Naufahu (Migration)

[2021] AATA 1160

Naufahu (Migration) [2021] AATA 1160 (28 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neil Armstrong Langi Naufahu

CASE NUMBER:  1930983

HOME AFFAIRS REFERENCE(S):          BCC2019/2416663

MEMBER:Kira Raif

DATE:28 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2021 at 6:09pm

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 –criminal convictions – offending conduct was considered to be serious – a risk of reoffending – applicant’s presence in Australia may be a risk to others– decision under review affirmed

LEGISLATION
Criminal Code 1924, s 184
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
Gong v MIBP [2016] FCCA 561
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 October 2019 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 Tonga, born in December 1988. He was granted the Partner (Provisional) visa In May 2017. On 12 September 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling the applicant’s visa under s. 116(1)( e) of the Act. The applicant provided his response to the Notice on 4 and 18 October 2019 and his visa was cancelled on 23 October 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and parents in law. The applicant was represented in relation to the review by his registered migration agent. 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)(e ). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1)(e) 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, safety or good order of the Australian community or a segment of the Australian community; or 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].

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

7. Further, a visa may also 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 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the Department received advice from the Tasmanian police which states that in May 2019 the applicant was charged with one count of aggravated robbery. It is alleged that on 5 May 2019 at about 4.50 am the applicant was walking through a car park, approached the victim, reached into the victim’s pocked and removed his wallet and an amount of money. When the victim attempted to walk away, the applicant is alleged to have grabbed him by the shirt and punched him to the head, causing the victim to fall over and lose consciousness. While the victim appears to have been unconscious, the applicant punched him numerous times and kicked him. When the victim attempted to sit up, the applicant laughed at him and kicked him in the head, causing the victim to lose consciousness again. The applicant is then alleged to have walked away, leaving the victim unconscious. He required admission to hospital. The incident has been captured on CCTV.

9. Advice from the police indicates that on 7 May 2019 the applicant was granted bail. One of the conditions of his bail was to be present at the stated address between 9 pm and 6.30 am. It is stated that on 13 July 2019 the police attended the stated address and knocked on the door but the applicant did not open the door and did not present himself, so he was charged with one count of breach of bail condition on 15 July 2019.

10. In his response to the NOICC the applicant states that the matter has not yet been heard or determined in court and there is insufficient evidence that he is a risk to others. The applicant states that the charge of aggravated robbery occurred in circumstances involving two drunk individuals where both he and the victim had been drinking heavily and the victim was also under the influence of drugs. (It is not clear to the Tribunal how the victim’s state justifies what is alleged to have been the applicant’s conduct.) The applicant states that an offensive and racist remark was made against him and he overreacted. The applicant states that he had faced abuse by his wife and that also had been a contributing factor. The applicant states that he is of good character and had earlier intervened to ensure the safety of the victim when he was harassed by others.

11. In his response to the NOICC the applicant describes the events leading to the incident which resulted in the charges. The applicant states that he had an argument with his wife on the afternoon of 4 May 2019 and threatened to cancel his visa. The applicant describes spending time with friends and having a few drinks. The applicant refers to an incident when there was an altercation involving the victim and he claims he interfered, which enabled the victim to walk away. The applicant states that the victim used a derogatory term, which caused a violent reaction from him. The applicant denies stealing money from the victim and stated that he intends to plead not guilty.

12. With respect to the breach of bail condition, the applicant states that he lived with his wife and child and it was a ‘controlling and toxic environment’ as his wife threatened him with the cancellation of the visa if he did not do what she wanted. The applicant claims his wife controlled his contacts and put him down in front of their son, checked his phone and there were threats of violence from his father in law. The applicant claims that this behaviour caused him health problems and to binge drinks when he was able to go out. The applicant states that he has been subjected to family violence, which caused him to move out and live with a friend. He failed to inform the police of his move and thus breached bail condition. The applicant submits that his home environment contributed toward his conduct on 5 May 2019.

