Bhuiyan (Migration)

[2017] AATA 2775

Bhuiyan (Migration) [2017] AATA 2775 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Salahuddin Bhuiyan

CASE NUMBER:  1714411

DIBP REFERENCE(S):  BCC2017/1079847

MEMBER:Kira Raif

DATE:19 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 19 December 2017 at 2:42pm

CATCHWORDS
Migration – Cancellation – Partner (Provisional (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Criminal conviction – Risk to the Australia community – Low risk of reoffending – Compassionate circumstances – Emotional and financial hardship – Emotional support for sponsor – Financial support for parents

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 5 July 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh, born in January 1979. He was granted a Partner visa in November 2016 and entered Australia holding that visa on 30 December 2016. On 7 June 2017 the delegate issued the applicant with the Notice of Intention to Consider Cancellation (NOICC) of his visa under s. 116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 5 July 2017. The applicant seeks review of the delegate’s decision.

3. On 14 December 2017 the applicant requested the Tribunal to postpone the hearing to allow him to appeal the conviction. The Tribunal has considered the request but decided not to do so. The Tribunal is mindful that the applicant has been convicted and at the time of this review, that conviction remains valid and must be considered as such. The Tribunal is also of the view that the conviction, while highly relevant to this review, is not determinative of either establishing the grounds for cancellation, nor in relation to the exercise of discretion. Most significantly, the Tribunal has formed the view that it was able to make a favourable decision despite the present conviction. In such circumstances, the Tribunal decided to proceed with the hearing.

4. The applicant appeared before the Tribunal on 18 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and her father. 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 set aside.

   Relevant law

5. 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)(e). 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.

6. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in March 2017 the Department received evidence that the applicant had been charged by NSW Police with assault with act of indecency. The primary decision record refers to the Police Fact Sheet which alleges that in February 2017 the applicant visited a store in a Westfield shopping centre, made comments about the size and type of the top the store manager was wearing and repeatedly touched the store manager’s breast and made remarks in reference to her size and top she was wearing.

8. In his response to the NOICC the applicant notes that he pleaded not guilty and is presumed to be innocent until proven guilty. The Tribunal accepts that this is so, however, s. 116(1)(e) is not limited to findings of guilt or convictions. It deals with risk and such risk may exist irrespective of the outcome of the criminal process.

9. In his submission of 13 December 2017 the applicant informed the Tribunal that he had been found guilty of assault with act of indecency and was given a two year good behaviour bond without any term of imprisonment. The applicant states that the conviction is clearly wrong and he has filed an appeal with the District Court. In oral evidence to the Tribunal the applicant stated that he is innocent but the applicant refused to answer any questions relating to the circumstances that led to the conviction. As noted above, the Tribunal is of the view that the fact that the applicant has been convicted is evidence of guilt and unless and until such conviction has been overturned, it must be considered as being a valid conviction and evidence that the offence has been proven. But as also noted above, the Tribunal does not necessarily consider the fact of conviction is in itself determinative of the existence of the ground for cancellation.

10. The applicant has not provided any evidence to the Tribunal concerning the circumstances that led to the conviction however following the hearing, the applicant presented the transcript of part of his court proceedings. In oral evidence to the Tribunal the applicant denies any guilt and has not expressed any remorse, stating he has done nothing wrong. However, the evidence relating to the events on the day in question, according to the transcript, is that the applicant returned to the store to apologise for his conduct. Whatever the applicant thought at the time of the offence, having now gone through the criminal trial process, the applicant would be very aware of the community expectations regarding conduct towards others. The Tribunal is of the view that his involvement in the criminal proceedings and the serious repercussions of engaging in any form of criminal or anti-social behaviour would ensure that in the future, the applicant will do everything possible to comply with the legal and social norms. There is no suggestion that other than the incident which led to the conviction, the applicant had ever engaged in any anti-social behaviour and the Tribunal notes a number of character references that had been submitted in support of this application.

11. The Tribunal finds that a conviction and a finding of guilt is indicative of the applicant’s engagement in criminal conduct and inappropriate behaviour. However, the incident appears to be a ‘one-off’, there is no pattern of anti-social behaviour and no suggestion that the applicant has any propensity to engage in criminal or anti-social behaviour. The evidence before the Tribunal is that he is a supportive husband and son and a contributing member of the community. The Tribunal has formed view, having regard to the nature of the conduct and the applicant’s personal circumstances, there is very little likelihood of such conduct being repeated. Considering all the circumstances, the Tribunal is not satisfied on the evidence before it that the presence of the applicant 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 an Australian community; or the health or safety of an individual or individuals. The Tribunal is not satisfied that he ground for cancellation is made out. It follows that the power to cancel the applicant’s visa does not arise.

12. However, even if the Tribunal were wrong in this finding, the Tribunal would exercise the discretion not to cancel the visa because the Tribunal has formed the view that there are strong compassionate grounds in this case. Discretionary considerations are addressed below.

    Consideration of discretion

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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

14. The applicant entered Australia as a holder of a Partner visa. The applicant’s evidence is that he came to Australia to be in a relationship with his partner. The applicant told the Tribunal that he is considered as a good person and has been appreciated by his work colleagues. He wants to stay with his partner. The applicant said that his previous marriage did not work but his marriage to his current partner is going well and they love each other very much. His partner had also experienced hardship through her previous marriage and he is able to give her a good life. The Tribunal acknowledges that the applicant is able to fulfil the purpose of his travel to Australia by being a genuine relationship with his partner.

    The extent of compliance with visa conditions

15. Nothing adverse is known to the Tribunal about the applicant’s compliance with visa conditions.

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

16. The applicant told the Tribunal in oral evidence that he completed an Australian course while overseas but he made only two short trips to Australia before being granted the Partner visa. He met his partner during his second trip to Australia as it was an arranged marriage. He then came to Australia in December 2016 after being granted a Partner visa.

