Alfouzan (Migration)

[2023] AATA 1427

Alfouzan (Migration) [2023] AATA 1427 (18 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdulaziz Ibrahim A Alfouzan

REPRESENTATIVE:  Ms Abby Hamdan

CASE NUMBER:  2211595

HOME AFFAIRS REFERENCE(S):          BCC2022/1742142

MEMBER:Kate Millar

DATE:18 May 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled – Regional (Provisional) visa.

Statement made on 18 May 2023 at 9:34am

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 489 - Skilled – Regional (Provisional) – risk to the health and safety of an individual – interim intervention order withdrawn – contravention charges withdrawn – application to place the children on departure watchlist – repaying study costs to the Saudi government – best interests of the children – decision under review set aside 

LEGISLATION

Intervention Orders (Prevention of Abuse) Act 2009 (SA)
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994

CASES

Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Alfouzan is a citizen of Saudi Arabia who came to Australia on 10 February 2017.  He held student visas until being granted a Skilled – Regional (Provisional) Subclass 489 visa as the dependent spouse of his wife.

2. On 9 August 2022 his visa was cancelled because he was subject to an interim Domestic Violence Intervention order and had been charged with a breach of that order.  A delegate of the Minister found that his presence in Australia is or may be a risk to the health and safety of his wife, and that his visa should be cancelled.

3. Mr Alfouzan applied for a review of this decision.  He provided the birth certificate of his two children who were born in Australia, a discharge of the interim intervention order and a certificate of record form the Magistrate’s Court showing the charge of breach of the intervention order was withdrawn. 

4. Mr Alfouzan appeared before the Tribunal on 23 February 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. In issue in this matter is whether a ground to cancel Mr Alfouzan’s visa is established, and if so whether his visa should be cancelled. 

   CERTIFICATE ISSUED UNDER S.375A OF THE MIGRATION ACT 1958

6. The Department file contained a certificate issued under s.375A of the Migration Act 1958 (the Act).  A certificate that has been validly issued under this section prevents the Tribunal disclosing the information or documents covered by the certificate.  This requires that disclosure of the information would be contrary to the public interest for any reason specified in the certificate. 

7. A copy of this certificate was provided to Mr Alfouzan’s representative prior to the hearing, and he was invited to comment on the validity of the certificate.  In response it was submitted that the certificate was invalid as the public interest reason cited for the issue of the certificate was that ‘the provider of the information has not consented to the disclosure of the information’.  It was submitted that this is insufficient to show that disclosure is contrary to the public interest. 

8. In this case, some of the material covered by the certificate are the interim intervention order, the bail conditions, and the police facts.  The interim intervention order and bail conditions are known to Mr Alfouzan and are not confidential documents.  The police facts are summarised in the decision record and have also been disclosed to Mr Alfouzan. 

9. However, other parts do contain confidential information and the Tribunal considers that it is public interest information, and the certificate is valid.

   CONSIDERATION OF ISSUES

10. This is an application for review of a decision dated 9 August 2022 by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass Skilled Regional (Provisional)(Subclass 489) visa under s.116 of the Migration Act 1958 (the Act).

11. 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. These include a ground set out in s.116(1)(e), which is the ground identified by the delegate.

12. If satisfied that a 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?

13. 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].

14. The delegate relied on advice from South Australia Police that Mr Alfouzan was the subject of an Interim Domestic Violence order (DVO) served on 13 January 2022.  The DVO names his wife Ms Ahmed as the protected person.  Mr Alfouzan was charged on 16 May 2022 with contravention of the DVO under the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

15. The delegate recites the police facts that relate to this offence, stating that Mr Alfouzan was engaged in an argument with his wife about his immigration status after being contacted by the Department asking him to update his contact details.  SA Police alleged that during the argument Mr Alfouzan picked up a toy truck and threw it on the floor close to where his son Ibrahim was sleeping. Ms Ahmed is reported to have felt threatened by his behaviour and concerned for Ibrahim’s safety.  Ms Ahmed is reported to have told him he could have injured Ibrahim, and he again picked up the toy truck and threw it in an angry manner to the floor where it again landed near Ibrahim and broke. 

