Goraya (Migration)

[2021] AATA 2656

Goraya (Migration) [2021] AATA 2656 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satnam Singh Goraya

CASE NUMBER:  2005389

HOME AFFAIRS REFERENCE(S):          BCC2017/3066970

MEMBER:Denis Dragovic

DATE:4 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 04 June 2021 at 12:11pm

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 – presence of the visa holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual – charges were ‘withdrawn’ –  separation from his daughter – applicant does not have any engagement with his ex-wife – decision under review set aside

LEGISLATION
Migration Act 1958, s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 309 (Spouse (Provisional)) 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 applicant was is or may be a risk to the health and safety of an individual, namely, his ex-wife. 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 matter is before the Tribunal because of a Court order acknowledging that the previous decision of the Tribunal, differently constituted, was affected by jurisdictional error for the reason of failing to consider the applicant’s claim to fear harm from retribution from his wife’s family if he were to be removed to India, when considering whether to exercise its discretion to cancel his Partner (Provisional) (Subclass 309) visa.

4. The applicant was represented in relation to the review by his registered migration agent. The migration agent, Mr Constantine Paxinos, of PAX Migration Australia provided a very comprehensive submission that responded to the key issues to be considered prior to the hearing. Based upon the evidence provided in the submission of Mr Paxinos and what was available to the Tribunal from the Departmental file and the file from the prior Tribunal’s review, I have 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)(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.

   Background

6. The applicant is a 33-year-old male from India. He met his ex-wife in 2013 through his family as the relationship was an arranged marriage. At the time the applicant lived in India and his ex-wife in Australia. The two married on the 17 February 2014 and then applied for a spousal visa to travel to Australia. The visa was granted, and the applicant arrived to Australia in May 2015 and began from that moment residing together with his ex-wife. Not long after the ex-wife was pregnant with a daughter who was born in February 2017.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(e)(ii) 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 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].

8. The applicant was arrested on the 12 July 2017 and charged with two counts of rape, one count of attempted rape and one count of aggravated assault. In each instance the alleged victim was his ex-wife. In an appearance at the Magistrate’s Court on the 13 July 2017 the applicant was remanded in custody. On the 17 October 2017 the applicant appeared before the Magistrates Court of South Australia. Based upon a Certificate of Record provided by the applicant’s migration agent the ‘Sexual intercourse with a person without consent (2)/attempted engage in sexual intercourse with a person without [consent]’ is listed as ‘Not proceeded with’ as of 17 October 2017. On the 21 November 2017 the remaining charge of aggravated assault was ‘Withdrawn’ on application by the prosecution.

9. The applicant states that he was never denied bail as the applicant refused to apply for bail fearing that he would be transferred to the custody of Australian Border Force and taken to immigration detention.

10. The applicant was also subject to three interim intervention orders, the first covering the period 12 July 2017 until 5 December 2017, the second dated 14 December 2017 and the third was dated 3 May 2018. This final interim intervention order remained in place until the 13 June 2018.

11. An Australian national police check was provided to the Tribunal which states that the applicant does not have any disclosable court outcomes. An Indian police clearance certificate was provided which states that there is no adverse information against the applicant.

12. Following an enquiry by the Tribunal to the South Australia Magistrates Court there is no evidence of additional intervention orders other than those listed above.

13. The divorce between the applicant and his ex-wife was finalised on the 12 October 2018. The Federal Circuit Court has ordered that the daughter live with her mother but that there is arranged access for the applicant to see his daughter. The applicant has regularly seen his daughter under supervision.

14. The applicant submitted a Family Court order dated 31 March 2021 that allocates time for the applicant to spend with his daughter under no restrictions that would suggest that there are any concerns over the applicant’s behaviour.

15. The Tribunal received numerous character references including from Henrietta Wighton, Chairperson of St Vincent De Paul Migrant and Refugee Centre, Mary Ireland, Coordinator St Vincent De Paul, Migrant and Refugee Centre, Butta Singh, Friend, Harsimran Singh, Friend, Bhupinder Singh Takhar, President of SarbatKhalsa South Australia Inc., Rajveer Singh, Head of Village, Dhimarkhera, Block-Kashipur, Distt. US Nagar, Hardeev Singh, Member of District Council, Block-Kashipur, US Nagar. Each of these character references either gave general positive assessments of the applicant’s character or were specific in regard to the alleged incident questioning his capacity to have committed such an act.

