Mdallal (Migration)

[2021] AATA 2697

Mdallal (Migration) [2021] AATA 2697 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ammar Mdallal

CASE NUMBER:  2103076

HOME AFFAIRS REFERENCE(S):          BCC2020/675121

MEMBER:Rachel Westaway

DATE:30 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 30 June 2021 at 10:05pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal convictions and imprisonment – discretion to cancel visa – breakdown of relationship and separation, with no intention of reconciling – need to work to support children of previous marriage in home country, and intention to bring them to Australia – COVID-19 and general economic conditions in home country – mental health – claim that wife lied about circumstances of offences – new relationship with Australian citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 March 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. On 8 March 2021, the delegate cancelled the visa under s.116(1)(g) on the basis that the delegate determined the prescribed ground for cancellation under r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) applied to the applicant as he held a Partner (Temporary Visa) and was convicted of an offence that is against a law of New South Wales (NSW). 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 by video-link before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. As such, the hearing was held via conferencing facilities using the Microsoft Teams program.

4. The Tribunal also received oral evidence from the applicant’s neighbour, Abdalrazaq Shehab Aldeen.  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicant was not represented.

7. The applicant provided the Tribunal with a copy of the primary notification letter and decision record from the Department of Home Affairs dated 8 March 2021.

8. 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

9. 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)(g). 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.

   Migration History

10. The applicant is a national of Jordan and first travelled to Australia on a Prospective Marriage Visa (Subclass 300) on 23 January 2017 to be with his then-fiancée Oula RAAD. 

11. On 25 August 2017, the applicant made a combined application for a Partner Visa (Subclass 820/801) on the basis of his marriage to Oula RAAD and was granted the associated Bridging Visa A (Subclass 010) on 28 August 2017.  The Partner (Temporary) (Subclass 820) Visa was granted on 20 October 2017.  

12. Departmental records indicate that the application for the second stage permanent Partner (Subclass 801) Visa is yet to be determined.  The applicant confirmed at the Tribunal hearing that the spousal relationship has broken down.

13. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on 28 March 2020 and 26 August 2020 based on information available to the Department at that time.

14. Evidence before the Tribunal indicates that on 21 September 2020, the applicant was found guilty and convicted of the following criminal offences:

COURT AND DATE	OFFENCES	RESULT
BLACKTOWN LOCAL COURT (21 SEP 2020)	[CDPV] CONTRAVENE PROHIBITION/RESTRICTION IN AVO (DOMESTIC)	H75410549: CONDITIONAL RELEASE ORDER – CONVICTION: 12 MONTHS COMMENCING 21 SEP 2020 CONCLUDING 20 SEP 2021
	CA] COMMON ASSAULT (DV) – T2

1. The applicant was issued with a subsequent NOICC on 3 February 2021 based on new information received by the Department of Home Affairs (the Department).  The delegate noted that this NOICC superseded the earlier correspondence sent to the applicant on 18 March 2020 and 26 August 2020. The applicant responded to the NOICC on 8 February 2021 and 20 February 2021. 

2. The applicant provided the following material to the Department:

   ·Email from the applicant dated 8 February 2021 setting out reasons why his visa should not be cancelled

   ·Copy of Court Order Notice (H73977775) dated 23 December 2020, issued by the Bankstown Local Court on 14 January 2021

   ·Appointment booking with Psychologist Kasim Abaie scheduled for 9 February 2021 at 12:30pm

   ·Character reference from Talal Neeman dated 6 February 2021 (former employer)

   ·Character reference from A. Shebab Aldeen dated 5 February 2021 (former neighbour)

   ·Character reference from Christopher Shiel dated 6 February 2021 (former neighbour)

   ·Psychological Report & Assessment prepared by Kasim Abaie, Psychologist on 20 February 2021

3. On 8 March 2021, the delegate determined that grounds for cancelling the applicant’s visa outweighed the reasons not to cancel.

4. The applicant lodged an application for review with the Tribunal on 11 March 2021, being case AAT 2103076 before the Tribunal for consideration.