17. The applicant’s evidence to the Tribunal is that he had a good job before he came to Australia and he gave everything up to be with his partner. After entering Australia he found a job with a NSW state agency but his current visa does not allow him to work so he gave up that job. The applicant said that his wife is working and supports him financially, while her family provides them with accommodation. The Tribunal accepts that if the visa is cancelled, the applicant will be unable to maintain employment in Australia and that may have an adverse financial effect on the family’s finances.

18. The applicant said that if his visa is cancelled, there will be emotional hardship. He and his wife are in a close relationship and his wife needs him, given her condition. The applicant referred to his partner’s previous marriage, which involved violence, and said it affected his wife’s mental condition. The applicant described the support he provides to his partner, including emotional support and driving her since she has no license.

19. The applicant said that his wife has been seeing a psychologist since about June or July 2017. He said her mental condition was caused by a combination of things, including issues with her previous marriage, the miscarriage and the concerns about the cancellation of his visa. The applicant said his wife has been seeing a psychologist regularly and he attends consultations with her. She has not been prescribed any medication. The Tribunal acknowledges the psychological report that was submitted in response to the NOICC and accepts that the applicant’s partner is seeking help with her condition. The Tribunal is prepared to accept that her condition may be adversely affected if the visa is cancelled.

20. The applicant said that if his visa is cancelled, his wife said she would harm herself because they cannot be apart. The applicant concedes that he could apply for a Partner visa offshore but he said that the processing time would be at least 18 months or longer and it would be difficult to provide emotional support to his partner if they live apart. The applicant said that he also provides support to his parents in law, noting that they are both not well and he takes care of their medication and looks after the house. He plans to continue to do that in the future, even if he and his wife find another place to live. The Tribunal accepts that evidence.

21. The applicant said he has also been providing financial support to his own family in Bangladesh. He cannot do that if he cannot stay and work in Australia. The applicant said that he borrowed money from friends to pay for the criminal matter and if he cannot work, he cannot repay the loan.

22. The applicant said that before he came to Australia, he left everything in his own country which he cannot easily re-gain. He sold his property and his car and it would be difficult for him to re-establish himself in Bangladesh. The Tribunal is mindful that the applicant had not been granted a permanent visa and there could be no guarantee that he would gain one, even if he claims his relationship with his partner is genuine, so a decision to dispose of all assets may have been somewhat premature, even though the Tribunal acknowledges the applicant felt the need to support his ageing parents.

23. Generally, the Tribunal accepts that if the applicant’s visa is cancelled, the cancellation is likely to cause considerable hardship to the applicant and his partner. The Tribunal accepts that the applicant’s partner is receiving ongoing treatment and while the Tribunal has formed the view that at least a substantial part of her motivation for that treatment is to assist with the visa issues, given its timing, the Tribunal accepts that there are other factors that have contributed to the spouse’s poor mental health and the need for treatment. The Tribunal accepts that if the visa is cancelled, the applicant is likely to leave Australia and the period of separation, if he is to apply for another visa, may be a lengthy one. While the Tribunal is of the view that it is possible to provide emotional support even if the parties do not live under one roof, the Tribunal acknowledges that given the sponsor’s particular circumstances, it may be preferable if the couple continued to live together. The Tribunal accepts that considerable emotional hardship would be caused by the cancellation, as well as financial hardship, if the applicant is unable to work and support his family in Australia and Bangladesh.

    Circumstances in which ground of cancellation arose.

24. The circumstances in which the ground for cancellation arose because the applicant had been charged, and now convicted, of an offence. Despite the conviction, the applicant claims he is innocent but the Tribunal has formed the view that the fact of conviction implies the offence has been proven and a conviction remains valid unless overturned. The applicant has not provided, in oral evidence to the Tribunal, any further information about the circumstances in which the ground for cancellation arose.

    Past and present conduct of the visa holder towards the department

25. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

26. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. There appears to have been no decision in relation to the application for the Subclass 100 visa.

    Whether there would be consequential cancellations under s.140

27. There are no consequential cancellations under s. 140

    Whether any international obligations would be breached as a result of the cancellation

28. The applicant said there may be consequences if his conviction is upheld and if he is to return to Bangladesh. The Tribunal is mindful that if the applicant believes Australia has protection obligations, he is able to make an application for a protection visa where these matters can be addressed. As such, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

29. There are no children who would be affected by the cancellation.

30. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal is not satisfied there are grounds for cancelling the visa because while the Tribunal acknowledges that the applicant has been convicted of an offence, the circumstances of the offence, and the applicant’s personal circumstances, do not support a finding that the applicant is likely to engage in such conduct in the future and the Tribunal is not convinced that his presence poses any risk.

31. In any case, the Tribunal has formed the view that there are strong discretionary factors in this case. The applicant appears to be in a genuine spousal relationship and, more significantly, the Tribunal accepts that the sponsor is in a vulnerable state, given her background and past experiences. The Tribunal acknowledges that the applicant’s spouse is receiving ongoing counselling and is prepared to accept that the applicant provides care and support to her. The Tribunal accepts the psychological evidence concerning the spouse. The Tribunal accepts that the cancellation of the visa may adversely affect the applicant’s spouse, including her mental state and cause some financial strain to the family. The Tribunal also accepts that despite a relatively short period of time spent in Australia, the applicant is settled in Australia. He had a job (which he only gave up because of his visa restrictions) and has been contributing to the family and the community. The Tribunal accepts the applicant provides support to his wife’s family.

32. Overall, the Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant and his family. In light of the circumstances of this offence, the very low risk of re-offending and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member