Muhammad Ilyas (Migration)

[2021] AATA 360

Muhammad Ilyas (Migration) [2021] AATA 360 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shirzai Muhammad Ilyas

CASE NUMBER:  2014857

HOME AFFAIRS REFERENCE(S):          BCC2020/1911471

MEMBER:Kira Raif

DATE:10 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 10 February 2021 at 7:03am

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – criminal convictions, imprisonment, community correction order and family violence intervention order – discretion to cancel visa – validly married – counselling and intention to  continue relationship – inadequate evidence of relationship – potential hardship if visa cancelled – 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 30 September 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan, born June 1985. He was granted a Provisional Partner visa on 1 April 2019. In September 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there may be a ground for cancelling the applicant’s visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 30 September 2020. The applicant seeks review of this decision.

3. The applicant appeared before the Tribunal on 1 February 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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 relevantly 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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the Department received information that on 6 July 2020 the applicant had been convicted of the following offences at Dandenong Magistrates Court:

   a.Contravene final Family Violence Intervention Order – intending to cause harm or fear

   b.Common law assault

   c.Commit indictable offence while on bail

   d.Intentionally cause injury

   e.Make threat to kill

7. The applicant was sentenced to 42 days imprisonment and a community correction order for 12 months.

8. Having regard to that evidence, the Tribunal finds that the applicant has been convicted of an offence. The Tribunal finds that the applicant was a holder of a Class UF Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of an offence against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

9. 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

10. 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

11. The purpose of a Partner visa is to enable the applicant to be with his partner. The applicant’s evidence to the Tribunal that the relationship is ongoing. The applicant told the Tribunal that there was an Intervention order which was issued in May 2019 and which had prohibited him from having contact with his wife. That Order was varied in January 2021 and they are able to have contact and live together. (Following the hearing, the applicant provided to the Tribunal a copy of the Order, as varied.) The applicant states that Islamically they believe they are in a relationship until they are divorced and they have not divorced. The applicant states that they sought marriage counselling and he had also undergone a number of other programs to help him “recover”. The applicant states that he wants to be with his partner and they love each other. The applicant states that the convictions took place because of his anger and he has changed. The applicant told the Tribunal that he and his partner are looking to rent a house together and until they find something, they are living separately, he lives with his sister and his wife lives with her family but once they find a place to live, they will be living together. 

12. The applicant states that he and his wife have been talking on the phone since the Order (which remains in place until 2025) had been varied on 14 January 2021. The Tribunal is mindful that there is very little probative evidence confirming the applicant’s claim that he and the sponsor have reconciled and intend to live together as husband and wife. On 8 February 2021 the applicant provided to the Tribunal a statement purportedly signed by his partner, who refers to reconciliation and the hardship of separation. However, the applicant’s partner had not attended the Tribunal hearing and the Tribunal was not given the opportunity to test that evidence. It is unable to verify the signature on the statement. The applicant provided to the Tribunal a copy of the communication to Centrelink informing the agency that his relationship with the sponsor ended in May 2020 and a copy of an agreement with a storage facility signed in January 2021 in which the applicant refers to his partner as a contact person. The Tribunal acknowledges a copy of an email the applicant had sent to a real estate agent on 7 February 2021 in which he refers to inspecting a property with his wife the previous day. The Tribunal finds that evidence unpersuasive. Firstly, it is impossible to determine whether the partner did in fact inspect the property with the applicant as he suggests in his email. Secondly, the Tribunal is mindful that the email was prepared after the hearing and in the Tribunal’s view, it may be indicative of the applicant’s desire to establish the reconciliation even if there is no such reconciliation between him and his partner. The Tribunal also notes that the marriage counsellor, Shaikh Zara in his letter refers to the genuine love between the couple and their desire to make the marriage work and their ability to establish a good family life. It does not refer to the couple having reconciled and living together (whether physically or otherwise) as husband and wife and representing themselves to others as a couple.

13. Overall, the Tribunal finds that there is inadequate evidence of the parties’ reconciliation and of the mutual intention to live together as husband and wife. There is no evidence, for example, of joint social activities, or of sharing of financial resources and no evidence that third parties recognise the applicant and his sponsor to be in a spousal relationship. The Tribunal is mindful that the applicant had previously applied for the Partner visa and would be aware, at least at a basic level, of the statutory definition of spouse and of the evidence that may be adduced to evidence a relationship. There is very limited evidence before the Tribunal. In the Tribunal’s view, if the parties did reconcile, as the applicant suggests, such evidence would have been available to the applicant.