16. On a notice of intention to cancel his visa being provided to Mr Alfouzan, he submitted a statutory declaration witnessed on 5 July 2022 which stated (among other things) he and his wife began arguing about visiting Saudi Arabia in late December 2021.  The disagreement continued until one day she left the residence with the children.  He was contacted by Police several days later and served with the interim DVO.  He states he can think of no reason for the interim DVO as the disagreement was not aggressive or hostile.  He states irrespective of his confusion he complied with the order.  On 23 February 2022, he states his wife contacted police and said she did not want to continue with the DVO.  The DVO was varied to allow them to live together, and they came to a compromise that they would return to Saudi Arabia for three weeks in July.

17. He states they agreed that after this visit his wife would return to work and their youngest child would attend day care.  His wife then advised him she intended to return to work before their holiday and send their daughter to day care.  He disagreed as he thought their daughter was too young.

18. This argument continued during a family outing to Eid celebrations and on their return home.  He states that at approximately 11.00pm his wife went to bed with the children, and he went to the rear of the house to watch a football game.  After the game finished at approximately 4.00am he fell asleep on the couch and was woken at about 12:00 pm by the police and advised he had breached the intervention order.  He states this was a shock to him and he was confused as to his knowledge there was no intervention order on him at the time.

19. His wife subsequently advised police she wants to withdraw the DVO.  He considers the allegations and the DVO are tactic to get her way in their disagreements, and to force him to sign a visa application for permanent residence for the children. 

20. Mr Alfouzan said at hearing his wife would threaten to call the police, and she would also threaten to withdraw the visa application.   

21. Prior to the hearing, Mr Alfouzan provide a certificate of record from the Magistrates Court of South Australia.  The certificate of record shows an Interim Intervention Order and summons issued on 12 January 2022.  The Interim Order was continued on 2 March 2022, 6 April 2022, 15 June 2022, and 10 August 2022. On 19 October 2022 the Interim order was discharged and the application for an intervention order was dismissed.  This is confirmed in a copy of the order dated 19 October 2022. 

22. A certificate of record from the Magistrate’s Court shows Mr Alfouzan was released on bail on a charge of aggravated contravention of the intervention order and this charge was withdrawn on 19 October 2022.

23. At the request of the Tribunal, Mr Alfouzan provide a National Police Check.  This had one disclosable conviction on 5 February 2018 for driving a motor vehicle while exceeding the prescribed blood alcohol reading (BAL 0.136). 

24. Mr Alfouzan said he had previously had a family violence order against him in June 2021 and considered this was made by his wife to threaten him his visa.  On that occasion he said this was an argument about the purchase of car.  He said he was in jail for three days because it was a weekend, and he then lived at a hotel for two weeks.  After he talked to his wife’s father he returned to live with his wife at home.  He said he was referred to an abuse prevention program and had attended all sessions.  He said he had to learn about managing his feelings and to leave confrontation and instead exercise or take a shower.

25. Mr Alfouzan said he is currently living with his wife.  On being asked why she had not attended to give evidence, he said that she had told him to pay a lawyer to attend and had placed the children on the watch list and asked him for $50,000 to remove the children from the watch list, or to give her the children’s passports to attend the hearing.  Mr Alfouzan said he keeps the children’s passports.  He said he has been advised that the children will be stopped at the airport if he tries to leave with them.  After the hearing he provided an email from the Australian Federal Police stating the children have been placed on the Airport Watchlist. 

26. On being asked to further explain why his wife did not attend the hearing, he said his wife refused to come but could be contacted, and that he is getting on very well with his wife and children.  At the end of the hearing, his representative requested that the Tribunal summons his wife to give evidence if there would be otherwise an adverse decision.  As the decision is ultimately in Mr Alfouzan’s favour, the Tribunal did not consider it necessary to summon his wife to give evidence. 

27. After the hearing Mr Alfouzan provided his wife’s application for an order regarding the watchlist in which she claims she and Mr Alfouzan separated on 31 December 2021 and that the relationship was characterised by family violence.  Both the children have Saudi passports and she claims Mr Alfouzan has possession of the passports and has threatened to take the children to Saudi Arabia where she will not see them.  She is not a citizen of Saudi Arabia and states there is no way for her to go there without Mr Alfouzan facilitating a visa.  It is claimed that in March 2020 due to financial reasons the intervention order as varied so they could live separately under one roof because she was struggling financially.  As they were not permanent residents, she needed Mr Alfouzan to sign the application for permanent residency.  His wife states she works 4 days a week but could not claim childcare subsidy until she is a permanent resident and Mr Alfouzan took the passports from his wife’s case when they returned home.  After this time, he breached the order by getting drunk and throwing a toy at her and their son, but the order has since been withdrawn. 

