1924848 (Migration)

[2020] AATA 5525

1924848 (Migration) [2020] AATA 5525 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924848

MEMBER:Jason Pennell

DATE:8 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 8 September 2020 at 4.29pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – risk to safety of Australian community or individual – domestic violence – Recklessly Causing Injury and Unlawful Assault – consideration of discretion – spouse and child continues to reside with the applicant – express no fear of the applicant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 29 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the presence of the applicant is or may be a risk to the health safety and an individual or individuals in the Australian community, namely his wife [Ms A] and his son, [Child B]. 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 21 May 2020 and 7 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] (‘the applicant’s wife’). Due to the Covid-19 pandemic the hearing on 21 May 2020 was conducted by teleconference and the hearing on 7 September 2020 was conducted via M.S. Teams. At each hearing the applicant confirmed to the Tribunal that he was able to hear and understand the member during the course of the hearing.  

4.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

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) of the Act. 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

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.[1]

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[2] held 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.

8.On 24 July 2019 the applicant was charged with Recklessly Causing Injury and Unlawful Assault (‘the criminal charges’).  It was alleged that on 23 July 2019 the applicant arrived home after consuming alcohol. He entered the bedroom where [Ms A] and [Child B] (aged [age] at the time) were located. He commenced yelling abuse at his wife and then allegedly used a wooden bed slat to physically assault his wife striking her numerous times. The assault caused [Ms A] to incur multiple bruises to her back and well as swelling and bruising to her arms. Its alleged that the applicant’s son witnessed the attack.

9.As a result of the attack [Ms A] ran to another bedroom occupied by family friends, who also resided at the house. They took [Ms A] into the room, locked the door and called the emergency services.

[1] Gong v MIBP [2016] FCCA 561@ [41]

[2] Tien v MIMA (1998) 89 FCR 80 @ p.94

1. On 24 July 2019, the applicant was charged by the Victorian Police with the above offences and required to appear at [the] Magistrates Court [in] September 2019. The applicant was also issued with an interim intervention order (‘IVO’) which was valid until 31 December 2019. The IVO instructed the applicant not to commit any family violence against [Ms A] or [Child B].

2. On 17 February 2020 the hearing of the applicant’s criminal charges was adjourned to 18 August 2020. As a result of the Covid-19 pandemic the hearing of the criminal charges was further adjourned to a date to be fixed. There is currently no fixed date of the hearing. It was the applicant’s evidence that it he had been instructed that a diversion order was likely to which he would plead guilty to the charges.  

3. In addition, on 17 February 2020 applicant consented to a Final Safe Conduct Order being made by which he was ordered not to commit any further family violence against [Ms A] and [Child B] and not to damage any property.  The evidence of both the applicant and [Ms A] was that [Ms A] and [Child B] had continued living with the applicant since the time the charges were made against the applicant. In addition, their evidence was that the applicant has not breached the IVO orders.        

4. The applicant provided copies of statutory declarations made by [Ms A] and the applicant dated 23 August 2019. In addition, the applicant provided copies of reports by ClinicalLabs or tests conducted on 6 August 2019, 8 August 2019 and 12 August 2019 together with a letter from Family Violence Intervention Program dated 22 August 2019.   

5. On 19 August 2019 the department sent a ‘Notification of Cancellation under Section 116 of the Act’ to the applicant (‘the notice’). The applicant provided a response to the notice dated 23 August 2019 (‘the applicant’s response’). In the applicant’s response he states that he was arguing with his wife because of a disagreement they had over purchasing groceries. He claimed that [Ms A] had been suffering for medical issues which caused rashes on her legs. He claimed that he had been feeling stressed about [Ms A]’s condition and ‘other matters’ and as a result had purchased alcohol and drank it so that he could sleep without stress. The applicant claimed that he woke in the middle of the night to discover that [Ms A] was sleeping in [Child B]’s bed. As a result, he claims that they had an argument (during which he raised his voice) over the fact that [Ms A] was sleeping in their son’s small bed making him uncomfortable. In his response, the applicant denied that he hit [Ms A]. Rather, in his response he claims that she hit herself and injured herself in order to upset him because she knows that he loves her. He claimed that the family friend who contacted the police does not like him and wanted to see him get in trouble.

