Edwards (Migration)

[2018] AATA 5883

Edwards (Migration) [2018] AATA 5883 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel James Edwards

CASE NUMBER:  1707961

HOME AFFAIRS REFERENCE(S):           BCC2017/386645

MEMBER:Jason Pennell

DATE:25 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass TU-500 (Student) visa.

Statement made on 25 October 2018 at  2.07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – risk to Australian community or individual – pleaded guilty to assault charges – family violence – purpose of traveling and staying in Australia – no evidence of contact with children or maintenance arrangements – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 2

CASES
Gong v MIBP [2016] FCCA 561
Newall v MIMA [1999] FCA 1624
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 28 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health and 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.

3. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. The applicant was born on 16 November 1986 in Blackpool, United Kingdom. His mother and father separated soon after the applicant was born. His mother remains living in Blackpool while his father moved to Australia and now resides in [Victoria], Australia. The applicant has two step sisters in Australia and two step brother in the United Kingdom. 

3. The applicant attended Fleetwood High School and then attended Bispham Technical College where he undertook a plastering qualification. The applicant worked in and around the Blackpool area as a plaster for approximately two years. In or about 2008 the applicant commenced work for approximately two years in the glass manufacturing industry working as a level 3 Glass manufacturer. In or about 2010 the applicant worked as a Disc Jockey and musical producer. 

4. The applicant arrived in Australia on a tourist visa on 7 September 2014. His evidence was that he travelled to Australia to meet his father and two step sisters. Initially the applicant stayed with his family in [Victoria] and obtained employment in the local area. The applicant was granted a vocational student visa on 9 November 2016.

5. The applicant’s evidence was that he wanted to stay in Australia because in or about 2016 he had formed a relationship with [Ms A] and they were expecting a child, [Child 1], who was born on 16 November 2016. As a result the applicant applied and obtained a student visa. His evidence was that he applied for a student visa as it was quicker and easier than obtaining any other type of permanent residency visa to remain in Australia. He said that he enrolled in a management leadership diploma because it was relatively easy to maintain his enrolment in the course as it required only a few contact hours per week.  The applicant maintained his enrolment in the course and course attendance in accordance with his visa conditions.     

6. As a result of the charges brought against the applicant he is no longer in a relationship with [Ms A]. By an email dated 20 March 2017 to the department [Ms A] states that she has a daughter to the applicant and that if his visa was cancelled it would have an impact on both her and her daughter emotionally and financially. The applicant’s evidence was that he no longer has any contact with [Ms A].

7. The applicant says that in or about November 2017 the applicant formed a relationship with [Ms B] a result of which he is now expecting a daughter to be born in November 2018. The applicant’s evidence was that the applicant and [Ms B] are no longer in a relationship but they remain amicable. [Ms B] did not give any evidence to the Tribunal.

8. The applicant’s mother[1]  and father[2] both provided statements in support of the applicant. The applicant’s mother described how the applicant had found it difficult in his earlier years to deal with his mothers and grandmothers illnesses and that he had found it difficult to find work. She described how his life had changed for the better since arriving in Australia. His mother stated that since the applicant had arrived in Australia she had some health issues including open heart surgery and fractured sternum. She said that the applicant only drank on occasions in the United Kingdom but the pressure of her illness and his inability to afford to travel back to the United Kingdom had caused him to resort to alcohol. The applicant’s mother and father stated that he is a loyal and caring father who loves his daughter. His mother noted that he was expecting a son in November and that the applicant wanted to be with his children.   

   [1] Emails from Linda J Edwards dated 20 March 2017 and 10 October 2018

   [2] Email from David Stote dated 15 March 2017.

9. At the hearing the Tribunal requested that the applicant provide information and documentary evidence he had in relation to the following:

   (a)his conviction for unlawful assault and breach of family violence orders;

   (b)contact the applicant has with his daughter, [Child 1] including any court orders.

   (c)the applicant’s support for his daughter including any formal agreements relating to her maintenance.

   (d)[Ms B]’s pregnancy with the applicant’s son due to in November 2018.  

10. In addition by a letter dated 12 October 2018 the Tribunal requested that the applicant provide further information in relation to the matters referred to above. The applicant did not provide any of the information or documentary evidence as requested. 

