D'Angelo (Migration)

[2019] AATA 2788

D'Angelo (Migration) [2019] AATA 2788 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaetano D'Angelo

CASE NUMBER:  1823124

HOME AFFAIRS REFERENCE(S):           BCC2018/673875

MEMBER:Hugh Sanderson

DATE:5 April 2019

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 05 April 2019 at 8:26am

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – risk to the health, safety or good order of the Australian community – Domestic Violence Order – breaches of protection order – pending Subclass 801 Partner (Residence) visa – child of the relationship – Family Court order in place – wants to maintain relationship with his child – strong relationship with child – decision under review set aside

LEGISLATION

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth), s 116(1)(e)
Migration Regulations 1994 (Cth)

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 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 delegate cancelled the visa under s.116(1)(e) on the basis that the presence of the applicant in Australia maybe, or would or might be, a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Italy and is currently 32 years old. He first entered Australia on 25 May 2014 holding a Subclass 417 Working Holiday visa. Apart from one month, commencing 13 March 2016, he has remained residing in Australia since then.

4. The applicant commenced a de facto relationship with Rebecca Newman in August 2015. She sponsored him for a Partner visa filed with the Department 24 May 2016. At that time, Ms Newman was pregnant with the applicant’s child, [Child 1], who was born in [2016]. The applicant was granted a Subclass 820 Partner (Temporary) visa on 13 May 2017.

5. The relationship between the applicant and the sponsor ended on 19 November 2017. The sponsor applied for and was granted a Domestic Violence Order (Protection Order) on 21 November 2017. That order was varied on 12 December 2017, so that the applicant was prohibited from contacting or attempting to contact the sponsor, [Child 1] and the sponsor’s parents, except for the purpose of having contact with [Child 1]. The order was stated to continue until 20 November 2022. The applicant was charged with two offences of contravening the Protection Order on 13 December 2017 and 19 December 2017 for repeatedly contacting the sponsor by text message. Those charges were heard in the Atherton Magistrates Court on 23 January 2018. On both charges the applicant was found guilty but no conviction was recorded and the applicant was fined $600.

6. The applicant was subsequently charged with two further contraventions of the Protection Order and a charge of a breach of a condition of bail. The Department wrote to the applicant on 18 July 2018 with a Notice of Intention to Consider Cancellation under s.116 of the Act. The Department referred to the convictions against the applicant for breaching a Protection Order and the further charges pending. It was claimed that on this information it appeared his presence in Australia may be a risk to the safety of an individual or individuals in the Australian community. The applicant was invited to comment on this information and provide information as to why his visa should not be cancelled.

7. The applicant responded by providing a statutory declaration noting that his relationship with his sponsor ended on 19 November 2017 and he was still hurting very much because he still loved the sponsor. He noted that consent orders had been made in respect of their child which provided that he have regular contact with her and that he was making arrangements to be able to rent a unit so that he would be able to have overnight contact with his child. He provided a copy of the consent orders made in the Family Court at Cairns dated 22 February 2018.

8. The applicant provided a copy of the Court Brief in relation to the original charges. The breaches, for which the applicant was convicted, were a series of text messages sent by the applicant to the sponsor on her phone.

9. The delegate who considered the application noted the following issues:

   ·The applicant had been convicted of breaching a Protection Order on two occasions;

   ·Subsequent to the conviction, the applicant had been charged with further breaches of the Protection Order and breach of bail; and

   ·The repetitive nature of the applicant’s behaviour indicates his behaviour may affect the safety of the individual named in the Protection Order.

