1901858 (Migration)

[2019] AATA 4811

1901858 (Migration) [2019] AATA 4811 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901858

MEMBER:Kira Raif

DATE:7 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 June 2019 at 3:26pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to the health or safety of an individual – assault charges – domestic violence – applicant’s wife supportive in court – bail conditions unchanged – no remorse or acknowledgement of conduct – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116

CASES

Gong v MIBP [2016] FCCA 561
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80          

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 21 January 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a national of Pakistan, born in [year]. He was granted the Class VC Skilled visa on 19 December 2017. That visa was due to expire on 19 December 2019. In 2018 the applicant was charged with a number of offences. On 14 December 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 21 January 2019. The visas held by the applicant’s partner and child were consequentially cancelled under s.140 of the Act. The applicants seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicant appeared before the Tribunal on 20 May 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. A visa may be cancelled under s.116(1)(e) 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, 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. 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].

7. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

8. The applicant provided to the Tribunal a copy of the primary decision record. It has the following information.

9. The applicant has been charged by [police] with the following offences:

   a.Assault occasioning actual bodily harm (domestic violence) - three counts.

   b.Common assaults (domestic violence) – two counts.

   c.Take/detain person with intent to commit serious indictable offence occasioning actual bodily harm (domestic violence).

10. The primary decision record refers to the information from the police indicating the following:

    a.Between 1 August 2018 and 31 August 2018 the applicant and his wife allegedly fought with each other in their home. It is alleged that the applicant verbally abused her, hit her on the hand with a TV remote control, prevented her from calling the police by withholding her mobile phone and prevented her departure by blocking her way to the exit of the apartment. It is alleged that the applicant grabbed his wife by the throat, slapped and punched her head and face on numerous occasions and kicked her in the ribs.

    b.On [a date in] October 2018 the applicant’s wife was examined at [a named] hospital and several injuries were noted, including bruising and scratches on her face and body.

    c.That evening, an apprehended Domestic Violence Order (DVO) was sought and obtained, which prevented contact between the applicant and his wife.

11. In his written submission to the delegate in response to the NOICC the applicant states that he has not committed any of these crimes and has entered the plea of not guilty to all charges. He states that his wife’s complaints are false, vexatious and frivolous. The applicant states that the injuries on her body were self-inflicted as she was threatening to cut herself with a knife. He had to take steps to prevent her from self-harm, taking into consideration her well-being and the safety of their child. The applicant states that charges have not been proved against him and he is contesting the charges and he is confident the charges will be dismissed. The applicant states that he was not properly advised by his previous lawyer. The applicant states that his wife is very remorseful for her actions and sought legal advice and provided a statement.

12. The applicant also presented a statement from his wife, [named]. [The applicant’s wife] – who claims she was not pressured or influenced by her husband to write the statement – states, in relation to assault occasioning actual bodily harm, that she didn’t complain to the police about the incident. She states that she and her husband were ‘playfully fighting over the iron’ and the iron accidentally burned her finger. It was an innocent result of both of them playing the fool and joking and was nothing serious or vicious. In relation to the assault and bodily harm, [the applicant’s wife] states that it did not happen and there was no assault. They were arguing over a trivial matter and she was the perpetrator. She first knocked her husband on the head with the TV remote, later they had a tug of war over the mobile phone. She states she exaggerated the incident to the police. In relation to the third charge, [the applicant’s wife] states that the scratches were the result of them having a tug of war over the phone; they both scratched each other. [The applicant’s wife] states that she first grabbed her husband’s testicles because she was angry and he tried to extricate himself and ‘accidentally’ grabbed her neck because he was in pain, shouting and screaming. She was trying to self-harm and threatened to throw herself in front of the car and that is why he blocked her way but he did not detaine her unlawfully. In relation to assault, [the applicant’s wife] states that she was in a bad temper and removed all her clothes and went out of their unit and set on the steps in the nude. Her husband grabbed her and took her into the unit and locked the door to protect her reputation. In relation to the common assault charge, [the applicant’s wife] states that the applicant did not follow her into the room and did not slap her and this is the mistake of the police. [The applicant’s wife] states that when giving the statement to the police, the interpreter was Hindi and she used Urdu. So many of the incidents outlined in the fact sheet are not part of the statement she gave to the police. She states that some of the injuries the police took photos of were previously there and were not related to this incident with her husband. She states that she is distraught and distressed that the statement she made in a temper has been misrepresented and misquoted and she wants the charges dismissed as she wants to live with her husband.

13. The applicant provided to the Tribunal a copy of the Notice of Court outcome. It shows that the charges of assault occasioning actual bodily harm and kidnapping were dismissed or withdrawn. The applicant provided evidence of having applied for an order varying the AVO. He also provided a declaration in which he claims he had an argument with his wife, she was angry and approached the police but was given the wrong interpreter and her evidence was misconstrued. The applicant told the Tribunal that three of the charges have been withdrawn and three were remaining. At present, he was facing two charges of assault occasioning actual bodily harm and one charge of assault.

