1829160 (Migration)

[2019] AATA 6941

1829160 (Migration) [2019] AATA 6941 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829160

MEMBER:David McCulloch

DATE:17 January 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 17 January 2019 at 11:23am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – criminal conviction – domestic violence – intoxication – good behaviour bond – discretionary factors – young family – child integrated into Australian community – compelling need to remain in Australia to facilitate wife’s studies – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
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 September 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 is a citizen of Mongolia born on [date]. The visa that has been cancelled was granted on 23 February 2018. The applicant was granted the visa as a dependant, with the primary holder of the Student visa being the applicant’s partner, Ms [A].

3. A Notice of Intention to Consider Cancellation of the visa (NOICC) was sent to the applicant on 10 July 2018. A response to the NOICC was provided on 17 July 2018 by the applicant’s migration agent.

4. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling a visa applies to the holder.

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.

6. The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms  [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

9. 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). 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?

10. 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) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa the time of the conviction and regardless of the penalty imposed (if any)).

11. The decision of the delegate indicates that [in] July 2018 at [a] Court the applicant was convicted of the criminal offence of ‘Assault occasioning actual bodily harm (Domestic Violence)’.  As a result of that conviction the applicant was sentenced to a section 9 good behaviour bond for a period of two years.

12. In the hearing, the applicant acknowledged the conviction.

13. The applicant has therefore been convicted of an offence against a law of a State. The Tribunal finds that the applicant falls within r.2.43(1)(oa). 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 power to cancel the visa should be exercised.

14. 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 of the Act (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

17. The Departmental file contains the  [Police] Facts Sheet in relation to the incident leading to the applicant’s conviction. It refers to an incident that took place at about [time] on [date] April 2018. The applicant’s partner, Ms  [A], got into an argument with the applicant in their shared bedroom. One of the [children] of the applicant, a [age]-year-old girl, was in the room at the same time. The applicant had allegedly been drinking for the entirety of the weekend and had been fired from his job on the Saturday. In the course of the altercation the applicant allegedly physically attacked both his wife and the child. The applicant allegedly slapped the child on her face and punched his wife to her head and hit her with a plastic [implement]. Police were called and arrived at about [time].  Police noticed that the applicant smelt strongly of intoxicating liquor. The applicant’s wife was taken to hospital and checked over by the medical team and left without treatment. Police noticed that the applicant’s partner had [several injuries].

18. The Facts Sheet indicates the [child] telling police that there were several serious fights in Mongolia where police were called. The child stated that in one incident the mother was hospitalised for two months with [injuries].

19. The applicant’s migration agent provided a response to the NOICC which indicated as follows. It is noted that the applicant ultimately pleaded guilty to the charge of assault occasioning bodily harm (domestic violence). It is claimed that the sentence of the good behaviour bond means that the court was not satisfied that a custodial sentence was warranted. The court was unable to determine that the applicant would not be able to integrate into the community or would be required to undergo a period of intense supervision. On that basis, the proceeding should not give rise to cancellation of the visa.

20. It is submitted that the applicant has no criminal record overseas and does not otherwise have a criminal history in Australia. It is submitted that this was an incident out of character for the applicant. The applicant supports his partner and the care of the [children], aged [specified]. The applicant’s wife studies [at] [College]. Her focus on her studies results in the applicant caring for the children on a daily basis. Cancellation of the visa will remove the support structure for the children and substantially preventing further studies by the applicant’s wife. The [child] has greatly integrated into the Australian community.

21. It is submitted that the applicant has formed a strong affinity to Australia and garnered respect from members of the local community in [State 1] and around the country as a hard-working individual who supports his family and friends. Despite having limited English the applicant is keen to integrate with the Australian community. It is submitted that the need to protect the community can be met through bond conditions which also requires the applicant to notify the court of his primary residence and location of movements.

22. It is submitted that the applicant assists in facilitating the study and education of his partner. He seeks to obtain work for permissible hours allowed such as to reduce the economic hardship that his family will endure.  The applicant has expertise and experience in the[specific] industry and is hard-working. The allegations have placed extraordinary stress on the applicant and his family.

23. The applicant has never had any issues with compliance with his visa conditions. He has been cooperative and truthful with the Department. There are no other aspects of the applicant’s character which would make him an unsuitable candidate for remaining in Australia.

24. Ms [A] provided a Statutory Declaration on the day of the Tribunal hearing. She indicates that after the court outcome she was comfortable to remain living with her husband. She indicates that he is a changed man. The incident [in] April 2018 was a one-off incident. The applicant has attended community services and received support for anger management. Ms [A] feels that she and her children are safe around her husband.

25. In the Tribunal hearing the applicant gave evidence in the absence of his wife; Ms [A] gave evidence in the absence of her husband.

