Maaz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 92

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maaz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 92

File number(s):	MLG 3039 of 2020
Judgment of:	JUDGE RIETHMULLER
Date of judgment:	30 September 2021
Catchwords:	MIGRATION – judicial review – no matters of principle – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 116, 477
Division:	Division 2 General Federal Law
Number of paragraphs:	32
Date of last submissions:	22 September 2021
Date of hearing:	22 September 2021
Place:	Melbourne (via Microsoft Teams)
Counsel for the Applicant:	Mr Smartt
Counsel for the Respondents:	Mr Di Stefano
Solicitor for the Applicant:	New South Wales Bar Association
Solicitor for the Respondents:	Clayton Utz

ORDERS

MLG 3039 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MUHAMMAD MAAZ

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	30 SEPTEMBER 2021

THE COURT ORDERS, BY CONSENT, THAT:

1.Pursuant to s 477 of the Migration Act 1958 (Cth), the time for the applicant to file his application be extended up to and including 8 July 2021.

AND THE COURT FURTHER ORDERS THAT:

2.The Application be dismissed.

3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,853.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘AAT’) on 8 July 2020 confirming the cancellation of this Bridging visa under section 116 of the Migration Act 1958 (Cth) (‘the Act’). The applicant lodged his application out of time, however, the Minister does not oppose the grant of an extension of time to the applicant in this matter. Therefore, I will make orders extending the time for filing the application to the date that the application was in fact filed, that is, on 8 July 2021.

   BACKGROUND

2. The applicant came to Australia on 28 July 2008 from Pakistan. At that point, he held a student (subclass 572) visa and obtained three subsequent student visas. In 2016, he married an Australian citizen and applied for a partner visa. Pending the determination of the partner visa application, he was granted a Bridging A visa, and then on 20 September 2018, granted a Bridging B visa.

3. On 26 June 2020, the applicant was given a Notice of Intention to Consider Cancellation of his visa, and on the same day, was interviewed by a delegate who determined that his partner visa should be cancelled as a result of offences he allegedly committed against his wife.

4. The cancellation occurred pursuant to section 116(1)(e)(ii) of the Act which relevantly provides:

   Section 116 Power to cancel

   (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:

   (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii) the health or safety of an individual or individuals; or

   …

5. Following cancellation of his visa, the applicant sought a merits review before the Tribunal on 29 June 2020. On 3 July 2020, the applicant appeared before the Tribunal by video with the assistance of an interpreter. The Tribunal affirmed the decision of the delegate on 8 July 2020.

   The Tribunal’s Findings

6. In this case, the applicant had been charged with a number of offences as recounted by the Tribunal at paragraph [16] of its decision as follows:

   16.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).

7. The applicant told the Tribunal that he intended to defend the charges and to plead not guilty to each of them. He had been granted bail with respect to the charges, but was subject to a family violence order prohibiting him from going within 150 metres of his former spouse. The Tribunal noted that the criminal charges had not yet been determined by the court.

8. Each of the charges related to incidents directed towards the applicant’s former spouse. The Tribunal provided the applicant with details of the allegations made against him by his former spouse, recounting in the reasons:

   17.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.

   18.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

   19.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

   20.The Tribunal shared with the applicant information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review in accordance with the procedure set out in s.359AA of the Act.

9. The applicant denied the charges and his evidence is recounted in some detail by the Tribunal in the ensuing paragraphs. The Tribunal found that the ground for cancellation had arisen, saying:

   42.The Tribunal finds that there is a ground for cancelling the applicant’s Bridging visa under s.116(1)(e)(ii) because the issuing and currency of the FVO and the filing of criminal charges against the applicant indicates to the Tribunal that there is a possibility the applicant behaved in the past toward his wife in a manner that was a risk to her health and safety such that the Tribunal is of the view that the applicant may be a risk to the health and safety of his wife in the future.

10. The Tribunal then went on to consider whether or not to exercise the discretion to cancel, noting that this is not a visa type where there is a mandatory cancellation applicable under section 116(3) of the Act: see paragraph [43] of the decision. The Tribunal proceeded to address each of the relevant factors for the purpose of the discretion to cancel the visa, before ultimately concluding that the material weighed in favour of a cancellation of the applicant’s visa.