13. The applicant provided further evidence to the Tribunal on 5 January 2021. The applicant states that in October 2019 an amended single charge (assault) was filed against him, he had pleaded guilty and was convicted of assault, contrary to s. 184 of the Criminal Code 1924. He was sentenced to 18 months community corrections order (a term of imprisonment of 10 months and the balance of the term being suspended) and 160 hours of community service. The applicant stated that the breach of bail charge was dropped because he was at home at the time of police visit (which appears to contradict his written evidence).

14. In his written evidence to the Tribunal the applicant refers to the sentencing remarks, the effect that the breakdown of his relationship had on him, as well as his prior good record. The applicant submits that the ground for cancellation does not exist. He states that the charge of aggravated robbery arose in specific circumstances involving two drunk individuals and one incident and the victim was also under the influence of drugs. The applicant believed that the victim made an offensive racist and discriminatory remark against him, causing him to overreact. The applicant refers to a psychological report which confirms that he does not present with any symptoms of a psychotic illness such as schizophrenia, bipolar disorder or PTSD. The applicant submits that the offence was a ‘one off’ incident which arose in specific circumstances.

15. The Tribunal finds that the applicant has been convicted of assault. The Tribunal is mindful that it involved a considerable level of violence towards another person and the fact that the applicant had been given a custodial sentence indicates that the offending conduct was considered to be serious.

16. It is of some concern to the Tribunal that in his evidence to the delegate the applicant does not appear to take responsibility for his actions. In his response to the NOICC the applicant suggests that his conduct was caused by the treatment from his wife or the victim’s own behaviour. It is not apparent that the applicant has any insight into his actions or appreciation of his own responsibilities towards others.

17. The Tribunal acknowledges that the applicant has now expressed remorse for his conduct. He submits that it was a ‘one off’ incident that occurred in specific circumstances and the Tribunal accepts that there is no evidence of any other offensive conduct and no other convictions. However, the applicant has presented little evidence of rehabilitation. The applicant told the Tribunal that he has not been able to complete any rehabilitation programs because he has does not have a car and it is difficult to get to these and also because he is completing the community service. The applicant told the Tribunal that he reads online about the effects of alcohol to educate himself but the Tribunal does not accept that the applicant was unaware of the effects prior to the offending and the Tribunal does not consider reading internet material to be an effective rehabilitation method. The applicant claims he no longer uses alcohol but the Tribunal is not satisfied that the applicant had sufficiently engaged in programs or with services that would help him avoid the repeat the offensive behaviour. Essentially, the Tribunal is concerned that should another situation arise where the applicant feels he has been ‘provoked’ or if the applicant decides to consume alcohol again, his reaction may be similar and the applicant may again engage in violent conduct. He may do so despite not having been diagnosed with various conditions, as the psychological report indicates.

18. The Tribunal is of the view that there remains a risk of reoffending. Even if that risk is not significant, neither is it negligible in the Tribunal’s view. Thus, the Tribunal finds that the applicant may again engage in violent conduct in certain circumstances. The Tribunal finds that the applicant’s presence in Australia may be a risk to the community. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

19. The Tribunal has also considered whether a ground for cancellation may arise under s. 116(1)(g) and r. 2.43 (oa). The applicant was put on notice of this provision through the Tribunal’s correspondence of 5 January 2021 and in the course of the hearing. The Tribunal finds that the applicant was a holder of a Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category vias. The Tribunal finds that the applicant has 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).

20. As neither of these grounds do not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

21. 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

22. The purpose of a Partner visa is to enable the applicant to remain with his partner. The applicant’s evidence to the delegate is that he had been subjected to family violence and had moved out to live with a friend. The applicant’s evidence to the Tribunal is that he was granted the temporary Partner visa to be with his wife and has applied for a permanent Partner visa, with his application still pending. The applicant and his partner told the Tribunal that they are in the process of reconciling and are predominantly living together.  The applicant states that his wife would continue to sponsor him for a visa.

