Joseph (Migration)

[2018] AATA 3330

Joseph (Migration) [2018] AATA 3330 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joshua Joseph

CASE NUMBER:  1726789

HOME AFFAIRS REFERENCE(S):           BCC2017/2562079

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 820 (Spouse) visa.

Statement made on 19 July 2018 at 10:34am

CATCHWORDS
Migration – Cancellation - Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) - 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 116(1)(e), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth)

CASES
Gong v MIBP [2016] FCCA 561
Hasran v MIAC [2010] FCAFC 40
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 30 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Fiji, born in June 1978. The applicant was granted the Spouse visa in March 2017. On 1 September 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 a written response to the NOICC and his visa was cancelled on 30 October 2017. The applicant seeks review of the delegate’s decision.

3. On 4 June 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 18 June 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant has not provided the comments within the prescribed period and no extension has been granted. The applicant’s comments were received on 19 June 2018 the day after the prescribed period has ended. The applicant claims in his written submission to the Tribunal that there was a failure with communicating the documents by email and the error was not noticed until the day after. The Tribunal acknowledges that this may have occurred, but there is no suggestion that there was any failure or error on the part of the Tribunal that caused the delay or prevented the transmission of documents. The Tribunal does not consider that it has any discretion to offer a hearing in circumstances where the applicant failed to provide his comments within the prescribed period.

5. The applicant also argues that the Tribunal’s letter did not specify the specific provision under which it was sent, as there was no reference to s. 359A of the Act. The Tribunal does not consider that there is any requirement in the Migration Act or the Regulations for such reference to be made in the Tribunal’s correspondence. The letter outlined the information which the Tribunal considered may be a reason or part of the reason for affirming the decision under review and explained its relevance. The letter expressly stated that if the response was not received by the due date, the applicant may lose his entitlement to the hearing. The Tribunal is satisfied its correspondence complied with the requirements of s. 359A of the Act.

6. The Tribunal finds that s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments. However, the Tribunal has had regard to the applicant’s oral evidence given in relation to the cancellation of his Bridging visa.

   Relevant law

7. 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.

8. 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].

9. 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?

10. The following information is available from the Departmental file relating to the cancellation of the Bridging visa held by the applicant. This information was the subject of the Tribunal’s s. 359A letter to the applicant.

11. 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

12. 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.

13. 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.

14. 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

15. 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.

16. The applicant provided a number of documents in response to the NOICC. These included several character references from colleagues and friends. The Tribunal accepts that those who provided references believe the applicant to be a person of good character. The applicant provided a statement from the sponsor. The sponsor refers to the existence of a close relationship since June 2014 and states that the incident of 16 July 2017 was out of character and such behaviour had not occurred before or since. The sponsor states that at no time before or since the incident did he feel uncomfortable or threatened in the applicant’s presence and the applicant’s bail condition was changed to allow him to return home. The sponsor suggests that the behaviour was the result of the applicant’s overindulgence in alcohol on the night of the incident and with help and support, the applicant will deal with issues in a more constructive way and there is no issue of alcohol dependency. The sponsor outlines the couple’s circumstances.

17. The applicant also presented a statement from a counsellor indicating the applicant attended six sessions from July 2017. It indicates that the applicant had changed his behaviour and no longer drinks alcohol and that he has expressed remorse about the incident. The counsellor states that the applicant is a person of excellent character.

18. In his own declaration, the applicant states that he has no criminal history and has not engaged in any criminal activity. The applicant referred to the pressures of work and counselling which he planned to attend. The applicant states that the incident occurred because of his intoxication. 

19. The applicant provided a further submission, including a number of statements, in his written submission to the Tribunal of 19 June 2018. In his own declaration the applicant repeats the information he gave in response to the NOICC. The applicant refers to being stressed due the pressure of work and the use of alcohol which resulted in his behaviour. The applicant expressed remorse for his conduct. The applicant states that he pleaded guilty and received a lenient sentence. He has completed community service and received counselling. The applicant provided a number of statements in support of the application, as well as evidence that the AVO has been revoked in late 2017. The applicant subsequently provided a psychologist’s report and other evidence to the Tribunal.

20. 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 in relation to the cancellation of the bridging visa. 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.

21. 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’ oral evidence to the Tribunal relating to the cancellation of the bridging visa 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.

22. 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.

23. 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.

24. 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.

25. 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

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member