G C (Migration)

[2024] AATA 183

G C (Migration) [2024] AATA 183 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dipak G C

CASE NUMBER:  2211259

HOME AFFAIRS REFERENCE(S):          BCC2022/1659746

MEMBER:Bridget Cullen

DATE:25 January 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 25 January 2024 at 11.21 am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – criminal conviction – community correction order suspended after assessment of low risk of reoffending – apprehended violence order varied – discretion to cancel visa – primary caregiver for young child – wife’s appeal against refusal of sponsored work visa and application for another subclass visa in progress – limited work opportunities and financial hardship – no other family support in Australia – circumstances of offending – isolated and untypical incident after father’s death during COVID travel restrictions – mandatory legal consequences – best interests of child – possibility of applying for Bridging E – no practical utility in holding different visa than wife and child – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2022 made by a delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(g) on the basis that there was a prescribed ground for cancellation after the Applicant was convicted of an offence, resulting in his being sentenced to a two-year Community Correction Order. 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 via Microsoft Teams video link on 18 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s wife, Rupa Dahal, and Ms Kesti Faulkner, a qualified social worker employed by the Men & Family Centre. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. 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

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)(g). 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?

6. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

7. Regulation 2.43(1)(oa) provides: (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 the following:

   … (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)).

8. On 18 May 2022, the Applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging visa under s 116(1)(g) and r. 2.43(1)(oa) on the basis of his convictions of offences against laws of the State of New South Wales. The NOICC stated that information provided by the Australian Border Force confirmed that the Applicant has been convicted of the following criminal offences in New South Wales:

   ·17/03/2022 Armed with intent commit indictable offence – T1.

9. The Applicant was sentenced to a two-year Community Correction Order, commencing on 17 March 2022 and expiring 16 March 2024. In addition, an enforceable Apprehended Violence Order (AVO) was taken out against the Applicant, naming his wife and son as the protected persons. On the 30 May 2022, the AVO was varied to permit the Applicant to reside with his wife and son. On 9 July 2023, New South Wales Community Corrections suspended the supervision component of the Applicant’s Court orders, following an “assessment of Low risk of re-offending”.

10. In his response to the NOICC, and also before the Tribunal, the Applicant agreed that a ground existed for the cancellation of his visa.

11. As the Applicant has been convicted of a criminal offence in New South Wales on 17 March 2022, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) 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

12. 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 Procedural Instruction ‘General visa cancellation powers’. The Tribunal has considered all of the Applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to remain in Australia

13. The Applicant’s wife arrived in Australia in November 2016, to pursue a Masters’ degree. The Applicant followed her, arriving in Australia in March 2017, on a dependant student (subclass 500) visa. On 30 January 2018, following his wife’s completion of her degree, they lodged an application for a subclass 187 visa on 30 January 2018. The Applicant’s wife’s visa application was refused in September of 2019, following a refusal by the Department to approve the related nomination. Both the related nomination and visa applications were reviewed by the Tribunal (differently constituted). On 18 September 2023, the decisions by the Department to refuse both the nomination by the Applicant’s wife’s employer, and the Applicant’s wife’s visa, were affirmed. Both the nomination and visa refusal decisions have been appealed to the Federal Circuit and Family Court of Australia (Division 2). The Applicant’s wife gave evidence that her employer had also recently (in December of 2023) lodged a Subclass 482 Temporary Skill Shortage nomination application, where she is the visa nominee.

14. On 15 October 2018, the Applicant and his wife had a son, and the Applicant’s family care obligations expanded. The Applicant’s son is now aged 5, and about to commence his first year of school, in Kindergarten. The Applicant has been his son’s primary carer for most of his son’s life, and is responsible for taking him to and from care, and will soon take him to and from school. The Applicant’s wife would struggle to get their son to and from school given her employment obligations. She gave evidence that were the Applicant’s visa cancelled, this would create significant hardship, as there are limited and logistically unfavourable before and after school care options in their regional area, and the cost of childcare is prohibitive on her current wages. She is not eligible for childcare subsidy.

15. The Applicant’s wife gave evidence to the Tribunal at the hearing, which the Tribunal accepts in its entirety. She is relieved that the Applicant was able to return to live as a family unit after the AVO was varied in May of 2022. Neither she, nor the Applicant, have any family support network in Australia; both of their families reside in Nepal.  The visa holder has cared for his child since he was born. He was the child’s primary carer for one year after his birth and was not employed himself, as his partner had to return to her full-time employment as per her work conditions.

16. Although NSW Child Protection engaged with the Applicant following his conviction, on 29 July 2022, the Child Protection Caseworker advised that they would no longer be involved due to there being no further risks identified. Of note, the letter from the Caseworker says the following:

    During my involvement you have demonstrated that you have the ability to keep your family safe. [Son’s name redacted] is presented as being happy, healthy and appears to be meeting his milestones.

17. The Tribunal also heard evidence from Ms Kesti Faulkner, in relation to the Applicant’s engagement with the Men & Family Centre, a specialist domestic violence response and prevention service that has been assisting the Applicant. The Applicant has attended a total of 91 sessions. The Tribunal considers this to be significant and committed engagement over a period of not-quite 2-years.

