Cooper (Migration)

[2022] AATA 5152

Cooper (Migration) [2022] AATA 5152 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Surprise Cooper

REPRESENTATIVE:  Mr Owais Shaheen (Legal Practitioner: 5511917)

CASE NUMBER:  2211265

HOME AFFAIRS REFERENCE(S):          BCC2022/1578673

MEMBER:Kira Raif

DATE:15 November 2022

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 15 November 2022 at 11:55am

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – convicted of an offence – Contravening Prohibition / Restriction in AVO (Domestic) – Destroy or damage property – conditional release order – consideration of discretion – single conviction – lower scale of seriousness – genuine and ongoing relationship – fulfilling purpose of travel and stay in Australia – compelling need to remain in Australia – best interest of the child – degree of hardship – sponsor’s health issues – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

CASES
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 3 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Ghana, born in December 1989. He was granted the Partner (Provisional) visa on 19 April 2017. In June 2022 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 his visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 3 August 2022. The applicant is seeking review of the delegate’s decision. The applicant was represented in relation to the review.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his partner Ms Kathleen Cooper. 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(g).

6. 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))

7. 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in October 2019 the applicant had been convicted, at Fairfield Local Court, of Contravening Prohibition / Restriction in AVO (Domestic) and Destroy or damage property <=$2000. The applicant had been given a conditional release order for 12 months.

9. The Tribunal finds that the applicant was a holder of a Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

10. In his submission to the Tribunal of 14 November 2022 the applicant outlines the reasons he disagrees with the delegate’s decision. The applicant submits that the delegate relied on the findings of the judge rather than ‘understand the whole circumstances’. The Tribunal finds that submission misconceived, given that the ground for cancellation is established if there is a conviction for an offence. It is difficult to see how the delegate could have ignored or given any less weight to the determination that an offence had been committed and the recording of the conviction. While the circumstances of the offending may be relevant to the exercise of discretion, it is the offence itself that establishes whether or not the ground for cancellation exists.

11. The applicant submits that he was advised to plead guilty by his lawyer and notes that his partner had withdrawn the statement, which may not have been taken into account by the judge. In oral evidence, the applicant also told the Tribunal that he was poorly represented. As noted elsewhere, the Tribunal considers the fact of the conviction to be evidence that the offence had been committed and the Tribunal is not required (nor able to) go behind the conviction. The Tribunal is mindful that the applicant had not appealed his conviction (he told the Tribunal he had no money), so he remains, at the time of this decision, convicted of an offence under the law of NSW. 

12. 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

13. 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

14. The purpose of the applicant’s travel and stay in Australia as a holder of a Partner visa is to enable him to remain in Australia with his partner. The applicant provided evidence of his ongoing relationship with the sponsor, including a declaration from the sponsor. In oral evidence the applicant outlined the nature of the relationship and its duration. In his submission to the Tribunal of 14 November 2022 the applicant states that he wants to stay in Australia with his wife and if they are separated, they cannot live together anywhere in the world. It is not clear to the Tribunal why a decision on the applicant’s visa will necessarily result in the applicant being separated from his partner (long-distance relationships do exist). Nevertheless, the Tribunal is prepared to accept, for the purpose of this review, that the applicant’s relationship with the sponsor is genuine and ongoing. The Tribunal is satisfied that the applicant is fulfilling the purpose of his travel and stay in Australia. The Tribunal is prepared to accept that the applicant’s ongoing and long term relationship with his partner may constitute a compelling need for him to remain in Australia.

    The extent of compliance with visa conditions

15. There is no evidence of non-compliance with visa conditions.

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

16. In his submission to the Tribunal the applicant states that the delegate failed to give due weight to the hardship that the cancellation of the visa would cause. The Tribunal finds such submission unhelpful because the weight to be given to each consideration is a matter for the decision-maker and also because the Tribunal  conducts a review de novo.

17. The applicant has been living in Australia since 2017. He provided evidence of his community engagement, friendships and other support and the Tribunal accepts that the applicant has formed significant ties in Australia during his residence here. 

18. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant may be required to leave Australia, leading to his separation from his partner. He would also be unable to sponsor his children for Australian visas if he does not hold a visa. The applicant states that his two children are awaiting in Ghana to be reunited with him and his partner and the cancellation of his visa may cause severe mental, psychological, emotional and other hardship to the children because his partner cannot move to Ghana. That evidence is unsupported by any probative evidence, such as for example, evidence from health professionals and it is not apparent that any assessment has been done on this issue. Rather, these appear to be purely speculative assertions made by the applicant (or his representative). In the absence of probative evidence to support these claims, the Tribunal is not prepared to accept the assertion that ‘severe mental and psychological’ hardship would be caused to the children if the applicant’s visa is cancelled or by their separation from Kathleen. Nevertheless, the Tribunal accepts that if the applicant and the sponsor are in a genuine long-term relationship, the cancellation of the visa (which may result in the applicant having to leave Australia) may cause emotional hardship to Ms Cooper.

19. The Tribunal has similar concerns with the assertion that Kathleen Cooper would also suffer emotional, mental, financial and psychological hardship if the applicant and the children aware away from her. Shortly before the hearing, the applicant presented to the Tribunal a statement from Kathleen Cooper’s GP Dr Deepani stating that she is suffering from depression due to her husband’s immigration matter. Unfortunately, that statement fails to identify any basis for that  diagnosis. It does not identify what testing has been done, if any, on what basis the health professional formed the view and what treatment, if any, has been undertaken. The Tribunal finds that report highly unsatisfactory.

20. The applicant told the Tribunal that his wife has health issues and relies on him for support. Ms Cooper told the Tribunal that the applicant helps her with depression and anxiety and they do relaxation and other strategies together. Ms Cooper told the Tribunal that the applicant makes sure she attends her appointments and generally looks after her. The applicant refers to his employment and states that his wife cannot work as much. He refers to the financial support he provides to his wife and states that if his visa is cancelled, he would not be able to work and support his wife. Both the applicant and his wife told the Tribunal that  Ms Cooper may become homeless without the financial support from the applicant. The Tribunal acknowledges that evidence.

21. The applicant’s partner presented statements to the Tribunal outlining the hardship she would experience if the applicant’s visa is cancelled. The applicant also refers in his oral evidence to having established his life in Australia and to establishing a relationship with his wife and her family. The Tribunal accepts that hardship would be caused to the applicant and his partner if the visa is cancelled and if the cancellation is to result in the applicant having to leave Australia.

22. The applicant states that it is his and his partner’s wish to stay in Australia with his children, as a family and to provide a better future for his children. The Tribunal accepts that this is so and is prepared to accept that these options would not be available to the couple if the applicant cannot remain in Australia.

23. The Tribunal accepts that if the visa is cancelled, it may cause considerable hardship to the applicant and his partner.

    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

24. The ground for cancellation arises because the applicant held a temporary visa and has been convicted of an offence. In his response to the NOICC the applicant states that he had an argument with his partner which turned into a fight. The applicant states that after the police report was made, his partner attended the police station to withdraw the complaint (he presented a statutory declaration from his partner) and the applicant submits there was danger or threat or risk to his partner. The applicant states that the incident was denied by his partner and neither of them understood the implications of making the statement to the police. The applicant submits that he pleaded guilty on the advice of his lawyer and he did not have the opportunity to have his case heard in court, he refers to denial of procedural fairness and due process.

25. In his submission to the Tribunal the applicant states that the allegations against him were false, which his partner tried to rectify with the police. The applicant submits there were extenuating circumstances beyond his control.

26. In oral evidence the applicant explained that he was on the phone with a friend when his wife called and she was angry and jealous. She drove the car, was swearing and asking him where he was and who he was talking to. The applicant states that his wife hit him with a phone, the phone fell and he threw it away and he walked away from the car. Later on the police came and asked him to leave the house. The police told him he would be arrested for throwing the phone away and he was charged.

27. The sentencing transcript provided by the applicant to the Tribunal sets out the circumstances of the incident, stating that there was an argument between the applicant and his partner in the car and some ‘swinging around’ of mobile phones. As a result, the applicant ended up with his partner’s phone and out of anger, he smashed it on the ground. The applicant’s partner also provided a statement to the Tribunal explaining the circumstances of the incident (essentially blaming herself) but the Tribunal is mindful that whatever was the cause of the argument and whoever was to blame for it, it was the applicant who smashed his wife’s phone. The applicant also states that the incident was beyond his control. To now claim that the ‘allegations’ against him were false and that the incident was beyond his control suggests the applicant has no insight into his conduct.