14. The applicant’s oral evidence to the Tribunal, in relation to the actual incident, was somewhat different to his written submission. The applicant states that he and his wife were having a fight over his contact with his parents. His wife had squeezed his testicles and he was in pain. He does not know how she was harmed, he was in pain and tried to remove her hand and ‘somehow’ his wife was bruised but he does not know how that happened. The applicant states that it is possible that he hit her because he was in pain and did not know what was happening. The applicant said that he ‘may have’ hit his wife because he was in so much pain.

15. The applicant said that his wife tried to take his mobile phone and they had an argument. The applicant denied hitting his wife and said that he could not explain how the bruising occurred on her body. The applicant made no mention of his wife trying to self-harm or threatening herself or others with a knife, as he did in the written statement.  To explain the bruising, the applicant said that maybe his wife had hit or hurt herself.

16. The applicant stated that any allegations that he had hit or slapped or otherwise hurt his wife are ‘lies’. The applicant notes that his wife has been supportive in court and denied that he had hit her. The applicant also denied putting any pressure on his wife to change her evidence, stating that he was not allowed to have any contact with his wife. He said that his wife has not changed her evidence in order to retain the visa because he believed she would be entitled to a protection visa due to family violence. The applicant said that other allegations are a lie and nothing that has been described by the police had happened.

17. The applicant states that he was charged around October 2018. He was jailed and initially he was refused bail. The second hearing was about two months later and at that time he was granted bail. The bail conditions require him to report to the police station and not contact his wife. The applicant states that the bail conditions would change because the AVO has been changed. The applicant states that the AVO has been changed to allow him to be with his wife. He intends to apply to change the conditions of his bail. Following the hearing, the applicant provided to the Tribunal evidence of a bail hearing but he informed the Tribunal that the bail conditions had not changed. The applicant stated that he intended to appeal that decision and requested the Tribunal to await the outcome of the appeal. The Tribunal considered the request but decided not to do so. This is because there can be no certainty as to the when the matter may be resolved. The applicant may or may not be successful in his appeal. If he is not successful, he may choose to appeal further. The process will not only be a lengthy one, but also an uncertain one. Significantly, the Tribunal has formed the view that its determination will not be significantly affected by whether the applicant’s bail conditions change. The Tribunal does not draw any adverse conclusions form the fact that bail has not been changed and that the applicant is not permitted to live with his partner, neither would the Tribunal determine that the applicant’s presence in Australia is not a risk only because his bail conditions are changed. These findings are a matter for the Tribunal and, in the Tribunal’s view, the bail determination is of limited help.

18. The applicant states that if he was a risk to his wife, the charges would not be dismissed. The Tribunal does not accept that evidence because the applicant’s own evidence is that while three of the charges have been dismissed, other charges remain outstanding. The applicant also states that if he was assessed as being a risk, he would not be allowed to live with his wife. The Tribunal notes that initially, both the bail conditions and the conditions on the AVO prohibited the applicant from living with his wife or having any contact with her. That would indicate that the applicant was assessed as being a risk to his wife. The Tribunal acknowledges that the AVO was subsequently changed but not the bail conditions. As noted above, the Tribunal does not consider that to be determinative of the issues.

19. The Tribunal has considered the applicant’s circumstances. The Tribunal acknowledges that the applicant has not been convicted of any offences but does not accept the applicant’s argument that in the absence of convictions, any cancellation of his visa is ‘unfair’. The ground for cancellation may arise if the applicant’s presence in Australia is assessed as being a risk to others, not because of the applicant’s convictions, and it is well established that a ground for cancellation may arise in the absence of any finding of guilt in relation to the visa holder (see Gong).

20. The Tribunal acknowledges that the applicant denies having caused any harm to his partner and the Tribunal has had regard to his partner’s declaration. While it is not for this Tribunal to determine if the applicant had committed any offence, the Tribunal has found the applicant’s evidence unconvincing, as the applicant denied having hit his partner, could not explain how the bruising occurred and suggested it may have been caused by his partner herself. Similarly, the statement from [the applicant’s wife] fails to explain these concerns. She does not explain the bruising and, with respect to some of the charges, simply states that ‘it did not happen’. The Tribunal finds her evidence equally unconvincing.

21. The Tribunal considers the charges of assault, or assault occasioning actual bodily harm, to be significant. Such conduct would involve violence towards another person. The applicant’s evidence to the Tribunal is either that he did hit his wife when he was in pain, or that he never hit her and could not explain how the bruises on her body occurred. If such violence occurred, its perpetration, together with the applicant’s complete lack of remorse or acknowledgement of such conduct, are of significant concern to the Tribunal.

