El Mustapha (Migration)

[2019] AATA 4418

El Mustapha (Migration) [2019] AATA 4418 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Omar El Mustapha

CASE NUMBER:  1836464

HOME AFFAIRS REFERENCE(S):           BCC2018/5378888

MEMBER:Kira Raif

DATE:12 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 12 June 2019 at 7:48am

CATCHWORDS

MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – relationship ceased – Court proceedings relating to child custody – best interests of the child – employment prospects – wider family relationships – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cl 100.221

CASES

MIMA v Zhang (1999) 84 FCR 258   

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 7 December 2018 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 (the Act).

2. The applicant is a national of Lebanon, born in February 1978. He was granted the Class UF Spouse visa in November 2017 and entered Australia in January 2018. On 14 November 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(a) of the Act because the delegate formed the view that the decision to grant the visa to the applicant was based on a fact or circumstance that no longer existed. The applicant provided a written response to the NOICC and his visa was cancelled on 7 December 2018. The applicant seeks review of the delegate’s decision.

3. On 30 May 2019 the applicant wrote to the Tribunal requesting the Tribunal to await the outcome of his Family Court proceedings. The applicant indicates that such proceedings may take up to two years. The Tribunal has considered the request but decided not to grant the extension of time for a period of two years that the applicant has indicated the proceedings might take. In the Tribunal’s view, such an extensive delay is not justifiable, nor preferable in the circumstances of this case. This is because the Tribunal accepts that the applicant has a biological child from the relationship and the Tribunal is prepared to accept that in the future, the applicant may be granted access to the child, although such access does not exist at present. The Tribunal also accepts that the existence of that child could enable the applicant to meet the requirements of cl.100.221 of Schedule 2 to the Migration Regulations 1994.

4. The applicant appeared before the Tribunal on 5 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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 affirmed.

   Relevant law

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(a). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied the circumstances which permitted the grant of the visa no longer exist. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. A change in the decision-maker’s state of mind (about whether they are satisfied a visa criterion is met) was not a basis for cancelling a visa on that ground: per French and North JJ at [48]-[56]).

   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 Partner visa on the basis of his relationship with Ms Homaysi. In February 2018 the Department of Home Affairs received advice that the applicant’s relationship with Ms Homaysi had ceased. As such, the delegate found that there was a ground for cancellation under s.116(1)(a).

8. In his written response to the NOICC the applicant states he is presently involved in family law proceedings in relation to his son and is likely to be granted contact with his son. He would therefore be able to meet cl.100.221(4)(c)(ii).

9. The applicant concedes that his relationship with the sponsoring spouse had ended. While the Tribunal acknowledges that the couple have a child, and the applicant’s claim that he may be entitled to the grant of the permanent Spouse visa in Subclass 100, in the Tribunal’s view, that is not relevant in establishing whether the ground for cancellation exists. Clauses 309.211 and cl.309.223 relevantly required the applicant to be the spouse of the sponsor. It is not in dispute that the applicant ceased to be the spouse of the sponsor. The Tribunal therefore finds that the decision to grant the Subclass 309 visa was based, partly, on a particular fact or circumstance (the applicant’s spousal relationship with Ms Homaysi) that is no longer the case or that no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s.116(1)(a) of the Act.

10. 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

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’.

12. The applicant has addressed the discretionary considerations in his written response to the NOICC and his evidence to the Tribunal.

    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

13. The applicant states in his response to the NOICC that the purpose of his travel to and stay in Australia is to allow him to reside in Australia until the grant of the permanent visa. The applicant submits that his satisfaction of cl.100.221(4)(c)(ii) is ‘imminent’ and the visa application is likely to be approved. The applicant states that the cancellation of the provisional visa would circumvent the likely approval of the permanent visa. In the Tribunal’s view, the purpose of the temporary Partner visa is to enable the visa holder to be in Australia with their partner, rather than to be in Australia to await the grant of another visa. As the applicant’s relationship with the sponsor ended, the applicant is no longer able to fulfil that purpose of the visa.

14. The applicant told the Tribunal that he is happy to live in Australia and he wants to work and provide for his son. The Tribunal accepts that the applicant’s preference is to remain in Australia.

15. The applicant told the Tribunal that he has a child in Australia and wants to stay near his child. The Tribunal accepts that the applicant and the sponsor have a child and the presence of the child may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

16. There is no evidence before the Tribunal that the applicant has not complied with visa conditions.

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

17. With respect to hardship, the applicant states in his response to the NOICC that the cancellation of the visa would bring significant emotional and psychological hardship to him and his son. The applicant states that he has a close bond with his son that is best preserved through his presence in Australia. The applicant informed the Tribunal that family mediation has not been successful and he has initiated proceedings in the Family Court to arrange access to his son.