23. The applicant also told the Tribunal that he sees his son daily and they play sport and go for walks and do a lot of things together. The applicant states that his son was born in Australia and he was in Australia on a Visitor visa at the time but the application for the Partner visa was delayed because they had no money to make the application. The applicant states that before he was granted the Partner visa, he visited Australia and his son visited Tonga. Tribunal acknowledges that the applicant has a child from the relationship and that may enable him to be granted the permanent visa, subject to other considerations such as character assessment.

24. The applicant’s partner and mother in law spoke about the close relationship the applicant has with his family and the close relationship the applicant has with his son. Ms Finau, the applicants’ mother in law, stated that the applicant has learned the lesson and would never do anything like that  again. She stated that if the visa is cancelled, it would destroy their family. Ms Finau states that the applicant is a good role model for the child and it would be difficult for the wife and child to travel to Tonga. The applicant is a good provider and they want to settle down.

25. The Tribunal accepts that the presence of a wife and child in Australia may constitute a compelling reason for the applicant to remain in Australia.

    The extent of compliance with visa conditions

26. The Tribunal is not aware of any non-compliance with visa conditions.

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

27. The applicant states in his written evidence that he is required to pay child maintenance for his son, who is 10 years of age at present, and he also spends money on his child when he can, and contributes to his wife’s expenses. The applicant told the Tribunal he helps his wife with bills, car expenses and his son’s schooling fees. The applicant states that if he cannot remain in Australia, this financial support will not be available and this would cause severe hardship to his wife and child. The applicant presented evidence of making child support payments and the Tribunal accepts that the applicant does provide financial support to his partner and child. However, the applicant has not satisfied the Tribunal that should such support be removed (even assuming the applicant would be unable to provide financial assistance to his former partner and child if he cannot work in Australia), this would cause hardship to his partner and child. There is little probative evidence before the Tribunal about their financial circumstances, income, savings or access to other forms of support, including government payments. The applicant’s evidence to the Tribunal is that his wife works part-time and also receives Centrelink payments. There is little evidence to establish why such funds are insufficient to meet the family’s needs. Thus, while the Tribunal accepts that his partner receives financial support from the applicant, the Tribunal is not satisfied that the removal of such support would cause hardship to her or the child.

28. The applicant also submits that he provides financial support to his family in Tonga since his father passed away. The Tribunal is prepared to accept that evidence.

29. The applicant submits that he and his son would suffer psychological and emotional hardship as they would not be able to see each other during the child’s formative years if his visa is cancelled. The applicant told the Tribunal that his son is worried that they would not see each other again or spend time with each other. The applicant told the Tribunal that he helps his son and wife financially and physically. His son needs him when growing up and it would be difficult for them emotionally. The Tribunal accepts that this is the case. The Tribunal is also mindful, however, that prior to the applicant making the Partner visa application, the applicant and his wife had made arrangements to see each other  and for the applicant to see his son. The applicant’s evidence to the Tribunal is that due to financial constraints, he did not apply for the Partner visa for a number of years and that led to his separation from the child, yet the family were able to make arrangements to maintain contact. It is possible that they would be able to do the same, should the applicant be required to leave Australia.

30. Nevertheless, 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

31. The ground for cancellation arises because the applicant has been convicted of an offence and because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others. The applicant told the Tribunal that he was drunk and he was upset and he is sorry for what he did. The applicant states that while these factors were not ‘totally beyond [his] control’, there was a significant factor of the relationship breakdown at the time. The Tribunal is not convinced that a relationship breakdown need to lead to violence towards others. That is, the Tribunal does not accept that the applicant’s mental state due to the relationship breakdown or any other factor needed to have led to his excessive consumption of alcohol and the conduct that resulted in the conviction. The Tribunal does not consider that the circumstances in which the ground for cancellation arose were due to the factors beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

1. Nothing adverse is known about the applicant’s behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

2. There are no persons who would be subjected to 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

3. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without onshore the Minister’s intervention although such options would be very limited. The applicant may be subject to an exclusion period in relation to some visa applications offshore.  If the applicant is not the holder of a temporary visa, that might affect the applicant’s eligibility to be granted a permanent 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

4. There is no evidence, and the applicant does not claim that he would be subjected to any form of harm or persecution upon return to Tonga. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of cancellation.

