1920706 (Migration)

[2020] AATA 5625

1920706 (Migration) [2020] AATA 5625 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920706

MEMBER:Hugh Sanderson

DATE:10 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 Partner (Provisional) visa.

Statement made on 10 November 2020 at 7:39am

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – risk to safety of Australian community or individual – charged with four counts of sexual intercourse without consent together with an AVO – criminal proceedings and AVO withdrawn and dismissed – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health and safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Ethiopia and is currently [age] years old. He was married to [Ms A] who sponsored him for a Partner visa.

4. [Ms A] was born in Ethiopian and is currently [age] years old. She was granted a Humanitarian visa and first entered Australia in 2008. She is an Australian citizen. The parties claim they met online in 2012. [Ms A] travelled to Ethiopia in January 2013 and fell pregnant to the applicant. She returned to Australia in May 2013 and gave birth to their child, [Child B], who is currently [age] years old. [Child B] was required to have two operations soon after he was born and suffers from a number of medical conditions and allergies. [Ms A] and [Child B] returned to Ethiopia in December 2015. [Ms A] returned to Australia in June 2016, leaving [Child B] with the applicant.

5. The applicant was granted a Subclass 309 Partner visa on 1 August 2017. He first entered Australia with [Child B] [in] March 2018. The applicant arrived in Melbourne and stayed with an uncle while [Ms A] found a property to rent in Sydney. The applicant and [Child B] travelled to Sydney [in] April 2018 and started living with [Ms A].

6. [In] February 2019 the New South Wales Police charged the applicant with four counts of sexual intercourse without consent. The facts sheet prepared by the police set out the following allegations:

   ·In July 2018 at about 4:00pm the applicant forced himself on [Ms A] saying “Don’t forget you are my wife, I can do whatever I want”;

   ·When [Ms A] resisted the assault the applicant said to her “You have to understand, no one is going to stop me at this point. Try to enjoy it. You are like my toy, you are my wife. There is no law that says you can’t have sex with your wife”;

   ·In August 2018 at about 9:00pm after consuming a number of beers, the applicant suggested to [Ms A] that they have sex, but she declined;

   ·The applicant threw the beer bottle onto the ground and then grabbed [Ms A], dragged her to the bedroom and forced her to have sex with him;

   ·While the applicant was forcing her to have sex with him, [Ms A] was crying out “Stop, stop, stop” which woke up their son, [Child B], who then knocked on the bedroom door calling “Mumma, open the door”; and

   ·The applicant continued to have sex with [Ms A] against her will despite their son calling outside the bedroom door.

7. The Department wrote to the applicant on 15 March 2019 with a Notice of Intention to Consider Cancellation of his visa under s.116 of the Act. The Department noted the applicant had been charged with four counts of sexual intercourse without consent and noted that an Apprehended Violence Order had been issued for the protection of [Ms A] and their son. On that basis, it appeared there were grounds for the applicant’s visa to be cancelled.

8. The applicant responded by providing a Statutory Declaration that had been prepared on 23 March 2018 where it was alleged [Ms A] had been aggressive towards him and had neglected both the applicant and their son while they were living in Ethiopia and also upon their arrival in Melbourne. The applicant indicated in that statutory declaration that [Ms A] may have been in a relationship with another person.

9. The applicant provided a number of statutory declarations from friends and relatives stating that the allegations made against the applicant came as a complete shock and they believed that the allegations were made without any foundation. Concerns were expressed about the way [Ms A] had treated the applicant. The importance of the relationship between the applicant and his son was emphasised.

10. The applicant provided a statement where the following claims were made:

    ·[Ms A]’s behaviour was controlling of the applicant, refusing to provide him a key to the house they were living in, preventing him talking to relatives and refusing to allow him to participate at his church or meet other members of the Ethiopian community in Sydney;

    ·The applicant believed [Ms A] was in a relationship with another person and had terminated a pregnancy before he arrived in Sydney;

    ·Their relationship deteriorated as soon as they started living together, with [Ms A] leaving the house for days at a time without telling the applicant where she was going;

    ·[Ms A] did not take proper care of their son and did not enrol him in kindergarten despite the applicant’s requests she do so;

    ·The applicant met with various migration and family support services in light of the concerns he had as to the behaviour of [Ms A];

    ·[In] August 2018 Family and Community Services (F&CS) attended the parties’ home due to concern as to the welfare of their son;

    ·After the visit from F&CS [Ms A] made some admissions to the applicant and he told her that he forgave her;

    ·The applicant and [Ms A] discussed getting tested for HIV and hepatitis as the applicant did not want to have a sexual relationship with her until this had been done;

    ·[In] August 2018 F&CS again visited the family and referred them to counselling and expressed concern that their child had not been enrolled in kindergarten;

    ·[Ms A]’s controlling and abusive behaviour continued and on 10 October 2018 the applicant advised her that he could no longer continue in the relationship and wanted to make arrangements for their son;

    ·As the applicant could not find any alternate accommodation, he remained living in the housing commission home of [Ms A], though separated from her;