11. The applicant submitted that his visa should not be cancelled because he had undertaken counselling to manage his behaviour toward both alcohol related issues. The letter by Dr Sarah Wilson confirmed that he had been compliant in all aspects of his attendance and participation in the counselling sessions.

12. The applicant said that he does not wish to be a part from his daughter and his son when he is born in November 2018. He said that he wanted to have relationship with both of them and fulfil his duties as a father. The applicant said that he had been contributing towards his daughter’s maintenance but was not able to provide any document to support his evidence. Despite the applicants evidence he was not able to provide any evidence to the Tribunal as to the nature of support, both emotionally and financially, he provides to his daughter, including the amount of contact he has with her. In addition [Ms B] did not give any evidence to the Tribunal as to her relationship with the applicant, her pregnancy and the nature of the relationship the applicant is to have with both her and their son in the future.

Does the ground for cancellation exist?

Section.116(1)(e) - risk to Australian community or individual

1. 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 and may arise on the possibility that some event occurred in the past.[3]

   [3] Gong v MIBP [2016] FCCA 561, at [41]

2. The expression ‘good order of the Australian community’ is not defined in the Act. However, in considering an earlier version of s.116(1)(e) the Court held in Tien v MIMA (1998) 89 FCR 80[4] 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. Justice Goldberg stated that the phrase requires that there be:

   ‘…an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities.’[5]

   [4] Tien v MIMA (1998) 89 FCR 80 @ p.94

   [5] Ibid.

3. The formulation of ‘good order’ in Tien’s case was adopted in Newall v MIMA[6] where the Court found that it was open to the delegate to be satisfied that the presence in Australia of the applicant who had recently been convicted of being an accessory after the fact to the murder of his parents would be a risk to the ‘health, safety or good order of the Australian community’.

Grounds for cancellation

[6] [1999] FCA 1624 (Branson J, 24 November 1999) at [22].

1. The applicant arrived in Australia on 7 September 2014 on a subclass TZ-417 Working Holiday visa valid for a period of 12 months.

2. On 9 November 2016 the visa holder was granted a subclass TU-500 Student Visa (Vocational Education Stream) visa to undertake a course of study in Australia. The visa was valid until 15 December 2017.

3. On 27 January 2017 the department received information that the applicant had been charged with the following offences

Offence	Charge date	Court
Aggravated assault. Recklessly cause injuries contravene family Violence Interim Intervention Order Unlawful assault.	12/03/2016	Melbourne Magistrates Court, 2 April 2017
Criminal damage (intent damage/destroy property) Unlawful assault.	13/03/2016	Melbourne Magistrates Court, 2 April 2017
Unlawful assault. Recklessly cause injury. Contravention of family Violence Interim Intervention Order. Resist Police Officer (Crimes Act) Commit indictable offence whilst on bail.	22/12/2016	Melbourne Magistrates Court, 2 April 2017

1. The applicant evidence was that he pleaded guilty to the charges and received community service order. On 23 February 2017 the applicant received a Family Violence Intervention Order which expired on 22 February 2018. In addition the applicant was ordered to undertake a Court Integrated Support Program (CISP) which required him to complete a drug/alcohol counselling and anger management classes. The applicant’s evidence was that he had completed the course and that he had found it beneficial in managing his alcohol intake and behaviour. The applicant provided the Tribunal with a Drug & Alcohol Treatment Attendance Letter by Dr Sarah Wilson from Caraniche dated 10 October 2018 confirming that the applicant attended four sessions of individual AOD treatment from 9 March 2017 to 10 May 2017.  In addition, on the department file was a letter for Ms Lillian Hassan from the CISP dated 10 March 2017 which detailed the applicant’s attendance for psychological counselling and alcohol assessment.   

2. As the applicant has been charged with numerous offences including violence towards another person and with contravening a Family Violence Interim Intervention Order, there is sufficient evidence to satisfy the Tribunal that the applicant’s presence is a risk or may be a risk to an individual or individuals in the Australian community. The nature of the charges shows a disregard for the Australian community values and laws and safety of protected persons.

3. Considering the nature of the charges and the circumstances of the case, the fact that the prosecuting authorities have concluded there is a proper basis to bring charges against the applicant and the fact that he has pleaded guilty to the charges, the Tribunal is satisfied that there are grounds under section 116(1)(e)(ii) of the Migration Act for cancelation of the applicant student visa (Vocational Education) visa granted 9 November 2016.

