Alawneh (Migration)

Alawneh (Migration) [2018] AATA 454 (2 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Laith Ab'd Fawwaz Alawneh
CASE NUMBER:  1723956
DIBP REFERENCE(S):  BCC2017/2534610
MEMBER:Jennifer Cripps Watts
DATE:2 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Statement made on 02 February 2018 at 4:07pm

CATCHWORDS
Migration – Cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Convicted of an offence – Ground for cancellation exists – Consideration of discretion – Difficulty in relocating offshore – Degree of hardship does not outweigh grounds for cancellation
LEGISLATION
Medicines, Poisons and Therapeutic Goods Act 2008, s 37
Migration Act 1958, ss 116(1)(g), 499
Migration Regulations 1994, rr 2.43(1)(p), 2.43(1)(q), 2.43(1)(oa)

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 27 September 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied - r.2.43(1)(oa) of Migration Regulations 1994 – because the applicant has been convicted of an offence against the law of the Commonwealth, a State or Territory. 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 31 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Rand Jameel. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent, John Hourigan, Migration Agent Registration Number 0000377.
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). 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.
The Tribunal has had regard to relevant facts and matters, including documentary information provided by the applicant to the Department and oral evidence given at the hearing.
Background
The applicant is a citizen of Jordan. His family close family lives in Amman, including his father, who spends less time there because he works in Dubai. The applicant is 26 years of age and has resided in Australia since arriving holding a subclass 309 temporary partner visa.
The sponsor, who is 23 years of age, was born in Iraq. She came to Australia with her family – parents, sisters and brother – in 2008. [Sentence deleted]. She is now an Australian citizen who resides in Canberra. The applicant and sponsor married each other in Jordan in December 2013. They applied for a subclass 309 visa that was granted on 23 February 2014. The applicant first arrived onshore in March 2014.
During a period of what the applicant and sponsor claim was a temporary separation, in 2015, the applicant committed the offence for which he was charged and convicted and was the reason for his visa being cancelled by the Department on 27 September 2017. He applied for review to this Tribunal, within time, on 4 October 2017.
Evidence
The applicant provided documents to the Department and the Tribunal. The applicant asked at the beginning of his hearing for the Tribunal to tell him what documents he had sent. The member went through the Tribunal file and read onto the record the documents that had been received by the Tribunal and then asked the applicant if he had sent everything he wished to. He said it was, with the exception of a letter referring to a drug and alcohol counselling course he did in around September to November 2017. The Tribunal said it was prepared to accept that the applicant did the course without the letter being provided.
Relevant facts and matters in the documents or information provided to the Department have been considered by the Tribunal, including the written submissions of the applicant’s representative, Mr Hourigan, dated 21 August 2016 and 20 September 2017, in response to the Department’s notification of intention to cancel the applicant’s 309 partner visa and inviting comment and further submissions, dated 20 September 2017. All documents provided to the Tribunal have been considered, including statements and statutory declarations attesting to the applicant’s good character and genuineness of the applicant and sponsor’s married relationship.
The day after the hearing, the Tribunal received further evidence, which has also been considered:
a.Notice of Early Termination from ACT Corrective Services, dated 3 October 2017, indicating that the supervision requirement has been terminated early, but that the order remains in force until the expiry date, 26 January 2019
b.Certificate of Participation in the name of the applicant indicating he successfully completed an Alcohol Drug Awareness (harm) Prevention Training programme, dated 29 September 2017.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.
It is not in dispute that the applicant has been convicted of an offence of administrating a declared substance which he was not authorised to give. He appeared in the ACT Magistrates Court on 27 July 2017, entered a guilty plea, and was convicted of the offence. He was sentenced, on 8 September 2017 to an 18 months’ good behaviour bond and 150 hours of community work. There is information on the Department file that was provided by the applicant that contains the details of the offence, the charge, the appearance in court and the conviction.
At the time he committed the offence, it is not in dispute that the applicant held a subclass UF-309 temporary partner visa that was granted on 23 February 2014.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal has considered whether the power to cancel the visa should be exercised.