   Submissions

5. The applicant has provided the following material to the Tribunal:

   ·Copy of the Department Notification of Cancellation and Record of Decision dated 8 March 2021

   ·NSW Revenue Urgent Notice for Overdue Fines issued 4 February 2019

   ·Copy of Court Order Notice (H73977775) dated 23 December 2020, issued by the Bankstown Local Court on 14 January 2021

   ·Psychological Report & Assessment prepared by Kasim Abaie, Psychologist on 20 February 2021

   ·Character reference from A. Shebab Aldeen dated 5 February 2021 (former neighbour)

   ·WhatsApp screen shot of messaging showing messaging history in a language other than English however the was no accompanying clarification regarding the parties to the messaging or dates.

   ·An untranslated text message the applicant advised was received from his wife, dated 7 May 2021

   ·The applicant stated in the hearing that the messages were from his former wife and stated that she falsified the breach of the AVO and tricked the applicant. The Tribunal explained at hearing that in order to consider the evidence the applicant must arrange for the messages to be translated and gave the applicant until 4 June 2021 to provide the material. On 31 May 2021 the applicant provided English translations of these text messages.

   Does the ground for cancellation exist?

   s.116(1)(g) - prescribed ground

6. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

   (oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

7. The Tribunal asked the applicant to confirm his convictions which he did. He stated his wife fabricated the evidence however it was correct that he now has two convictions.

8. As the applicant confirmed his convictions, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

9. 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’.

10. The Tribunal explained to the applicant the discretion and has considered the evidence on the Department file, the Tribunal file and oral evidence at hearing.

    Purpose of the visa holder’s travel to and stay in Australia

11. The applicant first travelled to Australia on a Prospective Marriage Visa (Subclass 300) on 23 January 2017 to be with his then-fiancée Oula RAAD.  On 28 August 2017, the applicant applied for a Partner (Temporary) (Subclass 820) Visa, on the basis of his marriage to Oula RAAD.  This visa was subsequently granted on 20 October 2017.  The purpose of the Partner Visa is to allow the applicant to live in Australia with his wife.  Evidence before the Tribunal indicates that the spousal relationship has broken down. The applicant stated that he has no intention of resurrecting the relationship and they are separated however they are not yet divorced.

12. In his email to the Department on 8 February 2021, the applicant states that it was his intention to bring his three daughters to Australia to live as a family with his wife, indicating that it is ultimately his intention to remain permanently in Australia.

13. The applicant came to Australia to marry his wife and live happily, and he has three daughters with whom he wished to bring. His daughters are from a prior marriage. They are aged 9, 15 and 21 years of age. They have never been to Australia although he stated he did apply for a visitor visa, but they could not come. The applicant did not explain why.

14. He confirmed he has returned to Jordan twice since being in Australia. He stated his wife attended the first time and the second time she had to work and could not attend. She was employed in a restaurant as a pizza maker. He is not certain about whether she works now. The last time he saw her was about three to four months ago. However, she sent him a message two weeks ago. The Tribunal asked the applicant what the message outlined and he said “I reported you because I don’t want you to leave Australia”. He explained that he wanted to leave Australia. She asked why he was still in Australia.

15. The applicant asked the Tribunal to consider that he has three daughters and they have expenses and their mother does not care for them. His mother takes care of them. He needs to remain in Australia. He stated he lost his job in Jordan and sold his business and paid for her car in Australia. He has no money and no job in Jordan.

16. He stated that he could not have the car recorded in his name, but it was his wife. He had to register it in her name, and now she has kept the car.

17. He explained he needs to remain in Australia because he doesn’t have enough money to look after his daughters in Jordan. The Tribunal queried the applicant because he has outlined that he has no money in Australia, and he has no money in Jordan. It asked whether there would be any difference then if he returned to Jordan and he explained that there would be. He said that Australia offered him more opportunities.

18. He said his wife would not allow him to do anything and he was only recently able to obtain Centrelink and Medicare and borrow money. However, he said the Centrelink benefits were stopped recently. He explained she prevented him obtaining a job so now they are separated, he is looking for work. He explained that he has nothing to return to in Jordan because he owned a mobile phone shop which he sold when he left. He explained that the situation in Jordan is bad and lock down and unemployment and COVID have made it very hard and he will struggle to find employment and he will not be able to look after his daughters. He explained he loves his life in Australia and wants his daughters to come and have an education here because life is better in Australia.

