Cai (Migration)

[2021] AATA 5097

Cai (Migration) [2021] AATA 5097 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiechao Cai

CASE NUMBER:  2102755

HOME AFFAIRS REFERENCE(S):          BCC2017/4475336

MEMBER:Kira Raif

DATE:10 November 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 10 November 2021 at 12:19pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Court remittal – criminal charge – plea of guilty – discretion to cancel visa – relationship ceased – parenting order allows access to child – best interests of child –support of ex-wife and her family – circumstances of offending – low risk of reoffending – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), (g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

CASE
Shi v MARA (2008) 235 CLR 286

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 30 January 2018 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 applicant is a national of China, born in January 1989. He was granted the Provisional Partner visa in April 2015. In May 2017 the applicant was issued with the Family Violence Intervention Order and in November 2017 the applicant was charged with a series of offences. In January 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there may be grounds for cancelling the visa under s. 116(1)(e) of the Act. The applicant provided a response to the NOICC and his visa was cancelled in January 2018.

3. In January 2019 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and in February 2021 the Court remitted the matter for reconsideration.

4. The applicant appeared before the Tribunal on 10 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 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. The delegate cancelled the visa under s. 116(1)(e), having found that the applicant’s presence in Australia is or may be a risk to others. However, in his submission to the Tribunal of 6 October 2021 the applicant confirmed that he pleaded guilty to the charge of contravention of family violence intervention order. In these circumstances, the Tribunal has formed the view that a more appropriate ground for cancellation would be under s. 116(1)(g). In the present case, the ground in r.2.43(1)(oa) is relevant. It 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))

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Provisional Partner visa in April 2015. In May 2017 the Department received information that the applicant had been served with a family violence intervention order issued by Ringwood Magistrates Court in response to an alleged incident between the applicant and the sponsor in March 2017. The applicant is named as a respondent in that Order and the affected family members are the sponsor and their child. The primary decision record also indicates that in November 2017 the applicant had been charged with a series of offences. The applicant’s evidence to the Tribunal is that he was found not guilty of intentionally / recklessly causing serious injury and the charge of unlawful assault had been withdrawn. The applicant states that he has been convicted of breaching the Family Intervention Order.

8. The Tribunal finds that the applicant was a holder of a temporary visa other than a bridging visa and a Special Category visa. The Tribunal finds that the applicant has been convicted of an offence under the law of a state. The Tribunal finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

9. The Tribunal acknowledges that the basis of this finding is different to the basis on which the delegate relied. The delegate found that there were grounds for cancelling the visa under s. 116(1)(e) while the Tribunal has formed the view that there are grounds for cancelling the visa under s. 116(1)(g). The applicant submits that the Tribunal should rely on the same ground for cancellation and refers to the Tribunal’s practice directions. The Tribunal is mindful that the practice directions cannot fetter the Tribunal’s functions and do not override the Tribunal’s legal obligations. The applicant was put on notice prior to the hearing that the Tribunal may consider a different basis for considering whether a ground for cancellation exists and the applicant was given the opportunity to address these grounds in written submissions and in oral evidence.

10. The applicant also submits that there was no conviction at the time of the primary decision and it would be unfair to him to rely on a different ground and on circumstances that did not exist when the primary cancellation decision was made. The Tribunal is of the view that these matters have been resolved in Shi v MARA (2008) 235 CLR 286 where the High Court confirmed that the Tribunal is able to consider the circumstances that exist at the time of its own decision. Like the circumstances in Shi, in this case, the legislation does not prescribe the point in time when the assessment must be made. The Tribunal has formed the view that it is able to rely on the conviction that occurred after the primary decision in determining if the ground for cancellation under s. 116(1)(g) is made out. For the reasons set out above, the Tribunal has found that there are grounds for cancelling the visa.