14. Neither does the Tribunal accept that maintaining a registered marriage is sufficient to establish the existence of a genuine spousal relationship. While the Tribunal accepts the applicant and sponsor continue to be validly married, that does not signify the existence of a genuine and mutually committed spousal relationship.

15. On the limited evidence before it, the Tribunal does not accept that the applicant has reconciled with his partner. The Tribunal is not satisfied that at the time of this decision, the applicant and the sponsor are in a mutually committed spousal relationship, despite the formal marriage (or the absence of divorce). The Tribunal finds that the applicant is no longer able to fulfil the purpose of his Partner visa. The Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

16. There is no evidence of any non-compliance with visa conditions.

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

17. The applicant told the Tribunal that his wife is in Australia and emotionally and psychologically it would harm him a lot if his visa is cancelled. The applicant states that he is a refugee from Afghanistan and has been living in Pakistan for a long time. The applicant states that he has nothing to go back to in Afghanistan. He states that he has no visa for Pakistan and would have to return to Afghanistan and seek a visa to Pakistan which may be difficult, even though his parents and siblings live there. The applicant states that his parents live in Pakistan as refugees.

18. The applicant states that he migrated with his family to Pakistan in 1993 and he last travelled to Afghanistan to renew his passport two years ago. The applicant refers to fleeing Afghanistan with his family as refugees when he was a child and hardships that he had experienced in life. The applicant states that he was able to complete study in the UK with the financial help from his brother but he claims that, given his past experienced and past hardships, it would be difficult for him emotionally if his visa is cancelled.

19. The applicant refers to his employment in Australia and states that he would suffer financially if he cannot work. The applicant states that he works in a security door company but has very limited savings. The applicant states that it would be financially difficult for him to apply for a Partner visa in the future, given the high fees and his wife’s limited income.

20. The applicant states that the most important thing for him is to be with is partner. The applicant refers to the long time it has taken to get the visa and the separation between him and his wife which was difficult and he claims he does not want to go through the separation again. The applicant refers to the severe emotional hardship due to the separation. The applicant states that they have been married for four years but only lived together for about a year in that period and had a great understanding and love for each other. The Tribunal finds that evidence problematic, given the nature of the applicant’s convictions. As noted above, the Tribunal is also not satisfied the applicant continues to be in a spousal, and mutually committed relationship, with the sponsor.

21. Nevertheless, given the applicant’s residence in Australia and various links to Australia, the Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled.

    Circumstances in which ground of cancellation arose

22. The ground for cancellation arises because the applicant has been convicted of offences. The applicant told the Tribunal that he has completed the community corrections order and is learning to manage his anger and he would never reoffend.

23. The Tribunal discussed with the applicant the conduct that led to the convictions. The applicant states that the first Intervention Order was issued because there was a ‘misunderstanding’ between him and his sister in law who called the police when she saw bruising on his wife’s face. The applicant states that the bruising was caused by his wife playing soccer and when the police arrived, he was issued with the temporary Intervention Order. They lived separately and after a few months his wife varied the Order and they were back together. The applicant refers to another incident when his wife was harassed by someone at work and the workplace did not do anything about it. The applicant states that he went to his wife’s place of work and hurt that person. The applicant states that he regrets what he has done and now believes he should not have done it. The police charged him and he pleaded guilty to assault.

24. The applicant refers to an incident in May when he had a verbal argument with his wife, and he walked out but his wife reported the matter to the police differently. The applicant states that he was convicted and imprisoned for 42 days.

25. The Tribunal is mindful that according to the primary decision, the applicant has been issued with the Final Family Violence Intervention Order and breaching that order. The applicant’s description of events (the first incident between him and his wife which he describes as a misunderstanding and the last incident when he claims there was only a verbal argument and he walked out) does not seem consistent with the actual convictions. The Tribunal is not satisfied the applicant has insight into his behaviour.

26. The applicant states that while he does not excuse his conduct, there were a lot of difficulties. He was new to the country and had the responsibilities of supporting his family and other pressures on him. The applicant states that he was angry and acted in a way that he should not have. The applicant states that everyone makes mistakes and things should not have happened, but he states that not everything was in his hand and sometimes people cannot control their emotions. The applicant states that going to prison and completing the community order and counselling had changed him. The applicant states that as  part of the Corrections Order he spoke to the psychologist weekly. The applicant stated that he had also been contacted by Relationships Australia and other programs and they had telephone sessions and he was unable to do face to face sessions due to Covid. The Tribunal accepts the applicant has participated in some rehabilitation programs, although such participation appears to have been limited.

