Joseph (Migration)

[2018] AATA 3341

Joseph (Migration) [2018] AATA 3341 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joshua Joseph

CASE NUMBER:  1815671

HOME AFFAIRS REFERENCE(S):           BCC2017/4165160

MEMBER:Kira Raif

DATE:19 July 2018

PLACE OF DECISION:  Sydney

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 19 July 2018 at 10:16am

CATCHWORDS
Migration – Cancellation - Bridging A (Class WA) visa – Subclass 010 (Bridging A) – Whether the presence of the applicant in Australia is or may be, or would or might be, a risk to the Australian community – Single family violence incident – Where the applicant has significant insight into conduct – Where the applicant is genuinely remorseful – Where the applicant has undertaken counselling – Applicant is not a risk – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(e)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 May 2018 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 (the Act).

2. The applicant is a national of Fiji born in June 1978. He was granted a Bridging visa in July 2015 on the basis of his application for a Partner visa. In December 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) of the Act. The applicant provided written comments and his Bridging visa was cancelled on 23 May 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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 set aside.

   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(1)(e). 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.

5. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561 at [41].

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   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 Bridging visa on 13 July 2015. On 16 July 2017 the ACT Police charged the applicant with the following offences

   a.Common assault

   b.Assault occasioning actual bodily harm

   c.Destroy / damage property not exceeding $5000

8. The decision record refers to the prosecution Statement of Facts which sets out the circumstances leading to the charges. It is stated that on 16 July 2017 the police attended the applicant’s home where he lives with his partner, the sponsor. The applicant was taken to a sobering shelter. The police later observed the sponsor had a bruise to his eye socket and was visibly distressed. The sponsor reported that the applicant returned home and entered the kitchen holding two knives. The sponsor left the house and called the police. The sponsor reported that the previous night, he heard things being thrown around in the living room, the applicant yelled at him, snapped his headphones, threw a packet of chips onto the ground and damaged a pot plant in the garden. The applicant used force to take the handle of the broom from the sponsor and yelled at the sponsor. The applicant is said to have struck the sponsor with a fist in his eye socket and to the side of his face.

9. It is recorded that on 2 August 2017 the Magistrates Court of ACT made a Family Violence Order (FVO) against the applicant in relation to the sponsor for a period of 24 months from 2 August 2017. The FVO prohibited the applicant from engaging in behaviour that constituted family violence towards his partner, from being on the premises where the couple lived and from consuming alcohol while in the sponsor’s company. The applicant was present when the FVO was made. On 17 August 2017 the Magistrates Court amended the applicant’s bail conditions to allow him to return to the shared address with the sponsor.

10. The applicant pleaded guilty to the charges and on 16 October 2017 the ACT Magistrates Court sentenced him as follows:

    Common assault – Section 17 (guilty, no conviction recorded)

    Assault occasioning actual bodily harm – 12 months good behaviour bond and 100 hours of community service

    Destroy / damage property not exceeding $5000 – Section 17

11. The applicant was also required to submit to drug or alcohol testing if required and to attend educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed.

12. The Tribunal has considered the various statements provided to the delegate and the Tribunal, including the psychological report from Nomchong Psychology, the applicant’s own statements and the oral evidence. The Tribunal acknowledges that the applicant has been convicted of serious offences and the applicant concedes that his conduct was inappropriate. However, the Tribunal also places weight on the fact that the applicant has been very remorseful about his conduct, pleaded guilty to the charges and has taken active steps to ensure that such conduct does not occur again.

13. The Tribunal notes that no convictions were recorded for common assault and damaging property. The applicant has completed the community service in relation to the third offence. The Tribunal also notes that the conditions of the Family Violence Order were altered shortly after its issuance to allow the couple to continue to live together. That order has been revoked in December 2017. The parties’ evidence to the Tribunal is that the FVO was issued at the behest of the police and the counsellor and the sponsor told the Tribunal he was reluctant to have the FVO issued and applied for its revocation as soon as he could. The fact that the FVO was first altered and then revoked very quickly after it was issued would suggest that an assessment was made that the applicant was not a risk to his partner. There is no suggestion that any other incident had taken place since the incident that led to the convictions and there is no suggestion of any harm that the applicant had perpetrated on the sponsor or any other person. There is no history or violence or anti-social behaviour and there is nothing to indicate that the incident in July 2017 was anything other than an isolated incident. The couple’s relationship appears to be strong and both the applicant and sponsor spoke in oral evidence about a close relationship between them and the support for the relationship from the sponsor’s family.

14. The Tribunal also places significant weight on the fact that the applicant himself recognises the inappropriate nature of his past behaviour and he had engaged in rehabilitation programs on a voluntary basis. His evidence to the Tribunal is that he continues to see a counsellor and will do so in the future. He has changed his employment pattern and claims there is now less pressure on him at work. The applicant provided to the Tribunal reports from his psychologists and counsellors. The Tribunal is satisfied that the applicant has taken meaningful and effective steps to ensure the behaviour that led to the convictions does not occur again. Significantly, there is no evidence of alcohol or drug dependence or abuse by the applicant.

15. Having regard to all the evidence before it, the Tribunal is satisfied that the applicant’s conduct that led to the convictions was out of character and caused  by stress and alcohol use on that particular occasion. The Tribunal is satisfied that the applicant has put in place ways to deal with similar situations in the future that would not involve the use of alcohol. The Tribunal has formed the view that the applicant’s involvement in the criminal process, the convictions and the subsequent cancellation of his visas, have had a significant effect upon the applicant and would ensure that the same conduct does not occur again.

16. The couple have been living together for a number of years and there is no suggestion of any harm or violence other than during the incident in question. Importantly, there is no suggestion of such behaviour being repeated since the incident in 2017.

17. The Tribunal has formed the view that the applicant’s presence in Australia is not, and may not be a risk to the safety of his partner. There is no suggestion that the applicant’s presence in Australia poses a risk to any other individual or individuals. The Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Kira Raif
    Senior Member