get rid of them.  Despite his daughter apologising “multiple times” [Mr A] struck her with a leather belt to [various parts of her body] causing major swelling and bruising.  It was alleged that [Mr A] slapped his other (teenage) daughter because he believed she knew that her sister had been seeing a boy.  In order to protect her daughter, [Mr A]’s wife attempted to shield her and [Mr A] then threw his wife to the side and began beating her and their daughter with the belt.  Both the younger children were present and witnessed [Mr A] beating their mother and sister. [Mr A] then left Australia a few days later to Iran and [Country 1] for business reasons.

13. Further, it was alleged that on [a particular date in] May 2018 [Mr A] called his wife on WhatsApp.  It was alleged that he was a very abusive and threatening to her. It was alleged that over a series of phone calls he made a number of significant threats to her.  Five specific alleged threats were as follows:

    If you want nothing to happen to you and the children you should come to Iran or [Country 1], and if you want to die you can stay in Australia until I come and kill you.

    You don’t need to be in Iran for me to kill you.

    I won’t leave you until I end your life, I have a gun in Iran and I will take it out on your family. I have access to guns in Australia.

    Your mother is rejecting my calls. I will have to go to her and shoot her.  She will then know who she is dealing with.  Don’t say another word. I will come and shoot you. I will cut your tongue and put it in your palm.

    I will come to Australia and behead you and will put your head on your chest.  Do you think I am afraid of coming to Australia?

14. It was alleged that [Mr A] threatened all his family saying he would come to Australia and find his wife and the children to kill them and then kill himself.

15. Further according to the primary decision, on 9 May 2018 [Mr A] was arrested by [State 1] Police.  He was remanded in criminal custody pending a hearing on [a particular date in] June 2018 before the Magistrates’ Court of [State 1].  [Mr A] was refused bail and was expected in court on [a particular date in] July 2018.

16. An interim domestic violence order was made with [Mr A] named as the respondent and his wife and four children named as the aggrieved.  The interim order was valid to [December] 2019. The conditions attached to the order were as follows:

    ·Not to commit family violence against the protected persons.

    ·Not to attempt to locate, follow the protected persons or keep them under surveillance.

    ·Not to contact or communicate with a protected person by any means.

    ·Not to go to or remain within 200m of any address, or any other place were a protected person lives, works or attends school/childcare.

    ·Not to get another person to do anything the respondent must not to under this order.

17. The primary decision also records that [State 1] Police advised the Department that they held grave fears for the safety of [Mr A]’s wife and children because of the seriousness of the violence committed against his wife and daughters. [State 1] police also considered the threats to kill and injure [Mr A]’s wife and children to be very serious in nature and considered it highly possible [Mr A] would carry out his threats.

18. [Mr A] has now provided documents to the Tribunal that include Magistrates’ Court records indicating that [in] July 2018 he pleaded guilty to the following charges and was convicted: unlawful assault [in] April; use a carriage service to menace [in] May.  In relation to the unlawful assault charge he was convicted and sentenced to 71 days’ imprisonment, expressed to be part of an aggregate sentence and concurrent with other sentences imposed in the case.  ([Mr A] was released from criminal detention, taking into account time already served, but he was taken into immigration detention).  In relation to the use a carriage service to menace charge he was released upon giving security on a recognisance in the sum of $1,000 on the condition to be of good behaviour for 12 months.  On the same day, [in] July, a final intervention order, expressed to expire [in] July 2019, was made in substantially the same terms as the interim order.  Court documents indicate that the Magistrate who sentenced [Mr A] also made the final intervention order.   [Mr A] told the Tribunal that he did not contest the order because he was under too much pressure. 

19. The Department’s file includes written submissions made on 30 June 2018 by [Mr A]’s former representative in response to the NOICC.  There are also documents relating to [Business 1] in a [City 1] suburb that [Mr A] has been in the process of acquiring: see below.  Numerous further documents were submitted to the Tribunal.  They include further documents relating to the business, family photographs, witness statements and written submissions made on 15 and 21 August 2018 by [Mr A]’s current representative.   