10. Accordingly, the delegate found that the grounds for cancellation of the visa existed under s.116(1)(e)(ii) of the Act. The delegate then considered whether the applicant’s visa should be cancelled. The delegate took into account the following issues:

    ·The applicant is estranged from the sponsor of his Partner visa application;

    ·The applicant wishes to stay in Australia to be able to be close to his child;

    ·The cancellation of his visa may result in some financial hardship for the applicant and his family as he would no longer be able to work in Australia and provide financial support by way of child support payments;

    ·Although information was provided as to the circumstances leading to the applicant’s conviction for breaching the Protection Order, no information had been provided as to the events leading to the subsequent charges of breaching the Protection Order or breach of bail;

    ·If the visa was cancelled, it is unlikely the applicant would be able to apply to remain in Australia;

    ·If the visa was cancelled, it is likely that the applicant would be separated from his child;

    ·There are current consent orders in respect of the arrangements for the child between the applicant and the sponsor; and

    ·It is not in the best interests of the child that the child be exposed to or affected in any way by family violence.

11. After taking into account all these issues, the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel. Accordingly, the delegate cancelled the applicant’s visa.

    Information to the Tribunal

12. The applicant provided further information as to the two further charges of breaching the Protection Order. The third breach (as reported in the police court brief) occurred on 15 March 2018 when the applicant allegedly threatened the sponsor and her then partner by saying, “Don’t worry I won’t hurt you but I’ll kill him”.

13. The fourth breach occurred on 22 March 2018 when the sponsor was collecting their child from the applicant at a McDonald’s store and the applicant gave the sponsor a bag of chocolates and said, “I have a present for [Child 1], some chocolates and other ones for Kym (the sponsor’s boyfriend). Tell Kym to get fatter because I like killing a fat pig”. The sponsor then left and drove to the police station and the applicant followed her. When the sponsor got out of her car to report the matter to the police, the applicant asked her not to go in to report the matter. A police officer saw what was happening and told the applicant not to get into his car and to remain where he was, however, the applicant got into his car and drove away.

14. The breach of bail occurred because the applicant failed to report to the police twice weekly as required of bail conditions. It was claimed that he believed the bail had expired and he was not subject to reporting conditions.

15. On 14 August 2018 the matter came before the Atherton Magistrates Court. The applicant pleaded guilty and was fined $1,500 with convictions recorded against all three offences.

16. The applicant provided statements from two friends attesting to his good character. A report was provided from Pat Woodcock, consultant psychologist, dated 11 February 2019 as to the relationship between the applicant and his child. A report was provided from Dr Mogorovich, clinical psychologist, in regards to therapy he had provided to the applicant from 10 February 2018.

17. The applicant appeared before the Tribunal on 29 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

18. The applicant provided details of his current contact with his daughter. He said that he was seeing her every Sunday from 8:00am to 4:00pm and sometimes a bit longer. He collects and returns his child from her mother’s or her mother’s parents’ home. He also has video contact each Thursday. He provided details of the mediation he and his former partner have had in order to reach negotiated arrangements for their child. He said there was further mediation due to take place that afternoon. He said that he currently communicates with his former partner by sending text messages. He says that he minimises any other contact he has with his former partner to ensure he does not breach the Protection Order.

19. The applicant said that he was currently living in a caravan with his current partner, Ms Audwigs. She is a citizen of Germany and is currently in Australia on a Working Holiday visa. They started living together in December 2018 when he moved into the caravan she had been living in. He is not currently working as his work rights were cancelled.

20. The applicant provided details of the counselling he had with Dr Mogorovich. He said that he saw him five or six times and the last time he saw him was about six or seven months ago.

21. The applicant provided details of the events that led to his former partner applying for the Protection Order and the events that led to his conviction for breaching that Protection Order. He said the Protection Order was in place for a five-year term.

22. Ms Audwigs, the applicant’s new partner, gave evidence to the Tribunal. She provided information as to the arrangements for the changeover when the applicant is to see his child. She provided details of her discussions with the applicant’s former partner and her observations of the applicant’s interaction with his former partner and also his daughter.

23. After the hearing, the applicant’s agent confirmed that the applicant and his former partner had attended mediation and a variation in the arrangement for the applicant to be with his daughter was reached, guaranteeing that his daughter would be with the applicant two days per week. An agreement was reached as to how further mediation would be arranged to help them work through any further difficulties in the arrangements in the future.

24. 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

25. 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)(ii). 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?

