Anderson (Migration)

[2019] AATA 1604

Anderson (Migration) [2019] AATA 1604 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Jamie Anderson

CASE NUMBER:  1803826

HOME AFFAIRS REFERENCE(S):           BCC2017/3230268

MEMBER:Kira Raif

DATE:18 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa

Statement made on 18 January 2019 at 12:06pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 489 – serious criminal convictions – compelling reasons to remain in Australia – young child – partner – little remorse – can no longer fulfil purpose of visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 8 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of the UK born in June 1974. He was granted the Skilled Regional Sponsored (Provisional) Class SP visa on 28 August 2014. That visa was due to expire on 28 August 2018. On 5 December 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the Skilled visa under s.116(1)(g) and r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) because the applicant had been convicted of offences. The applicant provided his response to the NOICC and his visa was cancelled on 8 February 2018. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 17 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and partner. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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 relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

5. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 8 May 2017 the applicant was charged with several offences and on 1 December 2017 he was convicted of the following offences by the Darwin Local Court, NT:

   a.Engage in conduct that contravenes a DVO (domestic violence order) - $150 fine

   b.Aggravated assault – 3 months imprisonment

   c.Criminal damage - $312 restitution to the victim.

6. In his written response to the NOICC the applicant states that he intended to appeal the convictions. The applicant provided to the Tribunal a copy of his affidavit in support of the application for leave to appeal and evidence of contact between his former partner and his mother. However, it is not the role of an administrative Tribunal to reassess the applicant’s criminal conviction. Until these convictions are overturned, the applicant is considered to have been convicted of offences. The applicant also outlined the circumstances of the offences. In his submission to the Tribunal of 14 September 2018 the applicant provided a statement from his counsel outlining the nature of the criminal process, the reasons for the convictions and the outcome of the appeal, noting that the application for the extension of time had been dismissed.

7. The applicant repeatedly told the Tribunal that he was not guilty and that his ex-partner lied to court and he did not have proper representation in court. The Tribunal acknowledges the applicant’s evidence but, as noted above, the Tribunal is of the view that it is not required to go behind the findings of the criminal process. The applicant has been found guilty, having had the opportunity to have his case heard in court and to test the prosecution evidence. There is no evidence that the convictions have been overturned, even if the applicant believes they should have been. It is not for an administrative Tribunal to determine the applicant’s guilt or innocence or to review the criminal process leading to the convictions.

8. The Tribunal finds that the applicant has been convicted of offences against the law of the territory. The applicant held a temporary visa other than a bridging visa in subclass 050 and 051 and other than a Special Category visa. The Tribunal is satisfied there are grounds for cancelling his visa under s.116(1)(g) and r.2.43(1)(oa). 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

9. 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

10. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a limited period. The applicant told the Tribunal that he was fulfilling the purpose of his visa because he was working in his field and was living in a regional area, as he was required to do. He was supported by the Northern Territory government. The Tribunal is satisfied that the applicant was fulfilling the purpose of his stay in Australia.

11. The primary decision record indicates that the applicant was granted the visa on 28 August 2014 and the visa was due to expire, if it was not cancelled, on 28 August 2018. Whether or not the cancellation is set aside, the visa would no longer be in effect. The Tribunal finds that the applicant is no longer able to fulfil the purpose of his travel and stay in Australia. The applicant states there is a compelling need for him to remain in Australia because he has a two year old daughter and if he leaves Australia, he would have limited opportunities to see his daughter. He also has a new partner in Australia. Evidence of his relationship is before the Tribunal. The Tribunal is satisfied the presence of his family in Australia may constitute a compelling reason for the applicant to remain in Australia. The Tribunal is mindful however, that due to the expiry of the visa, a decision to set aside the cancellation would not enable the applicant to remain in Australia, even if there is a compelling need for him to do so. The applicant has an application for a permanent Skilled visa. The applicant’s ability to remain in Australia would be dependent on the outcome of that application and not on the outcome of this review.

    The extent of compliance with visa conditions

12. There are no known instances of non-compliance with visa conditions.

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

13. In his submission to the delegate the applicant refers to having a child in Australia. The applicant states that he wants to stay with his daughter and play a role in her upbringing. If he was required to go overseas, his daughter would grow up without seeing her father. The applicant states that his daughter would struggle and would have no money if she only had her mother here as her mother does not work, and would depend on government support. The applicant described the arrangements he has with his former partner in relation to child access and financial support. In oral evidence, the applicant stated that he has not seen his daughter for 12 months since his detention and if he is not released from detention, he may never see her again.

