Atray (Migration)

[2021] AATA 4754

Atray (Migration) [2021] AATA 4754 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aditya Atray

CASE NUMBER:  2104842

HOME AFFAIRS REFERENCE(S):          BCC2020/1096315

MEMBER:Antoinette Younes

DATE:7 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 7 December 2021 at 09:27 AM

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 802 (Spouse) – criminal convictions and community correction and apprehended domestic violence orders – discretion to cancel visa – remorse and apology – genuine relationship – applicant’s support for partner’s physical and mental health, and to her son – significant hardship and best interests of child – decision under review set aside 

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulation 1994 (Cth), r 2.43(1)(oa)

CASE

Brown v MIBP [2015] FCAFC 141

CFE16 v MIBP [2020] FCCA 1083

MIMA v SRT (1999) 91 FCR 234

Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) 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 has been convicted of two offences in NSW. 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 on 1 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

   Section 116(1)(g) – prescribed ground

7. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

8. Section 116 provides:

   (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (g) a prescribed ground for cancelling a visa applies to the holder.

9. The prescribed grounds for cancellation under s 116(1)(g) are found in reg 2.43(1)(oa) of the Regulations which provides:

(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 the following:

(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));

1. During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.  The information indicates that the NSW Police advised the Department that on 13 August 2020 at the Parramatta Local Court, the applicant was convicted, in relation to his wife, of the offences of Assault occasioning actual bodily harm (DV) – T2 and Assault occasioning actual bodily harm (DV) – T2 for each of which he received a sentence of Community Correction Order for two years commencing on 13 August 2020 and concluding on 12 August 2022. There is also an Apprehended Domestic Violence Order (ADVO) due to expire by 13 August 2022.

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) AND RESPONSE

2. On 15 December 2020, the Department sent to the applicant an NOICC on the basis of the above convictions.  On 22 December 2020, the applicant responded to the NOICC, by way of submissions and supporting documents.

3. In the submissions dated 22 December 2020, the applicant’s representative conceded that the ground for cancellation exists but argued that there ought to be a favourable exercise of discretion. In support of the submissions and to the Tribunal, the applicant provided, among other things, a statement from the applicant’s spouse, 7 statements/character references from individuals who know the applicant, a letter from Dr A Gaudry dated 1 August 2016, a certificate of fitness dated 31 November 2021, an email from a physiotherapist dated 29 November 2021, an email from a psychologist dated November 2021, photographs of the couple with the spouse’s biological son, copies of the ADVO and the Community Correction Order. The Tribunal notes that the ADVO’s conditions are that the applicant must not commit any offences and that he must appear before the court if called upon.

4. During the hearing, the applicant accepted that he has been convicted of the two above mentioned offences and he expressed his remorse and apology. The Tribunal explained to the applicant that the Tribunal must accept that he has been convicted and sentenced.

5. The Tribunal finds on the evidence that the applicant has been convicted of offences against laws in NSW. Therefore s 116 (1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by reg 2.43(1)(oa).

6. For those 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

7. There are no matters specified in the Act or Regulations that must be considered in the exercise of 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

8. The applicant gave evidence that he has known his wife (Mrs X) for a number of years, prior to their marriage in 2015. He stated that he came to Australia on a Student visa and they married on 9 September 2015. He gave evidence that they commenced living together since his arrival in Australia and that he considers his marriage to be a loving and caring relationship.

9. The applicant recognised the seriousness of his conduct and expressed his remorse on multiple occasions in the course of the hearing. He explained to the Tribunal, and there is evidence in support, that Mrs X suffers from multiple ailments and that he has been providing her with financial, physical and emotional support. He explained to the Tribunal that Mrs X has a 17-year-old son from a previous marriage and that the son considers the applicant to be a friend who has provided him with guidance and support.

10. The applicant is currently in full-time employment and Mrs X receives financial assistance due to a workplace injury, but is essentially relying heavily on the applicant’s employment to support the family in its daily expenses and the payment of rent.

11. Mrs X gave evidence confirming the support that she has received from the applicant over the years. Despite the convictions being related to incidents concerning herself, she expressed the view that she continues to see the applicant as her family, indeed as the head of the family. She referred to incidents when she was physically challenged and the support that the applicant had provided her during those difficult times.

12. The Tribunal has been impressed with the support that the applicant has been provided by his spouse, Mrs X. The Tribunal appreciates that domestic violence is a very serious issue and this is understood by both Mrs X and the applicant. The family appreciates that incidents such as those should never have happened and should never be repeated.

13. The Tribunal notes that the applicant came to Australia on a Student visa intended for full-time studies, however he was subsequently granted the partner visa on the basis of his relationship with Mrs X. The Tribunal accepts that Mrs X sees the applicant as being the primary provider for the family. The Tribunal accepts that Mrs X believes that the applicant has been highly supportive of her situation and that he has supported her son academically and in the son’s career aspirations.