28. It was submitted that Mr Alfouzan’s wife had twice failed to attend a hearing in support of her application for an order to place the children on the watchlist.  There are no orders to show the application has been dismissed.  Mr Alfouzan disputes the date claimed for the separation in his wife’s statutory declaration in support of her application and states they have only separated for a short time in 2021 and have been living together since the court dismissed the charges.  He also states that his wife has permanent residence in Saudi Arabia and provided a resident identity card.   

29. Information was provided to Mr Alfouzan under s.359AA of the Act from the Department file. 

    ·The first piece of information was that an interim intervention order was made on 9 June 2020 naming Mr Alfouzan as the defendant and the protected person as Mrs Ahmed and Ibrahim. 

    ·The second piece of information is that Mr Alfouzan emailed the Department of Immigration visa cancellations on Sunday 15 May 2022 at 5:55am in response to an email to Mr Alfouzan from the Department on 13 May 2022 to provide information on his address and contact details.  This is consistent with a dispute on the morning of that day.

    ·The third piece of information was in the police facts of charge that on Friday 13 May 2022 it is alleged he had a discussion with his wife about a phone call form Immigration advising him they would be cancelling his visa due to the current domestic violence offences before the Courts.  It is stated that since 9.00pm on Saturday 14 May 2022 he had been drinking heavily.  Between this time and about 12 pm on Sunday 15 May 2022 it was estimated he had consumed a full carton of Superdry beer, a 700ml bottle of red wine and a 700ml bottle of white wine.  At about 12pm on 15 May 2022 he and his wife started having an argument about his immigration status and the cancellation of his visa.  This was relevant as the time is the same day as the police were called and is contrary to his evidence that he could not think of a reason why the police attended the house. 

30. Mr Alfouzan was advised that if would find that he may be a risk to people in Australia if he remains in Australia at the time his visa was cancelled and the ground in s.116(1)(e) of the Act is established.

31. An adjournment was granted for Mr Alfouzan to confer with his representative.   

32. In response Mr Alfouzan said that he was mistaken about the date of the first intervention order, and that this was made in June 2020 and not June 2021.  He said he sent an email to Immigration when he was drunk, but that he had only had a moderate amount.  He claims that when his wife called the police, she brought empty bottles from the pantry and put them in front of him, but he had not consumed the alcohol.  He said his wife is aware of his drinking habits and he does not drink excessively.  He is studying pharmacy full time, does not generally drink and is doing well in his studies. 

33. Mr Alfouzan was not a compelling witness.  He denied knowledge of why the police would attend his home on 15 May 2022, but there is evidence that he emailed the Department the same morning as the alleged events.  This shows he knew a visa cancellation was in progress and supports the police account of a dispute about his visa status.  The Tribunal does not accept the dispute was about solely about their daughter attending childcare or visiting Saudi Arabia.  He claims to have reconciled with his wife, however she did not attend to give evidence and her statutory declaration states they remain separated under the same roof.  His wife has sought order placing their children on the watchlist.  The Tribunal does not accept Mr Alfouzan’s account that she seeks money for the removal of the children from the watchlist given that he took the children’s passports from her case.  The Tribunal is not satisfied his participation in a family violence program has resulted in there being no risk to the health and safety of an individual in Australia. 

34. While it is accepted the charge and the interim intervention order were dismissed, the Tribunal has concluded that Mr Alfouzan may be a risk to the health and safety of his wife, and the ground in s.116(1)(e) is established. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must consider whether the visa should be cancelled.

    Consideration of discretion

35. 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

36. Mr Alfouzan was granted the visa as a secondary applicant on his wife’s visa.  His wife and children have applied for or been granted a permanent visa and he is not an applicant for that visa.  He claims to still be in a relationship with his wife, however the statutory declaration of his wife states they separated in December 2021.

37. Mr Alfouzan’s children are in Australia, and he is involved in their care.  He is currently studying a Bachelor of Pharmacy, and says if he does not complete his studies, he will be required to repay the costs of his study to the Saudi government. 