14. The Tribunal considers the applicant’s submissions problematic because the visa in question is a temporary visa only and that visa only allows the applicant to remain in Australia until its expiry in August 2018. It is not a permanent visa, nor a long term visa which would enable the applicant to live in Australia and look after his child. The primary decision record indicates that the applicant has made an application for a permanent Skilled visa in subclass 887. If he is granted that visa, the applicant may be eligible to remain in Australia permanently. If he is not granted that or any other visa, the applicant would be required to leave Australia irrespective of the outcome of this review because his temporary Skilled visa has already expired. Thus, the Tribunal does not consider that the applicant’s ability to remain with his daughter and care for his daughter, including financially, would be affected by the cancellation of his Provisional Skilled visa.

15. The applicant states that if he is required to leave the country, he will not be able to have contact with his daughter, as his ex-partner will prohibit it, and he could not provide any support to his daughter. The applicant claims that if he is released from detention, he plans to apply to the Family Court to get access orders. The Tribunal acknowledges that if the applicant were to leave the country, he is unlikely to have ready access to his daughter and would have limited opportunity to have contact with her. However, if there is any requirement for the applicant to leave Australia, it would not be as a result of the cancellation of the present visa, as the applicant has an outstanding application for a permanent visa and would be permitted to remain in Australia while that application is being processed.

16. The applicant states that he has given up a lot in the UK and came to Australia and found a job. The Tribunal accepts that evidence and accepts that some hardship may be caused if the applicant was required to leave Australia, although as noted above, the applicant’s departure from Australia would not be as a consequence of the present cancellation. The applicant refers to the hardship that would be caused due to the separation from his current partner. The Tribunal accepts that evidence. 

    Circumstances in which ground of cancellation arose

17. In his written response to the NOICC the applicant states that he is a victim of domestic violence and has reported several incidents to the police in the past. The applicant told the Tribunal that he is not a violent person and he has not harmed his ex-partner. The applicant told the Tribunal his ex-partner was violent towards him and he locked her out of the house. She called the police and he was issued with the DVO. The applicant said they went to court to overturn the DVO. After their baby was born, his ex-partner made another allegation against him and he was convicted before the DVO could be overturned. The applicant’s evidence is that his ex-partner assaulted him and he pushed her and stood on her phone, so he was convicted of the contravention of the DVO and assault and criminal damage.

18. The applicant states that he has been given a custodial sentence because of the NT mandatory sentencing policies and his previous conviction overseas. The Tribunal accepts that this may have been the case but the fact remains that the applicant has been convicted of a serious crime of aggravated assault for which he received a sentence of three months imprisonment. It is of some concern to the Tribunal that despite the finding of guilt – following the plea of not guilty – and the conviction, the applicant denies any misconduct and claims that the violence was perpetrated against him and not by him. There appears to be little remorse for his conduct.

19. The applicant provided to the Tribunal a number of character references. The applicant’s mother and his present partner also gave character evidence to the Tribunal. The Tribunal acknowledges that evidence and accepts that those who provided references and oral evidence believe the applicant to be a person of good character.

    Past and present behaviour of the visa holder towards the Department

20. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

21. There are no persons who would be affected by the consequential cancellations.

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

22. If the applicant’s visa remains cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that the applicant will be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period as a result of the cancellation. The Tribunal is mindful that the applicant has an outstanding application for a permanent Skilled visa and that application would not be adversely affected as a result of the cancellation of the provisional Skilled visa.

23. The applicant claims that the cancellation of the visa may affect the future applications, including a bridging visa application or the permanent Skilled visa application. The Tribunal is mindful that the grant of any bridging visa and of the permanent Skilled visa requires very different considerations than those applicable in the present case. It is not in dispute in this case that there are grounds for cancelling the visa. If the cancellation of the visa is set aside, it would be because of the discretionary considerations and not because the grounds for cancellation do not exist. The Tribunal does not consider that consideration of the applicant’s eligibility for any other visa, including a bridging visa or his permanent Skilled visa, would be dependent on the Tribunal’s assessment of discretionary considerations that apply in this case. The Tribunal does not consider that the cancellation of the present visa would determine the outcome of future applications.