26. Both the applicant and Ms [A] told the Tribunal that the applicant had given up alcohol following the incident. Ms [A] confirmed her written statement that there have been no subsequent difficulties from her husband after the April 2018 incident.

27. As apparent from evidence in the hearing, Ms [A] has studied [courses] in Australia since the arrival of the family here in May 2017. She finishes her current [course] in February 2019. Her plan then is to study a [Diploma] which will take three years. At that point it is hoped that it will be possible for the applicant’s daughter who is currently [age], and studying at high school, to undertake [specified] studies in Australia.

28. The applicant and Ms [A] both gave evidence in the hearing suggesting that the whole family would need to return to Mongolia if the applicant’s visa remained cancelled.  This is because the applicant is needed to care for the [children], particularly the [child] who is [age]. The applicant is also in a position to work part-time, and this income is needed to support the family and Ms [A]’s studies.

29. Both the applicant and Ms [A] denied in the hearing the claims made by the [age]-year-old daughter to police and set out in the Facts Sheet that there had been incidents of domestic violence perpetrated by the applicant in Mongolia. It was explained that this could be because of communication issues given different languages.

30. The Tribunal assesses discretionary factors. The Tribunal considers that the incident that occurred [in] April 2018 was fuelled by alcohol consumed by the applicant. The Tribunal would not consider that this would constitute an extenuating circumstance beyond the applicant’s control to justify the incident, given that the applicant made the decision to drink.

31. The Tribunal considers that a visa holder in Australia on a temporary visa studying is enjoying a privilege bestowed by the Australian Government which should reasonably be forfeited should the visa holder engage in criminal activity in Australia. The fact of the applicant subjecting his family to domestic violence resulting in a criminal conviction is a significant factor weighing in favour of the Tribunal exercising its discretion to cancel the visa.

32. However, the Tribunal does consider that the applicant was not given a custodial sentence and placed on a good behaviour bond. There is no evidence that the applicant has not complied with the bond. The Tribunal is inclined to accept the truth of claims that the applicant has given up alcohol and that there have been no subsequent domestic abuse incidents since the events of [April] 2018.

33. However, the Tribunal has some concerns with the denial of both the applicant and Ms [A] of any domestic violence incidents in Mongolia given the clear indication that the [daughter] had provided information of this nature to [police].

34. The key discretionary factors weighing against deciding to cancel the visa are compelling reasons for the applicant remaining in Australia and the hardship that will be suffered by the applicant’s wife and eldest child in particular if the visa remains cancelled.

35. The Tribunal accepts the evidence of both the applicant and Ms [A] that if the visa remains cancelled that the whole family will be forced to return to Mongolia with the applicant. This is because of the applicant’s not insignificant role in funding his wife’s studies from his part time work and the family’s living expenses in Australia as well as his role in looking after the [youngest] child in particular while his wife is studying. 

36. Therefore, there is a compelling need for the applicant to remain in Australia to enable his wife’s continued study. There is also a considerable hardship to the wife if the visa remains cancelled because she will have to return to Mongolia prematurely without completing her course of intended study. This is a significant hardship and weighs against exercising the discretion to cancel the visa.

37. It is significantly in favour of not exercising the discretion to cancel the visa that the victim of the domestic violence is arguing against the cancellation of the visa and is the person who will suffer the most hardship by the cancellation of the visa.

38. The Tribunal also considers significant in not exercising the discretion to cancel the visa is the fact that this will also negatively impact on the applicant’s [daughter] who is studying high school in Australia with the aim of continuing the studies in Australia over the next several years. The Tribunal accepts that if the visa remains cancelled that the daughter will return with her family to Mongolia interrupting her high school studies and denying her the opportunity to continue them in Australia.

39. The Tribunal accepts that there are no other instances of the applicant not complying with his visa. The Tribunal accepts that a hardship to the applicant if the visa remains cancelled will be his inability to apply for many other visas onshore. Whilst the applicant would be an unlawful noncitizen if the visa remains cancelled, the Tribunal considers that he would be in a position to continue to be eligible for a bridging visa to make his status lawful.

40. The Tribunal considers that these are the key discretionary factors.

41. Weighing up discretionary factors, the Tribunal determines not to exercise its discretion to cancel the visa. This is primarily due to the hardship the applicant’s wife would suffer if the visa remains cancelled given that it would curtail her study in Australia. The applicant has a compelling need to remain in Australia to facilitate his wife’s continued study. Whilst the Tribunal considers significantly adverse to the applicant the fact that he has been convicted of domestic violence in Australia this fact does not outweigh the matters favourable to the applicant, in particular the hardship that would be suffered by his wife and children, the very victims of the assault. To make a decision to cancel the visa would be inflicting greater hardship on the wife and children.

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

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member