18. The Tribunal acknowledges that evidence but does not accept that the applicant has a strong bond with his son. The applicant claims to have played an active role in his son’s upbringing prior to the AVO. However, the applicant presented no evidence of any interactions with his son. There is no evidence that the applicant has played a meaningful role in the child’s upbringing, that he had spent time with the child, provided emotional or financial support, even prior to the AVO. The applicant’s evidence is that at present, he has no access to the child as he is subject of a two year AVO which will expire in 2020 and is prohibited from seeing the child. Thus, while the Tribunal accepts that the applicant has a child in Australia, and also that he has commenced proceedings in the Family Court to obtain access to the child, the Tribunal is not satisfied that the applicant had ever established a relationship with his son or that he had adopted parental responsibilities with respect to the child. The Tribunal does not accept that at the time of this decision, the applicant has a meaningful relationship with his child, let alone a close relationship. The Tribunal is not satisfied on the limited evidence before it that such a relationship will be established in the future, once the Family Court proceedings are finalised. In such circumstances, the Tribunal is not satisfied that any hardship would be caused to the applicant or his child as a result of the visa cancellation.

19. The applicant told the Tribunal that his wife wanted to raise the child in Lebanon but he preferred to raise the child in Australia. The applicant’s claim is that the only reason his wife accused him of assault and sought an AVO is because she wants him to return to Lebanon and live with him there and raise the child together in Lebanon. For the following reasons, the Tribunal does not accept the applicant’s evidence.

20. Firstly, the applicant’s evidence is that his wife saw the doctor and it was the doctor who called the police. The applicant pleaded guilty to assault and was found guilty of the offence. He appealed the decision (he claims he appealed the sentence but not the conviction) and the conviction was upheld on appeal. In such circumstances, the Tribunal does not accept that the circumstances leading to the conviction had been entirely made up by his wife for some future benefit, as the applicant suggests.

21. Secondly, the applicant’s evidence to the Tribunal is that wife expressed fear of him and refuses to show the child to him (he claims it happened once) and refuses to cooperate in the family law proceedings. There is also no evidence from the spouse to support the applicant’s claim that she intends to live with the applicant in the future and there is no evidence that the applicant’s wife has any intention of reconciling or that she has any commitment to a future relationship with the applicant.

22. Thirdly, the applicant told the Tribunal that he would not return to Lebanon in order to live there with his wife and child – as he claims is his wife’s intention – because he no longer trusts his wife and cannot be certain that she would follow him to Lebanon. That contradicts the applicant’s claim that his wife had made up the information about his offending behaviour in order to have him convicted and to have his visa cancelled to enable them to together in Lebanon.

23. The Tribunal finds the applicant’s evidence on this issue implausible and has formed the view that there is no basis for this claim.

24. The applicant told the Tribunal that he has initiated proceedings under the Family Law Act 1975 to have access to his child. His wife refused to give him access and to participate in the mediation they are now in the process of arranging court proceedings to grant him access. He claims that he will be successful and presented a statement from his lawyer about the prospects of success. The Tribunal acknowledges that evidence and is prepared to accept that in the future, the applicant may have the opportunity to see his son. The Tribunal notes that at present, he is prevented from seeing the child by the AVO which, according to the applicant, will expire in February or in July 2020. The Tribunal accepts that if the applicant is able to see his child in the future, and if he is required to leave Australia as a result of the cancellation of the visa, this may cause hardship to the applicant and his family.

25. The applicant also refers to the close relationship with his brother’s children. He refers to the significant support he provides to his brother’s family. The applicant states that his brother’s family would experience hardship arising from the loss of the applicant’s support if the applicant’s visa is cancelled. There is very little evidence – other than the applicant’s own assertions – about the applicant’s relationship with his brother’s family and the children. The Tribunal is prepared to accept that the applicant may be close to his brother’s family but on the limited evidence before it, the Tribunal is not satisfied that the family would suffer hardship as a result of the cancellation of the applicant’s visa.