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

24. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligation would be breached as a result of the cancellation.

25. The applicant has a child in Australia. The applicant refers to having a close relationship with his daughter prior to his detention and the provision of emotional and financial support to the child. The applicant states in his written evidence that he had an informal arrangement with the child’s mother to allow him to spend time with the child when he is not working and he provides money for the child’s needs. The Tribunal accepts that evidence. The applicant told the Tribunal that he has not seen the child since his detention but hopes to get a court order and resume contact with his child if he is released. The applicant told the Tribunal that if he is removed from Australia, his daughter will grow up without a father.

26. The applicant’s evidence to the Tribunal is that the DVO only related to his ex-partner and not to his daughter. The Tribunal acknowledges that the DVO, a copy of which is before the Tribunal, refers to the protected person being the applicant’s former partner and not the child.

27. The applicant refers to the Convention of the Rights of the Child and the best interests of his daughter to grow up with her father. If the child is not protected by the DVO, the Tribunal is prepared to accept, only for the purpose of the present review and without a full assessment, that the best interests of the child would be best served if the child remained in the presence of both parents. However, this cannot be achieved by the reinstatement of the present visa. The visa in question has expired. It would not enable the applicant to be released from detention. Also importantly, it is a temporary visa which does not permit the applicant to remain in Australia permanently to be with his child. The applicant would need to obtain a different visa to enable him to do that. For that reason, he Tribunal does not accept that the best interests of the child would be adversely affected by the cancellation. The Tribunal does not consider that the best interests of the child would be best served by the reinstatement of the temporary visa.

    Other matters

28. The applicant claims that the primary decision is flawed on a number of grounds, including in relation to the weight that was given to the various considerations and the finding that he could have communication with his daughter from overseas, given that the child was only 6 months at the time of the cancelation. The Tribunal acknowledges this submission but notes that its review is de novo and the applicant’s concerns with any findings of the primary decision maker do not affect the Tribunal’s review.

29. The applicant’s mother gave evidence to the Tribunal that she has not been able to see the granddaughter and that she hopes the applicant can live his life in Australia. The Tribunal acknowledges that evidence. The applicant’s current partner gave evidence to the Tribunal about her relationship with the applicant and the support they provide to each other. The Tribunal accepts that evidence. The applicant’s partner referred to the applicant’s good character. The Tribunal accepts that she believes the applicant to be a person of good character, despite the convictions. The applicant’s current partner spoke about the effect of the applicant’s detention on their health. The Tribunal accepts that evidence.

30. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant held a temporary visa and had been convicted of offences. The Tribunal accepts that hardship could be caused to the applicant and his family if the applicant is not a holder of a visa but in this particular case, the Tribunal has formed the view that the cancellation of the visa would not cause significant hardship to the applicant because the visa would have expired and the cancellation of the visa would not result in any practical difference for the applicant. If the cancellation were to be set aside, the applicant would not be a holder of a substantive visa and would not be released from detention. In particular, the Tribunal does not accept the applicant’s submission that the cancellation of the visa would affect the outcome of his future visa applications.

31. The Tribunal acknowledges that the applicant has strong links in Australia and that his child and his current partner are in Australia. The Tribunal accepts that such links may indicate compelling reasons for the applicant to remain in Australia. The Tribunal has accepted, only for the purpose of this decision, that the best interests of the applicant’s child may be to have the presence of both parents, although the Tribunal is mindful of the applicant’s evidence that he has not had any contact with his daughter since his detention, does not know her whereabouts and that the child’s mother may oppose any contact. In this case, the Tribunal has formed the view that the best interests of the child would not be adversely affected because the cancellation of the visa does not in any way affect the applicant’s eligibility to remain in Australia, particularly on a long term basis. The visa in question has expired and even if it had not, it was a temporary visa which would not have permitted the applicant to remain in Australia on a long term basis to look after his child.

1. The Tribunal has formed the view that the applicant can no longer fulfil the purpose of his visa.

2. The Tribunal has considered the circumstances in which the ground for cancellation arises. Despite the applicant’s protestations of his innocence, the applicant has been convicted of offences, some of which are serious. The applicant appears to have little remorse about the conduct that led to the convictions. In the Tribunal’s view, such circumstances outweigh other considerations.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

   Kira Raif
   Senior Member