16. The applicant noted that it is almost four years since the dates of the alleged incidents against his ex-wife, and almost three years since the intervention order was withdrawn. The representative argued that the passage of time is a relevant factor as to whether the grounds for cancellation exist. In addition, the representative argued that the withdrawal of charges and intervention orders suggests that they may not have been ‘true or sufficiently true to enliven the cancellation provision’. The representative also argued that ‘weight should also be given to the likelihood that the Intervention Orders were merely a consequence of the nature of charges that were laid.’[1]

    [1] Submission received on the 19 February 2021

17. The applicant has maintained throughout this process that he was not violent to his ex-wife and that he had not sexually assaulted her. He provided a statutory declaration of his recollection of the events in July 2017.

18. The ex-wife is not a party to this matter and was not called upon to give evidence.

19. In reviewing the court documentation available to the Tribunal, I note that the charges did not proceed or were withdrawn. There could be a variety of reasons for this. It could be, as the applicant’s migration agent argued that it, ‘tends toward an inference that she was an unwilling witness to the matter proceeding to trial, or the prosecutor assessed her as too poor a witness to proceed.’ On the contrary it could be because the ex-wife was afraid or intimidated by his family and as such, she was not willing to continue as a witness. Nevertheless, the outcome was that the prosecution chose not to proceed which is indicative of inadequate evidence or a view that there is an inability to obtain adequate evidence. Overall, due to the new evidence not available to the Departmental delegate I give this some weight against there being grounds for cancellation.

20. I note that the police, who responded to the claim made by the applicant’s ex-wife, did choose to charge the applicant and grant an interim intervention order. That the police chose to do this indicates that a professional opinion that was brought to bear on the case saw there being reason to act in the manner which they did. For this reason, I place some weight in favour of there being grounds for cancellation.

21. Even if the claims that led to the charges had some basis of truth that was not tested in the courts, I note that the couple separated four years ago, and their divorce was finalised nearly three years ago. The applicant and his ex-wife do not have any interaction including during hand over of the child to each other when it is their turn to provide parenting. This reduction in exposure of the applicant to the ex-wife reduces the level of risk that he poses to her. As the test is a forward-looking test, for this reason I give some weight against there being grounds for cancellation.

22. In addition, the nearly four years that have passed without incident since the alleged incident in of itself is evidence of whether the applicant poses a risk to his ex-wife. The Tribunal sought from CourtsSA records of intervention orders lodged or finalised against the applicant. None other than those already available were provided. The nearly four years constitutes a large and relevant fragment of evidence regarding the type of behaviour the applicant is expected to exhibit into the future towards his ex-wife. As there is no evidence before me that the applicant has acted in any way which could be construed as creating a risk to his ex-wife during this period, I give this considerable weight against there being grounds for cancellation.

23. The information before the Tribunal is that each of the three intervention orders were interim and not final orders and so the applicant had not had the opportunity to contest any of the allegations that led to those orders being made, reducing the probative value of such orders as evidence of the applicant being a risk to the health or safety of his ex-wife. On the final hearing on the 13 June 2017 the prosecution withdrew their application for an intervention order. For these reasons, I place limited weight in favour of there being grounds for cancellation on the existence of these interim intervention orders.

24. When considering the evidence as a whole, I concur with the argument made by the representative that it would be undesirable for the law to be applied in such a manner where unsubstantiated and untested accusations would lead to there being grounds for cancellation and potentially the consequence of deportation, and as in this case, separation from his daughter. Considering that the prosecution withdrew or did not proceed with all of the charges and intervention orders and that the applicant does not have any engagement with his ex-wife and that over the past nearly four years there has not been any evidence available to the Tribunal of harm, in any form, to his ex-wife alongside considerable character witnesses reflecting positively along with other information as noted above I am not satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Denis Dragovic
    Senior Member