22. Having regard to these circumstances, the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others, in particular his wife. The Tribunal reaches this conclusion while acknowledging that the terms of the AVO had been changed to allow the applicant and his wife to be together and also the applicant’s evidence that he was granted bail and expected the bail conditions to be changed. The Tribunal is mindful that the AVO, while allowing the applicant to live with his wife, does preclude him from harming his wife. It is conditional on the applicant behaving in a certain manner. Thus, the Tribunal does not accept that the fact that the AVO allows the applicant to live with his partner (and his bail conditions may be changed in the future) negates the existence of the risk.

23. The Tribunal finds that the applicant’s presence in Australia may be a risk to an individual or individuals. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

24. 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

25. There are no matters specified in the Act or Migration Regulations 1994 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

26. The applicant told the Tribunal that he completed his study in Australia and was granted a temporary visa, which has been cancelled unfairly because the allegations have not been proven. As noted elsewhere, the ground for cancellation may arise irrespective of the outcome of the criminal process and before such an outcome is known. The Tribunal gave the applicant an opportunity to await the outcome of his criminal trial but the applicant indicated a preference for the Tribunal to proceed to the decision on the material before it and before his criminal case is determined.

27. The purpose of the Skilled visa is to enable the applicant to remain in Australia following the completion of Australian study. The applicant is fulfilling that purpose. The Tribunal is mindful that the visa in question is due to expire in December 2019. The applicant told the Tribunal that he has not yet decided whether he will apply for the permanent visa once his temporary visa expires. He said that if he could get the points, he might apply for a visa but he has not yet made that decision.

28. The Tribunal does not consider there is a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

29. The Tribunal is not aware of the applicant not complying with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

30. With respect to hardship, the applicant states that if his visa is cancelled, it may cause financial hardship and he would not be able to pay his legal fees and fight the case. The applicant told the Tribunal that his present Bridging visa does not allow him to work and he is supported by family and friends. The Tribunal accepts that if the applicant is unable to work while on a Bridging visa, then the cancellation of the Skilled visa may cause him some financial hardship. However, the Tribunal also acknowledges the applicant’s evidence that he is being supported by friends and family and there is nothing to suggest that he has been unable to meet his financial obligations, including the payment of his legal fees.

1. The applicant told the Tribunal that he did not know how his partner supports herself because he is not allowed to contact her. The applicant states that if he is allowed to live with his wife, and if his visa is reinstated, he would support his wife and child. The applicant also told the Tribunal that since his release from jail, he has been helping his wife with her expenses, by paying rent and mobile expenses but not any other expenses because he cannot contact his wife.

2. The applicant told the Tribunal there would be no other hardship.

   Circumstances in which ground of cancellation arose

3. The ground for cancellation arises because the Tribunal formed the view that the applicant’s presence in Australia is or may be a risk to others, in particular, his partner. The Tribunal formed that view because of the charges against the applicant and the fact that an AVO had been issued to protect the applicant’s partner.

4. The Tribunal acknowledges the applicant’s and his partner’s denials of the events but as noted above, the Tribunal found their evidence unconvincing, particularly as there appear to be discrepancies between the applicant’s oral evidence to the Tribunal and the previously prepared written statements, and also because the applicant has not explained to the satisfaction of the Tribunal what caused the bruising. The Tribunal has formed the view that the applicant has not been truthful in the explanations he has offered to the Tribunal about the circumstances in which the ground of cancellation arises.

   Past and present behaviour of the visa holder towards the Department

5. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

6. The visas held by the applicant’s partner and child would also be subject to cancellation under s.140.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

7. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The cancellation of the visa may also affect the applicant’s ability to seek a permanent visa onshore. Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

8. The applicant told the Tribunal that he would not be subjected to any form of harm or persecution upon return to his home country. There is no evidence that Australia’s protection obligations would be engaged in relation to the applicant. The Tribunal finds that non-refoulement obligations do not arise in this case.

9. The applicant does not claim that the best interests of any children would be affected by the cancellation. There is very little evidence before the Tribunal concerning the circumstances of the applicant’s child.  On the evidence before it, the Tribunal finds that Australia’s international obligations would not be affected as a result of the cancellation.

   Any other relevant matters

10. The applicant has not raised any other matters for the Tribunal’s consideration.

11. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others and that there are grounds for cancelling his visa. The Tribunal has rejected the claims made by the applicant (and his partner to the delegate) about the circumstances in which the ground for cancellation arises. The Tribunal found their explanations inadequate and unconvincing. The Tribunal acknowledges that some hardship may be caused to the applicant by the cancellation, particularly as the applicant may be precluded from seeking certain other visas in Australia. However, the Tribunal places weight on the fact that the visa in question is a temporary visa with a limited period of validity so any hardship must be viewed in light of the temporary nature of the visa. There are no other known instances of non-compliance and no known breaches of the law.

12. The Tribunal has formed the view that the circumstances in which the ground for cancellation arises outweighs other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

13. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.

14. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member