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

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].
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 Since the decision was made to cancel the visa, a number of the charges were withdrawn and [Mr A] pleaded guilty to remaining charges and was sentenced: see below.
The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
[Mr A] applied for review on 17 July 2018. He provided a copy of the primary decision to the Tribunal.
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.
[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…

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.

Continue reading 1820785 (Migration)

Details

AGLC: 1820785 (Migration) [2018] AATA 3772
Case: [2018] AATA 3772
Decision Date: 28 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr A against the decision of the Minister to cancel his Subclass 188 (Business Innovation and Investment (Provisional)) visa. The dispute arose from Mr A's commission of family violence multiple times, which the Minister determined constituted a ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal was required to consider whether this ground for cancellation was made out and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether Mr A's presence in Australia posed, or might pose, a risk to the health or safety of individuals, specifically his wife and children, as contemplated by section 116(1)(e) of the Act. The Tribunal also had to exercise its discretion as to whether the visa should be cancelled, considering all relevant circumstances, including the degree of hardship that cancellation might cause to Mr A.

The Tribunal reasoned that the ground for cancellation under section 116(1)(e) was established, finding that Mr A's actions constituted family violence and that his presence in Australia presented a risk to the health and safety of his wife and children. The Tribunal noted that the threshold for establishing such a risk is not high, requiring only a possibility of harm. In exercising its discretion regarding cancellation, the Tribunal weighed various factors, including Mr A's stated remorse, his desire to remain in Australia for his family's future, and his compliance with visa conditions, against the seriousness of the family violence offences and the risk posed. The Tribunal concluded that the commercial and financial consequences of cancellation, even when considered with other factors favouring Mr A, were insufficient to outweigh the grounds for cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr A's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 [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]. 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. 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? 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 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).

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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’. 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. 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. 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. 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.