4. Therefore, the Tribunal is finds that the grounds for cancellation in s.116(1)(e) 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

1. 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’.

Applicants purpose of traveling and staying in Australia.

1. During the course of the hearing the applicant gave no indication that the purpose of him traveling and staying in Australia was to study. In fact his evidence was the reason he came to Australia was to meet his father and stepsisters. He said that he enrolled in a vocational course to allow him to remain in Australia as it was easier than applying for and obtaining a permanent residence visa.

2. In addition the applicant’s evidence as to the reasons for him wanting to stay in Australia was not to study but for family and domestic reasons.

3. Nevertheless, the Provider Registration and International Student Management System (PRISMS) indicate that the applicant has complied with his visa conditions of enrolment, attendance and course progress. 

4. Therefore, the reason that the applicant travelled to Australia was not to stay on a temporary basis for the purposes of study, but for domestic and family reasons. As such, the Tribunal gives no weight to in relation to this consideration in favour of the applicant.

Compliance with visa conditions

1. There is no evidence that the applicant has not complied with the conditions of his visa. Therefore the Tribunal places some weight on this consideration in the applicants favour.

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s evidence was that if the visa is cancelled he will experience financial and emotional hardship by being separated for his daughter and future son.

2. The Tribunal accepts that in the event the visa is cancelled the applicant will suffer hardship as a result of being separated from his children. However, the applicant has failed to provide any evidence as to the amount of contact he has with his daughter at present or the level of financial assistance or maintenance he currently provides for his children. As such, the Tribunal is not able to make any assessment as to the extent and nature of hardship the applicant may suffer as a result of his visa being cancelled.  

3. Nevertheless, despite the applicant not providing the evidence requested by the Tribunal it accepts that he will suffer hardship as a result of his visa being cancelled and being separated from his children. As such, the Tribunal places some weight in the applicants favour in this consideration.  

The circumstances in which the grounds for cancellation arose

1. The circumstances arose when the applicant was charged with offences on three separate occasions including unlawful assault, aggravated assault, recklessly cause injury and contravention of a Family Violence Intervention Order, to which he has pleaded guilty.  The applicant has demonstrated a pattern of violence and disregard for Australian laws and the safety and wellbeing of an individual who has had a Family Violence Intervention Order against him.

2. While the Tribunal accepts that the applicant has undertaken counselling for his alcohol consumption and behavioural issues he has only done so as a result of a court order. While the report by Ms Hassan indicates that the applicant has expressed regret for his past actions it fails to identify the supports the applicant is said to have engaged. In addition the report fails to identify what effect they have had on the applicant to ensure that his actions are not repeated in the future. Therefore, without the appropriate evidence the Tribunal is not satisfied that the applicant will not engage in such behaviour in the future.  

3. Accordingly, the Tribunal gives no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would engage Australia’s international obligations under the Convention of the rights of the Child (CROC). Accordingly, the Tribunal has considered whether the cancellation would not be in the best interests of the applicant’s children.

2. The applicant claims that his children would be adversely affected in the event that his visa was cancelled and he was returned to the United Kingdom. The applicant’s mother and father’s statements indicate that the applicant had been a good father to his daughter [Child 1] and that he wants to be involved in both his children lives in the future.  

3. However, despite the request by the Tribunal for further information the applicant did not provide any evidence relating to his contact with his daughter and the financial support he provides. In addition, he did not provide any evidence of [Ms B]’s pregnancy. As such, the Tribunal has no evidence to support the applicant’s claim that [Ms B] is expecting his son in November 2018.

4. While the Tribunal accepts that the cancellation of the applicant’s visa may cause the applicant to be separated from his children, based on the evidence provided to the Tribunal it is not satisfied that it is in the best interests of the children not to cancel the applicant’s visa and allow him to remain in Australia. In particular, the Tribunal has taken into account the nature of the charges, the fact that the applicant pleaded guilty to the charges. In addition, the fact that the Tribunal was not provided evidence of the applicants contact with his daughter and his financial support for his children by way of maintenance means that the Tribunal cannot be satisfied that the best interests of the children is to set aside the department’s decision to cancel his visa.

5. Accordingly, the Tribunal is satisfied that the potential consequence of the applicant being separated from his children would provide a significant reason not to cancel his visa.

1. Accordingly, the Tribunal places no weight on this consideration in the applicants favour.  

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore having considered the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass TU-500 (Student) visa.