1831540 (Migration) - [2020] AATA 5585

1831540 (Migration) [2020] AATA 5585 (20 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1831540
MEMBER:Nicholas McGowan
DATE:20 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Statement made on August 20, 2020 at 1:52pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – risk to individuals – physical and psychological abuse against wife and child – criminal charge and intervention order – discretion to cancel visa – further allegations by wife – applicant’s compliance with order, completion of behaviour change program and attempts at reconciliation – likely hardships if visa cancelled – mental health and treatment – best interests of child given little weight – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(ii), 359A, 363, 366(1), 376
CASE
Gong v MIBP [2016] FCCA 561
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.
REVIEW

On 22 October 2018 a delegate of the Minister for Home Affairs cancelled the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116(1)(e)(ii) of the Migration Act 1958.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before this Tribunal in a public hearing in Melbourne on Wednesday 11 September 2019, 2 October 2019 (and later, throughout resumed hearings in 2020) to give evidence and present arguments. Throughout, the applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 as stated above. 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.
Written submissions provided by the applicant’s representative
The Tribunal has read and had regard to the following submissions provided by the applicant’s representative dated (other correspondence, including material for consideration which might also be viewed as submissions were also considered as part of this review, and have been catalogued in the Tribunal’s electronic ‘casemate’ database for matter 1831540):
·     6 August 2018
·     2 October 2018
·     16 May 2019
·     6 June 2019
·     4 September 2019
·     9 September 2019
·     10 September 2019
·     1 October 2019
·     7 December 2019
·     12 May 2020
·     27 May 2020
·     3 June 2020
·     10 June 2020
·     12 August 2020
·     18 August 2020
Does the ground for cancellation exist?
s.116(1)(e)(ii) - risk to an individual
A visa may be…

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: [2020] AATA 5585
Decision Date

CaseChat Overview and Summary

This matter concerned a review by the Tribunal of a decision to cancel the applicant's visa under section 116 of the Migration Act 1958 (Cth). The applicant, a visa holder, appeared before the Tribunal with his registered migration agent. The Minister's power to cancel a visa under section 116 includes grounds where the Minister is satisfied that the visa holder's presence in Australia may pose a risk to the health or safety of an individual.

The Tribunal was required to determine whether the ground for cancellation existed under section 116(1)(e)(ii) of the Act, which relates to the risk posed by the visa holder's presence in Australia to an individual. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances, including government policy and matters raised by the applicant.

The Tribunal found that the ground for cancellation was established. This was based on evidence that an Interim Intervention Order, later made final, had been issued against the applicant, protecting his wife and their daughter. The Magistrate had found that the applicant's victims were unsafe and in immediate need of protection, and the Tribunal was satisfied that the applicant's behaviour posed a risk to the safety of his wife and child. In considering the exercise of discretion, the Tribunal weighed various factors. While acknowledging the applicant's compelling reason to remain in Australia to maintain a parental relationship with his daughter, this was given less weight due to the applicant's past family violence. The applicant's compliance with visa conditions was neutral as there were none attached to his temporary partner visa. The Tribunal considered the potential hardship to the applicant and his family, including his health, but concluded that the seriousness of his violent behaviour, which breached Australian law and a court order, outweighed the anticipated hardship. The Tribunal also considered the best interests of the child, but given the prior court order for the child's protection from the applicant, this factor was given little weight against cancellation.

The Tribunal determined that the ground for cancellation under section 116(1)(e)(ii) was made out. After considering all relevant factors and exercising its discretion, the Tribunal decided to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant appeared before this Tribunal in a public hearing in Melbourne on Wednesday 11 September 2019, 2 October 2019 (and later, throughout resumed hearings in 2020) to give evidence and present arguments. Throughout, the applicant was represented in relation to the review by his registered migration agent.CONSIDERATION OF CLAIMS AND EVIDENCE 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 as stated above. 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.Written submissions provided by the applicant’s representative The Tribunal has read and had regard to the following submissions provided by the applicant’s representative dated (other correspondence, including material for consideration which might also be viewed as submissions were also considered as part of this review, and have been catalogued in the Tribunal’s electronic ‘casemate’ database for matter 1831540):· 6 August 2018· 2 October 2018· 16 May 2019· 6 June 2019· 4 September 2019· 9 September 2019· 10 September 2019· 1 October 2019· 7 December 2019· 12 May 2020· 27 May 2020· 3 June 2020· 10 June 2020· 12 August 2020· 18 August 2020Does the ground for cancellation exist?s.116(1)(e)(ii) - risk to an individual A visa may be cancelled under s.116(1)(e)(ii) 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 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, at [41]. The applicant (visa holder) first arrived in Australia [in] September 2017 as the holder of a Partner (provisional) (temporary) subclass 309 visa on the basis of his relationship with his sponsor (wife) [Ms A]. The applicant and sponsor claim a child of their relationship, a daughter [Ms B] born [Date]. According to the cancellation decision, which the applicant has provided to this Tribunal, [in] May 2018 the applicant had an Interim Intervention Order issued against him (the Final Intervention Order was later made on[in] June 2018). The persons protected by that Order were his sponsor (wife) and their daughter ([Ms B]). The Order required the applicant not to be at their home in [Suburb 1] and not commit family violence against his wife or daughter, including emotional, psychological and threatening behaviour. The Order was issued by a Magistrate, who in the applicant’s case made a finding that the applicant’s victims were unsafe and in need of protecting immediately. This Final Order satisfies the Tribunal that the behaviour of the applicant poses a risk to the safety of his wife and their child of the relationship.