20. For the following reasons, the Tribunal has concluded that the decision to cancel [Mr A]’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. [Mr A] exhibits what the Tribunal considers to be genuine mental anguish about his situation.  During the hearing he was very distressed when talking about his wife and children.  He essentially described himself as a loving and devoted husband and father.  [Mr B] described [Mr A]’s family as “joyful …, full of love and respect”.  The family photographs submitted to the Tribunal appear to show such a family.  [Mr A] told the Tribunal that he brought his family to Australia with plans to give them the best possible future.  He expressed remorse for his actions.  He said that nothing like that had happened ever before and he and swore that it would never happen again.  He said that he did not blame his family for what happened.  He begged to have the visa cancellation set aside.  He wants to be given a second chance.  He fears that if the visa is cancelled it will make it very difficult for him to contact his wife, reconcile with her and see his children.  He says that all his life is for his wife and his children and that if the visa cancellation is not overturned his life is going to be ended.  [Mr A] also expresses concern about the financial and legal consequences there will be if he cannot proceed with the purchase of [Business 1].  

22. The Tribunal has serious concerns about aspects of the evidence given by [Mr A] and his wife’s family that it discusses below.  Nevertheless the Tribunal considers that [Mr A] is genuinely distressed by the situation.  The Tribunal accepts that the consequences of his actions have been devastating for him.  Of course it is to be expected that his wife and children have suffered greatly.  There is evidence to indicate that without the intervention of [State 1] Police in May there the outcome for [Mr A]’s wife and children and for him could have been catastrophic. 

23. The Tribunal emphasises that its task is to consider whether the ground for cancellation of [Mr A]’s visa is made out, and if so, whether the visa should be cancelled. 

    Does the ground for cancellation exist?

24. 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.

25. 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. The expressions “health” and “safety” are used in s.116(1)(e) in their ordinary meanings: see Newall v MIMA [1999] FCA 1624 at [21]. “Risk” is not defined but use of the words “may be a risk” means that there does not have to be any direct, solid or certain foundation before the power to cancel a visa can arise: see Gong v MIBP [2016] 561 at [41].  The provision was amended by the Migration Amendment (Character and General visa Cancellation) Bill 2014.  Item 13 of Schedule 2 to the Explanatory Statement for that Act states:

    The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.  (Emphasis added).

26. For reasons that follow, the Tribunal is satisfied that the presence of [Mr A] 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 being his wife and children if not other persons. 

27. A submission was made to the effect that the material on which the primary decision was based was far more extensive and serious than the evidence that is now before the Tribunal: that is, there were numerous allegations and charges whereas now there are convictions on a small number of charges only.  There is no material before the Tribunal to indicate what strengths and weaknesses the Prosecution and Defence may have seen in the case, or what other considerations there may have been that resulted in the withdrawal of charges.  The convictions and the evidence generally are sufficient to satisfy the Tribunal as to the ground for visa cancellation.  It was then submitted that the sentences were towards the lighter end of the range.  It is the case that substantially harsher sentences could have been handed down.  But still a custodial sentence was imposed, indicating the seriousness with which the matter was viewed by the Court.  [Mr A] gave evidence that the Magistrate said, among other things, that he was “sure this will not happen again”.  The representative informed the Tribunal that the Magistrate’s sentencing remarks are not available.  [Mr A] could not say if it was the same Magistrate who made the final intervention order, but court documents indicate that it was.  Whatever precisely the sentencing Magistrate said, it is significant that he also made the final intervention order.  While [Mr A] told the Tribunal that he did not contest the order because he was under too much pressure, the evidence indicates that there was a clear basis for the order. 

28. The question for the Tribunal is essentially a question about risk.  In determining the question of risk the Tribunal has had regard to evidence [Mr A] gave that during his time in custody he has participated in programs including programs to help him manage his emotions.  [Mr A] has said he is willing to participate in further programs of this nature if he is released from immigration detention.  Certificates regarding course participation or course completion have been submitted to the Tribunal, but there is no evidence, for instance by a psychologist, that would otherwise assist the Tribunal to assess risk.  The Tribunal mentions that [Mr A] told the Tribunal he has not sought or received counselling or treatment for any mental health condition.  The Tribunal further mentions, incidentally, that [Mr A] was not aware of his wife or children doing ever seeking or receiving counselling or treatment for any mental health condition.  In relation to [Mr A]’s physical health, he claims to suffer high blood pressure, an ulcer and an unspecified heart condition.  No medical evidence has been submitted to the Tribunal.    