19. The Tribunal accepts that the review applicant came to Australia to marry his wife and was happy living in Australia harbouring the hope that he may at some stage bring his daughters to Australia. The applicant came to Australia on a prospective marriage visa and subsequently married his fiancé. His reasons for coming to Australia are accepted as genuine and the Tribunal gives this some weight. However, the applicant’s explanations as to why he needs to remain in Australia are given limited weight. Whilst the Tribunal accepts that the applicant may enjoy living in Australia and would like to remain here and bring his daughters here and continue to work in Australia and send money in the interim to his daughters, these reasons do not outweigh the significance of the applicant’s convictions. Furthermore, the applicant has previously worked in Jordan and owned a business. His daughters live with his mother in Jordan. The applicant as he has stated is not working at present and whilst the Tribunal is prepared to accept that opportunities may be better for the applicant in Australia and that he may have a preference to remain in Australia and seek employment, these factors are not given significant weight in the Tribunal’s discretion not to cancel the visa.

    The extent of compliance with visa conditions

20. Department records do not indicate that there has been any non-compliance in relation to the applicant’s last held visas. Notwithstanding that, evidence before the Tribunal indicates that the applicant’s Bridging Visa A (Subclass 010) ceased on 23 March 2021. The Tribunal asked the applicant what his current immigration status was, and he explained he did not know. He stated he thought he was still on his partner visa. The Tribunal explained that this is the visa which has been cancelled. He stated he had been contacted by the Department requesting further information in order to process his bridging visa.  Department records demonstrate that an application for a Bridging Visa E was lodged on 31 March 2021 and that the application is still undetermined. The Tribunal expressed concern that the applicant was unaware of his immigration status and responsibilities associated with this. The applicant stated he was dealing with the Department to follow up on their request for further information.  The applicant stated he was not aware of any non-compliance issues.

21. The Tribunal expects that the applicant would adhere to associated conditions on his previously held visas. There is nothing before the Tribunal to indicate that the applicant has not complied with previous conditions. Notwithstanding this, it gives this factor limited weight in its considerations regarding not cancelling the applicants visa.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

22. In his email to the Department on 8 February 2021, the applicant indicated that he lost his job in Australia and was also dealing with psychological fatigue due to the nature of his relationship with his wife.  The psychologist report prepared by Kasim Abaie on 20 February 2021 states that the applicant is “suffering from severe PTSD, Major depressive Disorder and Insomnia” and that he requires “ongoing psychotherapy and counselling.”

23. The applicant has advised that he “lives alone and in a very difficult situation.”  He explained that it has been difficult financially and he has lived on the streets at times. The applicant has also provided the Tribunal with an Urgent Notice for Overdue Fines issued by NSW Revenue on 4 February 2019. The applicant stated that he has not paid these fines because he did not incur them, his wife did. He stated he was told by the NSW Road Traffic Authority that he could report that his wife had incurred these fines. He explained that he was intending to do this.

24. The Tribunal asked the applicant about his mental health and he said he is experiencing issues. He stated that when he first came to Australia, he experienced psychological issues regarding his wife who became very controlling. He explained that she would question him if he was talking to his daughters and he said when he left, he was forced to sleep on the street because he had no access to money. He further went on to state that when there was an AVO against him she took his luggage and passport because she did not want him to leave the country.

25. He explained he felt depressed and suffered psychological distress and he said he feels as though he has lost five years of his life. He explained to the Tribunal that he can’t live in Jordan like this. He said he feels like he has lost his life and he has nothing in Jordan and if he was to return he will be more depressed and he can’t survive.

26. He stated he suffered from depression in Jordan and he explained they don’t have the same system of care and medication. He said he takes medication daily and he sees Dr Kasmin weekly or fortnightly for three months.

27. The Tribunal accepts that a cancellation of a visa may cause the applicant distress. It accepts the medical reports that the applicant has experienced psychological issues and that financially he may not have the same opportunities which he otherwise may have if he remained in Australia. It also accepts that the applicant has invested both financially and emotionally in a relationship which has ended and that the cancellation of the visa would lead the applicant to return to Jordan.

    Circumstances in which ground of cancellation arose

28. The grounds for cancellation arose because the applicant was convicted of two criminal offences in NSW whilst holding a Partner (Temporary) visa.

