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

1. 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).

2. 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.

3. 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.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

6. 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

7. 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.

8. 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.

9. 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

10. 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;

11. 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].

12. 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.

13. 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)

14. On 19 March 2020, the Department sent to the applicant a NOICC to which he responded on 30 March, 1 April, 15 April, 8 October, 6 November, 26 November, 16 December, 18 December 2020; and 22 February, 4 March, 12 March 2021.

15. The NOICC raised the convictions, as well as the charges as giving rise to potential cancellation.

16. The applicant accepted that he had been convicted. In the response of 4 March 2021, the representative made submissions that the applicant had been complying with ADVO orders until the alleged incident of 12 February 2021 which is pending before Liverpool Local Court, and “until the Liverpool Court decides on the matter it is premature to comment on the alleged incident.”

17. In a statutory declaration of 12 March 2021, the applicant stated:

    ·He had an altercation with Ms X on 12 February 2021. He is unable to discuss this matter further as the alleged event is before the court and he has pleaded not guilty to the charges.

    ·He left home after the incident and he switched off his phone. When he called back, he was not aware that a policeman answered the phone. He cut off the call, but he was not trying to avoid police. He remained locally and he was not hiding.

    ·On 31 December 2020, he went home to visit his children and in accordance with a condition of the ADVO, he was not allowed to stay overnight at home. Ms X wanted him to stay overnight but he refused, and she started yelling and screaming. The neighbours heard and called the police. Police attended the home and asked about the incident. He left home before the police arrived. Ms X explained to the police what happened, and the police left.

    ·On 9 February 2021, at the hearing for the variation of the ADVO, they disclosed the incident of 31 December 2020 at the outset of the hearing to the Presiding Magistrate of Fairfield Local Court. The Presiding Magistrate then confirmed the details of the incident with prosecution and took the incident into consideration before making the orders for the variation of the ADVO. His Honour was fully satisfied with the applicant’s conduct and his solicitor explained the serious consequences of breaching the ADVO.

    ·He did not want any trouble. He made the mistake of losing his temper once in February 2020 and he is regretful and very remorseful of his actions. He pleaded guilty to the offence and took responsibility for his wrongdoings. Since then, he has been strictly following the ADVO orders. Ms X wanted him to breach the ADVO conditions but that was what happened five weeks before the ADVO conditions were varied. As soon as he returned home, he ended up with another complaint against him and he has realised that he cannot live with Ms X. The problems he faced are due to the toxic relationship with Ms X. He was provoked and he understands that there is no excuse for violence which happened in March 2020, but after the incident of 12 February 2021, he has finally concluded that it is not in the best interest for them to live together.

18. During the hearing, the applicant advised the Tribunal that the matter relating to the charges of February 2021 are still pending and that he is due to appear in Court in June 2022. He indicated that he has pleaded not guilty. He confirmed that he considered the relationship with Ms X to be over.

19. The Tribunal notes that the Act does not qualify or quantify the risk as being real, or significant, or substantial. Prior to enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the provision stated that the presence of the visa holder in Australia “is or would be a risk to the health, safety or good order of the Australian community”. The legislative intent is summarised at [13] of Schedule 2 to the Explanatory Memorandum as follows:

    The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.

20. Section 116(1)(e) has been the subject of considerable judicial examination. In Gong v Minister for Immigration and Border Protection,[1] Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41]. In Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[2] the Court observed that the concept of “risk” has an element of futurity to it and that reliance on past offending alone may not be sufficient to justify cancellation of the visa.

    [1] Gong v Minister for Immigration and Border Protection [2016] FCCA 561.

    [2] Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, 5 August 2020.

21. The Department’s procedural guidelines concerning visa cancellation under s 116(1)(e) reiterate that the term “risk” is not defined in the Act and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.

22. The Tribunal has considered the submissions very carefully and the evidence in totality. The Tribunal considers the convictions and the charges to be serious, involving a vulnerable person. The Tribunal accepts that the applicant is remorseful for his offending conduct and that there is no ongoing relationship with Ms X. However, the applicant has had a history of domestic violence convictions and charges, the last of which are pending. The Tribunal observes that within a few days of the Court’s removal of a condition from the ADVO, allowing the applicant to resume living with Ms X, he was charged with further domestic violence offences. The applicant is entitled to the presumption of innocence but s 116(1)(e) does not require a conviction.

23. On the evidence and in consideration of the evidence, the Tribunal finds that s 116(1)(e) is enlivened and that the presence of the applicant in Australia may be or might be a risk to the safety of Ms X.

24. 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

25. 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

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. The Tribunal gives this consideration weight in favour of the applicant.