29. In determining the question of risk the Tribunal has regard to the concerns it has about aspects of the evidence given by [Mr A] and his wife’s family.  In summary, there were discrepancies in [Mr A]’s evidence and he displayed a tendency to minimise the extent or gravity of his actions.  [Mr A]’s wife’s family either lacked detailed knowledge or sought to minimise the extent or gravity of [Mr A]’s actions. 

30. The Tribunal gives some examples, first in relation to [Mr A]’s evidence.  In the submission in response to the NOICC [Mr A]’s former representative submitted that there were “serious concerns about the veracity of” [Mr A]’s wife.   Among other things, [Mr A] alleged that his wife fabricated claims of family violence so that she could seek protection in Australia on that basis.  [Mr A] “categorically” denied using a leather belt and causing injury, noting that photographs of bruising and swelling (attached to police charge sheets) were photographs “of an unknown person”.  With regard to the threats, the submission referred to “40 minutes of several voicemails and a few telephone conversations, recorded by [Mr A]’s] wife” then asserted that part of the recordings had been taken out of context and that there had not been “a proper English translation” of the recordings.  The submission went on to question the jurisdiction of Australian courts in the matter (on the basis that WhatsApp is a foreign carrier).  Before leaving the submission, the Tribunal notes that it includes the statement that [Mr A]’s wife had further alleged that she had been subjected to family violence, including being beaten on multiple occasions during the course of the marriage.  [Mr A] submitted that his wife had not provided evidence about that (such as evidence that she obtained the assistance of relevant authorities in [Country 1]).  He denied the allegation.  The submission also contains the statement that [Mr A]’s wife claimed that he had access to guns in [Country 1] and Iran but that [Mr A] instructed that he never had access to a firearm in [Country 1] or Iran.

31. As noted already, [Mr A] has in fact pleaded guilty to relevant charges.  There is no evidence before the Tribunal that would support any allegation of family violence before this year.  On the other hand, what the submission states in relation to access to a gun was contradicted by [Mr A] in his oral evidence: he told the Tribunal that he has a shotgun in Iran, and that his wife knows that. 

1. [Mr A] made a written statement that was submitted to the Tribunal.  The statement indicates that it was not the eldest but the second eldest daughter who had the messages on her mobile phone.  [Mr A] said in the statement that he hit that daughter, pushed his wife and hit his other teenage daughter with his hand.  At the hearing [Mr A] acknowledged that used a belt to strike the daughter who had the messages on her phone, though he did not immediately acknowledge that. 

2. Further in relation to threats, in his written statement [Mr A] said that his words to his wife were “… if something happens I am going to kill myself, I am going to kill everybody”.  He said more or less the same in giving oral evidence.  The Tribunal refers below to what [Mr A] said was the context.  For the present the Tribunal notes that this statement stands in contrast to the following statement in the submission made on 15 August by [Mr A]’s current representative: “As part of the conversation [Mr A] became increasingly hysterical, and told [his wife] that he would kill her, himself and the children”. 

3. The five specific threats quoted in the primary decision are of a different order.  The Tribunal questioned [Mr A] about them.  His responses were as follows.  He may have made the first statement but he did not mean it; he did not remember but he may have made the second statement; he did not know about the third statement but he told the Tribunal that he had no access to guns in Australia or [Country 1] – only in Iran; he may have made the fourth statement but he was extremely upset and if he knew then what he knows now he would not have said that; he thinks he made the fifth statement but said that he did not use precisely those words.    

4. [Mr A] maintains that the youngest two children were not present during the episode in April.  Although he said in his written statement that he was playing with the youngest children before he went into his daughter’s room and found the messages on her phone, he maintained at the hearing that the youngest children did not see or hear anything.  [Mr A] earlier told the Tribunal that he was shouting at his daughter after he discovered the messages.  It seems improbable that the youngest children did not see or hear anything or that they were unaffected by what took place. 

5. It is of further concern that [Mr A] at one point described the incident as “one small incident” although he did go on to say that he knows how serious it was.  He maintained in effect that one incident in 18 years of marriage should not have the result that he be seen as a risk to his family. 

