1825051 (Migration)

[2018] AATA 4052

1825051 (Migration) [2018] AATA 4052 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825051

MEMBER:James Lambie

DATE:6 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 06 September 2018 at 3:27pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – criminal charges – breached domestic violence orders – best interests of the child considered – separation of the family – lack of criminal record considered – credible witnesses – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

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 28 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applies to the applicant. The specified prescribed ground is that in Regulation 2.43(1)(p)(ii): that the applicant has been charged with an offence against the law of the Commonwealth, a state, a territory or another country. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's wife.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing and made a written submission to which I have given careful consideration.

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. Relevantly, to this case, these include the ground set out in s.116(1)(g), read with Regulation 2.43(1)(p)(ii). 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?

   s.116(1)(g) - prescribed ground

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(p)(ii) has been applied.

8. The applicant is a citizen of New Zealand, having lived in Australia since 2009 on a Special Purpose (class 444) visa.  He is married, with five resident children (including two stepchildren) and one child living in New Zealand.

9. On [date] April 2018, the applicant was charged with one offence of contravention of a domestic violence order and one offence of choking, suffocation or strangulation in a domestic setting.  Both are offences under [State 1] law.  The latter offence is the more serious of the two and carries a maximum penalty of 7 years imprisonment.  The applicant was initially remanded in custody but released on conditional bail on [date] July 2018.  On 31 July, the Department of Home Affairs cancelled the class 444 visa and issued him with the bridging visa, which was cancelled on 28 August on the grounds described above.  Following the cancellation, the applicant was taken into immigration detention.  The more serious offence is scheduled to be heard in the District Court of [State 1] in about January 2019.

10. The offences arise from a domestic dispute which occurred over the evening of 13-14 April 2018. The Tribunal received under summons the charge sheets from the [State 1] Police Service, which detail the causes of the arguments culminating in the physical violence the applicant is alleged to have used against his wife and stepdaughter. The applicant denies certain material particulars of the charges but, for the purposes of determining the existence of the prescribed grounds in r.2.43(1)(p)(ii), this is not relevant. The fact that the charges have been laid against the applicant is not disputed.

    Consideration of discretion / conclusions

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

12. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

13. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

14. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

15. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.

16. The applicant has no prior criminal record, although I take into account an incident that occurred in January 2018 which resulted in the placement of a domestic violence order.  That is a matter to which I am required to give some weight.

17. I received oral and documentary evidence from the applicant concerning his subjective circumstances.  Following his completion of secondary school he [work history deleted]. He said that he drank only very moderately when at home and that he became increasingly moody without that outlet.  Whether or not that explanation is valid, there is now a tentative diagnosis of post-traumatic stress disorder for which the applicant is now receiving professional treatment together with support from [a government authority].  His wife had been urging him to seek such assistance from about 2015 or 2016.  It is his view and hers that the incidents the subject of the DVO and the charges are uncharacteristic and stem from a recent psychological condition.

18. As noted above, the applicant’s household includes two stepchildren aged 13 and 11 and three children with his wife aged 6, 4 and just under 2.  Three of the children are in school and the younger children are in day care for 2 or 3 days a week.  Until his being taken into detention, his wife was fully occupied with home duties.  She has recently taken up part-time work.  The assistance she is able to obtain from her own family is minimal.

19. The applicant has another child in New Zealand, aged 12, for whom he pays child support of $1200 a month.  He has an agreement with the Australian Tax Office arising from changes in the assessment of foreign income under which he is liable for $4000 per quarter.

20. The first of the two primary considerations which I must apply is the Government’s view that prescribed grounds for cancellation at r.2.43(1)(p)(ii) should be applied rigorously in that every instance of non-compliance should be considered for cancellation. I have given the fact of the bringing of the charges, the nature of the charges, the facts and matters alleged in the charge sheets and the conditions attached to the applicant’s bail the most careful consideration and attached to them the most significant weight. To this I have specifically included the policy that, for the purposes of consideration of visa cancellation, domestic violence is not to be tolerated, especially when acts of physical violence are visited upon women and their children. The weight I accord this consideration is moderated by the fact that none of the charges are proven and that the conditions attached to the applicant’s bail indicate a low risk of flight or re-offending.

