2001157 (Migration)

[2020] AATA 4359

2001157 (Migration) [2020] AATA 4359 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:2002750 and 2001157

MEMBER:Kate Millar

DATE: 24 July 2020

PLACE OF DECISION:  Adelaide

DECISION:In matter 2002750 the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

In matter 2001157 the Tribunal sets the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Partner (Temporary)) visa.

Statement made on 24 July 2020 at 4:21pm

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – risk to the health and safety of an individual or individuals – applicant’s criminal charges withdrawn – Domestic Violence Order remains in place – Australian Federal Police check clearance – assistance to the sponsor with health issues and child care – significant risk of separation to the health of the sponsor – financial hardship – best interests of the children – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 48, 116, 359, 501
Migration Regulations 1994, Schedule 3; r 2.12

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 decisions made 22 January 2020 and 12 February 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel [the applicant’s] Subclass 820 (Provisional Partner) and Subclass 010 (Bridging A) visa respectively under s.116 of the Migration Act 1958 (the Act).

2. As both visas were cancelled for the same reasons and under the same provision of the Act, this is a combined decision for both matters. 

3. [The applicant] was charged with aggravated assault and gross indecency, and the delegate found that he 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.

4. The charges against [the applicant] were withdrawn on [a date in] April 2020, and a National Police Clearance shows [the applicant] has not been convicted of any other offences while in Australia.  However, there is current Domestic Violence Order (DVO) preventing him from approaching or contacting the protected person. 

5. On 2 June 2020, the Tribunal wrote to [the applicant] under s.359(2) of the Act and requested information in writing about:

   Whether you are, or may be, or would or might be a risk to the health and safety of an individual or individuals; and

   Whether your visa should or should not be cancelled. This can include any information about your circumstances, and you may like to also provide information on the factors considered by the delegate in the decision record.

6. An extension of the prescribed time in which to respond was sought and was granted until 17 July 2020.  The response was not provided until after this period had expired, and as a result [the applicant] has lost his right to a hearing. The Tribunal had regard to the submissions and documents provided in coming to a decision. 

7. The representative sought further time to provide a psychology report detailing [the applicant’s] risk of re-offending, however [the applicant] has not been convicted of any offences, and the question of re-offending does not arise.  It was not necessary to obtain a further report to make a decision in this matter, and the request for further time was declined. 

8. The submissions that were provided relate to a cancellation under s.501 of the Act. Section 501 does not apply to these visa cancellations as the visas were cancelled under s.116 of the Act. The submissions and statements cover much of the ground necessary to make a decision in this case, and where they are relevant the Tribunal has taken them into account.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. These include the ground set out in s.116(1)(e), which was relied on by the delegate for both visa cancellations.

10. 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?

11. 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].

12. At the time [the applicant’s] visa was cancelled, he had been charged with aggravated assault and an act of gross indecency.  These charges supported the delegate’s finding at the time that he may be a risk to individuals in the Australian community.

13. On [a date in] April 2020, the charges were withdrawn.  [The applicant] provided an Australian Federal Police check (complete disclosure) dated [in] April 2020 showing he has not been convicted of any offences. 

14. Given the reference to a Domestic Violence Order in the documents provided, [the applicant] was asked to provide a copy of the DVO.  The DVO prevents him from approaching the protected person for two years commencing [in] October 2019.  This is now eight months ago, and there are no charges or convictions before the Tribunal or recorded on the police check for a breach of this order.

15. Nevertheless, the existence of a DVO shows that there is a possibility [the applicant] could pose a risk to the protected person in the future, and the ground in s.116(1)(e) to cancel his Subclass 010 and his Subclass 820 visa is established.

16. As this ground does not require mandatory cancellation under s.116(3), it must be considered whether his visas should be cancelled.

    Consideration of discretion

17. 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’.