    Consideration of discretion

11. 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

12. The purpose of the Partner visa is to enable the applicant to remain with his partner and await the outcome of his application for the permanent visa. The applicant’s relationship with the sponsor ended and the Tribunal is not satisfied that purpose of the visa can be fulfilled. However, there is a child of the relationship and the applicant provided to the Tribunal a copy of the parenting order which allows him access to the child. The Tribunal accepts that the applicant fulfils the purpose of the visa by maintaining a relationship with his child (and the legislation permits the grant of the visa where the relationship with the sponsoring spouse has broken down but where there is a child of the relationship). The Tribunal accepts that the presence of the applicant’s minor child in Australia may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

13. In his written submission to the Tribunal of 6 October 2021 the applicant states that there is no evidence indicating he has not complied with the conditions of his previous visa. The Tribunal accepts there is no evidence of non-compliance with the Partner visa or bridging visa conditions. However, the primary decision record indicates that the applicant’s previously held Student visa was cancelled for non-compliance with visa conditions. The applicant confirmed that information in his oral evidence to the first Tribunal (which makes his written statement to the present Tribunal somewhat odd). The applicant told the Tribunal that he was too young at the time he failed to comply with the conditions of his Student visa and did not appreciate the law but the Tribunal does not accept that, whatever his age, the applicant did not appreciate that he could not remain in Australia if he did not hold a visa.

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

14. The applicant states that significant hardship would be caused to him if his visa is cancelled as it would affect his relationship with his daughter and he may lose contact with the child and may not have any input in her upbringing. The applicant refers to the existing parenting plan (a copy of which he provided to the Tribunal) and outlines his relationship with his daughter. The applicant notes that that the entire family wish for him to have a meaningful relationship with his daughter and he provided supporting statements from his former spouse and her father. The applicant claims that his return to China and separation from his daughter would have a significant psychological impact and hardship upon him and his daughter and his former partner in her statement also refers to the impact of separation upon the child. The Tribunal finds such generalised statements unhelpful. There is little persuasive evidence before the Tribunal – for example in the form of statements from health professionals who have examined the applicant – concerning the applicant’s mental state and the effect that his return to China may have. The Tribunal does not consider that the applicant (nor the applicant’s representative) necessarily have the expertise to make a positive statement that the separation would have a significant psychological impact. To the extent that the applicant relies on his own beliefs or expectations, the Tribunal accepts that the applicant holds such beliefs.

15. In oral evidence the applicant spoke about his relationship with the child and the need for the child to have the presence and support of both parents. The applicant states that if he has to return to China, he would not be part of his daughter’s life and would be unable to see his child. The applicant describes the hardship and the detrimental effect on his daughter’s well-being that the separation would cause. Despite the absence of evidence from health professionals, the Tribunal accepts that if the applicant will be required to leave Australia as a result of the cancellation of his visa, this may result in the applicant being separated from his child and the Tribunal accepts this may cause hardship to the applicant and other family members.

16. The applicant also claims that if he has to return to China, he would need to re-establish himself. The applicant told the Tribunal that he came to Australia at the young age of 17, he has no friends there and no family other than his father and brother. The Tribunal acknowledges that the applicant has lived in Australia since he was young and for many years, however, the Tribunal also notes that the applicant speaks the language, is familiar with the Chinese culture, has family connections in China and has spent his formative years in that country. The Tribunal is not satisfied the applicant would have any difficulty re-establishing himself in China and the Tribunal does not consider that a need to do so would cause hardship to the applicant.

17. The applicant also states that construction work, which he has been doing in Australia, is poorly paid in China and he would not be able to support his wife and daughter. However, the applicant’s evidence is that he has not been paying child support for some time (he refers to informal support such as clothes and food for the child during outings) and his ex-partner agreed for him not to provide her with financial support while his employment is uncertain. As there is no evidence that the applicant not provided any meaningful or regular financial support to his family, and in the absence of any evidence as to any financial hardship it has caused to his ex-partner and daughter, the Tribunal does not accept that the applicant’s claimed inability to provide financial support to his wife and child due to the limited employment opportunities in China will cause hardship.

    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.

18. The ground for cancellation arises because the applicant held a temporary visa and had been convicted of an offence in Australia. The applicant submits that the offence occurred in the context of a ‘toxic and unhealthy relationship’ and since the divorce the circumstance present at the time of offending has been extinguished. The applicant told the Tribunal that he visited his wife’s house with her consent and did not understand that the Intervention Order prevented him from doing that. The applicant stated that both he and his partner believed that if she agreed to his visit, he was permitted to visit and he visited his ex-wife’s house at her own invitation. The Tribunal does not accept that the applicant would not have been made aware of the circumstances of the Order at the time it was issued. The Tribunal does not consider the ground for cancellation arises because of circumstances beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

19. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

20. There are no persons whose visas would be subject to consequential cancellation.

    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

21. If the applicant’s visa is 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 he would 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 if he is to make an application for a visa offshore and there are very limited types of visas he may be able to apply onshore. If the applicant does not hold the temporary Partner visa, his eligibility for the permanent Partner visa may be affected.