6. The Tribunal now refers to the oral evidence given by [Mr A]’s wife’s parents and brother.  The father confirmed that since [Mr A] and his wife were married eighteen years ago they had spent a total of only 18 months to two years in Iran where her parents and brother live.    Despite expressing concern for [Mr A]’s wife in his written statement he said he had not had any contact with her for about three months.  He said the reason was that she was unable to be contacted.  Concerning the allegations, he said that [Mr A] was upset about messages sent to his daughter and beat her a little bit and had been harsh towards her.  He said that during the marriage there may have been small issues but they had been resolved.  All he could say about threats was that [Mr A] may have frightened the children if they did something wrong.  The mother and brother gave similar evidence about their contact with [Mr A]’s family over the past 18 years and when it was that they last had contact with [Mr A]’s wife.  The mother described [Mr A] as a compassionate husband.  She said at first that she did not believe that [Mr A] had done anything wrong because he is an honest man.  She then said [Mr A] got to know about something on his daughter’s phone and got upset but that the matter had been resolved.  She later said that she knew [Mr A]’s wife had said that [Mr A] would kill her, but he always supported his wife and loved her and [Mr A]’s wife had told lies.  The brother gave evidence that there was a small incident relating to [Mr A]’s daughter’s phone: [Mr A] got upset and his wife maybe complained. 

7. There is no basis for the assertion that [Mr A]’s wife has lied about what [Mr A] did and said in April and May this year.  That would be at odds with [Mr A]’s guilty plea and the concessions [Mr A] made to the Tribunal.  [Mr A]’s wife’s family has spent only a small amount of time with [Mr A] and his wife over the past 18 years.  Whether [Mr A] failed to tell his wife’s family everything about the episodes in April and May, or whether he did tell them but they were unwilling to tell the Tribunal everything, their evidence does not assist [Mr A]’s case.    

8. Similarly, any suggestion that the photograph that police had was not a photograph that showed [Mr A]’s daughter after she had been beaten, or that recordings made by his wife were not accurately translated, would seem at odds with [Mr A]’s guilty plea and the concessions [Mr A] made to the Tribunal. 

9. The Tribunal mentions at this point that there were numerous witness statements generally declaring [Mr A] to be of good character.  [Mr B] and [Mr C] gave oral evidence to this effect.  [Mr B], a migration agent (not [Mr A]’s former or current representative), assisted [Mr A] obtain his visas.  More recently, [Mr B] supported [Mr A] at court and had knowledge of the details of the allegations against [Mr A].  Nevertheless [Mr B] told the Tribunal that he had observed [Mr A] with his family and regards him as a successful businessman and caring father “… so far as [he] know[s]”.  [Mr C], a business consultant, has been involved in negotiations to purchase [Business 1].  He knows less than [Mr B] about the nature of the allegations but he too considers [Mr A] to be of good character.  The other persons who made witnesses statements include close family members and business associates.  Those persons generally describe [Mr A] as kind, even “sweet hearted”.  They generally acknowledge that [Mr A] had been in prison without stating details about his offences: many simply say that his imprisonment was the result of “family conflict”.  Many of the persons who made witness statements speak of [Mr A]’s many good deeds.  Many of them express shock and disbelief that he was imprisoned.  A number of persons in Australia have offered to support [Mr A] if his visa is not cancelled and he is permitted to re-enter the community.  The offers include an offer of accommodation made by [Mr B]. 

10. The Tribunal accepts that many persons consider [Mr A] to be of good character, but the witness statements and the oral evidence about that does not outweigh the evidence of [Mr A]’s behaviour towards his family that has led the Tribunal to its conclusion.    

11. [Mr A] has emphasised the importance of the context for his words and actions.  [Mr A]’s response to the NOICC substantially refers to the context that he told the Tribunal about.  He said that the messages he found on his daughter’s phone were sexual in nature and that he was concerned that the boy who contacted her (who he described as a drug user and a troublemaker) was arranging to meet her to have sex with her.  [Mr A] also said that during the conversation he had with his wife when he was in [Country 1] she told him that their daughter had harmed herself.  It was that, he said, that so upset him.  The Tribunal mentions, incidentally, that [Mr A] could not say what reason if any his daughter had given for harming herself. 

