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489 - Skilled – Regional (Provisional) – risk to the health and safety of an individual – interim intervention order withdrawn – contravention charges withdrawn – application to place the children on departure watchlist – repaying study costs to the Saudi government – best interests of the children – decision under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

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.
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.
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and a certificate of record form the Magistrate’s Court showing the charge of breach of the intervention order was withdrawn.
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.
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
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.
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…

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 Alfouzan (Migration)

Details

AGLC: Alfouzan (Migration) [2023] AATA 1427
Case: [2023] AATA 1427
Decision Date: 18 May 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 489 Skilled Regional (Provisional) visa. The cancellation was based on the ground that the applicant's presence in Australia was or might be a risk to the health or safety of an individual, specifically his wife and son.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 was made out. This required the Tribunal to consider if the applicant's presence in Australia posed a risk to the health or safety of any individual, based on allegations of domestic violence and contravention of an interim intervention order. The Tribunal also had to consider all relevant circumstances, including government policy, in determining whether to cancel the visa.

The delegate's decision relied on advice from South Australia Police regarding an interim domestic violence order and subsequent charges for contravention. The alleged contravention involved the applicant throwing a toy truck in anger near his sleeping son during an argument with his wife about his immigration status. However, the applicant provided a statutory declaration stating that the disagreement was not aggressive, that his wife later withdrew her complaint, and that the interim order was varied to allow them to live together. The Tribunal considered these circumstances, including the withdrawal of contravention charges and the wife's stated desire not to proceed with the order, and concluded that the visa should not be cancelled.

The Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances, the Tribunal has concluded that the visa should not be cancelledDECISION 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 MillarSenior Member

Ratio Decidendi

Legal Principle Established

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 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). 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. 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? 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 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). 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. 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.