28. The Tribunal finds such evidence unpersuasive. In the Tribunal’s view, the fact of the conviction is evidence that the offence was committed (and it seems from the sentencing transcript that it was not in dispute that the applicant had smashed his wife’s phone). The Tribunal does not accept that the applicant would have pleaded guilty if he genuinely believed there was no reason for it (even if he was poorly represented) and the Tribunal is also mindful that if the applicant believes he was incorrectly convicted, he may have had the opportunity to appeal the conviction. It is not apparent that he has done that. The Tribunal is also mindful that in his evidence the applicant agrees that he had thrown away the phone, which was the basis of the conviction, so it is unclear to the Tribunal why the applicant claims that the allegations against him were false if he admits the incident with the phone took place.

29. The applicant claims in his submission of 14 November that neither the court nor the police took into account Kathleen’s story or represented him in the court ‘properly’ and these were extenuating circumstances beyond his control. The Tribunal does not accept that this was so. The applicant was represented in his court proceedings (on his own evidence), in the Tribunal’s view, he would have been given the opportunity to present his side of the story and, if he was unsatisfied with the outcome, to appeal the conviction. The Tribunal does not accept that the circumstances leading to the conviction were extenuating circumstances beyond the applicant’s control. As of the applicant’s claims that the delegate had not given sufficient ‘weightage’ to the evidence, the Tribunal is of the view that this claim is without foundation.

30. The Tribunal is also mindful that the above offence relates to a breach of an AVO. There was an AVO in place before the offence was committed, suggesting that there was some conduct on the part of the applicant as a result of which the police formed the view that an AVO was needed to protect his partner. The applicant also explained to the Tribunal the circumstances in which the initial AVO was issued. He claims they lived in a house with another person and his wife was jealous. There was an argument and his wife fell. The police was called and he was accused that he had ‘cut’ his wife. The applicant claims there was a misunderstanding and he had done nothing wrong. The applicant provided to the Tribunal a copy of the sentencing transcript from the Fairfield Local Court which shows that the initial AVO was issued with a ‘no contact’ condition and an application was made to vary it to enable contact between the applicant and his partner.

31. In his submissions to the Tribunal of 12 October 2022 the applicant provided a number of documents. There are what purport to be phone messages to the applicant from his partner who apologises for her wrong-doing, stating that she cannot cope without him and claiming that she wants him home to continue to live with him. The applicant presented a number of photographs (without offering any explanation of what these depict). There are before the Tribunal statements from the applicant’s partner explaining the circumstances leading to the conviction.

32. As for any denial of procedural fairness, lack of understanding and cultural differences, the Tribunal does not consider there is any basis for such claims. The applicant was provided with procedural fairness when he was informed of the charges and he had the opportunity to provide his evidence to the police and later in court. In terms of the immigration process, the applicant was issued with the NOICC which gave him the opportunity to be heard, and he has been invited to attend the Tribunal hearing, again giving him the opportunity to give evidence and present arguments. It is difficult to see how it could be said that the applicant was denied procedural fairness.

33. The applicant refers to cultural difference as a justification of his conduct, that submission fails to appreciate the fact that the criminal law and the immigration law in Australia represent conduct expected in Australia and not conduct that may be justifiable in other countries. It is of concern to the Tribunal that  the applicant is seeking to justify any conduct involving family violence on the ground of cultural differences.

34. The applicant submits that he is not a risk or a threat to anyone. He presented to the Tribunal a support letter from his local mosque which refers to the applicant being remorseful and a good member of the society. The Tribunal is mindful, however, that in the present case the applicant’s visa was not cancelled under s. 116(1)(e) where that assessment would have been more relevant.

    Past and present behaviour of the visa holder towards the department

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

   Whether there would be consequential cancellations under s 140

2. There are no persons whose visas would be subject to consequential cancellation. In his submission to the Tribunal the applicant states that the delegate failed to consider, under this factor, the fact that  his children will not be able to come to Australia. With respect, the applicant’s children had never held the Australian visas, so their visas cannot be cancelled under s. 140 of the Act. The representative’s claim that “the delegate made an error in properly assessing consequential cancellations that may result of the decision to cancel the applicant’s Partner visa” shows lack of understanding of these concepts.

   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

3. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas (imposed by PIC 4013) and would have limited opportunities to make visa applications onshore due to the operation of s. 48. The applicant may also be subject to an exclusion period if he was to make an application offshore. If the temporary Partner visa is cancelled, the applicant may not be eligible for the permanent Partner visa. He will not be able to act as a sponsor for his children.

4. The applicant submits that the delegate failed to give ‘proper weightage’ to these factors. Again, the Tribunal considers that claim to be without foundation. These delegate did give consideration to these matters and the weight assigned to it is a matter for the decision-maker.