6. The Tribunal does not accept the applicant’s evidence in his response. The applicant’s explanation of [Ms A] beating herself to the extent that she suffered multiple bruises to her back and swelling and bruising to her arms appears to be not only physically impossible but also highly unlikely in circumstances where he claims to have found her asleep in their sons bed. In addition, the applicant’s evidence during the hearing indicated that he no longer maintained his claim that [Ms A] had injured herself as detailed in his response. The fact that the applicant has consented to the IVO orders and his evidence that he is prepared to plead guilty to the charges if he receives a diversion order, indicates that [Ms A] did not inflicted any injuries upon herself as claimed.

7. On 29 August 2020 department cancelled the applicant’s bridging visa pursuant to s.116(1)(e) of the act, on the basis that the presence of the applicant in Australia is or may be a risk to individuals in the Australian community, namely [Ms A] and [Child B].

8. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act 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

1. 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 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.

1. The applicant arrived in Australia in April 2009 as the holder of a student visa. The applicant completed an English course and [Course 1]. In September 2011, the applicant was granted a further student visa on the basis that he was enrolled in a [Course 2] and [Course 3]. The applicant completed both courses. In 2017, the applicant completed a [Course 4].

2. The applicant was married to [Ms A] on or [about] December 2012 in India. [In] July 2013 [Ms A] arrived in Australia as a dependant to the applicant’s student visa. On [date] [Child B] was born.    

3. On 28 August 2013 the applicant and [Ms A] made application for a Protection Visa. Their application as refused on 3 July 2014. The Administrative Appeals Tribunal (‘AAT’) subsequently affirmed the department’s decision not to issue and protection visa to the applicant and [Ms A]. In or about July 2018 the Federal Circuit Court (‘FCCA’) remitted the applicant’s review application to the AAT for reconsideration.  The matter is currently awaiting determination.

4. The applicant has an extended immigration review record. While the tribunal acknowledges that the applicant has completed each course of study he enrolled in, it appears that his purpose of traveling and staying in Australia has been for permanent migration. Accordingly, the Tribunal places no weight on the consideration in the applicant’s favour.

The extent of compliance with visa conditions

1. There is no indication that the applicant has acted in breach of any of the visa conditions. Accordingly, the Tribunal gives this consideration some weight in the applicant’s favour.

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

1. The applicant has now resided in Australia for over ten years. [Ms A] has now resided in Australia for over six years and [Child B] was born in Australia and never travelled offshore.

2. The length of the time the applicant has resided in Australia is significant. It’s likely that during this time he has established relationship within the Australian community. The Tribunal notes that the applicant’s evidence that he works as an [Occupation 1] and that his wife and son are financially dependent on him.[3]  The applicant’s son has lived his whole life in Australia and is now attending school.

   [3] Applicant’s Statutory Declaration dated 23 August 2019.

3. The Tribunal accepts that if the applicants visa is cancelled, he would likely cause him financial hardship which would also impact his wife and son. It was claimed by the applicant before the department that his wife suffers from medical issues. The applicant and [Ms A] made no claim of her having suffered medical issues before the Tribunal and did not provide any evidence to support such a claim. The applicant has a final determination pending in relation to his protection visa. If his visa is cancelled, he will be entitled to remain pending its final determination. Having considered the above, the Tribunal gives this consideration little weight in favour of the applicant.

Circumstances in which ground of cancellation arose.

1. The applicant was charged by Victorian Police for allegedly assaulting [Ms A] and causing her injury by striking her multiple times with a wooden bed slat. The applicant has denied harming [Ms A]. Nevertheless, he consented to the IVO orders and has indicated that if a diversion order if offered by the police prosecution he would plead guilty to the criminal charges. 