29. The applicant was consistent in his explanation to the Tribunal that he was coerced into the situation and his former partner lied to police. He stated that she agreed to give him his luggage and then reneged.  She agreed to meet him and then called the police and stated that he had breached his order.

30. Whilst the Tribunal appreciates that the applicant’s situation is emotional and disappointing for him as the relationship had broken down, he has a responsibility to adhere to the conditions on his AVO. Furthermore, whilst the applicant and his witness both state that the applicant was tricked and his former spouse lied, and his solicitor was remiss in not insisting on his witness being interviewed, the Tribunal places greater weight on independent police reports and a judicial decision.

31. The Tribunal accepts that the applicant may well have been tricked and that his spouse may also be accountable for the volatile situation leading to the conviction. However, it is the applicant who was responsible for not ensuring he was not placed in this situation and stopping all contact with his former partner.

1. Whilst the Tribunal has some empathy for people with limited English navigating the nuances of the judicial system and legal terminology and conditions attached to orders, it places no weight on the circumstances which led to the cancellation. It was not beyond the applicant’s control to avoid contact all together with his former spouse. Furthermore, whilst he states he missed the appeal process, it remains his responsibility to be aware of his basic legal responsibilities and rights. As such the Tribunal gives these factors limited weight in not cancelling the visa.

   Past and present behaviour of the visa holder towards the Department

2. Departmental records indicate that there is no adverse information regarding the applicant’s past or present behaviour towards the Department.

3. The Tribunal gives this factor some weight in favour of the visa applicant.

   Whether there would be consequential cancellations under s.140

4. Based on the evidence before the Tribunal, there would be no consequential cancellations under s.140 of the Act. The applicant confirmed this at hearing.

5. The applicant stated that his wife could not have children. She has children from a previous marriage. He said they were 17, 19 and 20 and 21 or 22. He stated that they lived with the applicant for 12 months and then moved to live with their father.

6. The applicant stated his wife met his daughters many times daily. They had a one-month trip away in 2014.

7. As there are no other people attached to the visa, the Tribunal gives this factor no weight.

   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

8. If the applicant’s Partner (Temporary) visa is cancelled, such action would result in the applicant becoming an unlawful non-citizen and he may be detained or subject to removal unless he is able to apply for and be granted another visa. 

9. If the applicant is detained as a consequence of cancellation, there is no evidence to suggest that he may be detained indefinitely.  Further consequences of cancellation include potential restrictions on future travel and / or future visa applications due to exclusion periods which may apply.  Furthermore, the applicant’s eligibility for the as yet undetermined second stage permanent Partner (Subclass 801) Visa may also be adversely affected if he is not the holder of a temporary Partner (Subclass 820) Visa.

10. The applicant has stated that his relationship with his wife is not recoverable and he is now separated. As such the impact on the applicant’s permanent visa is given no weight.

11. The legal consequences are an intended consequence of a cancellation. As such the Tribunal gives these factors no weight in favour of the applicant and not cancelling the visa.

    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

12. There is no evidence before the Tribunal which indicates that the applicant claims that he would be at risk of any harm or persecution upon return to Jordan.

13. The Tribunal gives this factor no weight in its considerations.

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

14. The matter before the Tribunal is consideration of the cancellation of the applicant’s Partner (Temporary) visa which is not a permanent visa. The Tribunal gives this factor no weight.

    Any other relevant matters

15. He provided copies of fines that he claims his sponsor had incurred and were registered against him. He explained it was hers and her children’s fines and he is not responsible, and he intends to appeal them. The Tribunal accepts that this may be the case and suggested the applicant appeal these fines. It places no weight on these in its considerations as if they were incurred by others they will not impact on the applicant and whether he owes money to the State.

16. He stated he wants to live like a decent person and not be humiliated and treated like this. He doesn’t want to feel depressed and have his daughters see this. He wants to cover the daily expenses for his daughters. He stated that he has always looked after his daughters and never hit or beaten them and he has a clean record and his former wife implicated him and tried to ruin his reputation. He has given an oath to tell the truth and he has. He was asked if his relationship with his wife is over and he said it is almost over. They are separated but the official divorce has not occurred. He stated he has no intention to return to her. The Tribunal accepts that the applicant is disappointed in the situation and the end of his relationship. It appreciates that the applicant may feel humiliated. Notwithstanding this, the applicant has serious convictions and the Tribunal gives these more weight.

