HUSSEIN (Migration)

[2021] AATA 5003

HUSSEIN (Migration) [2021] AATA 5003 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahid Hussein

CASE NUMBER:  2113635

HOME AFFAIRS REFERENCE(S):          BCC2021/1085197

MEMBER:Kira Raif

DATE:16 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 16 December 2021 at 6:35pm

CATCHWORDS

MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – applicant convicted of an offence – genuine and continuing relationship – joint responsibility for children – financial hardship – employment – best interests of the children – rehabilitation programs – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 29 September 2021 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 (Cth) (the Act).

2. The applicant is a national of Fiji, born in October 1990. He was granted the Provisional Partner visa in January 2019. In August 2021 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling his visa under s 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The applicant was represented in relation to the review by his registered migration agent. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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(g).

5. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (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:  

   (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))

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Provisional Partner visa in January 2019. The Department received advice that in September 2020 the applicant was convicted of Assault Occasioning Bodily Harm (DV) and was sentenced to a 15 month Community Corrections Order. The applicant confirmed in his submission to the Tribunal of 13 December 2021 that he had been ‘charged’ with assault occasioning actual bodily harm and placed on a Community Corrections Order (expired) and was issued with the AVO (due to expire in September 2022). The applicant concedes that there are grounds for cancelling the visa.

8. The Tribunal finds that the applicant was a holder of a Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s 116(1)(g) and reg 2.43(1)(oa).

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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

10. 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’.

11. The applicant provided a lengthy submission to the Tribunal on the afternoon of 13 December 2021. As the hearing was scheduled for the early morning of 14 December 2021, the Tribunal considers such a late submission of evidence and argument less than helpful. The applicant was represented by Mr Ejaz Khan of Juris Australia Lawyers.

    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

12. The purpose of a Partner visa is to enable the applicant to stay in Australia with his partner. The applicant told the Tribunal that he felt remorseful and had apologised to his wife and they have ‘worked things out’. The applicant’s partner, Ms Mohammed, who gave oral evidence to the Tribunal, also stated that they are ‘workings things out’. The applicant claims he maintains a spouse relationship with his partner. However, the Tribunal is mindful that the applicant presented very little documentary evidence of his ongoing relationship with his partner. The Tribunal accepts that due to the AVO, they are unable to live together, and the Tribunal accepts that the applicant provides some financial support to his partner (evidence of which he provided to the Tribunal in his post-hearing submission), however, there is little evidence that the applicant and Ms Mohammed plan and undertake joint social activities, that they represent themselves to others as being in a spousal relationship, that they rely on each other for comfort and support or view their relationship as a long term one. The applicant provided to the Tribunal very limited ‘family photos’, only one of which depicts the applicant with Ms Mohammed. The Tribunal put the applicant on notice in the course of the hearing that there was paucity of evidence of his ongoing relationship with the sponsor and the applicant had not provided adequate additional evidence of the relationship. The Tribunal is not prepared to conclude, on the limited evidence before it, that there is a mutual commitment to a shared life as husband and wife by the applicant and Ms Mohammed.

13. The applicant’s evidence to the Tribunal is that the present AVO does not permit him to live with his partner but they see each other ‘almost daily’ and spend the weekends together. As noted above, the applicant presented little documentary evidence of the couple’s joint social activities. The applicant told the Tribunal that his wife had recently applied to change the conditions of the AVO to allow him to live with her. When asked why she would do so a week before the hearing, given that the AVO was in place for over a year, the applicant said that she was worried about the future if his visa is cancelled. The applicant’s representative stated that the applicant wanted to wait until the expiry of the Community Corrections Order before making that application as it would be difficult to change the AVO conditions prior to the expiry, and Ms Mohammed told the Tribunal that she did contact the court previously but was told it was difficult to do due to COVID-19 restrictions. In his submission of 15 December 2021 the applicant provided a copy of communication his partner received regarding the application to vary the conditions of the AVO. The communication indicates that  an application cannot be made by email and must be made in person. That information does not support the applicant’s evidence that an application to vary the terms of the AVO has been made. Rather, it shows that Ms Mohammed made an approach, was told to do something else and there is no evidence that she has done that. It appears that there is a degree of reluctance on the part of Ms Mohammed to seek the variation of the conditions and that supports the Tribunal’s view that their claimed relationship may not be a mutually committed one.