12. The context can be important.  Whether or not the Magistrate heard about the context and that influenced sentencing, it is relevant to consider the context in determining risk.  The issues concerning [Mr A]’s daughter would understandably have created anxiety and distress for [Mr A].  Still, a major concern is that if [Mr A] acted as he did in April and May because he was overwhelmed by stress, it is possible that he would act in a similar way in future if placed under significant stress. 

13. The seriousness of family violence in any case is never to be underestimated, but this is not a case where after a sole episode of relatively minor family violence the partners have reconciled and there is compelling evidence to indicate that there is no or virtually no risk of further violence.  In contrast, this is a case where there was more than one episode; the episodes were extremely serious; there has been no reconciliation; and there is a lack of evidence to indicate that there is no or virtually no risk of further violence. In relation to the threats made by [Mr A], police expressed concerns that [Mr A] would carry out his threats.  There is an intervention order that remains in place.  It may not be likely that [Mr A] would breach the order but still he may be a risk to his wife and children. 

14. For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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

15. 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 [Mr A], and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

16. The Tribunal first considers the purpose of [Mr A]’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia.  [Mr A] travelled to Australia holding a temporary visa in order to pursue business and investment opportunities and seek permanent residence.  The status of the [Business 1] purchase is considered further below.  [Mr A] told the Tribunal that this was to be the first of a number of business ventures in Australia.  The purpose of [Mr A]’s travel and stay in Australia has included pursuing educational and other opportunities for his family.  This factor that has some weight in [Mr A]’s favour. 

17. The Tribunal next considers the extent of compliance with visa conditions.  There is no material before the Tribunal to indicate that [Mr A] has not complied with conditions on any visa that he has held.  This factor has moderate weight in [Mr A]’s favour.  

18. The Tribunal now considers the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by cancellation.  The Tribunal inquired as to [Mr A]’s physical and mental health.  [Mr A] claims to have high blood pressure, an ulcer and an unspecified heart condition.  No medical evidence has been submitted to the Tribunal.  [Mr A] told the Tribunal that he has not ever sought or received counselling or treatment for any mental health condition but it is apparent that he has experienced mental anguish by reason of his family situation and detention.  He is separated from his wife and children.  There is an intervention order in place for their protection.  [Mr A] told the Tribunal that he did not oppose the order.  Ultimately, hardship is a factor that has some weight in favour of not cancelling the visa.

19. Next the Tribunal considers the circumstances in which the ground of cancellation arose and especially whether the circumstances in which the ground for cancellation arose were beyond [Mr A]’s control.  [Mr A] has committed serious offences.  The Tribunal is satisfied in particular that his presence in Australia is or may be, or would or might be a risk to the health or safety of his wife and children.  The Tribunal has considered the context in which [Mr A] claims that he committed assault and made threats but considers that his reactions or responses were not beyond his control.  His representative does not argue that the circumstances were beyond his control.  This factor does not weigh in [Mr A]’s favour.  

20. The Tribunal now considers [Mr A]’s past and present conduct towards the Department.  There is no indication that [Mr A]’s general conduct towards the Department has been of concern.  This factor has moderate weight in [Mr A]’s favour. 