26. The applicant states that he would experience financial hardship if he was required to relocate to Lebanon. He states that he has financially established himself in Australia to fulfil his familial commitments and has limited financial resources, due to being unemployed. He would face financial hardship if he were required to re-establish himself in Lebanon. The applicant told the Tribunal that if he returns to Lebanon, he has nothing there. He is over 40 and has no job there. The applicant states that many men are jobless and the situation in Tripoli is not good. The Tribunal considers general information about the country unhelpful if it does not address the applicant’s personal circumstances. Insofar as the applicant claims he would not find a job or would not be able to support himself financially in Lebanon, the Tribunal does not accept that evidence. The Tribunal is mindful that the applicant has been living in Australia for a relatively short period of time of less than 18 months. The applicant had supported himself in Lebanon until his migration to Australia. Even if the applicant did give up his employment or source of income in Lebanon before migrating to Australia, the applicant has not satisfied the Tribunal that he would be unable to re-establish himself in that country, particularly given a relatively short period of absence. The applicant has not presented to the Tribunal evidence of having sought employment in Lebanon and of having been denied employment. The Tribunal is not satisfied the applicant would be unable to obtain employment in Lebanon, where he would not face any language or cultural barriers. There is also little evidence before the Tribunal concerning any savings that the applicant may have, or whether he is able to obtain financial support from relatives or friends, whether in Australia or in Lebanon. The Tribunal is not satisfied on the evidence before it that the applicant would face financial hardship as a result of his visa being cancelled.

27. The applicant refers to psychological hardship of being separated from his son. However, he also told the Tribunal that he does not see his child because his ex-wife does not want him to see the child. The applicant also told the Tribunal that he has been the subject of an AVO since April 2018 and the AVO will remain in place for two years. For the reasons stated above, the Tribunal is not satisfied that the applicant has, or has ever had, a meaningful relationship with his child and the Tribunal is not satisfied that hardship would result from the cancellation of the applicant’s visa.

    Circumstances in which ground of cancellation arose

28. The applicant submits that the ground for cancellation arises because of the cessation of his relationship with the sponsor, although the divorce proceedings have not been commenced.  

29. The applicant told the Tribunal that he has been convicted of assault in relation to his partner and is presently the subject of an AVO in relation to his partner and his son. If the relationship broke down due to family violence, the Tribunal finds that the applicant was the perpetrator, rather than the victim, of such violence.

    Past and present behaviour of the visa holder towards the Department

30. Nothing adverse is known about the past and present behaviour of the visa holder towards the Department.

31. The applicant told the Tribunal that the Tribunal can investigate him through the Australian embassy in Lebanon and he has not been convicted of any offences and he is known as a law-abiding citizen. The Tribunal accepts that the applicant has no convictions in Lebanon.

    Whether there would be consequential cancellations under s.140

32. There are no consequential cancellations under s.140.

    Whether there are mandatory legal consequences

33. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. If the applicant does not hold a temporary visa, he may be unable to obtain the permanent Partner visa. The Tribunal accepts that this may cause hardship to the applicant.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

34. The applicant refers to experiencing psychological harm and the harm resulting from being away from his son. The applicant also refers to financial hardship and social pressure because he has failed. The Tribunal is not satisfied that any of these matters give rise to Australia’s protection obligations but if the applicant believes he is owed protection, he is able to seek a Protection visa in Australia where such claims would be assessed. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.  

35. In his response to the NOICC the applicant refers to the Convention on the Rights of the Child. He states that he is presently undertaking family law proceedings to obtain custody of the child and at the conclusion of the proceedings, he would have custody, residence or contact orders to satisfy cl.100.221(4)(c)(ii) and be eligible for a permanent Partner visa. The applicant states that he has been active in his parental role since the child’s birth with the exception of the period when the AVO was in place. He plans to continue to play his parental role upon conclusion of the family law proceedings. The applicant states that there is no indication that his prior conduct has had any negative impact on the child.

36. The applicant states that significant negative effects will be experienced by the child, should he be required to progress through childhood without the support and care of the father. The young age of the child means he is not capable of maintaining a relationship without the applicant’s physical presence. The applicant notes that the suitability of the mother to provide for the care of the child is subject to the family law proceedings. The applicant states that he is willing and able to provide care to his son and there is no evidence of any neglect of the child or of the child suffering abuse. The applicant submits that there is no evidence that the child has been traumatised by the applicant’s conduct. The cancellation of the visa would result in the loss of contact with the child for the majority of his childhood, which is likely to result in the ongoing trauma due to fatherless childhood. The Tribunal is mindful that the applicant presented no probative evidence to support these assertions. While the applicant claims that there is no evidence of the child being affected by his conduct, there is equally no evidence to support the applicant’s claims that the child would be affected, or traumatised, by being separated from his father. This is particularly so where there is no evidence of the applicant playing any meaningful role in the child’s upbringing and no evidence of the applicant having a parent–child relationship with his son, even before the AVO was issued. The applicant’s evidence to the Tribunal is that the AVO, which was put in place in early 2018, prevents him from seeing the child. He told the Tribunal that his wife showed him the child once but there is no evidence that he has otherwise spent time with the child. The Tribunal accepts that the applicant is engaged in family law proceedings to gain access to the child but the Tribunal notes the period when the applicant does not appear to have had any meaningful contact with the child and, given the child’s young age, such a period which exceeds one year may be considered to be significant. There is no supporting evidence before the Tribunal to support the applicant’s claim that he has developed an emotional or psychological bond between the applicant and his son. There is no evidence from any health practitioner to support the applicant’s claims that the child would be traumatised, or even affected, by the applicant’s absence. In the particular circumstances of this case, the Tribunal does not consider that the best interests of the applicant’s son would be adversely affected by the cancellation of the visa.