26. A visa may be cancelled under s.116(1)(e) if the Minister 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. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

27. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

28. The applicant’s former partner was granted a Protection Order due to events that occurred on the night of 19/20 November 2017. Those events are recorded in the statement of the applicant’s former partner attached to the application for the Protection Order. Although the particular events of that evening are, to some extent, in dispute, based on the claims of the applicant’s former partner and the information provided by the applicant to the Tribunal it is clear that the applicant’s behaviour on that night were controlling and abusive. He refused to allow his former partner privacy and sanctuary in the second bedroom and demanded a resolution of a perceived issue in their relationship, despite it being clear that his former partner did not wish to continue the argument and that having an argument after midnight was not going to resolve anything.

29. At the hearing, the applicant showed a lack of insight into his own behaviour or how his behaviour would have made his former partner fearful for her safety. He acknowledged taking her hand to take her to another room. He could not provide any adequate explanation as to why he would have decided to take his former partner to another room. He claimed that he did not believe his former partner would have been scared of him for any reason because she knew his character and so would not be scared. He claimed that he had always been good to her. This, again, shows a lack of insight by the applicant into his behaviour and, if he does believe that he had always been good to her, indicates that he believes his controlling and abusive behaviour is acceptable.

30. The breaches of the Protection Order were originally due to the applicant sending SMS messages to his former partner. The Tribunal does not accept that the fact the applicant is not fluent in English provides an explanation as to his sending these messages to his former partner. He was completely aware that his former partner did not want to have any contact with him and the fact that he persisted in sending her SMS messages, even after he had been convicted of breaching the Protection Order on one occasion, again indicates a lack of insight into his own behaviour, a disrespect for the law and a disrespect for the privacy of his former partner.

31. The behaviour of the applicant on 22 March 2018 shows further controlling and threatening behaviour by the applicant towards his former partner. Although the applicant disputed what was alleged to have been said by him to his former partner due to his accent, the fact that he followed her in his car to the police station, that he tried to stop her from going to the police by telling her not to go in, and then ignoring the direction from the police officer to wait by getting into his car and then leaving, indicates not only controlling and abusive behaviour towards his former partner but also a disrespect for Australian law enforcement officers.

32. The only explanation the applicant gave for this behaviour was that he acted in this way because he was fearful for his relationship with his daughter. The Tribunal does not accept this. The applicant would not have left the police station if his only fear was for his relationship with his daughter. The Tribunal finds that the applicant was aware that following his former partner to the police station and trying to prevent her from reporting the threats she believed he had made was in breach of the Protection Order and was wrong. That he was not able to acknowledge this to the Tribunal highlights the lack of insight the applicant has into his own behaviour and the effect of that behaviour on his former partner.

33. The current Protection Order is in place until 20 November 2022. The fact that the applicant’s former partner decided to apply for that order indicates that she believed that the applicant posed a risk to her. That the applicant breached that order on four occasions indicates a continuing risk from him. The final breach for which he was convicted, where he ignored a direction from a police officer, was the most significant breach. That he behaved in such a manner at that time, after he had previously been convicted in breach of the Protection Order and after he commenced psychological therapy with Dr Mogorovich indicates that he poses a continuing risk to his former partner.

34. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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

35. There are no matters specified in the Act or the Migration Regulations (1994) (the 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’.

    Purpose of the applicant’s travel and stay in Australia

36. The applicant travelled to Australia on a Working Holiday visa. He applied for and was granted a Subclass 820 Partner (Temporary) visa on the basis that he was sponsored by the sponsor as her de facto partner. This is the visa which is the subject of the current application. The applicant has pending before the Department an application for a Subclass 801 Partner (Residence) visa. As there is a child of the relationship and there is in place an order made under the Family Law Act 1975, it is likely that if the applicant’s Subclass 820 visa is not cancelled that he will be granted this visa.