    GROUNDS FOR JUDICIAL REVIEW

    Ground 1

11. The first ground of the applicant’s application is in the following terms:

    In the exercise of its discretion under s 116 of the Migration Act 1958 (Cth) (Migration Act), the Tribunal committed jurisdictional error on the basis that it failed to give proper, genuine and realistic consideration to the applicant’s claim that he was innocent of the charges that led to cancellation of his visa.

    Particulars

    (a)The applicant’s claim that he was innocent of the charges that led to cancellation of his visa was clearly put to the Tribunal in the hearing on 3 July 2020.

    (b)The claim was so material to a mandatory consideration under s 116 (the circumstances in which the ground for cancellation arose) that a failure to give it “proper, genuine and realistic” consideration constituted jurisdictional error.

    (c)The Tribunal’s failure to give the applicant’s claim this consideration in relation to this consideration is apparent from [64] to [69] of the Tribunal’s decision.

12. The applicant complains that the Tribunal failed to give “proper, genuine and realistic” consideration to his claims that he was innocent of the charges that led to the cancellation of the visa. Relevantly, he denied that he behaved in the way alleged against his wife. He did however, accept that he had been charged by the police and the Tribunal had before it a document form the police setting out a summary of the police case. It was accepted that in the circumstances the cases clearly fell within the ambit of section 116(1)(e)(ii) and the finding by the tribunal at paragraph 42 was open on the evidence before the Tribunal.

13. The substance of the argument for the applicant is that the tribunal failed to give appropriate consideration to the applicant’s fulsome denials of the allegations, when determining the discretion as to whether or not to cancel the visa.  This argument focuses upon the considerations at paragraph [64] to [69] of the reasons, where the Tribunal said:

    The circumstances in which the ground for cancellation arose. Were the circumstances in which the ground for cancellation arose was beyond the applicant’s control?

    64.The circumstances in which the ground for cancellation arose are set out in paragraphs 16 to 18 and 21 of these reasons.

    65.In summary, the circumstances are that the applicant has been charged with five family violence related criminal offences, is the respondent to an FVO and is subject to conditions of bail that reflect the conditions of the FVO.

    66.The Tribunal accepts that the detailed allegations set out in paragraph 21 of these reasons are just that, unproven allegations. The Tribunal makes no findings of fact in relation to those allegations and draws no adverse inferences against the applicant based on those allegations.

    67.The circumstances include that the Australian Federal Police, who attended the applicant’s apartment, were sufficiently concerned for the safety of the applicant’s wife that they applied for the FVO and the Magistrate’s Court was sufficiently persuaded by those concerns to issue the FVO and to replicate the FVO conditions in the applicant’s conditions of bail.

    68.There is no information before the Tribunal that the circumstances in which the ground for cancellation arose was beyond the applicant’s control, noting that the applicant has denied the allegations and gave evidence he intends to defend the criminal charges.

    69.The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it great weight.

14. In these paragraphs, the Tribunal takes into account that the applicant denies that the allegations are true and that he intends to defend the charges. Indeed, elsewhere the Tribunal notes that the applicant maintains that he says that he loves his wife and that his wife loves him: see paragraph [28] of the decision. He also told the Tribunal that he had received text messages from his wife but he had deleted them, claiming that he had not told the police about the text messages he had received because he did not want to ruin his family. Whilst the version with respect to the text messages appears remarkable, it was nonetheless accepted by the Tribunal: see paragraph [29].

15. The applicant argues that the Tribunal failed to consider whether the charges being laid against the applicant was a matter beyond his control.  That is, if his wife fabricated the allegations then the allegations were beyond his control.  A fair reading of paragraphs [64] to [69] indicates that the Tribunal approached this consideration on the basis of whether the circumstances that led to those charges were beyond the applicant’s control, if the allegations were true.  

16. It is important to return to s.116 of the Act as the starting point of the enquiry. A ground for cancellation was found in this case because the applicant may be a risk to his wife or another member of the community. The circumstances that give rise to this risk are the assaults (and other conduct) the applicant is alleged to have committed against his wife. If he carried out the acts alleged, it was patently within his control, unlike, for example, a work visa holder no longer complying with a work condition because their employer was placed in liquidation. To direct attention at the question of whether the making of the complaint by his wife was an act beyond his control is to direct attention away from the circumstances that gave rise to the cancellation of the visa. In this respect the argument must fail.