18. The Applicant has provided the Tribunal with an Australian Federal Police “Immigration/Citizenship – Australia Name Check Only” Certificate indicating that there are no disclosable court outcomes recorded against his name as at 29 December 2023.

19. While the Tribunal agrees with the delegate that the perpetuation of family violence is inconsistent with the role of supportive spouse, there is no evidence before the Tribunal suggesting that the Applicant had engaged in a pattern of family violence. Rather, the evidence is that the Applicant’s conviction arose from an isolated instance that transpired in a context of significant personal distress (discussed further below).

20. Given the Applicant’s pivotal care role for his son, and the Applicant’s wife’s unreserved desire to continue residing as a family unit, the Tribunal finds that the Applicant has a compelling need to remain in Australia, for the purpose of providing family support to his wife and son. This weighs in support of not cancelling the Applicant’s visa.

    The extent of the Applicant’s compliance with their visa conditions

21. There is no information before the Tribunal to indicate that the Applicant has been found by the Department not to have complied with any of the conditions attached to his current Bridging A (class WA)(subclass 010) visa or his previous dependant student (subclass 500) visa.

22. The Tribunal expects that Applicants comply with visa conditions and therefore gives this factor neutral weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

23. The Applicant has resided in Australia since March of 2017, with his wife and Australian born son. Since cancellation, the Applicant has been unable to work, and lost his employment in aged care. The financial hardship that this has created has had a significant impact on the Applicant’s wife, in particular.

24. The Tribunal is unable to assess the prospects of success of the review by the Federal Circuit and Family Court in respect of the Applicant’s wife’s visa. However, the Tribunal accepts that she has a legal entitlement to pursue review. The Tribunal acknowledges that the Applicant may be eligible to apply for a Bridging E (subclass 050) visa to remain in Australia pending the court review.

25. The Tribunal considers the financial hardship of cancellation to be significant in circumstances where the Applicant’s wife has no ability to seek alternative employment in an effort to overcome the financial reality that they have become a one-wage family unit since the Applicant lost his job. The Tribunal discussed with the Applicant that it may be practically difficult for him to return to an aged or disability care role, in view of regulatory requirements in that line of work to hold a Blue Card, and the reality of his conviction. While the Applicant would prefer to return to this work, he also indicates that he is quite prepared to consider alternative work as a means of supporting his family.

26. At present, there is tremendous pressure on the Applicant’s wife to singlehandedly financially support her family. At present, after paying rent and childcare costs, there are very limited funds left to meet the costs of living. The Tribunal accepts that this creates multifaceted hardship for the Applicant, his wife, and young son. The Tribunal has placed significant weight on this factor in favour of not cancelling the Applicant’s visa.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

27. The Applicant and his wife provided the Tribunal with extensive evidence about the unfortunate events that unfolded on 12 March 2022, which led to the Applicant’s conviction.

28. The Applicant’s father died on 15 June 2021, during the COVID-19 pandemic, and he was unable to travel to Nepal for his father’s funeral. In February of 2022, the Australian government relaxed the travel constraints and the Applicant desperately wanted to return to Nepal in June of 2022, to visit his aged mother, and participate in customary memorial events surrounding the anniversary of his father’s death. Understandably, the Applicant’s wife also wanted to return to Nepal, as her own family is there, and neither she nor the Applicant had seen their own families in a number of years.

29. There were a number of practical impediments to their travel, including financial constraints. The Applicant proposed that his wife take leave from her employment, to stay home with their son while he travelled back. The reason he suggested this was because he was caring for their son while she was working, and they could not afford to pay $125.00 a day for childcare if he was not available. Nor could they afford the airfare for both of them to travel to Nepal. He thought that if the Applicant took leave, it would solve the issue surrounding the costs of care for their young son.

30. The Applicant’s wife could not obtain leave, and her inability to take leave was a source of frustration for the Applicant who desperately wanted to return home. The Applicant’s wife explained that, having just come out of COVID-19 shut downs, her employer did not have any alternate staffing options. She works in a personal services beauty industry which had been closed during COVID-19, and now that her employer had reopened, she was expected to be present. The evidence before the Tribunal is to the effect that this had become a circular and intractable argument where both the Applicant and his wife were distressed about the issue.

31. On the morning of 12 March 2022, they had another argument about this issue, and the Applicant’s wife left with their young son to go to the park. When she returned, the Applicant, who ordinarily does not drink, was intoxicated and irrational, having decided to consume spirits. Adding a further level of stress, the Applicant had called in sick to work, which was not typical of his behaviour. Now, they were also losing income when they could least afford to do so. The Tribunal acknowledges that the Applicant has provided a favourable work reference from his employer at this point in time, and therefore accepts that his calling in sick was atypical.