37. The purpose of the applicant’s stay in Australia was to enable him to remain in a relationship with the sponsor. That relationship has now ended, partly as a result of family violence committed by the applicant against the sponsor. As the Regulations recognise that an applicant would be entitled to the grant of a visa, even if the applicant’s relationship with the sponsor had ceased, if there was a child of the relationship subject to an order made under the Family Law Act 1975, it is apparent that the purpose of the visa is to allow an applicant to remain in Australia to be able to maintain their relationship with any child of the relationship, even if that relationship with the sponsor has ceased.

38. The Tribunal accepts the evidence of the applicant that one of the main reasons he wishes to remain living in Australia is to be able to maintain his relationship with his child, [Child 1].

39. At the time the applicant and the sponsor’s relationship ended [Child 1] was one year old. The applicant had an active involvement in [Child 1]’s life up until then in assisting the sponsor with [Child 1]’s care. Immediately after the separation the applicant took steps to ensure that he would have continuing contact with [Child 1] and parenting orders were made [in] February 2018 in the Family [Court]. It is to the credit of the sponsor that despite the actions of the applicant that in part led to the end of the relationship that she was willing and able to negotiate an arrangement for [Child 1] to have contact with the applicant. This indicates that she has had the best interests of [Child 1] as a primary consideration and recognised the importance of [Child 1] maintaining a relationship with her father.

1. Since those parenting orders were initially made in the Family Court, the parties have had further mediation which has led to some slight variation in that agreement. The applicant has, throughout this time, maintained regular contact with [Child 1] which has ensured that his relationship with her has continued and developed.

2. A report was provided from Pat Woodcock, psychologist, who observed the interaction between the applicant and [Child 1]. It was observed that [Child 1] had a desire to be near her father and had a secure attachment to him. It was the opinion of Ms Woodcock that the applicant was attuned and responsive to [Child 1]’s emotional, cognitive and physical needs. In the opinion of Ms Woodcock, [Child 1] would suffer from considerable distress should her attachment to her father be disrupted. This could include her losing trust in her father and also in her mother, and lead to other possible emotional and behavioural problems. The Tribunal accepts that at the age [Child 1] is any immediate and long-term separation from her father is likely to cause her significant immediate distress and possible long-term harm.

3. If the applicant’s visa was cancelled, it is not likely that the sponsor and her child would leave Australia to be with the applicant. The sponsor’s support network, including her family, resides in Australia. It is unlikely that she would be able to live in Europe and there is no reason why she would wish to leave Australia. Apart from electronic communication, it would be extraordinarily difficult for the applicant to have any continuing personal relationship with [Child 1] if his visa was cancelled.

4. The impact on [Child 1] must be given significant weight when considering whether the applicant’s visa should be cancelled.

   Compliance with the visa conditions

5. There is no evidence to indicate the applicant has not complied with his visa conditions.

   Degree of hardship that may be caused

6. As set out above, the Tribunal takes into account the hardship that would be caused to the applicant’s child, [Child 1], should the visa be cancelled.

7. The applicant has commenced a relationship with another woman, however, she is not an Australian citizen and, as a citizen of Germany, would be able to return to live with the applicant in Europe if his visa were cancelled and he were required to leave Australia.

8. The applicant is not providing any financial contribution to the support of [Child 1] at this time. He was previously working and had been assessed for the payment of child support. He is dependent upon his current partner for support and does not have an income by which to contribute to the support of [Child 1]. It would be expected that if the applicant’s visa is not cancelled that he would be entitled to work in Australia and would then be contributing towards the financial costs of [Child 1] by the payment of child support to his former sponsor.

   The circumstances in which the ground for cancellation arose

9. The circumstances which led to the Department taking action to cancel the applicant’s visa were the events on the night of 19/20 November 2017 after which a Protection Order was obtained by the sponsor for her protection from the applicant and the applicant being subsequently charged with breaching that Protection Order. A variation of the Protection Order subsequently included [Child 1] and the sponsor’s parents.