Decision

Reasons for decision

There is no information to indicate to the Tribunal that cancellation of the applicant’s visa would result in the consequential cancellation of any dependent visa holders. It follows, this consideration has been given no weight for or against the cancellation of the visa.Mandatory legal consequences of a decision to cancel the visa If the applicant visa is cancelled, he would become an unlawful non-citizen under s.189 of the Act and be liable to be detained and could be deported from Australia under s.190 of the Act. Cancellation of the applicant’s visa would also mean that s.48 of the Act applies which would prevent him from applying for some visas. Visa cancellation in these circumstances means that Public Interest Criterion 4013 will apply to the visa holder and that he may not meet the requirement for grant of certain visa applications for a three-year period. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration that would be breached as a result of the visa cancellation As the applicant is Lebanese-born, and is a citizen of Lebanon, and there is no information before the Tribunal that indicates the visa cancellation would impact Australia’s international legal obligations or place Australia in breach of its non-refoulement obligations, this consideration has been given no weight in favour or against cancellation of the visa. As a Convention on the Rights of the Child (CRC) Australia has an obligation to ensure in all actions involving children, the best interest of each child is the primary consideration. This requires the best interest of the applicant’s young daughter, who is Australian by virtue of her mother’s citizenship, to be the primary consideration. The current status of the relationship between the applicant and his wife is that they continue to reconcile their differences, and state they have recommenced their relationship. Child Protection services have been involved due to welfare concerns for the child including a Final Order of the court for her protection (from the applicant). The Tribunal accepts the applicant and his wife may continue some form of relationship, even were they to separate, as they share a child. The Tribunal has considered that if the applicant were required to depart Australia, his wife and child may be deprived of the opportunity to see him on a regular basis, particularly in circumstances where they chose not to depart with him. As a Court deemed it necessary to make an Order for the protection of the Child from her father, the Tribunal must consider this. The Tribunal acknowledges the general positive influence of fathers have on the wellbeing of their children (or child), but it is greatly troubled by the applicant’s parenting in this case as it has not always been in the best interests of his child. Accordingly, the Tribunal places little weight against cancelling the visa for this reason. Other considerations

Ratio Decidendi

Legal Principle Established

As the Tribunal has made clear above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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 Procedural Instructions ‘General visa cancellation powers’. The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to travel to or remain in Australia The applicant is in Australia on a temporary partner visa. The Tribunal accepts that the applicant has a compelling reason to remain in Australia to maintain a parental relationship with his claimed daughter. This consideration weighs against the cancellation of the applicant’s visa, but in the applicant’s circumstances of having perpetrated family violence the Tribunal gives this consideration less weight than it otherwise may have. In the applicant’s circumstances the Tribunal gave this consideration some weight against cancelling the visa. The extent of the applicant’s compliance with the visa conditions As there are no conditions attached to the visa holder’s temporary partner Subclass 309 visa, though the applicant is presently on a Bridging Visa, and the applicant’s evidence is he has not breached any conditions. As compliance with all visa condition(s) are an expected minimum level of behaviour when granted a visa, the Tribunal finds that this consideration does not weigh either in support or against the cancellation of the applicant’s visa. The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members The Tribunal has considered the applicant’s circumstances in this regard, including the evidence concerning the applicant’s mental and physical health (including having regard to the letter of [Health services provider] dated 4 December 2019). In relation to the applicant’s child, the Tribunal refers to its remarks below in its discussion of the CRC. Overall, in respect to the applicant’s health, the evidence before the Tribunal is that the applicant is ordinarily able to manage his health needs. The Tribunal notes the applicant has claimed to have reconciled with his wife and to be living together again. The applicant’s wife has also provided numerous statements, which confirm the reconciliation. The Tribunal has weighed the above consideration, and notwithstanding some hardships are likely to flow from a decision to cancel the applicant’s visa (including in relation to the child), the violent behaviour of the applicant, and the fact he broke Australia law and breached a court order, leads the Tribunal to find the behaviour by the applicant, albeit some time has passed since, and its seriousness (committed against his own partner), ultimately outweighs the anticipated hardship to both the applicant and his family of his visa being cancelled. Accordingly, the Tribunal gives these considerations little weight against cancelling the visa. In coming to this, the Tribunal has had regard all the evidence, considering each submission including the confidential psychologist report dated 26 September 2019 and a letter from a clinical social worker/counsellor dated 18 December 2018, and recent letter from a psychologist dated 9 August 2020. Relevantly, while the applicant has claimed (in his submission dated 18 August 2020) that the psychologist letter of 9 August 2020 is evidence of a diagnosis of depression and anxiety, even were the Tribunal to accept the psychologist letter as proof of such, the applicant has not provided evidence to support the claim that such a diagnosis cannot be treated in Lebanon, except to say so. It would be nonsensical for the Tribunal to accept treatment for depression and anxiety cannot be accessed, or is severely restricted throughout Lebanon as claimed without verifiable evidence to support the claim, even while acknowledging the recent events in Beirut in particular (and Lebanon more broadly), including ongoing economic, political, medical and pandemic (SARS-Cov-2) upheaval. The Tribunal has also noted the variation of the order dated 21 January 2019 which allows the applicant to have contact with, and reside, with his wife and daughter. The circumstances in which the ground for cancellation arose