14. The applicant states in his submission to the Tribunal that he and his partner have a joint responsibility for the care of their child and refers to his wife’s current pregnancy with the second child. Whether or not the applicant has a spousal relationship with Ms Mohammed, the Tribunal accepts that the applicant is fulfilling the purpose of the visa due to the care he provides to the child. the Tribunal also accepts that the presence of his child in Australia (as well as the pregnancy and the imminent birth of the second child) constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

15. There is no evidence of any non-compliance with visa conditions.

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

16. The applicant states in his response to the NOICC that he loves his wife and child and that it would be hard for him to live without them. The applicant told the Tribunal that he would be depressed if he is separated from his family. While the Tribunal does not accept the applicant’s self-diagnosis of future depression (which is unsupported by any medical evidence), the Tribunal accepts that hardship would be caused to the applicant due to the separation from his family and child.

17. In his written submission to the Tribunal the applicant states that he provides financial support for his family and if his visa is cancelled, he may have to leave Australia and lose his job, so his family would experience financial hardship. The Tribunal does not accept that would be the case on the limited evidence before it. The applicant’s evidence to the Tribunal is that his partner receives Centrelink benefits. The applicant has not presented evidence whether the sponsor’s family in Australia are able to provide financial support. Importantly, the applicant told the Tribunal that he has several thousands of dollars in savings (the applicant provided his bank records in his submission of 15 December 2021) and that he would leave half of these to his partner if he was required to leave Australia. There is also very little probative evidence before the Tribunal concerning any employment that the applicant may have in his home country and whether he would be able to provide some level of financial support to his family, even at the lower level than he does now. Thus, while the Tribunal accepts that the applicant provides financial support to his family and that the cancellation of his visa - which may result in the applicant having to depart Australia and therefore lose his employment in Australia – may result in the applicant’s income being reduced, the Tribunal does not accept that this will result in financial hardship for the applicant and his partner.

18. The applicant refers to his wife’s health and has provided her medical records. The Tribunal accepts that evidence, although the Tribunal is mindful that much of the evidence relates to Ms Mohammed’s earlier conditions, with little evidence that there are any ongoing health issues of concern, or ongoing treatment. (In the course of the hearing, the applicant was put on notice of the Tribunal)’s concern about the paucity of evidence concerning Ms Mohammed’s present condition). The applicant told the Tribunal that his wife has had a heart condition since childhood and undergoes check-ups once a year. He does not suggest there is any ongoing treatment for the condition. In such circumstances, the Tribunal does not consider Ms Mohammed’s heart condition to be of such a nature as to require the applicant’s presence in Australia. The Tribunal does not accept that hardship would be caused by the cancellation because of Ms Mohammed’s heart condition.

19. The applicant states that his wife suffered from post-natal depression following the birth of their child. She was prescribed medication and was given information. The applicant expressed concern that it might return, however, he also stated that he is not aware of a current diagnosis of depression or his wife taking receiving medication or other treatment for depression. The Tribunal does not consider, on the evidence before it, that Ms Mohammed is suffering from depression at present and the applicant’s claim that she might in the future is purely speculative. 

20. The applicant states in his written submission that if he is required to leave Australia as a result of the visa being cancelled, this would adversely affect his wife and child and cause considerable hardship. The Tribunal does not accept that is necessarily the case. That is, in the circumstances where the applicant has been convicted of an offence involving violence toward his partner and issued with an AVO that continues to be in effect, the Tribunal does not accept that hardship to the applicant’s partner and child are automatically established. The Tribunal has considered the particular circumstances of the applicant and his partner, and his evidence and submissions are addressed in this decision.

21. The applicant states that it would be difficult for him to get a job in Fiji due to the economic downturn. The Tribunal does not accept that evidence as the applicant presented no evidence of having searched for employment and having been denied employment in Fiji. Nor has the applicant presented evidence of Fiji’s financial situation that would affect his ability to find employment, nor evidence relating to the present job market. The applicant told the Tribunal that he was working as a mechanic in Fiji prior to migrating to Australia and he confirmed in oral evidence that he would be able to find work in Fiji, but he claims the conditions are not good and he would be expected to work too hard and be paid very little. The applicant states that there is corruption and no justice, and the working conditions are not good. The Tribunal accepts that the conditions and income that the applicant may expect in Fiji may not be the same as those he is used to in Australia, but the Tribunal has formed the view (and the applicant concedes) that the applicant will be able to find gainful employment and support himself by working in Fiji, as he had done prior to arriving in Australia.