Consideration of discretion
In considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
Matters for consideration in exercise of the discretion to cancel the visa are not specified in the Act or Regulations. However, in considering whether to exercise its discretion to cancel the applicant's visa, the Tribunal has had regard to some circumstances identified in the Department's Procedures Advice Manual PAM3 'General visa cancellation powers'. The Tribunal has not used PAM3 as a checklist.
The applicant claims that if his visa is cancelled, and he departs Australia, the sponsor (his wife) will travel with him to Jordan to live and this will be difficult for her and/or both of them, but that the sponsor in particular will suffer hardship because she would be separated from her close family.
The Tribunal has considered the documentary evidence provided and the oral evidence both the applicant and sponsor gave at the hearing. The applicant and sponsor were married in December 2013 in Jordan and the applicant came to Australia to live in March 2014 after his subclass 309 temporary partner visa was granted. The applicant and sponsor both said that they have had some difficulties in their marriage but have worked through them, with the help of family, and are genuinely committed to a long term future together.
The Tribunal’s view is that any people in married relationships, with and without children, live in a country in circumstances where one or other of their families live in another country, but has nevertheless considered the particular circumstances of the applicant and sponsor in this matter.
There is evidence on the Department file, provided by the applicant (or by his representative) that provides details of the offence and subsequent conviction that led to the applicant’s visa cancellation.
The Department notified the applicant, on 14 August 2017, that it intended to cancel his temporary subclass 309 partner visa because he had been convicted of Administering Declared Substances – Not Authorised, on 27 July 2017, in the ACT Magistrates Court: r.243(1)(oa). A response was provided from the applicant’s representative, in a letter dated 21 August 2016, containing details of the offence: s.37 of the ACT Medicines, Poisons and Therapeutic Goods Act 2008.
The applicant pleaded guilty to the offence committed on 27 September 2015 and for which he was convicted and sentenced in 2017, for administering a declared substance to someone else. The maximum penalty for the offence is 12 months imprisonment and/or a fine of $15,000. On 27 July 2017 was convicted and received a sentence of 150 hours community service work to be completed within 12 months and to abide by a Good Behaviour Order for a period of 18 months. On his oral evidence at the hearing, the applicant appears to be on track to complete the community service work and there is no evidence before the Tribunal that he has been in breach of the Good Behaviour Order at the time of this decision.
The Tribunal has considered the evidence before it and has concluded, after careful consideration, that there is no basis on which to reach a conclusion that there was anything beyond the applicant’s control that caused him to commit the offence on which he was convicted. The applicant has claimed that he struggled to settle into Australia, amid pressures from the sponsor’s family, marriage troubles, missing his family in Jordan and getting and relying on bad advice from friends. The Tribunal does not consider that these matters put his behavior and the resulting charge and conviction beyond his control. The Tribunal has taken into consideration that there is no evidence before it that the applicant has been convicted of any other offence at the time of this decision.
For the last few years, the applicant has lived away from his family – he in Australia and his parents and siblings in Jordan. He said at the hearing that he missed his family and contributes being on his own and without guidance and support to have contributed to some of the mistakes he made in Australia, for example the incident resulting in his conviction that resulted in the cancellation of his temporary visa and his claim to the Department that he had suffered family violence at the hands of the sponsor in relation to his partner visa application, when he says they were temporarily separated. The applicant said at the hearing that he was advised to do this by people he was associating with at the time, in 2015.
The apply sought to explain the circumstances and reasons leading up to the commission of the offence for which he was convicted and sentenced in 2017 and resulted in his visa being cancelled. The applicant said at the hearing that upon arriving in Australia he was initially resistant to advice from his in-laws because he perceived that they were interfering in his life from the time he arrived and trying to control him. He says that now he realizes that they were trying to help him and he says he has relied on that help. He says he now has solid support from the sponsor’s family who are guiding him and helping him and that with this support, since the offence and conviction that have resulted in his visa cancellation, he has learnt his lesson, he is really remorseful, trying to remedy the situation and feels that his and his wife’s life is getting better and becoming more stabilized.