    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

22. The applicant describes his relationship with his daughter and his desire to be present in his daughter’s life. The applicant provided to the Tribunal a copy of the parenting order and there are supporting statements from the child’s mother and grandfather. The Tribunal accepts that the applicant has a meaningful relationship with his daughter and accepts that, generally, it is in the best interests of a child to have the presence of both parents.

23. The applicant told the Tribunal that the incident that resulted in the issuance of the Intervention Order occurred in the presence of the child. That is, the child observed the altercation which, on the applicant’s own evidence, involved ‘pushing and pulling’ and some bruising to the child’s mother. The Tribunal does not consider it is in the best interests of any child to observe such conduct. However, the Tribunal also acknowledges that there is no evidence of any violent behaviour being repeated. The breach of the Intervention Order occurred, on the applicant’s evidence, when he visited his wife’s home with their mutual agreement. There is no evidence of the applicant engaging in any violent or anti-social behaviour since that incident. The applicant told the Tribunal that he is now a different person and would not repeat the same mistakes. He has not engaged in any other rehabilitation program or course.

24. The Tribunal acknowledges that there is no Family Violence protection order in place at present and there is nothing preventing the applicant’s contact with his child. The Tribunal acknowledges there is a parenting plan in place. The Tribunal accepts that the applicant has regular interactions with his daughter and there is no evidence of any violence or threat of violence or any other behaviour by the applicant that may be harmful to the child. In such circumstances, the Tribunal accepts that the child benefits from her relationship with her father and that such a relationship is likely to change if the applicant is required to leave Australia as a result of his visa being cancelled. On balance, the Tribunal accepts that in all the circumstances of the case, it is in the best interests of the child for the applicant to remain in Australia and to continue his interactions with the child. Thus, the cancellation of the visa would not be in the best interests of the child.

25. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.

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

26. The visa in question is not a permanent visa but leads to the grant of the permanent visa. The Tribunal acknowledges that the applicant has strong family ties in Australia due to the presence of his daughter. The applicant also refers to his employment and the Tribunal accepts the applicant has formed some social and employment ties in this country.

    Any other relevant matters

27. Both the sponsor and her father provided statements to the previous Tribunal supporting the applicant’s right to remain in Australia and requesting that his visa not be cancelled to enable the applicant to spend time with his child in Australia. There are additional statements before the present Tribunal.

28. In his submission to the Tribunal the applicant refers to his period in detention. He states that  since he was granted the Bridging visa, he has abided by visa conditions. The applicant refers to his employment and has provided a statement from his employer. The applicant states that he has been sufficiently punished and there is no need for further punishment.

29. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa under s. 116)(1)(oa) of the Act because he was convicted of an offence while a holder of a temporary visa. The Tribunal considers any offence involving family violence to be a very serious one and in this case, the applicant was issued with a protection order and convicted of breaching that order. This is serious conduct with the potential of causing significant harm to others. In the Tribunal’s view, and having regard to the nature of the conduct, there are strong reasons why the visa should be cancelled.

1. However, the Tribunal also acknowledges the applicant’s evidence that since his release from detention there is no evidence of him engaging in any criminal or anti-social conduct. The applicant has now spent some time in the community since the offence was committed and there has been no repeat of his past behaviour. It appears that the risk of further reoffending is relatively low.

2. The Tribunal places significant weight on the applicant’s relationship with his daughter and accepts that in circumstances where there does not appears to be any ongoing criminal conduct or ongoing family violence, the best interests of the child may require the applicant’s presence in Australia. That assessment may be different if the applicant commits further offences or if he again engages in conduct involving family violence. Should that occur, there may be a reconsideration of what the best interests of the child entail and the applicant’s visa may again be cancelled. The Tribunal is also mindful that the applicant would need to meet the character requirements in relation to the grant of the permanent visa so any further misconduct may be relevant to that  assessment.

3. Overall, the Tribunal is of the view that the applicant should have an opportunity to remain with his daughter. Having now acknowledged the possibility of his visa being cancelled, the applicant would be well cognisant of the repercussions of his conduct, should it reoccur in the future.

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

   DECISION

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

   Kira Raif
   Senior Member