21. The Tribunal now considers whether there are mandatory legal consequences, such as whether cancellation would result in [Mr A] being unlawful and liable to detention and removal from Australia, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention.  Cancellation may result in [Mr A] continuing to be detained and in him being removed from Australia.  [Mr A] may otherwise be prevented from applying for further visas while in Australia and be affected by Public Interest Criterion 4013 preventing the grant of a further visa to him for three years.  The potential consequences so far as [Mr A]’s business interests are concerned are considered below.  [Mr A] fears that if the visa is cancelled it will make it very difficult for him to contact his wife, reconcile with her and see his children.  [Mr A] has been devastated by being denied access to his children.  He told the Tribunal that he has been exploring how he may lawfully be permitted to see them.  In the meantime he has not seen his family for months.  The whereabouts of his wife and children have not been disclosed to him.  [Mr A] pleaded for his visa not to be cancelled.  He asked to be given a chance to reconcile with his wife.  It was submitted to the Department that if the visa is cancelled [Mr A] “will be denied the right to see his children”.  The Tribunal rejects that submission.  If [Mr A]’s visa is cancelled, one possibility is that he will be required to leave Australia but that the rest of his family will not be required to leave.  That may well complicate [Mr A]’s efforts to reconcile with his wife and see his family but it would not determine whether he can do that.  Another possibility is that [Mr A] will be required to leave Australia and that the rest of his family will either choose to leave or be required to leave too.  Still another possibility is that [Mr A]’s family would be permitted to remain in Australia but would elect to travel from Australia to spend time with [Mr A] under suitable conditions.  Whether [Mr A] will be able to reconcile with his wife and see his children will largely depend – at least initially - on his wife’s attitude to that.  It will not depend on whether [Mr A]’s visa is cancelled.  In the event that there is no reconciliation, whether [Mr A] will be permitted to see his children may depend on the order of a court.  In the meantime, a court has made an intervention order to operate until July 2019.  The Tribunal is mindful of the severe impact that visa cancellation will likely have on [Mr A].  However, taking into account the considerations just mentioned, but also taking into account the seriousness of [Mr A]’s words and actions and the gravity of the harm and potential harm to his wife and children, the Tribunal considers that the mandatory consequences that it has referred to would not be unreasonable.  It is relevant to this part of the discussion to note that while [Mr A]’s visa is a visa that can lead to permanent residency it is a temporary visa.  It is also relevant to note that [Mr A] has held the visa for only about one year so, while the Tribunal accepts that he has expended considerable time, effort and money on moving his family and business to Australia, there has not been very much time for him (or his wife and children) to develop substantial ties to the country.  

22. There would be consequential cancellations under s.140. That is, [Mr A]’s wife and children’s visas would be cancelled if [Mr A]’s visa is cancelled. While the impact of consequential cancellation on [Mr A]’s wife and children could be serious, it is relevant to note in this context too that [Mr A]’s wife and children have held their visas for only about one year so there has not been very much time for them to develop substantial ties to the country. If [Mr A]’s wife successfully pursued other visa options for herself and the children, the impact of consequential cancellation could be overcome. This factor has some weight in [Mr A]’s favour.

23. The Tribunal mentions, incidentally, that it was submitted to the Department more or less that there would be less burden on the Australian taxpayer if [Mr A]’s visa were not cancelled, and his wife and children could be included as applicants for permanent visas in due course, than if his wife and children applied for Protection visas.  In the first instance it would be for [Mr A]’s wife to make decisions about her and the children’s future.  The Tribunal does not consider that the potential cost to the taxpayer is a significant factor in the circumstances of this case.        

24. The Tribunal now considers whether any international obligations would be breached as a result of the cancellation.  There is no claim that Australia’s non-refoulement obligations in relation to [Mr A] would be breached as a result of cancellation of the visa.  The response to the NOICC suggested that [Mr A]’s wife and children may seek protection in Australia.  Any application for Protection visas would have to be considered on its merits.  Specifically in relation to the children there is article 3(1) of CROC (Convention on the Rights of the Child) to consider.  That provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  (In summary, Article 6 concerns the right to life; Article 9 concerns the principle that children not be separated from their parents against their will except in specified circumstances; and Article 24 concerns the right of children to enjoy the highest attainable standard of health).  Article 9(4) of CROC contemplates that a parent may legitimately be separated from children through deportation.  Article 23(1) of the ICCPR (International Covenant on Civil and Political Rights) provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.  The children are in the custody of their mother.  [Mr A] has pleaded guilty to and been sentenced in relation to criminal offences involving his family.  Further, [Mr A] told the Tribunal that he did not oppose the final intervention order made for the protection of his wife and children.  The Tribunal therefore ultimately gives no weight to this consideration. 

25. The Tribunal now considers the matter of [Mr A]’s business ventures.  He told the Tribunal that he has substantial business interests in [Country 1] where he employs 50-70 people.  His aim has been to wind up his affairs there and invest in businesses in Australia.  He has entered an agreement to purchase [Business 1] in [City 1].  He told the Tribunal that once that business is properly established he will look to purchase [Business 2].  He wants [Business 2] not only to be commercially viable but also to be a place for him and his family to enjoy.  He also wants to [undertake other commercial activities].  He said that he already has the necessary approvals for that.     