27. The applicant states that he has always been a calm person and has never had any experience with the police and did not even get a parking ticket. The applicant states that there was a series of events which were beyond his control which led to the convictions, particularly the incident when his wife was harassed and he was really impacted. The Tribunal is not satisfied the applicant appreciates the significance of his conduct.

    Past and present behaviour of the visa holder towards the department

28. Nothing adverse is known about the applicant’s past and present behaviour toward the Department.

    Whether there would be consequential cancellations under s.140

29. There are no persons who would be affected by the consequential 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

30. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he would be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period if he is to make an application for a visa offshore and very limited types of visas he may be able to apply onshore. The applicant’s eligibility for the permanent Partner visa may be affected if he is not a holder of a temporary 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

31. There are no children who would be affected by the cancellation.

32. The applicant’s wife is in Australia. The applicant told the Tribunal that he has two siblings in Australia. He has a brother in UK and two siblings livr with his parents in Pakistan. The Tribunal finds that while the applicant has family in Australia, he also has close family outside of this country.

33. In his response to the NOICC and oral evidence to the Tribunal the applicant states that his father and uncle had been targeted by the Taliban and fled to Pakistan when he was about four years old. In his evidence to the Tribunal the applicant refers to the general conditions in Afghanistan and states that life is difficult there and his family has a ‘history’. The Tribunal finds these claims vague and generalised. The Tribunal acknowledges the applicant’s evidence that his family fled Afghanistan as refugees but is mindful that the applicant’s evidence relates to what happened to his family over thirty years ago. The applicant does not suggest that anything might happen to him in the future if he was to return to Afghanistan. The Tribunal is not satisfied that the events that may have happened over 30 years ago give rise to protection obligations in the future. More significantly, on the limited evidence before it, the Tribunal is not satisfied that the applicant would be subjected to any form of harm or persecution as a result of his visa being cancelled and if the applicant was required to leave Australia. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

    Any other relevant matters

34. In his response to the NOICC the applicant refers to his employment, stating that he supports the family. The applicant refers to his family being subjected to persecution in Afghanistan and fleeing from their home country. These issues have been addressed above. The Tribunal accepts that the cancellation of the visa may lead to loss of employment and financial hardship.

35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the ground for cancellation exists because the applicant has been convicted of offences and was a holder of a temporary visa. The Tribunal accepts that hardship may be caused to the applicant if his visa is cancelled because it may lead to the applicant’s departure from Australia to a country where he had not lived for many years, loss of employment, separation from his family and his wife. It would also affect the applicant’s eligibility for a permanent visa and limit his future visa options. There are considerations that weigh against the cancellation.

1. However, the Tribunal gives greater weight to the circumstances in which the ground for cancellation arises. The applicant has been convicted of multiple offences. On his own evidence, there was one incident involving violence towards another person when the applicant admits he had perpetrated in order to protect his wife. There are also convictions involving family violence. The Tribunal is of the view that convictions involving violence or threats of violence towards others are very serious matters and the fact that the applicant has been given a custodial sentence signifies the seriousness of his conduct.

2. The Tribunal is not satisfied the applicant is fully cognisant of his conduct or remorseful for his actions. The applicant told the Tribunal, in relation to the assault incident, that he was ‘pushed to the limit’ and that there were circumstances beyond his control. The applicant states, in relation to the temporary Protection Order that there was a “misunderstanding” with his sister in law but the fact that  the final order had been issued (and the applicant would have had the opportunity to present his case before that happened) suggests that a finding had been made that formal protection was required to protect the applicant’s partner. The applicant had been convicted of breaching that  protection order. In the Tribunal’s view, the applicant’s conduct shows not only his disregard for the law, but also his persistent disregard for the welfare of others.

3. While the Tribunal accepts that hardship would be caused to the applicant by the cancellation, the Tribunal is mindful that the applicant has lived in Australia for a relatively short period and, importantly, that he has not been granted a permanent visa. Any hardship may be viewed in light of the fact that the applicant has not yet been granted permission to remain in Australia permanently and his eligibility for the permanent visa - which will include character considerations – has not been assessed. The Tribunal is also mindful that should the applicant and the sponsor be in a genuine and mutually committed relationship, as the applicant claims, the applicant will be eligible to make an application for another Partner visa in the future and while he claims there would be financial hardship, he has not satisfied the Tribunal that a future application would not be possible.

4. There are no children affected by the cancellation and the Tribunal has formed the view that Australia’s non-refoulement obligations do not arise in this case.

5. Overall, the Tribunal places greater weight on the circumstances in which the ground for cancellation arose, the nature of the applicant’s conduct and his disregard for the law and the safety and welfare of others. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

   Kira Raif
   Senior Member