18. As far as they are relevant to this matter, the submissions point to the following:

    ·     The charges against [the applicant] were withdrawn

    ·     He has two minor Australian citizen children

    ·     The distress suffered by [the applicant’s] wife at the prospect of his visa being cancelled; and

    ·     The support provided by [the applicant] in the care of their children; one of whom has been diagnosed with autism. 

19. In support of the submissions, [the applicant] provided a statutory declaration from himself and his wife, a police clearance, birth certificate of his two children, his wife’s Certificate of Australian Citizenship, his marriage certificate, a psychology report relating to his wife and photographs of [the applicant] with his children.  I have also had regard to documents he provide in his response to the Notice of Intention to Cancel his visa. 

    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

20. [The applicant] was granted a Subclass 010 visa pending the outcome of his application for review.  His Subclass 820 visa was granted on the basis of his relationship with his wife, who is an Australian citizen.  A copy of his marriage certificate was provided. 

21. They have been married for four years and continue to be in a relationship.  [The applicant’s wife] provided a statutory declaration stating she did not think she would manage without [the applicant’s] ongoing support as she suffers trauma from her experiences in [her home country] and also has Hepatitis B.

22. A letter from [Agency 1] dated 16 December 2019 states [the applicant’s wife] has received counselling for trauma, which has been exacerbated by her health condition and a shooting near her home, and that she relies on the support of [the applicant].

23. A support letter from [the applicant’s] case manager at [Agency 2] confirms she is receiving treatment for Hepatitis B, and that [the applicant] has been the support person throughout her treatment and in the recent decline in her mental health. 

24. The report of [the applicant’s wife’s] psychologist states she has seen [the applicant’s wife] since January 2020 after she was referred by her general practitioner with symptoms of depression and anxiety resulting from her husband’s arrest and imprisonment, repeat court appearances, restrictions on working and the eventual dropping of the charges.  This report is otherwise a record of what [the applicant’s wife] has said to the psychologist.

25. They have two Australian citizen children, [of specified ages]. 

26. Their son has been diagnosed with autism and global developmental delay.  He has difficulty making eye contact, pronouncing words and controlling his feelings.  He screams and is difficult to settle.  He has access to funding under the NDIS which is primarily used for occupational therapy and speech pathology.  [The applicant’s wife] states both she and [the applicant] are involved in their son’s therapy with activities such as doing building blocks and puzzles.  Their son found it difficult to cope when [the applicant] was imprisoned and would scream and cry when dropped off to day-care.  She found it difficult to manage with [the applicant’s] support, and considers their son’s progress would be adversely affected if [the applicant] were to leave Australia. 

27. [The applicant’s wife] states that apart from managing their son’s condition, she does not think she will manage without support due to her mental health and physical condition.  She does not have family support in Australia and is estranged from her [relative] with whom she came to Australia. 

28. Their son’s speech pathologist reports the family have been motivated and diligent in attending appointments with their son for his sensory processing difficulties, communication delay, speech and language delay and vestibular modulation.

29. [The applicant’s wife] has been unable to work since [the applicant] was charged as he could not be left alone with the children due to child protection requirements.  She has a full-time job and her employer wants her to return, however if [the applicant] is not in Australia, she will be unable to work. 

30. [The applicant] is in Australia for the purpose for which the visa is granted, and there are compelling reasons for him to remain in Australia to support and care for his wife and children. 

    The extent of compliance with visa conditions

31. There is nothing to indicate [the applicant] has failed to comply with the conditions of his visas.

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

32. A letter from a financial counsellor at [Agency 3] dated 13 December 2019 states [the applicant’s wife] was referred to their service due to the family’s financial situation.  The family have a number of debts including personal loans and credit cards they cannot pay and have had their car repossessed.  They are struggling to meet rent and general living expenses and were accessing emergency relief from community agencies.  The family’s only income at the time was [the applicant’s wife’s] Family Tax benefit.  The financial counsellor states deportation of [the applicant] will lead to long term financial hardship for [the applicant’s wife], who is unlikely to be able to meet the living expenses for herself and her children. If she were to be made bankrupt, this may affect her future employment prospects.    