22. The applicant states that the health system in Fiji is not very good. The applicant presented no evidence to support that assertion and has not satisfied the Tribunal that he would not receive adequate health care, should the need arise. The applicant also told the Tribunal that he has no health issues at present and there would appear to be no reason for him to rely on the health system. In the circumstances, there appears to be no need for the applicant to access the health system in Fiji. The applicant’s claim about Fiji’s health system thus appears to be purely hypothetical, but even if the applicant did require access to the health system, as noted above, there is no evidence to satisfy the Tribunal that the applicant would not receive appropriate healthcare.

23. The applicant refers to the emotional hardship of not seeing his son every day. The Tribunal is prepared to accept that this might be the case.

    Circumstances in which ground of cancellation arose

24. The ground for cancellation arises because the applicant has been convicted of an offence. In his response to the NOICC the applicant states that he and his partner had a premature baby born at the time and as first time parents, it was a difficult situation for both of them. The pandemic had also added to their stress, which led to his conduct. The applicant requested a chance to improve his character and become a better person. He states he cannot live happily without his loved ones and that it would be difficult to overcome this situation in his life.

25. In oral evidence, the applicant told the Tribunal that he has learned from his mistakes and has changed after the incident. The applicant notes that it was the first offence in his life. He states that he has completed an eight-hour program and he is also involved in a Facebook program for which he has completed ‘the basics’ but has not obtained further material and has not made payment for the course. The Tribunal accepts that the applicant has completed an eight-hour anger management program and has had some (albeit limited) involvement in an online problem but the Tribunal considers that involvement to be quite minimal, given the length of time that has passed since the incident. Nevertheless, the Tribunal acknowledges the applicant’s expression of remorse and is mindful that there have been no further convictions.

26. The applicant states that the maximum penalty for the offence is 5 years, and in this case he was given a Community Corrections Order rather than a custodial sentence (stating that his wife’s circumstances and safety would have been considered before the CCO was issued) and that the terms of the AVO allow him to continue the relationship with his wife. The applicant notes that if he was considered to be a risk to his wife, he would have been given a more severe penalty, and his offence was at the lower end of the scale. The Tribunal acknowledges the nature of the penalty but considers any offence involving violence against another person, and domestic violence, to be of a serious nature.

    Past and present behaviour of the visa holder towards the Department

27. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

28. There are no persons whose visa would be subject to consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

29. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas and would have limited opportunities to make visa applications onshore.  The applicant may also be subject to an exclusion period if he was to make an application offshore. If the applicant’s visa is cancelled, he may be ineligible for the permanent Partner visa.

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

30. The applicant refers to the poor security and high level of crime in Fiji and states that he may be assaulted at any time. The applicant states that he was robbed twice before he came to Australia. The applicant states that this situation applies to everyone and not only to him because of his characteristics, and it is very common. The applicant states that he reported the matter to the police but the police in Fiji is not effective and could not do much. Even if the entirety of the applicant’s evidence is accepted, his evidence suggests that the matters to which the applicant refers are of general application. The applicant does not claim that he was targeted because of any of his characteristics, nor that the authorities in Fiji would withhold protection for any of his characteristics or for any other reason (other than general incompetence). In these circumstances, the Tribunal has formed the view that the applicant’s claims do not give rise to Australia’s protection obligations.

1. The Tribunal is also mindful that the applicant is eligible to seek a protection visa in Australia, should he determine that he would be subjected to harm in Fiji and such claims would be assessed as part of his application.

2. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

3. The applicant’s partner and child (with another child to be born in January 2022) are in Australia. His parents and siblings are in Fiji.  The principles of family unity may require his presence in Australia.