2. The Tribunal notes that [Ms A] has attempted to withdraw the complaint made against the applicant. In her statutory declaration dated 23 August 2019 she claims that she was pressured into giving a statement and that she does not have any kind of safety issue against her husband.[4] [Ms A]’s evidence to the Tribunal was that she and their son continued to live with the applicant as a family unit. Her evidence was that she had no fear of the applicant and that there had been no other incident since July 2019. The applicant confirmed that [Ms A] and his son remained living with him and that he had complied with the orders of the IVO. There had been no other complaint in relation to the applicant. Therefore, currently [Ms A] and [Child B] have no fear of the applicant and remain content to continue living with the applicant as a family unit.

   [4] Statutory Declaration by [Ms A] dated 23 August 2019.

3. The evidence of [Ms A] was that the welfare of [Child B] and her have been investigated and assessed by the Department of Health and Human Services. She claimed that in light of the allegations made against the applicant the department had investigated and assessed the safety of [Child B] remining in the home with the applicant. She claimed that the department had determined that the applicant is not a risk to the health and safety of [Child B] and have determined that he remain in the home with the applicant.    

4. The Tribunal notes that due to the Covid-19 pandemic the hearing of the criminal charges has been adjourned to a date to be fixed. The applicant’s evidence was that he had been informed that it would likely be listed in approximately six months’ time. The Tribunal merely notes that the proceeding has been adjourned to a date to be fixed and places no weight on any speculation as to when the hearing may occur.  

5. Finally, the applicant’s evidence was that he had attended the Men’s Behaviour Change program conducted by the Family Violence Intervention Program. He stated that it took approximately two months to sign up for the program but stated that he was subsequently attended and completed 20 weekly sessions of the Men’s Behaviour Change Group program.

6. In circumstances, where [Ms A] have remained living with the applicant as a family unit and express no fear of the applicant and where the applicant has undertaken counselling sessions for his behaviour, the Tribunals view is that the applicant does not represent a risk to the health or safety of [Child B]. As such, the Tribunal places significant weight on this consideration in the applicant’s favour.   

Past and present behaviour of the visa holder towards the department.

1. There is no indication that the applicant has behaved adversely toward the Department in this matter or on any other occasion. The Tribunal gives this little weight in favour of the applicant. 

Whether there would be consequential cancellations under s.140

1. In the event a decision is made to cancel the applicant’s visa [Ms A] and [Child B] will not be subjected to consequential visa cancelation as their visas were granted separately.  As such the Tribunal places no weight on this consideration in favour or against the applicant.

Mandatory legal consequences of a decision to cancel the visa.

1. If the applicant’s visa is cancelled he will become an unlawful non-citizen and be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart.

2. The applicant will be entitled to make application for a limited visa under s.48 of the Act.

3. Cancellation in these circumstances means that the Public Interest Criteria 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.

4. The applicant has a pending review with the AAT in relation to his application for am protection visa. If a decision is made to cancel his bridging visa, the applicant will be entitled to remain in Australia to await the outcome of the review.

5. The Tribunal gives this consideration little weight in favour of the applicant.

Australia’s International obligations.

1. The applicant’s son, [Child B], is [age] years of age. He was born in Australia and has remained in Australia for the time of his birth.

2. Article 3.1 of the Convention on the Rights of the Child (CRC) states that:

   ‘In all actions concerning Children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.’ 

3. In accordance with the CRC the Tribunal has considered the interests of [Child B] in the cancelation of the applicant’s visa. In circumstances where [Ms A] and [Child B] have remained living with the applicant as a family unit, where the welfare and safety of [Child B] has been investigated and assessed by the Department of Health and Human Services, the Tribunal it appears that the applicant does not represent a  risk to the health or safety of [Child B].    

4. The Tribunal accepts that if his visa is cancelled and he is forced to return to India that it will cause disruption to [Child B]’s schooling and create some emotional hardship if he is separated from his son. However, the Tribunal notes that the applicant would be entitled to remain in Australia until his protection visa application is finally determined. 

5. There is no indication that the cancellation of the applicant’s visa will breach any international agreement which may prevent the applicant from returning to India. As such the Tribunal gives this consideration little weight in favour of the applicant. 

6. Therefore, having considered the applicant’s circumstances and the evidence provided during the hearing that [Ms A] and [Child B] have remained living with the applicant as a family unit, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Jason Pennell
Senior Member