Maaz (Migration) - [2020] AATA 3976

Maaz (Migration) [2020] AATA 3976 (8 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Maaz
CASE NUMBER:  2010823
HOME AFFAIRS REFERENCE(S):          CLF2020/20991
MEMBER:Michael Ison
DATE:8 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 08 July 2020 at 2:57pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) – Subclass 020 (Bridging B) – bridging visas granted pending partner visa application – risk to safety of individual – charged with family violence offences and subject of intervention order – intention to plead not guilty – visa, study, work and relationship history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(ii), 119(1), 359AA
CASE
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).
Background
The applicant is Mr Muhammad Maaz who is a 32 year old Pakistani national. The applicant arrived in Australia on 28 July 2008 as the holder of a Student (Subclass 572 Vocational Education and Training Sector) visa. The applicant was granted three subsequent Student visas. In 2016 the applicant married a woman who was born in Pakistan but according to the applicant is an Australian citizen.
On 15 August 2016 the applicant applied for a Partner visa. That application has not been determined. The applicant was granted a Bridging A (Subclass 010) visa at the time, having held six Bridging E (Subclass 050) visas since 22 December 2014.
On 20 September 2018 the applicant was granted a Bridging B (Subclass 020) visa and it was this visa that was cancelled by a delegate of the Minister.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The applicant was served with a Notice of Intention to Consider Cancellation of a visa (NOICC) at 11am on 26 June 2020 at the Canberra City Police Station. At 11:14 am on that day the applicant was interviewed by the delegate and at 12:15 pm the same day the delegate handed the applicant a hand written Notification of Decision cancelling the applicant’s visa.
The Tribunal is satisfied the NOICC complied with the requirements of s.119(1) of the Act.
The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant has been charged with family violence related criminal offences and in the delegate’s view the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 29 June 2020 the applicant applied…

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.

Keep reading for free

Create a free CaseChat account to read Maaz (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 3976
Decision Date: 8 July 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant, Mr Muhammad Maaz's, Subclass 020 (Bridging B) visa. Mr Maaz, a Pakistani national, had been in Australia since 2008, holding various student and bridging visas. He had married an Australian citizen and applied for a Partner visa, which remained undetermined. The cancellation was based on Mr Maaz being charged with family violence related criminal offences, leading the delegate to believe his presence in Australia posed a risk to his wife's health or safety.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(e)(ii) of the Migration Act 1958 was made out, and if so, whether the visa should be cancelled. This involved determining if Mr Maaz's presence in Australia was, or might be, a risk to the health or safety of an individual. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s.116(1)(e)(ii) was satisfied. This was based on the applicant having been charged with offences including property damage, common assault, using a carriage service to menace, harass or offend, assault occasioning actual bodily harm, and breaching a family violence intervention order. Despite the applicant's intention to plead not guilty to most charges, the Tribunal accepted that the intervention order, which prevented contact with his wife, reflected a risk. The Tribunal also considered the applicant's compelling reason to remain in Australia, which was to stay with his wife and support her health issues, but found this was not sufficiently compelling given the intervention order and the pending Partner visa application.

Ultimately, the Tribunal affirmed the delegate's decision to cancel Mr Maaz's Bridging B visa. While acknowledging the applicant's visa and study history, marriage, and plans for the future, the Tribunal concluded that the existence of the criminal charges and the intervention order established the ground for cancellation. Furthermore, the Tribunal determined that there was no compelling reason for Mr Maaz to remain in Australia, and therefore, the discretion to cancel the visa was exercised.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision dated 26 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).Background The applicant is Mr Muhammad Maaz who is a 32 year old Pakistani national. The applicant arrived in Australia on 28 July 2008 as the holder of a Student (Subclass 572 Vocational Education and Training Sector) visa. The applicant was granted three subsequent Student visas. In 2016 the applicant married a woman who was born in Pakistan but according to the applicant is an Australian citizen. On 15 August 2016 the applicant applied for a Partner visa. That application has not been determined. The applicant was granted a Bridging A (Subclass 010) visa at the time, having held six Bridging E (Subclass 050) visas since 22 December 2014. On 20 September 2018 the applicant was granted a Bridging B (Subclass 020) visa and it was this visa that was cancelled by a delegate of the Minister.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The applicant was served with a Notice of Intention to Consider Cancellation of a visa (NOICC) at 11am on 26 June 2020 at the Canberra City Police Station. At 11:14 am on that day the applicant was interviewed by the delegate and at 12:15 pm the same day the delegate handed the applicant a hand written Notification of Decision cancelling the applicant’s visa. The Tribunal is satisfied the NOICC complied with the requirements of s.119(1) of the Act. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant has been charged with family violence related criminal offences and in the delegate’s view the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. On 29 June 2020 the applicant applied to the Tribunal to review the decision of the delegate.The Tribunal hearing The applicant appeared before the Tribunal on 3 July 2020 by video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant appeared by video link from the Villawood Immigration Detention Centre (VIDC). The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal also explained the role of the interpreter as an aid to communication during the hearing and afforded the applicant an opportunity to object to the particular interpreter engaged by the Tribunal, which he did not. The Tribunal further informed the applicant that it would allow the applicant to address the Tribunal towards the end of the hearing on any matter the applicant felt was relevant to his review.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.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)(ii). 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?s.116(1)(e)(ii) - risk to an individual A visa may be cancelled under s.116(1)(e)(ii) 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 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]. According to the primary decision the applicant has been charged with the following criminal offences arising from incidents occurring between 3 April 2020 and 25 April 2020:·Destroy or damage property (2 charges);·Common assault;·Use of a carriage service to menace, harass or offend;·Assault occasioning actual bodily harm; and·Breach of an After Hours Family Violence Intervention Order (FVIO). The applicant told the Tribunal he has attended two hearings to date and there is a third hearing on 14 July 2020 in relation to the criminal charges. The applicant was not sure what the hearing on 14 July 2020 is but said he had pleaded not guilty to all charges except the breach of the FVO, which he says he self-reported, but then also told the Tribunal he has pleaded not guilty to all charges and intends “defending the [FVO] in court”. The Tribunal sought to clarify the situation with the applicant and proceeded on the basis the applicant has or intends to plead not guilty to all charges and to seek to have the FVO set aside. The applicant told the Tribunal, which the Tribunal accepts, that he was granted bail in relation to the criminal charges with the main conditions of that bail reflecting the terms of the FVO that he cannot have any direct or indirect contact or communication with his wife, he cannot go within 150 metres of their apartment in Canberra or her work place and he has to generally stay away from his wife.Privilege against self-incrimination As the criminal charges filed against the applicant have not been determined the Tribunal explained to the applicant that he has a privilege against self-incrimination. The Tribunal explained to the applicant the nature and reasons for the privilege and that it meant he did not have to answer questions about the circumstances that led to him being charged. The Tribunal further explained if the applicant chose to put forward his version of events then, as Tribunal proceedings are recorded, the Australian Federal Police could obtain that recording and use it against the applicant in his criminal proceedings. Importantly, the Tribunal explained to the applicant that if he chose not to answer the Tribunal’s questions about the circumstances that led to him being charged with criminal offences, the Tribunal would not make adverse findings or draw adverse inferences against the applicant because it is his legal right not to do so. The applicant indicated to the Tribunal that he understood the privilege and how it operated in this review.Information adverse to the applicant