17. The argument bears more appropriately upon whether the Tribunal had regard to the circumstances of the allegations and the evidence in support of them. The question of whether or not the allegations are true was clearly in the Tribunal’s mind and the subject of consideration under the heading “Any Other Relevant Matters”, where the tribunal said:

    83.In his closing evidence to the Tribunal the applicant said he has tried to explain his situation truthfully and has always been honest with the police, the Department and authorities. He said he trusts Australian courts and will respect the decisions made, including if his visa is cancelled and in relation to his criminal charges, noting that if he is convicted of the criminal offences he expects his visa would be cancelled anyway.

    84.The applicant told the Tribunal he has not harmed his wife or anyone and he finds it very painful to be detained in immigration detention, where it feels like he is being punished already and serving a jail sentence even though he has not been convicted of anything.

    85.The applicant told the Tribunal his relationship with his wife is genuine and he has a lot of respect and love for his wife. The applicant said he accepted his wife in the past and will die with love for her in his heart even despite the criminal law charges and it is all a misunderstanding. The applicant reiterated that he would never hurt his wife and that she would say the same and he is ready to defend himself against the criminal charges, The applicant said he believes he will come out of that situation okay, even though he is facing court.

    86.      The Tribunal has considered this evidence in these reasons for decision.

18. As will usually be the case, it will not be appropriate for the tribunal to attempt to make a finding as to the guilt or innocence of the applicant.  Rather, the tribunal must consider all of the circumstances in determining whether to exercise the discretion with respect to cancellation of the visa.  The extent of the evidence supporting the risk factor may be relevant, for example where the allegation is clearly fanciful or alternatively where the evidence appears overwhelming.  On the facts as found by the Tribunal, it was not persuaded that the applicant had never harmed his wife. Importantly, however, the finding was not to the effect that the Tribunal was persuaded that he had in fact harmed his wife in the way that she had alleged, which clearly led to the Tribunal taking into account the applicant’s claim that he had not caused any harm to his wife.  The Tribunal went to great lengths in expressing its view that it had not assumed the applicant was guilty, nor drawn inferences against him as a result of being charged by the police. 

19. In the circumstances, I am not persuaded that the Tribunal failed to have regard to the applicant’s claims of innocence when considering the matter as a whole. In these circumstances, I am not persuaded that this ground is made out.

    Ground 2

20. The second ground is in the following terms:

    In the alternative, in the exercise of its discretion under s 116 of the Migration Act, the Tribunal committed jurisdictional error on the basis that its reasoning as to the circumstances which led to the cancellation of Mr Maaz’s visa was illogical and irrational.

    Particulars

    (a)The Tribunal never made a finding in response to the question posed at the beginning of its reasoning in relation to this consideration, namely whether the circumstances in which the ground for cancellation arose was beyond the applicant’s control.

    (b)In the alternative, if the Tribunal did make this finding, this finding was not open on the evidence:

    (i)the three propositions that the Tribunal regarded as adverse to Mr Maaz, set out at [67] of the Tribunal’s decision, were of limited relevance and/or not able to established on the evidence;

    (ii)taken at its highest, these three propositions were not, either by themselves or taken with the other material before the Tribunal, not capable of establishing the finding that the circumstances in which the ground for cancellation arose were within the applicant’s control.

21. Ground 2 addresses the paucity of evidence with respect to the allegations against the applicant.  Counsel for the applicant points out that there is no evidence before the tribunal of the witnesses that may be relied upon in the Magistrates’ Court proceedings, nor of the applicant’s former spouse, nor of any findings or orders of the Magistrates’ Court.  All that was before the tribunal was a description of the allegations and the fact that an interim family violence protection order had been made.

22. The tribunal did have before it a document from the Australian Federal Police setting out a statement of the facts concerning the various charges made against the applicant, naming the arresting officer and specifying the charges.  This document appears at pages 37 to 42 of the court book.  The document sets out in detail events that are alleged against the applicant. The statement of allegations in this document is clearly particularised, and if the matters set out therein were proved it seems likely that the charges would be proved.