By way of example, the applicant told the Tribunal that in September to November 2017 he attended drug and alcohol counseling and that he intended to provide a letter confirming this. He said he chose to go because anyone can make a mistake unintentionally and he took the course to show his remorse and regret and to be aware of the danger of drugs and alcohol to society. The applicant had not provided a letter from the service that he said he had meant to and offered to provide it. The Tribunal said it would accept this evidence without the letter and is satisfied he attended the drug and alcohol counseling as he claims because he wished to express his remorse for the offence he was convicted of.
The applicant claims that it will be very difficult for him and the sponsor to live together as a married couple in Jordan, particularly if it is long term. The Tribunal has considered all relevant facts and matters and can see no harm coming to the applicant if he returns to the fold of his close family in Amman with his wife.
Consideration has also been given to the circumstances the sponsor will find herself in if the applicant’s visa is cancelled and he returns to Jordan and she goes to live there with him, as his wife. The parties provided evidence to the Department, from an imam and [another party] (both dated 18/08/2017), relevantly, referring to the hardship she would face if she remained in Australia as a divorced woman. The Tribunal asked applicant why, referring to this evidence, if he and sponsor were a genuinely married couple, she would divorce him. The applicant said they provided this evidence not because they would consider divorce, but in response to the Department’s suggestion that divorce would be an option if the applicant did not want to or felt she could not live in Jordan with her husband. The Tribunal accepts that this is the reason [both letters] were obtained. It is accepted by the Tribunal that the parties, as they have said so, would not consider divorce to be an option and that the sponsor would accompany the applicant offshore if his visa was cancelled. They expressed concern about the move possibly being difficult and residing there long term not being desirable.
The Tribunal has considered the circumstance of the sponsor and applicant returning to live in Jordan with the applicant as a married couple if the applicant’s visa is cancelled, which would result in the sponsor living in a different country to members of her immediate family, other than her husband, who she would be living with in Jordan. The sponsor is, at the time of this decision, 23 years of age.
The sponsor and her family arrived in Australia from Iraq in [2008]. They are all now either Australian citizens or permanent residents. Both the applicant and sponsor gave evidence of the sponsor’s close relationship with her family, that is her parents and siblings who live in Canberra (with the exception of one sister who lives in Sydney), and it is accepted by the Tribunal that the sponsor has a close relationship with her family. The applicant claims that the sponsor will suffer significant emotional hardship if she is separated from them.
[Paragraph deleted].
The applicant and sponsor spoke of the strength of the marriage now that they have overcome their problems, including the applicant’s conviction and other issues, including what they described as a temporary separation in 2015. Whilst not dismissing that the events of the last couple of years would have been stressful and upsetting for the sponsor and that a move to Jordan with her husband will not be without some difficulties and some period of adjustment if his visa is cancelled, the Tribunal is not satisfied, having considered the evidence before it, that the level of hardship will be so significant as to cause her serious or significant psychological problems. In any event, if she does require support, it is reasonable to think she may be able to rely on help from the sponsor’s family, her in-laws, or medical or other professionals in Jordan.
The Tribunal has considered the applicant and sponsor’s financial situation. They provided evidence that they rent a townhouse in Canberra and pay $440 a week. Their current lease commenced about 12 months ago and expires in March 2018. The applicant said that the landlord has told him they can renew it if they want to. There is no evidence before the Tribunal that they are bound to renew or extend the lease and the Tribunal’s view, on the evidence, is that there is no contractual agreement that would need to be terminated, beyond March 2018, if the applicant’s visa was cancelled and he was required to depart Australia.
The Tribunal heard oral evidence that the sponsor runs a family daycare business from the property the applicant and sponsor currently live in. If the applicant’s visa is cancelled and the sponsor accompanies her husband to Jordan, it is a matter for her and the applicant how she deals with her business. The Tribunal understands that her business is family daycare and that she cares for between three and seven children. Whilst there may be some inconvenience if the children needed to be placed at a different daycare facility, there is no reason to think that they could not be placed elsewhere if required.