5. The applicant’s partner and child are in Australia. The applicant’s mother and siblings are in Tonga and the applicant told the Tribunal that he provides financial support to them. That is, for the purpose of maintaining family unit, the Tribunal acknowledges the applicant has strong family links both in Australia and in Tonga.

6. The applicant has a child from his relationship with the sponsor. He presented in response to the NOICC evidence of having made child support payments monthly. The Tribunal accepts that evidence. The applicant refers to the Convention on the Rights of a Child and states that it is a primary consideration and the Tribunal accepts that it is so.

7. The applicant’s evidence to the Tribunal is that he sees his son daily and they do activities together, such as sport, outings, etc. The applicant states that his son is aware of the conviction and he told his son about avoiding alcohol and to learn from the mistakes that he has made.

8. The delegate notes in the primary decision, that the Child Support Assessment which the applicant presented in response to the NOICC indicates that  the applicant’s care percentage is 0. The applicant explained to the Tribunal that he had a private arrangement with his wife and they informed the Child Support Agency so the Agency did not need to be informed or get involved. Whatever the applicant’s and the wife’s arrangement was with the Child Support Agency, the Tribunal accepts that the applicant provided financial support to his partner and child. The Tribunal accepts that it would be in the best interests of the child to remain with both parents. The Tribunal is of the view, however, that should the applicant be required to leave Australia, arrangements could be made for him to continue contact with his child and for visits, as was done before the applicant was granted the visa.

   Any other relevant matters

9. The applicant presented to the delegate a character reference from a work colleague who refers the applicant being a reliable and respectful person. The Tribunal accepts that the writer believes that to be the case. In his evidence to the Tribunal the applicant described his past employment and his contribution through employment. The Tribunal accepts that evidence. There is also before the Tribunal evidence from the applicant’s parents in law and the Tribunal accepts that evidence.

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal finds that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal finds that the applicant is fulfilling the purpose of his stay in Australia as he claims to have reconciled with his partner and has a meaningful relationship with his child and the presence of his family in Australia may constitute a compelling need for the applicant to remain in Australia. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled because the applicant provides financial support to the family in Australia and in Tonga, as well as emotional and physical support to his wife and child. Such support may not be available to the same extent if the applicant is required to leave Australia. Significantly, the Tribunal acknowledges that it is in the best interests of the applicant’s Australian child to be with his father and it is a primary (albeit not a defining) consideration. In this case, the Tribunal has formed the view that the couple would be able to make arrangements to see each other and communicate with each other even if the applicant is not in Australia, as they did in the past, although the Tribunal acknowledges that may not be preferable. There are strong reasons why the visa should not be cancelled.

11. However, the Tribunal has decided to give greater weight to the circumstances in which the ground for cancellation arose. The applicant has been convicted of assault and the offending conduct involved considerable degree of violence towards another person. The sentence reflects the seriousness of the offending conduct. The Tribunal is not satisfied that the applicant has engaged in any meaningful rehabilitation and the Tribunal has formed the view that the risk of reoffending remains. The Tribunal is also mindful that the visa in question is a temporary visa so that the various practices and expectations – such as the applicant’s support for his family and his employment in Australia and his desire to remain with his family – cannot be assumed until the applicant has been granted a permanent visa. An assessment for his eligibility, which includes character assessment, has not yet been done so there can be no expectation that the applicant will be able to remain in Australia permanently.

12. Overall, the Tribunal places greater weight on the circumstances in which the ground for cancellation arose and the nature of the offensive conduct. Having regard to these circumstances, the Tribunal has formed the view that the visa should be cancelled

    DECISION

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

    Kira Raif
    Senior Member