14. The Tribunal accepts that given Mrs X’s physical and psychological health, as well as their marriage, there is a compelling need for the applicant to remain in Australia.

15. The Tribunal gives weight to this consideration in favour of the applicant.

    The extent of compliance with visa conditions

16. There is no evidence of any breach of any visa condition.

17. The Tribunal is of the view that compliance with visa conditions is a legitimate expectation and as such, the Tribunal gives neutral weight to this consideration.

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

18. The Tribunal accepts that both the applicant and Mrs X consider their marriage to be genuine and they would like to continue living together as a couple. The Tribunal accepts that the applicant provides Mrs X with financial, emotional and practical physical support which she requires due to her health. Mrs X gave evidence that she considers the applicant to be the head of her family and although recognising the seriousness of his conduct, she nevertheless expressed a positive view of the applicant.

19. The Tribunal accepts that the applicant provides the 17-year-old son of his spouse support, in terms of academic, career and personal guidance. Both the applicant and Mrs X referred to the positive influence and relationship which the applicant shares with the 17-year-old son.

20. The Tribunal is satisfied on the evidence that the cancellation of the visa would result in significant hardship to the applicant, Mrs X, and her 17-year-old son. The Tribunal accepts that the hardship includes emotional, practical, financial, and psychological factors. The Tribunal considers that in the applicant’s case the cancellation would result in significant hardship to his family.

21. The Tribunal gives this consideration weight in favour of the applicant.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. The circumstances in which the cancellation arose were as a result of the applicant being convicted of offences that relate to violence against Mrs X.  The Tribunal acknowledges that the applicant has expressed his remorse and apology.

23. The Court’s finding is that the applicant has committed the offences with which he was charged.  It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:

    [45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

    [46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…

24. Although the applicant has expressed his remorse and apology, the Tribunal does not consider his conduct to be beyond his control. Moreover, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions.  The Tribunal is of the view that it is reasonable to assume that the Court took relevant matters into account.   

25. The Tribunal gives this consideration significant weight in favour of cancellation.

    Past and present behaviour of the visa holder towards the Department

26. The applicant responded to the matters raised in the NOICC and he fully engaged in the cancellation process.

27. The Tribunal gives this aspect weight in favour of the applicant.

    Whether there would be consequential cancellations under s 140

28. There is no evidence of consequential cancellation under s 140.

29. The Tribunal gives this consideration neutral weight.

    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

30. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia.  The applicant would also be impacted by s 48 of the Act which means that he could face difficulties in applying for any further visas in Australia. He will also be subject to public interest criterion (PIC) 4013, which limits the grant of a further temporary visa for a specified period of time.

31. The Tribunal considers potential detention, removal from Australia, the impacts of s 48 and the PIC 4013 bar to be intended legislative consequences.    

32. The Tribunal gives this aspect neutral weight.

    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

33. The Tribunal accepts the evidence that the applicant shares the responsibility of Mrs X’s 17-year-old son to whom he provides financial, emotional and career support. Although the son continues to have a relationship with his father as he sees him on the weekends, the applicant provides the 17-year-old with significant support. The applicant and Mrs X gave extensive  evidence about that support.  The Tribunal gives weight to the fact that the 17-year-old son has provided a statement supporting the applicant. 

34. Overall, the evidence before the Tribunal indicates that there is a strong and positive connection between the applicant and the son. 

35. Article 3(1) of the United Nations Convention on the Rights of the Child (CROC) states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

36. The Tribunal is to treat the best interests of the child as a primary.  In identifying the best interest of the child, the question is what decision, that is to cancel or not, would be in the best interests of the child, not what the children might do if their parent were forced to cease living in Australia.[1]  The CROC ensures that the best interests of the child is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[2]

    [1] Wan v MIMA (2001) 107 FCR 133 at [26]–[27]. See also Promsopa v MICMSA [2020] FCA 1480 at [54]–[60], [67] and [79]–[80.

    [2] CFE16 v MIBP [2020] FCCA 1083 at [25], Brown v MIBP [2015] FCAFC 141 at [28].

37. On the evidence and given their strong connection, the Tribunal is satisfied that it is in the best interest of the son for the applicant’s visa not to be cancelled, and that there would be a breach of Australia’s international obligations, namely under the CROC, in case of cancellation.

38. The Tribunal gives this consideration weight in favour of the applicant.

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

39. The subclass 820 visa is not a permanent visa.

40. The Tribunal gives this aspect neutral weight.

    Any other relevant matters

41. There are no other relevant matters.

42. The Tribunal has carefully considered the material before it independently and cumulatively.  The Tribunal is satisfied that on balance those considerations favourable to the applicant outweigh those in favour of cancellation.  This is not to say that the Tribunal does not consider domestic violence to be serious.  It is the Tribunal’s task however to consider all relevant matters and reach a conclusion that is balanced. 

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

44. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Antoinette Younes
    Senior Member