    ·[In] October 2018 F&CS attended the house advising the applicant they wished to investigate an alleged incident of child abuse committed by the applicant, which the applicant denied;

    ·In November 2018 [Ms A] provided results from an HIV and hepatitis test and said that she wanted to resume her relationship with the applicant, however, the applicant said that he did not want to have any continuing contact with her;

    ·On 14 December 2018 [Ms A] told the applicant to leave her home, but as he could not find accommodation in Sydney he travelled to Melbourne to stay with relatives there;

    ·[Ms A] travelled to Melbourne with their son and celebrated New Year’s Eve with the applicant in Melbourne and asked the applicant to resume their relationship;

    ·On 2 January 2019 [Ms A] asked the applicant to look after their son for the night, but as the applicant was sleeping on a lounge he said that he did not have appropriate accommodation;

    ·[Ms A] became angry at the refusal of the applicant to take their son for the night and left with their son and returned to Sydney the next day;

    ·On 7 January 2019 the applicant received a text message from [Ms A] saying that she would do anything to have him back;

    ·The contact the applicant had with [Ms A] continued to vary with [Ms A] sending him messages indicating she wanted to continue their relationship, then angry messages or refusing to respond to messages from the applicant;

    ·[In] February 2019 the applicant contacted [the] Police Station with the Assistance of an Officer from [a not-for-profit organisation] as they believed an allegation had been made against him, however, the police were unable to discuss the matter over the phone;

    ·[In] February 2019 the applicant was advised by an officer from F&CS that an AVO had been made for the protection of his son on the basis that the applicant had hit him;

    ·[In] March 2019 the applicant, with a support person, attended [the] Police Station and the charges were served on the applicant and he was refused bail until the afternoon of [date] March 2019; and

    ·The applicant only received the allegations of the sexual assault [in] March 2019 which shocked him and which he denied.

11. The delegate who considered the application found that the allegations made against the applicant and the fact that he had been charged with four counts of sexual intercourse without consent together with an AVO for the protection of [Ms A] and their son meant there were grounds to cancel his visa under s.116(1)(e)(ii) of the Act. The delegate noted the information which had been provided in support of the applicant. The delegate noted the relationship the applicant had with his son, however, noted the fact that his son was the subject of an AVO to protect him from the applicant indicated continuing contact between the applicant and his son was not of benefit to his son.

12. The delegate considered that the grounds for cancelling the visa outweighed the reasons not to cancel. Accordingly, the delegate cancelled the applicant’s visa.

13. A hearing was conducted with the applicant on 29 October 2019. The applicant was provided a copy of the certificate pursuant to s.375A of the Act in respect of his Partner visa application file.

14. The information provided indicated that the following court proceedings were in train:

    ·The criminal charges of sexual intercourse without consent, assault and stalk/intimidate with intent to cause fear or harm were listed for committal [in] November 2019. The proceedings would then be listed for hearing, probably at some time in 2020.

    ·Family law proceedings had been initiated in the Federal Circuit Court (Parramatta) seeking interim and final orders, which were listed [in] November 2019; and

    ·An Apprehended Violence Order Application filed by the police for the wife was listed for hearing [in] November 2019.

15. Due to the nature of the allegations made against the applicant and the evidence presented to the Tribunal, the Tribunal agreed to postpone any decision on the matter pending an outcome of the criminal proceedings.

16. The applicant provided information to the Tribunal showing that an application for a no bill had been accepted by the DPP and the criminal proceedings had been withdrawn and dismissed [in] September 2020. The submissions from the applicant’s counsel in respect of the criminal proceedings were, in part, that the allegations made against the applicant were baseless and that the complainant had fraudulently manufactured documents and made false allegations in order to obtain a desired result in family law proceedings in relation to the parties’ child.

17. The application for the AVO was withdrawn and dismissed [in] November 2020.

18. The applicant currently has proceedings in the Federal Circuit Court seeking orders relating to the child of his relationship with [Ms A].

19. 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

20. 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.

    Does the ground for cancellation exist?

    s.116(1)(e) - risk to Australian community or individual

21. 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].

22. The basis of the decision of the Department to cancel the applicant’s visa were the charges that were laid against the applicant and the application for an AVO as a result of allegations made by [Ms A]. As a result of information provided by the applicant’s counsel to the DPP indicating that [Ms A] had manufactured false documents to support her claims and that the claims made by [Ms A] had no foundation in truth, the DPP agreed to have the charges withdrawn and dismissed. The criminal proceedings have now been dismissed.

23. Again, as a result of the submissions made by the applicant’s counsel to the DPP, the application for the AVO was withdrawn and dismissed.

24. The Tribunal accepts that the allegations made against the applicant were not true and that the presence of the applicant in Australia is not 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, and in particular [Ms A]. The allegations [Ms A] made against the applicant appear to have been false and malicious and done to frustrate the applicant having any contact with their child. It is noted that the applicant continues to pursue proceedings in the Federal Circuit Court to obtain orders in respect of his child.

25. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 Partner (Provisional) visa.

    Hugh Sanderson
    Member