Amgalanbayar (Migration)

[2020] AATA 3948

Amgalanbayar (Migration) [2020] AATA 3948 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Munkhbat Amgalanbayar

CASE NUMBER:  1935752

HOME AFFAIRS REFERENCE(S):          BCC2019/5682827

MEMBER:Ann Duffield

DATE:21 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 21 July 2020 at 5.15pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence – Common assault (domestic violence) – Stalk/intimidate Intend Fear Physical Harm (Domestic Violence) – Community Corrections Order – consideration of discretion – impact on the family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 December 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been found guilty of an offence against a law of the Commonwealth, a State, or Territory and handed a sentence. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal via teleconference on 21 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGOUND

5. The applicant provided the Tribunal with a copy of the delegate’s decision along with the application for review.

6. The applicant is a citizen of Mongolia born on 3 June 1994. He arrived in Australia as a dependent on his wife’s student visa on 15 December 2018. On 29 August 2019 the applicant’s wife lodged an application for a further student visa and he was included as her dependent. Both were granted bridging visas pending a decision on the application.

7. The applicant was convicted of domestic violence offences on 30 September 2019.

8. The visa was cancelled on 16 December 2019. The applicant’s wife’s student visa application, on which he remains a dependent, is still pending.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)(g). 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?

   s.116(1)(g) - prescribed ground

10. A visa may be cancelled under s.116(1)(g) if the Minister 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)(p) is relevant.

11. The department considered grounds under 2.43(1)(oa) which was incorrect as the applicant is the holder of a Bridging Visa 050. The Tribunal put the correct grounds to the applicant during the hearing and he has responded to them.

12. The applicant was convicted of the following offences on 30 September 2019:

    a.Common assault (domestic violence) – two counts

    b.Stalk/intimidate Intend Fear Physical Harm (Domestic Violence).

13. The applicant was sentenced to an 18-month Community Corrections Order.

14. The applicant told the department that the grounds for cancellation were not serious but only became so because he did not understand English or respond to the police officer fully. He claims he did not know it became a serious matter until after the court outcome. The applicant states that he and his wife had a misunderstanding in February 2019. It appears that they started living apart.  He states that he found out that his wife was seeing another man but had decided to start afresh. He claims that the CCTV footage shows him pulling his wife by her hair, but he pulled her jacket. He states that he did not respond to the police because of language barriers. The applicant states that he is seeking counselling for anger management. He emphatically states that he did not think that his actions would evoke “such a big issue”. It does not appear from his statement that he is living with his wife.

15. The applicant confirmed the information in relation to his charges, conviction and sentencing to the Tribunal at the scheduled hearing. When questioned by the Tribunal about the events the applicant continued to make excuses saying that he did not intend to hurt his wife. He was unwilling or unable to respond to requests to explain the stalking charge. He said that his wife was having a relationship with someone else and he just wanted to get her back. He stated that he knew he was guilty but felt that it was a misunderstanding. The Tribunal put to the applicant that his attitude didn’t inspire confidence that he would not commit the same or other crimes if he thought that his conviction was because of nothing. The Tribunal put to the applicant that the courts formed a different view and he was sentenced to an 18-month Community Corrections Order (CCO).

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

17. In considering whether a Bridging E visa should be cancelled 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.

18. 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.

19. 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.

20. 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. The Tribunal has also 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’.

21. The Tribunal asked the applicant where he was living, and he told it that he was living with his wife in Sydney. He said that they had been separated for about six months and they moved in together in February 2020. He told the Tribunal that she was still studying whilst awaiting the outcome of her second student visa application and she was working about two days a week earning $400. He said that his parents were giving me some money, but he did not say how much or how often. He said that he was working as an Uber driver prior to the cancellation of his visa but had not been working since.

22. The applicant’s purpose for remaining in Australia was to continue to support his wife during her studies which he had been unable to do since his visa had been cancelled. In this regard the Tribunal notes that the applicant’s child is in Mongolia and he had been separated from his wife for around six months and has been unable to work since the cancellation of his visa. The Tribunal does not consider that there are compelling needs for the applicant to remain in Australia.

23. The applicant provided the Tribunal with a copy of a variation on the Apprehended Domestic Violence order which he claimed indicated that he and his wife were now able to live together. The Tribunal asked him who the second party to the Order was and he said that it was his wife’s boyfriend at the time. The order is dated 20 January 2020. He said that they moved back into together after that.

24. The applicant told the tribunal that his child was still in Mongolia and when asked by the Tribunal why the child didn’t come to Australia with him and his wife, he said that the child was too young and so they left him with their parents. He said that he just wanted his family to be reunited.

25. The Tribunal has considered this matters in relation to the impact that a decision to cancel the applicant’s visa would have on his family and finds that whilst it would result in him being separated from his wife for a period, given the recent circumstances of their relationship the Tribunal does not consider that to be a particular hardship. The applicant would be reunited with his young child and the tribunal considers that a positive event. Given the totality of the circumstances the Tribunal does not find that the impact on the family unit would be such that it would move the Tribunal to not cancel the applicant’s visa.

26. The Tribunal also considered the degree of hardship that may be caused if the applicant’s visa is cancelled. It appears as if the applicant’s wife is able to manage on her own; she works and studies and the applicant’s contribution to the household appears minimal. The applicant told the Tribunal that they wanted to complete their goal of improving their education before they went back to Mongolia. He says that they are wasting time whilst his visa is cancelled, and he should have a visa so that he can work and bring their child to Australia.  The tribunal notes that the applicant’s child is in Mongolia and if he were to return there he would be reunited with that child. He also claims to have had a job there prior to departure. He has not provided any evidence to the Tribunal that he would not be able to get any work should he return. The applicant does find that a decision to cancel the applicant’s visa would cause such hardship as to persuade the Tribunal to not cancel the visa. 

27. The Tribunal has considered the circumstances in which the ground for cancellation arose. The applicant told the Tribunal that his wife’s boyfriend at the time persuaded her to call the police. He said that he went to the police station two days later but because of the language barrier he was unable to express himself properly and he was charged. The Tribunal put to the applicant that there would have been an opportunity for him to put his case properly but he denied this. Asked by the Tribunal if his wife had tried to have the charges dropped or varied, he said that she didn’t.

28. The Tribunal finds that there are no circumstances outside the applicant’s control for the grounds for cancellation.

29. The Tribunal asked the applicant if he knew the conditions or requirements of the CCO and he said that he had to be nice to people, not commit any crimes and help people as much as he could. The Tribunal asked the applicant if he had a copy of the CCO and he said it was at home. When the Tribunal asked him where he was, he said he was in his car. The Tribunal asked if he was still driver for Uber and he denied this.

30. The Tribunal put to the applicant that it could not be confident that he hadn’t breached any of the conditions of the CCO since he didn’t know what they were. He said that he didn’t intend to do anything wrong and he wouldn’t break the law.

31. There is no evidence before the Tribunal that he has breached his visa conditions or that he has not engaged with the department. There do not appear to be any consequential cancellations under s.140 and there is no evidence before the Tribunal that the cancellation of his visa would result in any breach of international conventions.

32. The applicant is current illegal. He does not appear to be aware of this as he told the tribunal that he had a current visa. If his visa remains cancelled the applicant may be subject to detention and removal from Australia. This in turn may lead to him being excluded from Australia for a period.

33. Having carefully considered and weighed all the circumstances, the Tribunal concludes that the visa should be cancelled

    DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Ann Duffield
    Senior Member