Nusipepa (Migration)

[2018] AATA 5875

Nusipepa (Migration) [2018] AATA 5875 (21 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tohitangi Nusipepa

CASE NUMBER:  1827674

HOME AFFAIRS REFERENCE(S):           BCC2018/1746413

MEMBER:Kira Raif

DATE:21 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 December 2018 at 3:26pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – risk to health, safety or good order of Australian community – assault charges – family violence – Apprehended Violence Order – young family – little evidence of rehabilitation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 376
Migration Regulations 1994, Public Interest Criterion 4013, Special Return Criterion 5002

CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 12 September 2018 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 September 1987. He was granted the Partner (Provisional) visa on 10 September 2014. On 11 May 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 12 September 2018. The applicant seeks review of the delegate’s decision

3. The applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages. The applicant was informed of the existence of the s. 376 Certificate and given the opportunity to provide comments in relation to it. 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. There is no definition of ‘risk’ in the Act or Migration Regulations 1994 and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001).  The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong at [41]).

8. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 13 March 2018 he had been charged with seven counts of common assault (DV). These offences are alleged to have occurred in December 2014, September 2016, December 2016, April 2017 to June 2017, July 2017 to December 2017 and March 2018.

10. The decision record refers to the police information which indicates that the alleged victim is the applicant’s spouse Ms [A], as well as his three children and two step-children aged between 2 and 12.

11. The decision record refers to the following police information.

    a.The applicant allegedly began abusing the alleged victim physically, emotionally, financially, socially and psychologically about two weeks after returning to Australia in 2014.

    b.The applicant assaulted or verbally abused Ms [A] when she asked him for money to pay for living expenses. He slapped, hit, pushed and grabbed her by the throat almost daily. He regularly hit and pinched his children. In one incident he allegedly slapped a child across the face.

    c.On 28 December 2014 the applicant allegedly returned home intoxicated and broke into the house with two unknown males for more alcohol. When Ms [A] asked the two males to leave, the applicant allegedly became angry, grabbed and dragged her into his bedroom punching her numerous times along the way. Ms [A] was pregnant at the time, of which the applicant was allegedly aware. He allegedly threw her onto the bed, then dragged her onto the floor where he struck her in the stomach with his foot. Ms [A] drove herself to the hospital where she and the unborn babies were examined.

    d.On 17 September 2016 the applicant allegedly consumed alcohol and began to argue with Ms [A] at home. He allegedly threw her to the ground, wrestled with her and smashed her phone before leaving the premises.

    e.On 31 December 2016 the applicant allegedly became involved in an argument with Ms [A] and punched her in the face.

    f.In April, May and June 2017 the applicant and the alleged victims were residing in the home of the applicant’s mother in law. It is alleged that the applicant picked up and lifted the one year old child by his head, holding either side of his head. The applicant kneed the child to the head causing him to cry uncontrollably.

    g.In June 2017 Ms [A] was driving home with the applicant and the children and he allegedly began manipulating the automatic gear shift, causing the car to speed up and slow down. He began to try to open the passenger door when the vehicle was still in motion. When Ms [A] told him to stop, he allegedly punched her head.

    h.Between 9 and 11 March 2018 it is alleged that the applicant pinched and tugged his child’s earlobe. He allegedly did not stop when Ms [A] asked him to stop, then grabbed her by the throat and pushed her against the wall when she tried to intervene.

    i.On 12 March 2018 the applicant allegedly slapped his child, which Ms [A] heard from another room. The applicant allegedly told his partner that he slapped the child because he was not listening to him.

    j.On 13 March 2018 Ms [A] reported the above incidents to the police and provided a statement at the police station.

12. The Department of Immigration (Immigration) record refers to the police information that an enforceable Apprehended Violence Order (AV) was initiated by the police on 6 April 2018, naming Ms [A] and three of the children as persons needing protection. The AVO prevented the applicant from approaching, contacting, assaulting, molesting, harassing, threatening, interfering, intimidating or stalking the protected persons. The police information indicates that as a result of the applicant’s actions, his spouse incurred multiple physical injuries and the children were exposed to violence and subjected to emotional and physical abuse over a period of approximately three and a half years.

13. In his written response to the NOICC the applicant admits that he is ‘in trouble with the police’ but he stated that he would change. The applicant stated that he loved his family and if he is sent to Tonga, he would not be able to see his family. The applicant stated that he was undertaking a program with Department of Family and Community Services NSW (DOCS) and would attend church regularly. The applicant also provided a statement from his partner indicating her support for his application. The applicant provided a similar statement to the Tribunal, as well as a number of character references. The Tribunal accepts that those who prepared character references believe the applicant to be a good person, although the Tribunal notes that many of the character references do not refer to the above charges and it is not apparent that those who provided the statements are aware of these circumstances.

14. The applicant also presented to the Tribunal a statement from Mission Australia indicating that the applicant had recently engaged to undertake a rehabilitation program and from August 2018 completed the pre-program assessment, orientations sessions and one module. The Tribunal accepts that evidence, although the Tribunal considers it problematic that the only time the applicant sought to become involved in such a program was when he was facing the cancellation of his visa. The timing of the applicant’s participation may indicate that he decided to engage in the program to assist him with visa issues, rather than because he was genuinely remorseful about his conduct.

