2300938 (Migration) - [2023] AATA 1855

2300938 (Migration) [2023] AATA 1855 (19 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Noosheen Mogadam
CASE NUMBER:  2300938
MEMBER:Denis Dragovic
DATE:19 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 19 April 2023 at 2:00pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the health or safety of an individual – applicant convicted of family violence offences – outstanding separate protection visa appeal – family hardship – best interests of the children – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 127, 137K, 189, 195, 197C, 197D, 198, 494B, 494C
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, r 4.31; Schedule 4, PIC 4013; r 4.31
CASES
Gong v MIBP [2016] FCCA 561
Minister for Home Affairs v Parata [2021] FCAFC 46
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

This is an application for review of a decision dated 18 April 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) which allows for there to be grounds for cancellation of a visa if the decision maker is satisfied that the visa holder is a risk to the health or safety of an individual. In this case the Minister’s delegate found that there were grounds for cancellation for the reason of the applicant’s past behaviour towards his wife. Specifically, the applicant was sentenced to 3 years imprisonment arising from an incident in which his wife suffered a [length] cut by [specified weapon]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Arising from a separate matter in Minister for Home Affairs v Parata [2021] FCAFC 46 the full bench in a unanimous decision concluded that a valid notification of a cancellation decision under s 127 must state whether it is reviewable under Part 5 or Part 7 of the Act. If this information is not included in the notification, then it will not be a valid notification under the Act and the prescribed period for applying for review will not have started to run.
The Minister appealed the decision to the High Court but on the 10 December 2021 the High Court of Australia refused the application.
As a result of Parata and that the applicant’s notification did not include information on the part under which the cancellation was made, the notification was not a valid notification. For this reason, the countdown on the 28-day time limit for lodging…

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 2300938 (Migration)

Details

AGLC: 2300938 (Migration) [2023] AATA 1855
Case: [2023] AATA 1855
Decision Date: 19 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the Minister's decision to cancel the applicant's Bridging A (Class WA) visa. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were met, and if so, whether the cancellation decision should be exercised. The applicant had been convicted of family violence offences, and the Tribunal was required to consider the risk posed by his presence in Australia to the health or safety of an individual.

The Tribunal was required to determine if the applicant's presence in Australia posed a risk to the health or safety of an individual, as contemplated by section 116(1)(e) of the Act. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the applicant's personal circumstances and the best interests of his children. The applicant also had an outstanding protection visa appeal, which was a factor to be considered in the discretionary assessment.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied, based on the applicant's admission of causing harm to his wife during an incident that followed an argument and intoxication. The Tribunal noted that the power to cancel a visa under this section can arise from the possibility of past events indicating future risk. In exercising its discretion, the Tribunal acknowledged the applicant's stated reasons for remaining in Australia, including his family responsibilities towards his children with an Australian permanent resident and his pending protection visa appeal. However, the Tribunal also considered the applicant's own acknowledgement that his relationship with his wife was not stable and might lead to divorce. The Tribunal ultimately 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]. In considering whether the applicant is or may be a risk to an individual, which is the basis of the visa cancellation, I asked the applicant questions relating to his conviction as it could shed light on any future risk he may pose. The applicant recalled that in 2019 he had an argument with his wife and following the argument he left their home and got drunk. He said that the problems he faced had come together at once, he was working hard, his mother was sick and he was arguing with his wife, which together led him to drinking. He said that otherwise he usually drank only on Saturdays to unwind. The applicant described his return home after drinking as triggering another argument. He said that he then took a [weapon] in his hand and that his wife moved towards him. He said that what happened next was unintentional and that somehow it caused her harm. When he saw what happened he said that he was very scared. After that, he claimed at the hearing, that he just ‘switched off’ and went to sleep. I asked how he could just go to sleep after he did his wife harm. He said that he doesn’t remember what happened, he was very drunk, and he only remembers when he woke up the next morning. The applicant explained that prior to this incident there was an apprehended violence order against him due to other arguments he had with his wife. He said that the arguments at that earlier stage were over their son’s religious practices and whether he would be involved in a church at a young age or when the boy grew up. The applicant described the events that led to the apprehended violence order as beginning when she called him a demon. He said that he placed his hand against her mouth and told her to calm down because their child was young. He claimed that nothing else happened. Then, in the following morning he went to work but when he came back home, she wasn’t there but the police had arrived. He said that the police explained that what he had done was assault. According to the applicant that is how the first 12-month AVO was established which he claimed did not allow him to live together with his wife. About a month into the 12 month period the court allowed them to live together.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For this reason, I am is satisfied 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 visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant said that the reason for him staying in Australia is his family. The applicant has [number of children] with an Australian permanent resident. Regarding his son, the applicant described himself as being very happy when he learned that he was to have a child. He said that he entered prison in Australia when the child was only [age] old and has been absent since then. Regarding his [other children], he has only met them by video as they were born after he went into prison. He said that they don’t know him much, noting that they use a word when referring to him that is used for male strangers, but his wife refers to him as their father during these calls. He said that the first time he saw them by video they were [specified ages]. I acknowledge his children as a purpose for remaining in Australia and consider this matter further below under considerations arising from the Convention of the Rights of the Child. Another purpose of his stay in Australia arises from his relationship with [Ms A]. The applicant said that he doesn’t call [Ms A] often as he is afraid to break a law and that he doesn’t want to pressure her. He recalled calling his son when he turned [age] but otherwise, he said that he waits for her to call. He claims that she sometimes calls him nearly every day. As noted in the earlier section, there are questions over the relationship into the future which the applicant acknowledged in a post-hearing submission, writing specifically, ‘I have come to the realization that because of our past and her current state, our relationship is not a stable relationship and it may be that we will get divorced.’ The applicant places considerable weight on his role as a parent. He said that he thinks about his children all of the time. He said that he wants to help his wife look after the children. He expressed concern over his children being raised without a father. As the applicant grew up without a father, his father having died when the applicant was [very young], he said that he knows how hard it can be without a father for a child. In addition to his desire to remain in Australia for reasons of his family the applicant is waiting for his protection visa to be considered. I acknowledge that the applicant’s stay in Australia is in part for the purpose of finalising his protection visa appeal and the running of the appeal would be easier were the applicant in the community.