23. In these circumstances there was sufficient material before the tribunal to provide it with an evidentiary basis for the claims made against the applicant, which, coupled with the tribunal’s own assessment of the applicant, demonstrates that the matters were not bare allegations or allegations of a type that on their face were spurious.  The fact that the applicant’s former spouse had initially declined to give a formal statement to police is unremarkable in the context of domestic violence allegations and does not prevent her from being called to give evidence by the police and compelled to do so.

1. In substance the applicant argues that the tribunal failed in the exercise of its discretion by failing to form a view about whether or not the claims against the applicant that founded the criminal law proceedings would ultimately be established, or had been established on the balance of probabilities. This misconceives the nature of the discretion under section 116 of the Act. There is no question in this case that the material would be sufficient to give rise to a finding of risk to the applicant’s former spouse, as the tribunal did find at paragraph 42 of its decision.

2. As discussed with respect to Ground 1, the relevant circumstance that led to the cancellation was not the complaint by his wife, nor the laying of charges by the police, but the alleged behaviour of the applicant in harming his wife. In the context of this case (assaults against his wife) there is no room for an argument that the conduct was beyond his control. That the allegations may be false is relevant. However, the tribunal did not proceed on the assumption that the allegations had been proved.

3. In deciding whether or not to cancel the visa the tribunal had regard to a number of other factors that are relevant.  An important factor was any need of the applicant to stay in Australia. In the context of the case, the applicant provided the disconcerting response that his need to remain in Australia was to “stay with his wife” (see paragraph 47).  The wife is a complainant and did not provide any statement or submissions to the tribunal. There appears to be no other significant connection between the applicant and Australia. The tribunal specifically noted at paragraph [49] of its decision:

   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.

4. Whether the applicant would be entitled to a criminal justice stay certificate in order to enable him to remain in Australia to defend the charges in person was not a matter that called for determination by the tribunal in this matter.  The tribunal took into account the applicant’s view that the cancellation of his visa would cause his wife emotional and psychological hardship as he would have to leave Australia together with the hardship that may be caused to his parents, concluding that these matters weighed against cancellation of the visa.  The tribunal did take into account the applicant’s desire to avoid having a criminal record (and impliedly a desire to be able to defend the charges in Australia) at paragraph 77 and noted that this weighed against the cancellation of the visa.

5. Ultimately, the tribunal concluded at paragraph [88]:

   The Tribunal finds that the considerations that weigh in support of the cancellation of the applicant's visa, namely the applicant's lack of compelling reason to remain in Australia and the circumstances in which the ground for cancellation arose, outweigh those considerations which weigh against the cancellation of the applicant's visa.

6. It is apparent that the tribunal was well aware that the applicant would not have had control over the question of whether or not a complaint was made against him or the police actively pursued it (save in the limited extent to which a complaint is likely to flow from misconduct by the applicant).  The tribunal was well aware that he had not been convicted and intended to defend the charges.  However, the core issue on which the cancellation occurred was his alleged assault of his wife.

7. A fair reading of paragraphs 64 to 69 makes clear that the question being addressed by the tribunal was whether or not the circumstances giving rise to the charges were beyond the applicant’s control, if he in fact committed them, rather than a failure to consider that the laying of charges was a matter beyond the applicant’s control, which is self-evident.  The relevant point with respect to the charges was his denial of guilt and intention to defend the charges.  This circumstance was clearly the subject of discussion by the tribunal under a number of the headings, in the considerations that it had made and taken into account in this regard.  In the circumstances, I am not persuaded that the tribunal failed to give proper consideration to that circumstance nor that its reasons were illogical or legally unreasonable.

   CONCLUSION

8. When considering the matter as a whole it is difficult to conclude that the decision of the tribunal is illogical or irrational, nor that it could be said to be legally unreasonable, even though reasonable minds may differ as to whether or not the visa ought to have been cancelled.  In the circumstances of this case, I am not persuaded that the applicant has made out a ground for judicial review and therefore I dismiss the application.

9. It was agreed that costs should follow the event at the scale fee, which I order.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       30 September 2021