   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

5. The applicant has not raised any non-refoulement obligations in his numerous written submissions to the Tribunal. In oral evidence the applicant refers to a property dispute with his brother and he states that his brother could harm him if he returns to Ghana. The applicant suggests that his brother could also harm his children.

6. The Tribunal is of the view that the assessment of the applicant’s claims can be more appropriately undertaken as part of a protection visa application that the applicant is eligible to make in the future (cf Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17)

   Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.

   Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

7. In the present case, there is nothing preventing the applicant from making an application for a protection visa in the future where his claims would be assessed.  The Tribunal finds that  Australia’s non-refoulement obligations would not be breached if the applicant’s visa is cancelled.

8. The Tribunal has considered the best interests of the children affected by the cancellation. There are no children in Australia who would be affected by the cancellation. The applicant’s two children are overseas and the applicant has indicated his desire to bring the children to Australia. One of the children is over the age of 18, the second child is about 15 years of age.

9. The applicant’s evidence to the Tribunal is that the children are presently cared for by a friend. The mother of the youngest child abandoned him when he was three months old and does not want the child now, being a drug addict, and the applicant states that he has been looking after the child since that time and tried to include the children in his own visa application but the lawyer failed to do that. If true, the Tribunal accepts that it would be in the child’s best interests to have parental supervision and to live with the applicant, rather than in the care of a third party. The Tribunal is prepared to accept that, in the circumstances, it is in the best interests of the minor child if the applicant’s visa is not cancelled.

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

10. The visa in question is a temporary visa but one that is a precursor to a permanent Partner visa. The Tribunal accepts that the applicant has strong family ties in Australia through his partner. The Tribunal is prepared to accept that, given the length of this residence in Australia, he also has other ties in Australia.

    Any other relevant matters

11. The applicant provided a number of statements in his submission to the delegate attesting to his good character. Additional character evidence has been provided to the Tribunal, including a letter from the Afghan Community Support Association of NSW. The Tribunal is prepared to accept that those who provided statements believe the applicant to be of good character. The applicant refers to his community activities and providing help to others. The Tribunal is prepared to accept that evidence.

12. The applicant refers to the length of his stay in Australia and the length of his relationship with the sponsor. The Tribunal accepts that these matters will exacerbate the hardship that may be caused by the cancellation of the visa.  

13. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling his visa because the applicant held a temporary visa and had been convicted of an offence.

14. The Tribunal has decided to place greater weight to the following factors. The conviction giving rise to the ground for cancellation was a single conviction. There is no evidence before the Tribunal to indicate that the applicant had been convicted of any other offences. It is significant, in the Tribunal’s view, that the offence of property damage appears to have been at the lower scale of seriousness (involving the smashing of the phone), there is no suggestion there was violence or attempt of violence or threats made against a person. As for the breach of the AVO, the applicant’s evidence is that the AVO was issued some time ago as a result of an incident (he denies he did anything wrong) and the breach occurred because of his conduct during the phone incident.

15. The Tribunal places considerable weight on the fact that the applicant’s relationship with the sponsor is continuing and the applicant is fulfilling the purpose of his travel to Australia. The existence of the long-term relationship may, in the particular circumstances of this case,  indicate that the applicant has a compelling need to remain in Australia.

16. The Tribunal places weight on the best interests of the applicant’s minor child, who presently lives with a third party and has no parental supervision. The Tribunal has formed the view that it is in the best interests of that child to be reunited with the applicant (the evidence before the Tribunal is that the mother does not wish to care for the child) and the Tribunal is mindful that the applicant will not be able to sponsor his children if he does not hold the Australian visa.

17. The Tribunal also places weight on the fact that the applicant, his partner and others would experience significant hardship if the cancellation of the applicant’s visa is to result in his departure from Australia and separation from his partner. This is particularly so in light of the sponsor’s health issues. The cancellation of the visa would preclude the applicant from being able to obtain the permanent visa and will significantly limit his future visa options. The applicant and his partner refer to emotional hardship, financial hardship to the sponsor and other forms of hardship. The cancellation of the applicant’s visa would also affect his children’s ability to seek Australian visa.

18. It is of some concern that the applicant does not appear to fully appreciate the significance of his conduct. The Tribunal considers that the circumstances in which the ground for cancellation arose weigh in favour of the cancellation but in the circumstances of this case, there are other factors that weigh strongly against the cancellation.

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

    DECISION

20. 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