Le (Migration) - [2021] AATA 4911

Le (Migration) [2021] AATA 4911 (15 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Huy Thanh Le
CASE NUMBER:  2104499
HOME AFFAIRS REFERENCE(S):          BCC2020/871063
MEMBER:Antoinette Younes
DATE:15 December 2021
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 15 December 2021 at 08:19 AM

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – risk to the safety of an individual – applicant convicted of offences – applicant awaiting further related charges – relationship ceased – compelling need to remain in Australia – support for family – limiting financial capacity – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Amendment (Character and General Visa Cancellation) Act 2014
Migration Regulations 1994
CASES
Gong v MIBP [2016] FCCA 561
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 6 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s 116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant has been convicted and charged with domestic violence offences under NSW laws. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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
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.
Section 375A Certificate
In the course of the hearing, the Tribunal advised the applicant of the existence in the Departmental file of a s 375A Certificate in relation to documents contained in that file, on the basis that their disclosure would be contrary to the public interest because the information would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Le (Migration)

Details

AGLC: Le (Migration) [2021] AATA 4911
Case: [2021] AATA 4911
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an application to review the Minister's decision to cancel the visa of the applicant, Mr. Le. The applicant held a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The cancellation was based on the Minister being satisfied that the applicant's presence in Australia posed a risk to the health or safety of an individual, specifically Ms. X, his former wife. The applicant had a history of domestic violence convictions against Ms. X, and further charges were pending at the time of the review.

The Administrative Appeals Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The Tribunal also considered the implications of a section 375A Certificate, which related to the confidentiality of certain departmental communications. The applicant did not make submissions regarding the Certificate, and the Tribunal found it to be valid.

The Tribunal found that the ground for cancellation under section 116(1)(e)(ii) was established, noting the applicant's convictions for common assault and property damage against Ms. X, and the issuance of apprehended domestic violence orders. The Tribunal also acknowledged the pending charges for further alleged domestic violence offences. However, in exercising its discretion, the Tribunal considered the applicant's compelling need to remain in Australia to support his two minor children, despite the cessation of his relationship with Ms. X. The Tribunal accepted the applicant's evidence regarding his active involvement in his children's lives and his desire to provide them with emotional and financial support. The Tribunal also noted the pending criminal matter as a further compelling reason for the applicant to remain in Australia.