Decision

Reasons for decision

On 20 September 2018 the applicant was granted a Bridging B (Subclass 020) visa and it was this visa that was cancelled by a delegate of the Minister.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The applicant was served with a Notice of Intention to Consider Cancellation of a visa (NOICC) at 11am on 26 June 2020 at the Canberra City Police Station. At 11:14 am on that day the applicant was interviewed by the delegate and at 12:15 pm the same day the delegate handed the applicant a hand written Notification of Decision cancelling the applicant’s visa. The Tribunal is satisfied the NOICC complied with the requirements of s.119(1) of the Act. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant has been charged with family violence related criminal offences and in the delegate’s view the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. On 29 June 2020 the applicant applied to the Tribunal to review the decision of the delegate.The Tribunal hearing The applicant appeared before the Tribunal on 3 July 2020 by video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant appeared by video link from the Villawood Immigration Detention Centre (VIDC). The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal also explained the role of the interpreter as an aid to communication during the hearing and afforded the applicant an opportunity to object to the particular interpreter engaged by the Tribunal, which he did not. The Tribunal further informed the applicant that it would allow the applicant to address the Tribunal towards the end of the hearing on any matter the applicant felt was relevant to his review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.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)(ii). 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?s.116(1)(e)(ii) - risk to an individual

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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 Procedural Instructions, formerly known as its Procedures Advice Manual, ‘General visa cancellation powers’. The headings below are taken from the Department’s Procedural Instructions and are used for convenience only.The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to travel to or remain in Australia The applicant explained his visa and study history in Australia, his marriage to his wife and their residences in different cities over time, their recent history and employment in Canberra and their plan to have children in the future, although they do not have any children at present. The applicant told the Tribunal that his wife is an Australian citizen but did not provide any evidence to support this claim. The Tribunal recognises the FVO prevents the applicant from communicating with his wife at present and accepts the applicant’s evidence that his wife’s immigration status in Australia permits her to sponsor the applicant for a Partner visa. The Tribunal asked the applicant if he has a compelling need to remain in Australia. The applicant told the Tribunal that his compelling reason is to stay with his wife, anywhere in the world. The Tribunal accepts that the applicant has applied for a Partner visa and that his wife has significant health issues, which the applicant has told the Tribunal he has in the past and wants in the future to continue to support his wife in managing those issues. The applicant told the Tribunal that as far as he is aware his wife is still sponsoring him for the Partner visa. In the applicant’s circumstances, the Tribunal does not find the applicant has a compelling reason to remain in Australia. At present the applicant is prevented from seeing or communicating with his wife due to the FVO, which the applicant indicated would remain in place until the criminal charges filed against him are resolved. It would make little practical difference in the Tribunal’s view to the assessment of the applicant’s application for a Partner visa whether he is in Australia or Pakistan. There is no information before the Tribunal that a Criminal Justice Stay Certificate has been issued that would effectively prevent the applicant departing Australia. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa but in the circumstances of the applicant having criminal charges pending and there being extensive domestic and international travel restrictions due to the COVID-19 global pandemic at the time of this decision, the Tribunal gives this consideration only modest weight.The extent of the applicant’s compliance with their visa conditions