The applicant said he has not had work rights since his visa was cancelled and said he does not work or contribute financially to the household at the time of this decision. The applicant and sponsor said that they have, since the visa was cancelled on 27 September 2017, been supporting themselves solely on the sponsor’s income. The applicant provided a notice of assessment in the name of the applicant for the year ended 30 June 2017, indicating her taxable income was $32,727 and said at the hearing she earns about $2,500 to $3,000, depending on how many children she has in family daycare at any given time. The Tribunal considers this to be consistent enough information.

The applicant previously had a debt for a Harley Davidson motorbike, through Esanda Finance – he paid around $440 a month from 14 February 2017. He has provided documentary evidence that the mortgage has been discharged, he has returned to the motorbike. At the hearing that it will be sold by Esanda at auction soon which will clear any residual debt he has. The applicant and sponsor, on the evidence, no longer have to make repayments for the motorbike.
The applicant provided the Department with documentary evidence of having bought a Ford Mustang car in the name of the sponsor, in November 2016, for $53,739. The parties both said at the hearing that the monthly repayment for the car is $880 and that the sponsor’s brother now drives the car and makes the repayments. There was no claim or suggestion this arrangement would not or could not continue. The Tribunal therefore considers that the parties are not, although the contractual arrangement remains in place between the lender and sponsor for the car, at the time of this decision, burdened (due to the informal arrangement they have made with the sponsor’s brother) by the remaining debt and monthly repayments for the Ford Mustang car.
The sponsor runs a home-based family daycare business in Canberra and provided evidence to the Department, a letter dated 18 March 2017 from Reach For Training, that she will finish her course in March 2018 and then have a formal qualification, a Diploma of Early Childhood Education and Care. At the hearing, the applicant said he thinks the sponsor will finish the course soon. There is no reason for the Tribunal to think that the sponsor could not work as a childcare worker in Jordan either with this qualification or by obtaining a further qualification. It was claimed in submission dated 21 August 2016 that the sponsor would not be able to work in Jordan because she would not have any qualifications. In 2016, the Tribunal observes she did not have a qualification, but now she does. On the documentary and oral evidence, she will become qualified in Australia in May 2018 and, if that is not enough for her to gain employment if chose to in Jordan, there has been no reason given why she could not become qualified to pursue whatever job she would like to if she lived there.
No further claim was made, at the time of this decision, that the sponsor would not be able to work in Jordan. Both the applicant and sponsor appear to speak a common language and the applicant is a citizen of Jordan. Whilst departing Australia to live with her husband in Jordan would in all likelihood mean she would have to discontinue her current business, there is no evidence before the Tribunal that she would not be able to wind the business up satisfactorily within whatever timeframe she needed or chose to. An earlier claim that the sponsor would, if the applicant’s visa was cancelled, be left on her own to service two loans (for a car and a motorbike) and their weekly rent of $440 is not given weight at the time of this decision. On the evidence provided by both the applicant and sponsor, one of the loan contracts (that is, a mortgage for the Harley Davidson motorbike) has now been discharged and the other (for the Ford Mustang car) is now being serviced, in an informal arrangement, by the sponsor’s brother until the applicant and sponsor can afford to resume the payments, which the Tribunal takes to be an open-ended arrangement, that is, with no end date. Alternatively, the applicant chose to return his motorbike to Esanda and, if they needed to, there is no reason to think the sponsor could not sell the car if she cannot afford the repayments. In any event, there is no evidence before the Tribunal that the sponsor’s brother will not continue to be the primary driver of the car and pay the loan.
The lease for the property the applicant and sponsor share ends in March 2018 and there is no obligation on them to continue it. On the evidence, it would appear that by March 2018 the sponsor, if the applicant was required to depart Australia or had departed Australia, would have no financial liabilities, other than for her day-to-day living expenses. The applicant did not claim or provide evidence that they have any credit card or other personal debts or financial liabilities. And by May 2018, the sponsor will be a qualified childcare worker with a diploma.