    ·The extent of compliance with visa conditions

32. There is no evidence of breach of any visa conditions.

33. The Tribunal gives this consideration neutral weight.

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

34. In case of cancellation, the applicant could be subject to detention and removal from Australia. However, the BVA associated with the Partner (Permanent) (Subclass 801) visa application would come into effect so the applicant would not be liable for detention as he would not be an unlawful non-citizen, unless the BVA is cancelled under the same grounds as in this instance.

1. The Tribunal accepts that in the case of cancellation, the applicant would face hardship including significant emotional and psychological hardship particularly if required to depart Australia as there would be a real possibility that he would not see his two minor children for an indefinite period.

2. The Tribunal observes that the delegate had some concerns about the degree of the applicant’s claimed financial contribution to support his family but ultimately accepted that the applicant has been providing some financial support to the family. The Tribunal accepts as plausible that the applicant has made a financial contribution to the family and consequently, in case of the visa cancellation, he would no longer be able to work in Australia, limiting his capacity to contribute towards the children’s upbringing, causing them hardship.

3. The Tribunal gives this consideration significant weight in favour of the applicant.

   ·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

4. The circumstances in which the grounds for cancellation arose, were the applicant’s convictions for domestic violence offences against Ms X in 2017, the further convictions relating to the charges of 20 February 2020, and the charges of 2021 relating to the alleged domestic violence offences against Ms X on 12 February 2021.

5. The applicant has been apologetic and remorseful. He is claiming to be a good person who has never been in trouble previously. The Tribunal takes the view that the offences are serious and, in this case, involving Ms X in circumstances whereby the applicant was in a relationship with Ms X. Although alcohol has been claimed to have been associated with the offending conduct, the Tribunal does not consider the consumption of alcohol to be beyond the applicant’s control.

6. The applicant has been convicted of serious domestic violence offences. He has pending charges of a serious nature.

7. The Tribunal gives this consideration significant weight in favour of cancellation.

   ·Past and present behaviour of the visa holder towards the Department

8. The applicant responded to the NOICC and has fully engaged in the cancellation process.

9. The Tribunal gives this consideration weight in favour of the applicant.

   ·Whether there would be consequential cancellations under s 140

10. There is no evidence of consequential cancellation under s 140.

11. The Tribunal gives this consideration weight in favour of 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

12. The cancellation of the visa may result in the applicant being detained under s 189 and removed from Australia under s 198 of the Act. The applicant may be subject to s 48 of the Act, which may prevent him from applying for further visas while in Australia. He would also be impacted by Public Interest Criterion (PIC) 4013 limiting the grant of certain temporary visas for a period of 3 years.

13. The Tribunal considers potential detention and removal as well as the s 48 bar and PIC 4013 to be intended legislative consequences which are reasonable.

14. The Tribunal gives this aspect neutral weight.

    ·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

    Convention on the Rights of the Child (CROC)

15. As a signatory to the CROC, Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interests of the chid.

16. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

17. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

18. In the NOICC responses, the applicant advised that he and Ms X have 7 children, 2 of whom are their own, and 5 are from Ms X’s previous relationships. All the children are Australian citizens and are under 18 years of age. The applicant has consistently argued that Australia would be in breach of the CROC in case of cancellation.

19. The Tribunal does not claim to be an expert in child psychology but is of the view that it is reasonable to suggest that the potential separation of the children from the applicant would have detrimental effects on the children including significant distress, economic and emotional hardships, potential trauma, and disruption to their sense of security. The children would be deprived of seeing their father and growing up without the love and guidance that he clearly wants to provide.

20. There is no evidence to suggest that the applicant has been violent or abusive towards any of the children or that they had witnessed his behaviour towards Ms X. During the hearing, the Tribunal discussed with the applicant the potential impact of domestic violence on children, and he confirmed his understanding.

21. The Tribunal is satisfied that on balance, it is not in the best interests of the children for the applicant’s visa to be cancelled, and that cancellation would be in breach of Australia’s obligation under the CROC.

22. The Tribunal gives this aspect significant weight in favour of the applicant.

    ·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The Subclass 820 (Spouse) visa is not a permanent visa.

24. The Tribunal gives this aspect neutral weight.

    ·Any other relevant matters

25. There are no other relevant matters.

26. The Tribunal has carefully considered the material before it individually and cumulatively.

27. The Tribunal considers this review to be significant. The Tribunal does not want to send the wrong message to the applicant by finding in his favour. The Tribunal considers domestic violence to be serious and there is no place for it in our community. There are minor children in this case who would face hardship in case of cancellation. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant and not cancellation. The Tribunal considers that the matters in favour of the applicant outweigh the other aspects in favour of cancellation.

28. 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

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

    Antoinette Younes
    Senior Member