1. The applicant also told the Tribunal that his nieces and nephews are attached to him and he treats them as his children. The applicant states that he plays with the children and spends time with them. He loves them a lot. They are aged one, seven and eight. The children live with their parents but he also provides guidance and support to them. The applicant’s evidence is supported by the statement from the children’s mother. There is no suggestion that the children are not properly cared for by their parents. The applicant suggests that the children will be missing their uncle and will be affected socially or psychologically if he leaves Australia but there is no probative evidence to support these claims. The Tribunal is prepared to accept that the applicant has a close relationship with these children but the applicant has not satisfied the Tribunal that the best interest of these children would be affected as a result of the cancellation. The Tribunal does not accept that the children would be psychologically or otherwise affected if the applicant’s visa is cancelled.

2. The Tribunal has formed the view that the best interests of children would not be beached as a result of the cancellation.

   Any other relevant matters

3. The applicant told the Tribunal that he was issued with an AVO for two years because his wife said he was shouting at the child and she did not want him in the country. The applicant told the Tribunal that his wife told the court that he kicked her and she was “psychologically fed up with him”. The applicant said that he was “100% innocent” and none of it happened. He said the charges were made up and there was no proof of anything but on the advice of his lawyer, he pleaded guilty because he wanted to leave the country at the time. He was given a 12 month good behaviour bond. The applicant said that he appealed the sentence and on appeal the sentence was changed. He is subject to a community service order and the AVO for two years. The applicant told the Tribunal that he was misled by his criminal lawyer, he was new to the country and had no English and knew nothing about the Australian system, so he was disadvantaged. The Tribunal does not accept that evidence because the Tribunal is of the view that a conviction for an offence is evidence that the applicant has committed the offence. This is particularly so in this case where the applicant had the opportunity to appeal, did appeal but not against the conviction. The Tribunal does not accept the applicant’s evidence that he only pleaded guilty out of convenience or only on advice of his lawyer, particularly because the applicant did engage in the appeal process.

4. The Tribunal finds it problematic that despite the conviction, the applicant claims that he is “100% innocent” and that the charge against him had been made up. The Tribunal has formed the view that the applicant has no remorse for his actions and little insight into his behaviour.

5. The applicant provided a declaration from his sister in law, Ms Raad, who states that the applicant is a person of good character. Ms Raad states that she appreciates the support and help the applicant gives to her and the family and he is willing to look after the children while her husband is at work. Ms Raad refers to her children having a good relationship with the applicant and the applicant performing household chores. The Tribunal acknowledges that evidence.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa under s.116(1)(a) because the decision to grant the visa was based, partly, on a circumstance or a particular fact that is no longer the case or that no longer exists. The Tribunal acknowledges that some hardship may be caused by the cancellation to the applicant and his family and the Tribunal accepts that if the applicant was required to leave Australia, it would affect his ability to see his son in the future and possibly his relationship with the child. The Tribunal acknowledges that the applicant has initiated family law proceedings to enable him to spend time with the child, but also notes that the applicant is the subject of an AVO which presently precludes him from seeing the child. The Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation and that Australia’s international obligations would not be breached as a result of the cancellation.

7. The Tribunal has rejected the applicant’s claim that he would be unable to get a job or re-settle in his home country but the acknowledges that some hardship would be caused by the cancellation because it may lead to the applicant’s separation from his child and brother and the brother’s family and also because it would affect the applicant’s ability to obtain the permanent Partner visa. The Tribunal has found that the applicant is no longer fulfilling the purpose of the visa, although the Tribunal also acknowledges that the presence of his child in Australia may constitute a compelling need for the applicant to remain in Australia.

8. The Tribunal places weight on the fact that the applicant has breached the Australian law by committing an offence and that he has shown no remorse for his conduct and, despite the finding of guilt, claims that the conviction is based on made-up events. The Tribunal notes that the applicant has spent a fairly short period of time in Australia and has rejected the applicant’s evidence that he cannot return to Lebanon, although the Tribunal accepts that the applicant’s preference is to remain in Australia.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member