    The extent of compliance with visa conditions

38. There is no information before the Tribunal to show Mr Alfouzan has otherwise failed to comply with the conditions of his visa. 

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

39. Mr Alfouzan is studying pharmacy on a government scholarship from the Saudi government and if he does not pass he will have to repay the costs of the course.  He provided a letter of financial guarantee from the Ministry of Education in Saudi Arabia confirming he is the recipient of a full academic scholarship.  He said both he and his wife came to Australia on student visas.  He said he completed 50% of the program before he was arrested and had to re-sit an exam which he passed.  He states he needs to have his visa reinstated so that he can continue his studies as he had to repeat one year due to problems with depression.  He anticipates graduating in 2025.

40. He is required to return to Saudi Arabia to work for a year to avoid repaying the fees.  If he is unable to finish his study, he will be unable to return to his previous job as a pharmacy assistant in Saudi Arabia.  He may be able to use his old qualifications to be a pharmacy assistant elsewhere, but not as a pharmacist.   

    Circumstances in which ground of cancellation arose

41. The ground arose from the making of interim intervention orders and from Mr Alfouzan being charged with a breach of the interim intervention order.  The interim orders were dismissed, and the charge withdrawn.  Mr Alfouzan claims his wife called police to get her own way in disagreements.

42. The Tribunal does not accept this was the case, however it does accept that any evidence to police was not sufficient for the charges to continue or to proceed to a final intervention order which would have allowed him to contest the order. 

43. Mr Alfouzan provided a letter from his medical practitioner stating he has major depressive disorder and is now on medication and is feeling a bit better.

44. As such, the circumstances weigh only moderately in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the department

45. There is no information to suggest that Mr Alfouzan has been other than cooperative with the Department. 

    Whether there would be consequential cancellations under s 140

46. There are no consequential cancellations that will occur in this case. 

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. If Mr Alfouzan’s visa remains cancelled, he will not hold a visa and as an unlawful non-citizen will be liable to being detained under s.189 of the Act and removed under s.198 of the Act.

2. If his visa is cancelled, there are limited visas for which he could apply from within Australia Mr Alfouzan seeks to continue his studies, however, he would be unable to apply for another student visa from within Australia.  There are restrictions on applying for a visa that contains public interest criterion 4013, which prevents a person affected by a risk factor from being granted certain visas for a period of three tears after the cancellation of the visa unless there are compelling or compassionate circumstances affecting the interests of an Australia citizen or Australian permanent resident.

3. As a result, if Mr Alfouzan’s visa is cancelled he is liable to detention and removal from Australia and may be unable to return for a lengthy period. 

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

4. Mr Alfouzan has two very young children, who are approximately three and one and a half years old.  He says he lives with them and assists with childcare when his wife is at work.  She works four days a week and one Saturday a fortnight as well as public holidays and he says he cares for the children when he is not studying.  

5. The Tribunal accepts Mr Alfouzan lives with his children and assists in their care.  It accepts that it is in the best interests of his children that he remains in Australia, as they are now permanent residents holding a visa and on the available information, he would be prevented from removing the children from Australia.  If his visa remains cancelled it may be a lengthy period before he is able to return to Australia and will result in the separation of the children from a parent which given their young age and his care of the children is not in their best interests.

6. The best interests of the children weigh heavily in favour of not cancelling Mr Alfouzan’s visa. 

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

7. While the visa held by Mr Alfouzan is a temporary visa, he says his wife and children have been granted permanent visas.  The Tribunal considers he has strong family ties in Australia. 

   Any other relevant matters

8. Mr Alfouzan states his visa should not be cancelled because he was not violent to his wife.  It was submitted that every time his wife did not get her own way, she made a report of family violence and then withdrew the report when, for example, he signed the visa application for the children.

9. The Tribunal does not accept this account, however acknowledges that the evidence was not sufficient for the matters to continue and that they were withdrawn or dismissed. 

   CONCLUSION

10. The best interests of Mr Alfouzan’s children weigh heavily in this matter.  If his visa is cancelled, he will potentially be separated from his young children for a lengthy period.  He will suffer significant hardship if he returns to Saudi Arabia without completing his studies.  This is in the context where the charge against him and the interim intervention orders have been dismissed or withdrawn. 

11. Considering the circumstances, the Tribunal has concluded that the visa should not be cancelled

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kate Millar
    Senior Member