The applicant provided receipts and delivery dockets for household furniture purchased by him and the sponsor in 2017. There is no claim or evidence before the Tribunal that there is money owing on the furniture purchases. The Tribunal considers that it would be a matter for them as to what they do with the furniture if the visa is cancelled and they depart Australia.
If the applicant’s visa is cancelled and he and his wife (the sponsor) go to Jordan to live, on the evidence, the Tribunal’s is satisfied they will have the support of the applicant’s family. The applicant and sponsor gave evidence that both their families are close and also that the sponsor has an aunty in Jordan, the one who introduced the applicant and sponsor to each other. On this oral evidence provided at the hearing, the Tribunal is satisfied that the sponsor also has family, albeit not her immediate family, in Jordan.
In early 2016, the applicant travelled to Jordan to visit his family. Both the applicant and sponsor said at the hearing that they talked together about the sponsor going with the applicant. They both said she was supportive of him taking the trip because they had been through a difficult time (marriage troubles and the offence the applicant had been charged with but not yet convicted at that time), but that she had to stay in Australia due to work commitments. It is accepted on the face of it that this is the reason she did not accompany him. The applicant was offshore without his wife from 24 January 2016 to 13 April 2016, a period of about two and a half months. They say that their marriage has continued to be stronger since this time, even with this temporary separation. The Tribunal can see no reason, and no reason has been claimed, that if the sponsor lived in Jordan with her husband that she could not return to Australia to visit her family without the applicant accompanying her if she wanted or needed to, much in the same way the applicant visited his family in 2016 without the sponsor. In addition, it is noted that the sponsor’s close family (with the exception of her father) travelled to Jordan for her wedding in 2013 and it is reasonable to think, as her family has some ties there, that if the sponsor was living with her husband in Jordan members of her close family could visit her there if they chose to.
The sponsor is an Australian citizen and would clearly retain whatever rights she has as an Australian citizen wherever in the world she lives. There was no claim or suggestion that the sponsor would not be able to live with her husband in Jordan for any legal reason or because of any government policy that would prevent it or cause her significant disadvantage.
The applicant is not currently in detention and there is no reason to think that if his visa is cancelled he will be placed in and/or remain in detention for any period of time providing he complies with his visa conditions.
On the basis of these matters and consideration having been given to the applicant and sponsor’s own particular circumstances, the Tribunal does not find that there is a compelling need for the applicant to remain in Australia. He provides no financial support to the sponsor, as he has not been working in Australia since his visa was cancelled and said he has not earned a salary since that time.
There has been no claim made or evidence provided that the applicant would not be able to obtain work in Jordan and it is reasonable for the Tribunal to think that he would be able to work if he chose to. He has provided no evidence that he would be prevented from working in Jordan, for instance because of lack of opportunity, qualification or any medical condition. He gave evidence at the hearing that he has a brother born in 1993, a sister born in 1996 and another brother born in 2000. He said they are all studying, the older two at university level. There was no claim made or evidence provided that the applicant himself could not study in Jordan if he wished to or needed to obtain any qualification to work there.
The applicant applied for a temporary partner visa which was granted in 2014 and he travelled to Australia soon after, arriving on 15 March 2014. Although he now claims that he and the sponsor have been in a genuine married relationship since then up until the time of this decision, there is evidence before the Tribunal (and which was raised with the applicant at the hearing) that he had reported that he and the sponsor had separated and that he was a victim of domestic or family violence in 2015. He made reports to the police about family violence and provided this information to the Department – both parties confirmed this in their oral evidence at the hearing.
Referring to submissions provided by the applicant’s representative, dated 20 September 2017, where representations made by the applicant to the Department are detailed, at the hearing the applicant was asked why (in June 2015, after being married to the sponsor for about 18 months) he told the Department he hadn’t lived with his wife during the time he had lived in Australia (from his arrival in Australia in March 2014 to June 2015, which he described at the hearing as “for a period of time”). The submissions suggested he had done it out of anger.