15. The applicant provided an unsigned statement from Ms [A]. She states that when she made contact with the Immigration to have the applicant removed, she was not in the right state of mind and her motives were malicious. She was told by Immigration that the applicant must be charged and she reported the matters to the police, which she regretted. She did not tell the police that she was the main instigator. Ms [A] states that she did not make anything up but used the truth as a weapon to destroy the applicant’s life in Australia and have him removed. Ms [A] refers to the effect the separation had on her and the children. She states that the applicant has followed bail conditions and has been interviewed by DOCS who have no concerns with him. The applicant also presented a supporting statement from Ms [A]’s mother. The Tribunal acknowledges that evidence, however, the Tribunal is also mindful that the applicant had been convicted of one offence, having presented his evidence to the court and in circumstances where Ms [A] had also had the opportunity to present to court information about the circumstances of the offences. Thus, the Tribunal does not accept her evidence (and the applicant’s) that there was no inappropriate conduct.

16. In oral evidence to the Tribunal the applicant stated that the conduct has not occurred and his wife is after his money. The applicant states that his wife has been angry with him and pushed him out of the house but he did not want to be separated from his children. The applicant states that his wife had sworn at him and asked him to leave the house but he stayed because he loves his children. The applicant said that there was no violence between him and his partner and he loves his children. The applicant said that his entire income went to his wife’s account and often no money was left before the next pay. There was no money for the children or the shopping. He does not know how the money is spent as he has no access to the account. The applicant states that his wife has been abusive towards him and swears at him, particularly when they are short of money.

17. The applicant told the Tribunal that he pleaded not guilty. He said that his wife asked for money for cigarettes and he refused. After he returned from work, the police detained him and told him about the AVO. At the hearing his wife requested that the AVO be lifted and after the first hearing it was varied and he was allowed to live with his family but the AVO is still in place. The Tribunal is of the view that the fact that the AVO was continued after the court hearing indicates that an assessment was made that there was a need for a formal protection order to protect the applicant’s partner and children.

18. Ms [A] explained to the Tribunal the circumstances in which she approached the police, stating that she had only done that on advice from Immigration. She states that she was responsible for many of the disagreements. Ms [A] states that in her letters to the Department, she said what she thought they would want to hear so that the applicant would be deported rather than leave her. She states that she did not ask for the AVO but the police put it in place. She later applied for the conditions to be removed, which was gradually done. She states that the AVO is still in place but has no conditions other than for the applicant not to be violent. It does not preclude them living together. She states that DOCS had several interviews with them and they have no issues with them living together.

19. The Tribunal granted the applicant time to await the outcome of his criminal proceedings. On 19 December 2018 the applicant provided to the Tribunal the Local Court Advice of Court Result and a copy of the AVO. The Court Result shows that after hearing, the applicant was found not guilty in relation to six instances of common assault. In relation to the seventh charge of common assault, the offence was proven and the applicant was convicted. He was given a Conditional Release Order for a period of 6 months commencing in December 2018. The applicant also provided to the Tribunal a copy of the final Apprehended Domestic Violence Order dated 14 December 2018. The Order is for a period of 6 months and prohibits the applicant from assaulting, threating, stalking, harassing, intimidating, destroying property or approaching his partner and five children after using alcohol or drugs.

20. The Tribunal acknowledges the applicant’s evidence that he wants to change and has undergone a rehabilitation program. The applicant’s evidence is that he loves his children and does not want to be separated from his family. The Tribunal also acknowledges the evidence of Ms [A]. However, her motivations in reporting the applicant’s conduct to the police do not negate the existence of such conduct. The applicant has been convicted of an assault.  While the Tribunal accepts that the applicant has completed a rehabilitation course, the Tribunal is mindful that the course was of a short duration and, as noted above, appears to have only been done in recent months and apparently in the context of the visa cancellation proceedings.

21. The Tribunal also places weight on the fact that the AVO was issued in relation to the applicant to protect his partner and children. That is, the court considered it necessary to issue a formal order for the protection of the applicant’s partner and children.

22. Having regard to the nature of the applicant’s conduct, the formal finding of guilt and the issuance of the AVO, the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the health and safety of his partner and children. The Tribunal reaches this conclusion despite the applicant’s and his partner’s statements that he has changed and will not engage in such conduct in the future.

23. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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

24. 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

25. The purpose of a Partner visa is to enable the visa holder to remain in Australia with his partner. Both the applicant and his partner provided evidence of their ongoing relationship and their desire to be together. The Tribunal is prepared to accept, for the purpose of this review and without the full assessment of the claims, that the applicant and the sponsor (his partner) may be in a spousal relationship. The Tribunal acknowledges that the applicant may fulfil the purpose of his travel and stay in Australia. The Tribunal also accepts that the applicant has children with his partner and he told the Tribunal he needs to stay in Australia to look after the children, aged 4 and twins aged 3, as well as the two step-children aged 14 and 10. The presence of the children may suggest a compelling need to remain in Australia. 