21. The second of the primary considerations which I must apply is the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.  As outlined in paragraphs 8 and 18 above, the applicant has five dependent children in Australia.  One of his two stepchildren is estranged from her father.  Until he was taken into custody, the applicant was the family’s sole breadwinner and the applicant’s wife gave evidence that the income she is able to generate from her part-time work is insufficient to prevent the family facing very considerable financial hardship.  She gave evidence of the difficulties and hardship she faces from the lack of any respite from the childcare responsibilities and also to the consequences for the children should the applicant ultimately be required to return to New Zealand.  The father of the applicant’s two stepchildren has ‘categorically’ refused his consent for those children to leave Australia:  thus, for the three younger children to maintain their relationship with the applicant, as his wife deems necessary, they will be necessarily separated from their stepsiblings.  I give significant weight to this consideration in favour of the applicant, but this is moderated to a considerable degree that one of the stepchildren is a complainant and alleged victim in respect of one of the charges.

22. On balance, given the serious nature of the charges, I accord slightly more weight to the prescribed grounds than to the effect of the cancellation of the visa on the best interests of the children although, in the circumstances, I find these considerations to be finely balanced.

23. I now turn to the secondary considerations.  The impact of any decision to cancel the visa on the applicant’s family unit formed part of my assessment of the best interests of the children at paragraph 21 and, as indicated, is a matter to which I give some weight.  The applicant’s wife was an impressive witness in this regard.

24. I have considered the hardship that may be experienced by the applicant himself if the visa is cancelled, noting that a decision to cancel a bridging visa does not represent a final resolution of his immigration status.  I note, in particular, that he is attempting to obtain assistance in relation to his psychological or psychiatric condition, that he has financial obligations to his non-resident child, and that his resident family is heavily financially reliant on him, all of which constitutes psychological, emotional and financial hardship that are likely to be affected by the cancellation of his visa.  I accord some weight to these matters.

25. I have considered the circumstances in which the ground for cancellation arose.  The applicant and his wife gave evidence that they consider that the applicant’s PTSD was a likely causative or contributing factor but, in view of the lack of medical or other expert evidence to that effect, I can give this factor no weight.

26. I have considered the possible consequences of cancellation, including the applicant’s continued detention.  Given that that this application is in no way determinative of his final immigration status, I can give this factor no weight additional to that given to the matters discussed in paragraph 24.

27. I have also had regard to the fact that the applicant’s usual occupation requires extensive overseas travel.  This is a matter which may well be pertinent when the time comes to consider the status of his substantive visa.  The bridging visa (and possibly his bail conditions) does not facilitate those travel requirements and, accordingly, I can accord this factor little weight.

28. The applicant’s substantive visa has no conditions attached to it and I therefore accord no weight to his immigration compliance history.

29. The Minister’s delegate accorded some weight in the applicant’s favour in relation to his dealings with the Department and I see no reason to disturb that finding.

30. No matters of relevance arise in any consideration of the matters of consequential cancellations, international obligations or community ties in the context of this application.

31. Finally, I have taken into account the applicant’s lack of criminal record, his candid demeanour and evidence at the hearing of this matter, his apparently genuine remorse and the impressive evidence of his wife, particularly in relation to the uncharacteristic nature of the conduct alleged in the charges.  I have also had regard to the effect of the bail conditions, the applicant’s agreed residence with his brother-in-law pending the resolution of the charges and the support of his wife and the New Zealand Department of [government authority], all of which weigh somewhat in favour of the application.

32. After careful consideration I consider that, on balance, the factors favouring the cancellation of the bridging visa are very finely outweighed by those against.  

33. Considering the circumstances as a whole, the Tribunal concludes that the bridging visa should not be cancelled

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    James Lambie
    Senior Member