32. Angry, the Applicant’s wife poured the remaining spirits down the kitchen sink. The Applicant became more irrational. There was a knife sitting on a cutting board from where he had earlier cut up an apple for his son’s snack. He grabbed the knife, and hit it on the wall with enough force that he damaged the wall. He explained that in Nepal, most walls are concrete. He did not anticipate that his hitting the knife of the wall would result in property damage to the unit, which they are renting. The kitchen knife, and its inclusion in this chain of events, is the reason for the “armed” aspect of the offence.

33. The argument ensued, and the Applicant’s wife was concerned that the Applicant would self-harm. Her evidence is that she was not worried about her safety or their son’s safety. She needed a circuit breaker to try and stop the Applicant’s irrational and emotionally overborne response. She had no friends or family to call. The Applicant suggested that if she was that worried, she could call the police, and then handed her his phone to make the telephone call.

34. The police arrived. The Applicant, who has some English, had difficulty expressing himself. He was denied Legal Aid, and could not afford representation. The Applicant accepts that his behaviour was entirely unacceptable. The Applicant’s wife says that since this episode, he has taken steps to recover from his distress in relation to his father’s death, and she feels completely safe with him.

35. The Tribunal finds that based on all the information before it there were no extenuating circumstances beyond the Applicant’s control that led to the ground for cancellation of his visa arising, as he is ultimately responsible for managing his own response to stressful situations. However, the Tribunal also recognises that the Applicant found himself facing multiple, unpredictable stressors, in a context where the Applicant was simply unable to cope with the practical and financial reality that he would need to again delay seeing his own family.

36. The Tribunal finds that, on balance, this consideration supports the cancellation of the Applicant’s visa, but acknowledges that the evidence before it is that the Applicant’s conviction followed from an isolated episode of poorly managed situational stress. The Tribunal gives this consideration some weight in favour of cancellation.

    The past and present behaviour of the Applicant towards the Department (including whether they have been truthful and cooperative)

37. There is no information before the Tribunal to indicate that the Applicant has been uncooperative with the Department or with departmental staff. The Tribunal notes that the Applicant co-operated with the cancellation process and provided a meaningful response to the NOICC in a timely manner.

38. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

39. The information before the Tribunal indicates that there will be no consequential cancellation of any other visa under s 140 of the Act if the Applicant’s visa is cancelled.

40. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the Applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

41. The mandatory legal consequences of the cancellation of the Applicant’s visa are that he could become an unlawful non-citizen and may be detained in immigration detention under s 189 of the Act and may be deported from Australia under s 198 of the Act if he does not voluntarily depart. Cancellation of the Applicant’s visa will also mean that he is precluded from applying for some visas under s 48 of the Act while he remains in Australia.

1. In addition, cancellation of the Applicant’s visa means he will be affected by Public Interest Criterion 4013 which will limit the applicant’s ability to apply for a temporary visa to return to Australia for a specified period of time.

2. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight.

   Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

3. Australia owes visa applicants a range of obligations under several international agreements that Australia is a signatory to. In particular, these obligations include the 1989 Convention of the Rights of the Child (the CRC).

4. The Tribunal has considered whether the cancellation of the applicant’s visa would breach any obligation Australia owes under these international agreements.

5. The CRC provides, in broad terms, that all decisions made in relation to children must consider the best interests of those children as a primary consideration. The CRC recognises the family unit as the fundamental group in society, protects the rights of children to know and be cared for by their parents and further recognises the right of children to grow up in a family environment in an atmosphere of happiness, love and understanding for the full and harmonious development of their personality.

6. The Tribunal observes that, were the Applicant’s visa cancelled, he may be eligible to apply for a BVE to remain in Australia pending resolution of the proceedings before the Federal Circuit and Family Court. While it is the case that the Applicant and his family unit do not have a clear migration pathway, the Tribunal’s view is that there is no practical utility in the Applicant holding a different visa status from that of his wife and child whilst the court appeal is resolved.

7. Since the conditions of the AVO were varied on 17 March 2022, the Applicant has been the primary carer for his young child, and has resided with his wife and child as a family unit. The Applicant’s wife’s evidence is that this is a harmonious and supportive environment, and that she was relieved that her husband was able to return home. The Tribunal takes the view that the best interests of the Applicant’s child are to remain under the care of both parents whilst the court process unfolds. The Tribunal places a small amount of weight on this consideration as a factor against cancellation.

   Any other relevant matter

8. There are no other relevant matters requiring consideration by the Tribunal.

   Conclusion

9. The Tribunal has considered the Applicant’s circumstances. The Applicant has been convicted of an offence against the laws of the State of New South Wales and the Tribunal has found that there are grounds for cancelling his visa. The Tribunal has considered the factors which weigh in favour of cancelling the visa, most significantly the circumstances in which ground of cancellation arose and the recent offences the Applicant has been charged with, as well as the fact that the Applicant remains subject to an AVO, albeit one that was varied at an early juncture to allow him to return to his family living environment. However, the Tribunal finds that the individual and cumulative effect of the considerations weighing against cancelling the visa, most particularly the financial, psychological and emotional hardship that may be experienced by the Applicant’s wife and child, outweigh the considerations in favour of cancellation.

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

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Bridget Cullen
    Senior Member