4. The Tribunal has considered the best interests of the applicant’s child(ren). The Tribunal accepts that the applicant has a child in Australia and his wife is due to give birth to another child in January 2022. In his submission to the Tribunal, the applicant refers to the rights of the child, noting that there is no evidence that he has committed any violence against the child. However, in the Tribunal’s view, any violence committed with respect to a child’s mother cannot be said to have no impact on the welfare of the child. the Tribunal is generally of the view that it is not in the best interests of any child to live in circumstances where there is violence perpetrated by one parent against another. In this case, the applicant claims that the incident was a one-off due to the stresses at the time, that he has changed and that there had been no other incidents. The applicant refers to the programs he has completed. These matters have been addressed above. The Tribunal is mindful that since the conviction, the applicant has not been able to live with his partner and to that extent, some of the stressors that had led to the violence previously, have been removed. The applicant’s resolve not to engage in violence has not been tested in circumstances where the applicant lives with his partner and takes care of two young children. The Tribunal has formed the view that the applicant’s engagement in rehabilitation programs has been minimal and, overall, that there remains a risk, albeit not a significant risk, of the applicant engaging in the same conduct in the future.

5. Both the applicant and Ms Mohammed told the Tribunal that Ms Mohammed would sponsor the applicant for a visa in the future, should he be required to leave Australia (although the applicant initially seemed uncertain whether this would occur). The Tribunal has formed the view that it would be in the best interests of the child (and in the future, the two children) to ensure that there is no violence in the applicant’s relationship with Ms Mohammed and that the children are not exposed to violence or observing that violence. As the Tribunal has formed the view that there remains a risk of family violence in the future, the Tribunal has decided that the best interests of the child(ren) would not be adversely affected by the cancellation, acknowledging that it may lead to separation of the applicant from his children.

   Any other relevant matters

6. The applicant submits that he had attended the Blacktown Engagement program and learned about anger management and had engaged with other programs. The applicant notes that he has not committed any offences since the above and has strong family ties in Australia, including his wife and child who are Australian citizens. The applicant presented a letter of support from his employer. The Tribunal accepts these claims. The Tribunal notes, in relation to the letter of support from the employer, that while the applicant has been recognised as a valuable employee, the employer has not expressed awareness of the applicant’s conduct or conviction. Thus, the Tribunal accepts that letter as evidence of the applicant’s employment and contribution to his employer but does not consider it helpful as a character reference.

7. The applicant told the Tribunal that he has spent all his money to come to Australia and he has nothing left in Fiji and he would have to ‘start again’. The applicant states that it would be hard for him to get used to the system and get into the system. The Tribunal does not accept that evidence, given that the applicant has lived his entire life in Fiji and less than three years in Australia. The Tribunal accepts that the applicant has spent money to come to Australia, but he told the Tribunal that prior to coming to Australia he used to rent with his father, and he confirmed that he would be able to do that in the future. The Tribunal has formed the view that the applicant would be able to re-establish himself in Fiji.

8. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that there are grounds for cancelling the applicant’s visa as he has been convicted of an offence and held a temporary visa. The Tribunal accepts that the cancellation of the visa would cause hardship to the applicant, most significantly because it would lead to separation of the applicant and his family and children in Australia, and it is also likely to lead to the loss of employment, reduced income and affect other circumstances. The Tribunal accepts that he would have to re-establish himself if he was to return to Fiji and that his capacity to provide financial support to his family in Australia would likely be reduced. The Tribunal also accepts that  if the applicant was to make another application for a Partner visa in the future, there will be considerable cost and delay associated with such an application and that there can be no certainty of the visa being granted. The Tribunal accepts that such matters too will cause considerable hardship to the applicant.

9. 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.

10. The Tribunal has decided, in the circumstances of this case, to give greater weight to the circumstances in which the ground for cancellation arose. The applicant was convicted of a serious offence involving violence towards his partner. The Tribunal has formed the view that the applicant’s involvement in rehabilitation programs was minimal and while acknowledging the applicant’s expression of remorse and assertion that he has changed, the Tribunal has formed the view that the circumstances have not allowed for the applicant’s resolve to be tested. The Tribunal has some reservations about the applicant’s claim that his spousal relationship with Ms Mohammed is ongoing, given the very limited evidence of the different aspects of the relationship that has been presented to the Tribunal, and the Tribunal acknowledges the parties’ evidence that the applicant may seek another partner visa in the future, if that relationship does exist and should the applicant’s partner be willing to be with the applicant.

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

    DECISION

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

    Kira Raif
    Senior Member