33. I am satisfied that [the applicant’s wife] and the children will suffer financial hardship if [the applicant’s] visas are cancelled.  I am also satisfied that the financial situation means they are unlikely to be able to apply for a further spouse visa for [the applicant] in the near future as they would be unable to meet the cost of the visa. 

34. A letter from [Agency 4] dated 13 December 2019 confirms that [the applicant’s wife] has been employed as a full time personal carer and that residents and colleagues look forward to her returning to the workplace.  If [the applicant] is not available to care for the children and provide support, [the applicant’s wife] states she will be unable to return to work, which will cause further hardship and potential default on debts. 

35. If [the applicant] is required to leave Australia this will result in financial, psychological and emotional hardship to each member of the family. If he remains in Australia and is able to apply for another spouse visa, this will result in further financial hardship to the family. 

    The circumstances in which ground of cancellation arose

36. The cancellation of both visas resulted from charges being laid against [the applicant].  These charges are withdrawn however a DVO against him naming a protected person remains.   

37. The DVO resulted from alleged conduct against [a relative]. [The applicant] has not been convicted of any offences.   [Specified relatives] have now relocated.  [The applicant] states he has been unable to speak with his [relative] and sort things out and has agreed to stay away from the family and adhere to the DVO.   

    The past and present behaviour of the visa holder towards the department

38. There is nothing to indicate [the applicant] has not co-operated with the Department.  

    Whether there would be consequential cancellations under s.140

39. There are no consequential cancellations that would result from cancelling [the applicant’s] visas. 

    Whether there are mandatory legal consequences of cancelling the visas, 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

40. If both the Subclass 010 and the Subclass 820 visa are cancelled, [the applicant] will be an unlawful non-citizen and will be liable to be detained under s.189 of the Act and removed from Australia under s.198 of the Act. 

41. There are limited visas [the applicant] could apply for onshore if his visas are cancelled.  He could apply for a further spouse visa from onshore, however s.48 prevents him applying for many other types of visa.   Under r.2.12 one type of visa for which he could apply is a further spouse visa. 

42. The impediments to him applying for a further spouse visa are the Schedule 3 criteria and the need to for him to pay for the visa application, currently approximately $7,715.  As the family is suffering financial hardship, they are unlikely to be able to meet this cost.  The subsequent financial hardship will affect [the applicant’s wife] and the children.

43. It follows [the applicant] is likely to be required to leave Australia if the visas are cancelled.  He can apply again for a visa from offshore.  If this is further spouse visa, the cost is again prohibitive where the family is facing financial hardship.  In these circumstances he is likely to be separated from [his wife] and the children for a considerable period of time. 

    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

44. Article 3.1 of the Convention on the Rights of the Child (Convention) 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 will be the primary consideration.

45. Article 9 of the Convention provides that State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  It goes on to state at Article 9(4) that where separation results from action initiated by the State Party, such as deportation, the State Party will provide parents with information about the whereabouts of the absent parent.

46. The cancellation of the visas will result in [the applicant] having to apply for another visa or leave Australia.  The best interests of [the applicant’s] children are that he remains in Australia. 

    CONCLUSION

47. At the time the decision was made to cancel [the applicant’s] visas, there were charges laid against him.  These charges have since been withdrawn.  While a ground to cancel his visa still exists due to a current DVO, he has not been convicted of any offences and no wrongdoing on his part has been established.  If his visas were cancelled it would result in him with having to leave Australia or to suffer a substantial financial penalty in applying for a new visa in circumstances where the charges were withdrawn.  It is not in the interests of his children or his wife, who are Australian citizens, that he is required to leave or that they suffer financial hardship. 

48. Considering the circumstances as a whole, in particular the effect on the family unit if the visas are cancelled, neither visa should be cancelled. 

    DECISION

49. In matter 2002750 the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

50. In matter 2001157 the Tribunal sets the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Partner (Temporary)) visa.

    Kate Millar
    Senior Member