    The extent of compliance with visa conditions

26. There is no evidence to indicate that the applicant has not complied with visa conditions.

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

27. The applicant’s immediate family, including his partner and children, are in Australia. The applicant’s evidence to the Tribunal is that his partner would not allow his children to travel with him if he was to leave Australia. He said that the older children have no contact with their father and the oldest has not seen his father and he is the one who has been taking care of the children. Several of his relatives provided written statements to the Tribunal and the Tribunal accepts their evidence. If the applicant’s visa is cancelled, and unless the applicant is granted another visa, he may be required to leave Australia and be separated from his family. The Tribunal accepts that this may cause significant hardship to the applicant, as well as family members.

28. The applicant claims that he provides financial support to his family and he presented evidence of his employment. The Tribunal acknowledges that if the applicant does not hold a visa, his employment options may be limited. The applicant’s evidence to the Tribunal is that his wife is receiving Centrelink benefits and does not work. The Tribunal accepts that lack of employment may cause financial hardship to the applicant or his family.

    Circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety of an Australian community or a segment of the community. The applicant has been charged with a number of offences. He has been found not guilty of six instances of assault but found guilty in relation to one charge of assault and has been issued with an AVO for the period of six months.

   Past and present behaviour of the visa holder towards the department

2. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

3. There are no consequential cancellations under s. 140.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

4. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. Although the Tribunal accepts that in relation to some visa categories, the applicant may be subject to an exclusion period in Public Interest Criterion (PIC) 4013 or Special Return Criterion (SRC) 5002, the Tribunal also notes that it may be possible for the applicant to depart Australia voluntarily to avoid being removed as well as the exclusion under SRC 5002.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

5. There is no evidence, and the applicant does not claim, that he would be persecuted or harmed upon return to his home country. The Tribunal does not consider that Australia’s protection obligations would be breached as a result of the cancellation.

6. The applicant and his partner have five children. Three are the applicant’s biological children and two are step-children. The applicant’s evidence to the Tribunal is that he does all the housework as his partner does very little. He states that he is responsible for cooking, shopping, cleaning and washing clothes. He takes the children to school and sporting activities and he is the one who attends school. He said that the children are closer to him than they are to their mother because the children know that he is the one responsible for them. Ms [A] also gave evidence to the Tribunal that the applicant is the primary caregiver for the children.

7. The Tribunal is prepared to accept that the applicant has a close relationship with his children and that he provided care and support to the children. However, the Tribunal also notes that the applicant has been convicted of an assault and that he has been issued with an AVO that protects not only his partner but also the five children. The AVO prohibits the applicant from approaching or being in the company of his partner and children after drinking alcohol or taking drugs. In the Tribunal’s view, any conduct that involves violence or threat of violence either in relation to the children or in relation to the children’s mother, is not conduct that serves the best interests of the children.

8. There is little evidence of the applicant’s rehabilitation. The Tribunal acknowledges that the applicant has completed a rehabilitation course and also his undertaking to change but the Tribunal is also mindful that the applicant has been detained for several months and would have had limited opportunities to take drugs or alcohol. The fact that he has not done that since his detention is not an indication, in the Tribunal’s view, that such conduct will not be repeated in the future. The Tribunal finds that if there is any risk of harm or violence towards the children, even a small risk, it is not in the best interests of the children to be in the presence of the applicant.

   Any other relevant matters

9. The applicant states that he is constantly worried about his children and their well-being. He has not been able to eat or sleep while in detention. The applicant states that if his visa is cancelled, he would be affected psychologically. The Tribunal accepts that the cancellation of the visa may cause significant hardship to the applicant.

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the presence of the applicant in Australia is or may be a risk to his partner and children. The Tribunal acknowledges that the cancellation of the visa may result in the applicant having to leave the country and be separated from his family, although the Tribunal notes that the applicant may be eligible to make an application for a visa in the future. The Tribunal accepts that the applicant has a close relationship with his children and accepts that the cancellation of the visa could cause significant hardship to the applicant and his partner and children. The Tribunal acknowledges the applicant’s and Ms [A]’s evidence about the circumstances that led to the charges and the subsequent conviction. The Tribunal acknowledges a number of character references and other statements in support of the applicant. The Tribunal also accepts that there may be compelling reasons for the applicant to remain in Australia. The Tribunal accepts that there are strong reasons why the visa should not be cancelled.

11. The Tribunal acknowledges that there are no other known instances of non-compliance or beaches of the law. The Tribunal accepts that the cancellation of the visa would limit the applicant’s options in terms of future visa applications.

12. Against these considerations, the Tribunal notes that the applicant has been convicted of a serious offence. An AVO has been issued to protect the applicant’s partner and children. The Tribunal has formed the view that it is not in the best interests of the applicant’s children to experience or witness violence or if there is even a small risk of such violence occurring. The Tribunal has formed the view that the nature of the offence outweighs other considerations.

13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Kira Raif
    Senior Member