2203882 (Migration) - [2022] AATA 3189

2203882 (Migration) [2022] AATA 3189 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Manjinder Singh Saini (MARN: 1171779)
CASE NUMBER: 2203882

MEMBER:R. Skaros
DATE:2 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 02 August 2022 at 3:29pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to the health and safety of an individual or individuals – applicant convicted of serious offences – member of the family unit – threats against family members – mental health issues – separation from the applicant’s family – lifetime family violence restraining order – visa expired – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 501
Migration Regulations 1994
CASES
Gong v MIBP [2016] FCCA 561
Wan v MIMA (2001) 107 FCR 133

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 18 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant was granted the Subclass 485 visa on 29 June 2018 as a member of the family unit of [his wife] (the primary visa holder). The Subclass 485 visa was granted for a period of two years.
On 2 August 2019, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant did not receive that NOICC and the Department, on 15 August 2019, reissued the NOICC which was received by the applicant and to which he responded.
The applicant was initially notified of the decision to cancel his Subclass 485 visa on 18 September 2019. On 8 March 2022, the Department re-notified the applicant of the decision to cancel his Subclass 485 visa as he had not been correctly notified of that decision.
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.
A copy of the delegate’s decision record was provided to the Tribunal with the application for review.
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 26 July 2022 to give evidence and present arguments. The hearing was scheduled to be held by video conference, however, on the day of the hearing, the video facility at the Yongah Hill Immigration Detention Centre was not working due to network issues. The applicant was…

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 2203882 (Migration)

Details

AGLC: 2203882 (Migration) [2022] AATA 3189
Case: [2022] AATA 3189
Decision Date: 2 August 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa as a member of the family unit of the primary visa holder. The Minister's delegate had cancelled the visa on the grounds that the applicant's presence in Australia posed a risk to the health and safety of individuals, specifically his former wife and daughter, due to serious criminal charges he faced.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The alleged offences included unlawful acts or omissions with intent to harm, threatening to kill, common assault, and deprivation of liberty against his wife and daughter. The Tribunal also considered the applicant's personal circumstances, including his separation from his ex-wife, a restraining order preventing contact, his desire to see his daughter, and his mental health concerns regarding separation.

The Tribunal found that the ground for cancellation under section 116(1)(e) was made out, noting that the power to cancel a visa can arise on the possibility of past events posing a risk, not requiring certainty. The Tribunal considered the serious nature of the alleged offences and the threats made by the applicant. In exercising its discretion, the Tribunal gave significant weight to the fact that the applicant's Subclass 485 visa was granted based on his relationship with his ex-wife, which had since broken down, and that the visa had expired over two years prior. While acknowledging the applicant's desire to maintain contact with his daughter and his stated intention to contribute to the community, the Tribunal concluded that these factors did not outweigh the risk posed by his alleged conduct and the breakdown of the visa's original purpose.

The Tribunal affirmed the decision to cancel the applicant's 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). 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 particulars of the ground of cancellation were set out in the delegate’s decision record. It states that on 6 June 2019 Western Australia Police (WAPOL) advised the Department that they had charged the applicant with the following alleged offences against his wife ([named]) and [age] daughter ([named]); two counts of unlawful act or omission with intent to harm (endangering life, health or safety of any person), threaten to kill, common assault and deprivation of liberty. It states that on 7 June 2019 WAPOL informed the Department that the applicant was remanded in custody at [a named] prison pending these charges. On 2 July 2018 WAPOL advised that this continued to be the case and that the applicant is scheduled to appear in [Court 1] [in] September 2019 in relation to these charges. The delegate set out the information contained in the Statement of Material Facts relating to the alleged offences which was obtained from WAPOL. It states that at approximately 6:30pm [in] June 2019 the applicant was at his home address in [Suburb 1]. Present at the address were his wife ([named]), his [age] daughter ([named]) and an adult witness. A verbal argument began between the applicant and his wife which escalated with both parties pushing each other, resulting in his wife leaving the house with the child and the adult witness. As his wife was leaving the house, the applicant gave chase and took hold of her clothing collar. He pulled on her collar and dragged her back towards the house. The applicant’s wife broke free of his grip and continued down the street to a nearby park. Approximately thirty minutes later the applicant’s wife returned to the house accompanied by her mother and [Relative A], as well as the adult witness. She moved into a separate room with her mother and [Relative A]. After a short time, the verbal argument continued with the applicant making verbal threats stating, “I'm going to kill you, kill your family”. The applicant yelled this threat again and picked up a jerrycan which contained petrol and continued stating “I'm going to kill you, kill your family”.

Decision

Reasons for decision

The Tribunal has carefully considered the evidence before it and has weighed up all the relevant circumstances. The Tribunal considers that the circumstances in favour of cancelling the visa substantially outweigh those in favour of not cancelling the visa. The Tribunal accordingly concludes that the visa should be cancelled. decision The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.R. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

Given the above, the Tribunal finds that the ground for cancellation in s 116(1)(e) 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 applicant’s travel and stay in Australia The applicant travelled to Australia in 2015 with his ex-wife so she could undertake higher studies. On 29 June 2018, the applicant was granted a Skilled (Provisional) Subclass 485 visa as a member of the family unit (spouse) of his ex-wife. That visa was granted for a period of two years (until 29 June 2020). The applicant and his ex-wife are now separated and have not had any communication for several years. Furthermore, there is a restraining order in place which prevents the applicant from having any communication with his ex-wife. As the applicant and his ex-wife are no longer in a relationship with one another, the Tribunal considers that the purpose for which the Subclass 485 visa was granted no longer exists. Furthermore, the Subclass 485 visa would, in any case, have ceased over two years ago. When these factors were discussed with the applicant, he said while he does not currently have a relationship with his daughter, he hopes when she grows-up he can see her. He said this would have to be done through the court. He said if he had to leave his daughter in Australia it would deteriorate his mental health. He came to Australia for a better future and wants to give back to the community. He is connected to an organisation in Australia and has undertaken some volunteer work with those organisations. When asked if he had taken any action to get access to (or communicate with) his daughter, the applicant said no and that his daughter can only be with his ex-wife though there were a few organisations that would help him pursue an application in court. The applicant confirmed that at this time he does not have any permission to see his daughter or have any communication with her. The Tribunal has considered the applicant’s evidence and accepts that he would like to resume communication with (and see) his daughter. The Tribunal acknowledges that the applicant intends to seek the assistance of an organisation to assist him with an application to the court so he can resume contact with his daughter. The Tribunal also acknowledges the applicant’s evidence that if he had to return to India and his daughter remained in Australia, the separation may affect his mental health. It accepts that the applicant wants to remain in Australia for a better future and to contribute to the community. However, none of the reasons given by the applicant as to why he wants to remain in Australia are consistent with the purpose of the Subclass 485 visa. The Subclass 485 visa is a temporary visa (of two years’ duration) that was granted to the applicant so he could remain with his ex-wife as a member of her family unit. The relationship between the applicant and his ex-wife has broken down, as such the applicant no longer satisfies the purpose for which the Subclass 485 visa was granted to him. In any case, the Subclass 485 visa granted to the applicant ceased on 29 June 2020, which was over two years ago. The Tribunal gives significant weight to these circumstances in favour of cancelling the Subclass 485 visa. The extent of compliance with visa conditions