Ultimately, the Tribunal concluded that while the ground for cancellation existed, the compelling circumstances, particularly the best interests of the children and the applicant's need to remain for his pending legal matters, weighed against cancelling the visa. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 820 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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.Section 375A Certificate In the course of the hearing, the Tribunal advised the applicant of the existence in the Departmental file of a s 375A Certificate in relation to documents contained in that file, on the basis that their disclosure would be contrary to the public interest because the information would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods. The Tribunal explained to the applicant that the material essentially related to communications between Departmental staff, and with the NSW Police. The Tribunal noted that the substance of that information has been summarised in the delegate’s decision record, a copy of which the applicant had provided to the Tribunal. The Tribunal further explained that if any of the material is relevant to the Tribunal’s decision-making, this would be raised in accordance with procedural fairness requirements. The Tribunal advised the applicant that it considered the Certificate to be valid. When invited to make submissions, the applicant did not make any comments.Does the ground for cancellation exist?Section 116(1)(e) – risk to Australian community or individual The ground for cancellation in this case is s 116(1)(e)(ii) of the Act, which provides that:116 (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (ii) 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]. On 4 May 2016 the applicant was granted a combined Partner (Provisional) (Subclass 820)/ Partner (Permanent) (Subclass 801) visa, sponsored by his Australian wife, Ms X. The parties were married and they have 2 children, aged 3 and 6 years of age. Ms X has 5 other children from a previous relationship. The applicant gave evidence that his marriage to Ms X is over. The Tribunal discussed with the applicant the information contained in the delegate’s decision record, namely that:a) On 8 July 2017 the applicant was convicted of the offence of common assault against his wife, Ms X for which he was fined $350. He was also convicted of the offence of destroy or damage property <= $2000 – for which he was fined $250.b) On 11 July 2017 the Liverpool Local Court issued a final Apprehended Domestic Violence Order (ADVO) to the applicant, in force for 2 years until 10 July 2019. The ADVO had conditions namely that the applicant must not, assault or threaten Ms X, stalk, harass or intimidate her, or intentionally or recklessly destroy or damage any property that belongs to her or is in her possession. c) On 20 February 2020 the NSW Police arrested the applicant and charged him with assault occasioning actual bodily harm, common assault, and destroy or damage property, all of which related to Ms X. He was due to appear in Liverpool Local Court on 7 April 2020. d) On 25 February 2020 Liverpool Local Court issued an interim ADVO with conditions that the applicant must not assault or threaten Ms X, stalk, harass or intimidate her, intentionally or recklessly destroy or damage any property that belongs to her or is in her possession, approach her or be in her company for at least 12 hours after drinking alcohol or taking illicit drugs, approach her or contact her in any way, unless the contact is through a lawyer or to attend court-approved counselling, or ordered by a court about contact with children, or as agreed in writing between the applicant and Ms X about contact with the children. The Liverpool Local Court granted the applicant bail until his next appearance on 7 April 2020, with protective conditions including that he must comply with the conditions of the ADVO. e) The applicant was subsequently convicted of the above offences against Ms X and he was sentenced to a Community Correction Order (CCO) for 18 months commencing 24 April 2020 and concluding 23 October 2021, the CCO to be supervised by Bankstown Community Corrections,150 hours of Community Service Work, abstention from alcohol and drugs, commencing 24 April 2020 and concluding on 23 October 2021, a 3-month curfew from 10.00pm to 4.00am, commencing 24 April 2020 and concluding on 23 July 2020, and not to leave residential address.f) A final ADVO was issued commencing on 24 April 2020 and concluding on 23 October 2021 with protective orders in relation to Ms X and other protected people, ordering the applicant not to assault or threaten them, stalk, harass or intimidate them, or intentionally or recklessly destroy or damage any property that belongs to them. The applicant was also ordered not to approach or be in the company of the protected people for at least 12 hours after drinking alcohol or taking illicit drugs, not to approach the protected people or contact them in any way, unless the contact is through a lawyer, to attend accredited or court-approved counselling, mediation and/or conciliation, and as ordered by a Court about contact with children, or as agreed in writing between the applicant and the parent(s) about contact with children.g) On 11 December 2020, the Court made an Interim Variation of the ADVO. On 9 February 2021, the Court removed a condition from the ADVO, allowing the applicant to resume living with Ms X. The ADVO however retained conditions, namely that the applicant must not assault or threaten her, stalk, harass or intimidate her, or intentionally or recklessly destroy or damage any property that belongs to her or is in her possession, not approach or be in the company of Ms X for at least 12 hours after drinking alcohol or taking illicit drugs.h) Subsequently, the applicant moved back into the family home. The Department received information that the NSW Police charged the applicant in relation to an alleged incident which occurred on 12 February 2021 against Ms X. The applicant was charged with common assault (domestic violence related), stalk-intimidate intending to cause fear of physical or mental harm (domestic violence offence) and contravene prohibition or restriction in an apprehended violence order. The applicant appeared at the Liverpool Local Court on 23 February 2021 and pleaded not guilty to the new charges. The Court added conditions to the ADVO to again order the applicant not to contact or approach Ms X, which prohibits the applicant from living with Ms X. NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC)

Decision

Reasons for decision

The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

For those reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) 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 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’.·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 The applicant applied offshore for a Prospective Marriage (Subclass 300) visa, sponsored by Ms X. He declared that he has a child who was not migrating with him to Australia, his daughter, born 30 October 2012. He and Ms X married in Australia and on 3 May 2016, he applied for a combined Partner (Subclass 820/801) visa, sponsored by Ms X. On 4 May 2016, he was granted the current Partner (Provisional) (Subclass 820) visa, which allows him to live, work and study in Australia while the Department processes his Partner (Permanent) (Subclass 801) visa application. In his NOICC response of 15 April 2020, the applicant indicated that he travelled to Australia for the purpose of living with Ms X. He indicated that he is committed to supporting his family and needs to be in Australia so that he can remain in contact with his family and provide emotional and financial support. He argued that this is a compelling reason for him to remain in Australia and this weighs against cancelling the visa. In a statutory declaration of 22 November 2021, the applicant stated that he has been actively involved in the care of his children and he has provided financial, moral, practical, and emotional support. He used to drop them off and pick them up from school. He noted that the children have physical ailments and need to take regular medication. He stated that since his arrival in Australia, he has worked a number jobs and supported the family financially, including paying rent, bills and for groceries. He wants to provide love, care, and the best education for his children. He fears that if removed from Australia, he would not be able to see his children because Ms X would not take them to Vietnam to see him. This would cause his children serious psychological and emotional issues. He loves his children who are his “whole world”. His parents are deceased. He is no longer living with Ms X so there is no threat to anyone. He promises to abide with Australia’s laws. During the hearing, the applicant advised that he wishes to remain in Australia to look after his two minor children and to be part of their life, acknowledging that he and Ms X are no longer in a relationship. On the evidence, the Tribunal accepts that the applicant’s purpose for travel to and stay in Australia has been to be with Ms X, consistent with the purpose of the visa he was granted. Although no longer in a relationship with Ms X, the Tribunal is satisfied that the applicant has a compelling need to remain in Australia, his two minor children. He also has a pending criminal matter relating to the charges of February 2021 and this is another compelling need to remain in Australia.