26. There is evidence that [Mr A]’s company has paid [a deposit of a particular amount] for [Business 1].  The total price is [a particular amount].  Heads of Agreement signed [in] April 2018 specify an agreed settlement date [in] May 2018.  [Mr A] was taken into custody in early May and has been unable to settle.  The Heads of Agreement include that the parties agreed that the agreement would be “further documented in a formal long form Contract of Sale”.  A copy of a Contract of Sale of Business was submitted to the Tribunal after the hearing.  The document names the parties, the business and the contract terms, including that the balance of the purchase price is payable at settlement.  The due date of settlement is specified as [a particular date in] June 2018 or such other date agreed in writing.  Contract terms include that the vendor may sue for any unpaid balance of the price if the purchaser defaults and a party in default must pay compensation as specified.  Further, the vendor may keep the deposit if the vendor ends the contract in specified circumstances and may resell the business and sue the purchaser for expenses and any deficiency, or retain the business and sue the purchaser for damages for breach of contract.  In a submission dated 21 August [Mr A]’s representative submitted that matters such as any refund of deposit or compensation are a matter of contract.  The representative stated that his instructions are that the vendor is still willing to proceed with the sale and negotiations between [Mr A]’s broker and the vendor’s solicitor are ongoing.  The representative continued that in the event that the visa cancellation is confirmed [Mr A] will not be able to proceed with the purchase and the representative “anticipate[s]” that the vendor will rely on the contract to retain the [deposit] and seek damages. 

1. In giving oral evidence to the Tribunal [Mr C] said that he did not think the deposit would be “fully refundable”.  He said that the vendor’s lawyers were “pushing” to have the contract finalised.  The matter had been put “on hold” pending advice as to whether [Mr A] could complete the contract.  [Mr C] had tried a couple of times to see if the deposit could be refunded.  He said that the answer was “a big no”.  [Mr C] agreed that there is still scope for negotiations, however, with the possibility that [Mr A] could get some of his deposit back – especially if a new purchaser is found who offers to pay the same or higher price than [Mr A] - if costs to the vendor so far have not exceeded the amount of the deposit. 

2. The copy of the contract that was submitted to the Tribunal appears not to have been signed though there may be a signed version:  [Mr C] told the Tribunal that the Heads of Agreement and the Contract have been signed. 

3. The Tribunal was told that [Mr A] wants to complete the purchase of [Business 1] and otherwise invest substantially in business enterprises in Australia.  [Mr A] says that he wants to prove to his family that he has learned from what he has done.  The evidence indicates that if the visa is cancelled, so that [Mr A] cannot finalise the contract, his company will likely lose a substantial sum.  That may be the whole of the deposit plus a sum over and above that.  [Mr A] and [Mr C] gave evidence to the effect that the business plans that [Mr A] has that go beyond the purchase of the [Business 1] are well developed.  Those further plans would likely be frustrated if the visa is cancelled.  The Tribunal accepts that [Mr A] has expended considerable time, effort and money on these projects.  The financial consequences of visa cancellation would be serious for [Mr A].  In the meantime, [Mr A] still has substantial assets and business interests in [Country 1] and, according to a recent submission, he has expanded his business activities in the Middle East.   Further, in the post-hearing submission it was stated that [Mr A]’s residence in [Country 1] was listed for sale in January this year and that it is still on the market as a means of funding the purchase of a home in [State 1]. 

4. Despite the way that especially [Mr A] and [Mr A]’s wife’s family spoke about the case, this case involves very much more than “one” incident of “family conflict”.  The whereabouts of [Mr A]’s wife and children have not been disclosed to him and the evidence indicates that [Mr A]’s wife has not been in contact with her parents for months.  The final intervention order remains in place.  There is no indication that reconciliation between [Mr A] and his family at this time is a realistic possibility no matter how much [Mr A] wants that.  Further, there is insufficient evidence before the Tribunal to show that [Mr A] does not now pose a risk to his family or himself. 

5. Considering all the circumstances as far as they can be determined on the whole of the evidence before the Tribunal, and considering the submissions made on behalf of [Mr A], the Tribunal concludes that the visa should be cancelled.  The commercial or financial consequences, even considered with other factors in favour of not cancelling the visa, are insufficient to outweigh the factors in favour of cancellation. 

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa.

   John Billings
   Senior Member