17. The applicant’s next-door neighbour provided oral evidence to the Tribunal as he claims he witnessed the fights. He stated he felt the court played a game with the applicant and his lawyer as well. He did not inform the applicant about the appeal process. Therefore, he has not appealed the decision. On the day he lost the case his neighbour stated he was there but was not called to give evidence. He said he has a feeling his ex-wife and the lawyer were communicating and organised things not in his favour. He saw them having coffee together and she is not supposed to do that. He explained that he has known his neighbour for two years. He is still living next door to the applicant’s former wife.

18. Mr Aldeen stated he came as a witness. They lived in the same building and close to each other.  He has known the review applicant for 2 years as a neighbour. He said he is friendly and helpful. He is loyal and honest and cares for the neighbourhood. He has seen him, and he is always friendly and has good manners.

19. He confirmed he attended the court case whereby Mr Madallal was convicted when his wife claimed she was assaulted. He said he was excluded from giving evidence and the police prevented him from giving evidence when he offered. He said he saw the police report and many false things were added and he disagrees with the report. He attended the second day of the court case however he stated that he watched from the beginning. The Tribunal asked the witness what he believed was false. He stated that the review applicant never attempted to drive the car as he doesn’t have a licence and there is an AVO so he did not try and enter the house. He said the police officer would not take the evidence from him on the night of the alleged assault and breach and said he was lucky to be there. He said that he agrees that there was an argument between the couple but no verbal or physical abuse. For example, the conversation went along the lines of “where do you want to go?” and discussions about the luggage. He stated that it was a disagreement. He said that the applicant’s wife originally agreed to give him the luggage but when he arrived, she changed her mind. She returned inside and she brought the luggage inside and she called the police and tricked him. He stated that if he wanted to assault his wife, he would not have invited the neighbour to attend as he would have witnessed everything which he did.

20. When the sponsor arrived, she told the neighbour not to help him. She tried to control him and keep him in the house. The witness stated that he believes the applicant was unfairly treated by his former wife and was tricked and he was unfairly treated by the police and further by the courts and his own lawyers. He said that he was not even told he could appeal the decision in time.

21. The Tribunal asked the applicant why he returned to the house to pick up his luggage given there was an AVO in place. The applicant stated that the first alleged AVO breach was withdrawn then his wife applied for another one and he agreed to meet her away from her house to collect the luggage and the neighbour was going to stand with the luggage, but she tricked him. There was some dispute about the distance between them. He stated she would not leave and she walked with the neighbour to where he was.

22. The Tribunal asked the applicant why he remained, and he said he left and later he became aware she called the police. The neighbour stated he was shocked because the police came to his house.

23. The Tribunal gives some weight to the witness’s account of events and that he was not invited to give evidence which might have changed the course of events or that the applicant may have missed an opportunity to appeal the decision and that the sponsor may well have tricked him into breaching his AVO. Notwithstanding all of these issues, the applicant should not have allowed himself to remain anywhere near the sponsor and should not have agreed to meet near the home to exchange the bag. Whilst the Tribunal does give some weight in favour of the applicant, it does not outweigh the seriousness of the issue at hand.

24. The Tribunal asked the applicant what he would do in Australia if he remained because his relationship is over, and he said he is trying to set up a new life. He stated he has a new partner and she is supporting him. He confirmed he has been seeing her for three months. Her name is Rania. She is an Australian citizen and is from Syria. The Tribunal gives some weight in favour of the applicant and his relationship with his new partner and the effect a cancellation would have on their relationship. However, the relationship is still in its infancy and the applicant is not prevented from exploring other options to ensure he remains in regular contact with his new partner.

25. The Tribunal received translations of the text messages between the sponsor and the applicant. The applicant explained that these messages showed the nature of the sponsor in that she bullied him and lied. The Tribunal accepts that the relationship between the sponsor and applicant was volatile. It places only limited weight on the messages as they are not able to be verified or placed in context.

    Conclusion

26. The Tribunal has considered all of the issues raised by the applicant individually and cumulatively and concludes that the visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

    Rachel Westaway
    Senior Member