2104545 (Migration) - [2022] AATA 1732

2104545 (Migration) [2022] AATA 1732 (11 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2104545

MEMBER:James Lambie
DATE OF DECISION: 11 April 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 11 April 2022 at 9:06am
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the safety of an individual or individuals – applicant convicted of several offences – family violence charges – breach of protection orders – acceptance of responsibility for actions – best interests of the child – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 359
Migration Regulations 1994
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 April 2021 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).
The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the criminal offences with which he has been charged and convicted of show that his presence in Australia may be a risk to the 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.
The applicant appeared before the Tribunal on 24 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing in-person.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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(1)(e)(ii) 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?
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…

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.

Continue reading 2104545 (Migration)

Details

AGLC: 2104545 (Migration) [2022] AATA 1732
Case: [2022] AATA 1732
Decision Date: 11 April 2022

CaseChat Overview and Summary

This matter concerned an appeal against the cancellation of a Bridging A visa (Subclass 010) held by the applicant. The dispute arose from the Minister's decision to cancel the visa under section 116(1)(e)(ii) of the Migration Act 1958 (Cth), on the grounds that the applicant's presence in Australia posed a risk to the safety of an individual or individuals. The applicant had a criminal history, including charges related to family violence and breaches of protection orders. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether the applicant's presence in Australia constituted a risk to the safety of an individual or individuals, as contemplated by section 116(1)(e)(ii) of the Act. This provision allows for visa cancellation if the Minister is satisfied that the visa holder's presence "would or might be, a risk to... the health or safety of an individual or individuals." The Tribunal noted that this ground does not require a direct, solid, or certain foundation, but can arise from the possibility of past events. Following the establishment of the ground for cancellation, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including matters raised by the applicant and relevant departmental policy.

The Tribunal found that the ground for cancellation under section 116(1)(e)(ii) was established, noting the applicant's criminal history, including family violence charges and breaches of protection orders. In considering the exercise of discretion, the Tribunal weighed various factors. It acknowledged the applicant's long period of residence in Australia, his claimed committed relationship with his partner and her son, and his paternal role in the child's life, which were factors weighing against cancellation. The Tribunal also noted the absence of any indication of visa condition breaches. However, it also considered the emotional and potential financial hardship to the applicant's partner and her son if the visa were cancelled, while also noting the existence of orders restricting cohabitation. Ultimately, after considering all circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.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(1)(e)(ii) 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? 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]. 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. The applicant arrived in Australia [in] June 2014 pursuant to a student visa. The applicant claims he first met his wife, [Ms A] on or about 20 August 2016 and they were married [in] January 2018. He was subsequently granted a Class UK, Subclass 820 (Partner) visa on 24 July 2018 on the basis of his spousal relationship with [Ms A]. The applicant has a stepson, who is [Ms A’s] child from a previous marriage. The applicant has a criminal record as follows: The 2019 offences were dealt with in [Court 1] [in] July 2019. The 2020 offences were dealt with in [Court 1] [in] March 2021. As noted in the delegate’s decision, [in] April 2020, the applicant was charged with rape (domestic violence offence) in respect of an alleged incident [in] March 2020. [Ms A] withdrew her complaint [in] January 2021 and the charge did not proceed. [In] July 2021, the Tribunal issued a summons to the Queensland Police Service seeking the production of documents relating to [the applicant’s] criminal history. This material was produced to the Tribunal [in] August 2021. It was put to the applicant for comment pursuant to s.359A on 6 August 2021. The applicant responded to the s.359A invitation to comment through his representative on 17 August 2021.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.James LambieSenior Member

Ratio Decidendi

Legal Principle Established

For these reasons, 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel or remain in Australia The applicant first entered Australia [in] June 2014 as the holder of a student visa. He has therefore lived here for more than 7 years. He applied for a combined Partner (subclass 820/801) visa, sponsored by [Ms A], on 15 March 2018, having been married to her [in] January 2018. He claims to be in a committed and loving relationship with [Ms A] and her son. Both the applicant and [Ms A] describe his relationship with the child as paternal. I give this factor a degree of weight against cancellation of the visa.The extent of compliance with visa condition The Department has indicated that there is no information to suggest that the applicant has not complied with any of the conditions attached to his visa. I give this factor a degree of weight against cancellation of the visa.The degree of financial, psychological, emotional, or other hardship that may be caused by cancellation I have given careful thought to the fact that the applicant has established strong family relations with [Ms A] and her son, and the fact that he has assumed the role of father in the child’s life. [Ms A] gave emotional evidence to the same effect. I have also taken into account that the terms of the domestic violence orders made specific provision for him to spend time with the child. [Ms A’s] evidence is also that she and her son will suffer financial hardship, in addition to emotional pain, if the applicant is required to leave Australia. The applicant has not submitted any financial records to allow an objective assessment of the degree of financial hardship than might ensue from cancellation. He told the Tribunal he had worked in [several professions]. [Ms A] has worked casually for [a named employer]. However, where her evidence touched on the household income, she spoke chiefly of Centrelink benefits. There is insufficient material to assess the degree of financial hardship that cancellation may entail. I also note that orders have been in place since [February] 2019 restricting the applicant from cohabitating with [Ms A]. Against this, I note that [Ms A] has signed a statutory declaration of 4 May 2021 giving written permission for the applicant to reside with her and her son. The applicant does not have any other family living in Australia. Both the applicant and [Ms A] mentioned in their evidence to the Tribunal the family expectations that are associated with being granted a visa to stay in Australia. Cancellation therefore would be a matter of embarrassment to both of them. There is no particular weight I can give to this.