The Tribunal told him that it appeared that period of time, because he told the Department in mid-2015 he hadn’t live with his wife since arriving in Australia, was more than a year. He said that he did not tell the truth to them (the Department). He said that he got acquainted with some friends of Arabic background and they told him the only way to defend this (which the Tribunal took to mean the claimed temporary separation from the sponsor for about a month and a half in 2015) was to protect himself. He was asked what he meant and said that he was advised by his friends to say that he was forced to come to Australia, he was used and had to paid money to the sponsor’s family. He said he told the Department these things (that he has described at the hearing as untruthful) because he was afraid, he listened to them (the friends) and because he has no family and was in Australia by himself.
The applicant said at the hearing that he had lived with the sponsor since his arrival in March 2014 and that the only separation they have had was temporary and for a month and a half in 2015. On the basis of this information, the Tribunal formed the view that the applicant has made internally inconsistent statements about his relationship and has been untruthful in the information he has provided to the Department regarding his partner visa application. That is, he has provided false or misleading statements to the Department about his married relationship. For this reason, the Tribunal is not satisfied he has been truthful with the Department in his dealings at all times, but is prepared to accept on the face of it co-operative and engaged. This does not minimize or negate the fact that he was untruthful in his claim, that was later withdrawn, about suffering domestic or family violence at the hands of the sponsor, and saying that he had not lived with the sponsor from March 2014 to June 2015 and then later claiming that this statement was not true.
The applicant and sponsor both gave largely consistent independent oral evidence at the hearing about the properties they have lived in together since March 2014 and the Tribunal accepts, on the face of it, that they have lived at the properties together, except for the temporary separation in 2015, which they both claim was only temporary (and for the duration of the trip the applicant took to Jordan from January to April 2016). This supports the applicant’s claim, at the time of this decision, that he was living with the sponsor from the time he arrived onshore until mid-2015. It also confirms, in the mind of the Tribunal, that his evidence at the hearing that he was untruthful about not living with the sponsor from March 2014 to mid-2015 in his dealings with the Department is to be believed. On this basis, the Tribunal finds that the applicant has made untruthful statements about his partner relationship to the Department.
The Tribunal confirmed with the applicant and sponsor at the hearing that they do not, at the time of this decision, have any children. There was no suggestion or claim made that the sponsor is pregnant.
The Tribunal has no evidence before it to indicate that there will be any consequential cancellation or cancellations that will result from the cancellation of the applicant’s visa. There is no claim by the applicant nor any evidence before the Tribunal or that the Tribunal is aware of that the cancellation of the visa of the applicant, who is a citizen of Jordan, will breach Australia’s non-refoulement obligations.
Section 375A certificate
A letter, dated 11 January 2018, was sent to the applicant by the Tribunal inviting him to respond or comment to information, specifically a s.375A certificate that is on the Department file. The applicant was provided with a copy of the s.375A certificate and given two weeks to provide a response or comments. The folios referred to in the certificate relate the charges and subsequent conviction of the applicant that led to his visa being cancelled. The applicant was informed that the information about the charge, to which the applicant pleaded guilty, and conviction did not appear to be in dispute.
In response, the Tribunal received an email dated 25 January 2018 from the applicant’s representative, informing the Tribunal that “At this stage we have no comments to make about the s.357A (sic) Certificate. We reserve the right to challenge the Department’s reasons for issuing the certificate claiming ‘internal working’ documents privilege at a later date if need be. At the end of the Tribunal hearing, asked generally (that is, not referring specifically to the s.375A certificate matters) whether the representative was asked if he wished to make any oral submissions and declined the offer to make oral submission.
Considering the circumstances as a whole, on balance, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Jennifer Cripps Watts
Member

[2018] AATA 454

2 February 2018

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Immigration

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Judicial Review

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