10. The circumstances which led to the need for a Protection Order being sought by the former sponsor and the breaches of that order both prior to and subsequent to the cancellation action being taken by the Department have been set out above. As indicated above, the Tribunal has little confidence the applicant at this time has any insight into his behaviour and how it affected his former sponsor. The Tribunal notes that the last event which led to the applicant being charged with breaching the Protection Order was only 12 months prior to this decision. He pleaded guilty to the various charges brought against him and has been sentenced for those offences. The Tribunal takes into account the sentence that was imposed against him in the Magistrates Court.

    Past and present behaviour towards the Department

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

    Consequential cancellations

12. There would be no consequential cancellations should the applicant’s visa be cancelled.

    Legal consequences of the decision to cancel the visa

13. If the visa is cancelled, it is likely that the applicant would make arrangements to depart Australia to return to Italy. He would have no continuing right to reside in Australia. It is unlikely that he would be eligible for the grant of any other visa for the foreseeable future. It is likely that he would be subject to a period of exclusion.

    Australia’s international obligations

14. There is no information which would indicate the applicant would have any difficulties if he were required to return to Italy or reside in Europe as he would be entitled to do.

15. The Tribunal has taken into account the Convention on the Rights of the Child. As indicated above, the Tribunal accepts that the applicant played an important role in [Child 1]’s life prior to his separation from [Child 1]’s mother and he has maintained his relationship with [Child 1] since the date of separation and continues to play an important part in her life.

16. The Protection Order that was obtained against the applicant was for the purpose of protecting his former sponsor and was amended to include [Child 1] and the sponsor’s parents. That amendment was made by consent and without admissions. There is no information which would indicate the applicant has made any direct threat to or harmed [Child 1] at any time. The Tribunal takes into account that any family violence between parents is detrimental to the welfare of a child of that relationship. Although [Child 1] may not have directly observed any assault or argument between the applicant and [Child 1]’s mother, it is likely the level of conflict between the applicant and [Child 1]’s mother would be detrimental to [Child 1]’s development. At the same time, the Tribunal takes into account that the integrity of the family unit is an important factor in considering the cancellation of the visa.

    Overall assessment

17. The Tribunal has considered both individually and cumulatively all the circumstances of the applicant and the effect of any cancellation of his visa on all people concerned. This includes [Child 1] and her mother. The Tribunal notes that although [Child 1]’s mother has been able to negotiate appropriate contact arrangements for [Child 1] to see the applicant, she has not supported the applicant in applying to have the cancellation of his visa set aside.

18. The question of whether the Tribunal should exercise the discretion not to cancel the visa is finely balanced. Australian society should never tolerate any forms of family violence. The Tribunal has significant concerns as to whether the applicant has insight into how his behaviour affected his former partner and how any conflict the applicant has with his former partner adversely affects [Child 1]. The fact that the applicant breached the Protection Order on four occasions is of considerable concern. The sending of inappropriate text messages to his former sponsor may be considered an immature and stupid action by the applicant which is reflected in the sentence he received from the Magistrate after he was convicted of those offences. The fact that the applicant followed his former sponsor to the police station and tried to stop her from reporting a further breach on 22 March 2018 and then ignored a direction by the police not to leave is of particular concern. Again, the sentence of the Magistrate when the applicant was convicted of this offence reflects the significance of that event.

19. Against this is the consideration of how the cancellation of the visa will affect the applicant’s daughter, [Child 1]. As set out above, [Child 1] has a strong relationship with her father and the Tribunal accepts that it is important for [Child 1] that she be able to continue the relationship. The applicant’s former sponsor must be congratulated on being able to allow the applicant’s relationship with [Child 1] to continue despite being involved in court proceedings arising from the event that led to the granting of the Protection Order and the subsequent breaches of that order.

20. In balancing all the factors, the Tribunal has concluded that the adverse effects on [Child 1] of the applicant having his visa cancelled mean that the visa should not be cancelled based on the current circumstances and subsequent events that led to the Department taking action to cancel the visa. Certainly, if there were any further instances of any breach of the Protection Order or any other actions of the applicant which placed at risk any other person then that evidence would likely outweigh the detriment to [Child 1] of having the applicant’s visa cancelled.

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

    DECISION

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

    Hugh Sanderson
    Member