O’Keeffe (Migration)

[2020] AATA 1629

O’Keeffe (Migration) [2020] AATA 1629 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jordan Lucas O’Keeffe

CASE NUMBER:  2000054

HOME AFFAIRS REFERENCE(S):          BCC2019/6176374

MEMBER:Nathan Goetz

DATE:29 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 29 April 2020 at 3:30pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – criminal conviction – circumstances of offending – probation after pleading guilty – compliance with terms of probation – extent of remorse – other offences – application for review of refusal of permanent partner visa – separation from sponsor – impact on children of applicant’s removal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Ireland and first arrived in Australia on 3 December 2010 as the holder of a UD-976 visitor visa. He has travelled in and out of Australia on a number of occasions on subsequent UD-601 visitor visas. He last arrived in Australia on 30 June 2015 as the holder of a TZ-417 working holiday visa and has remained in Australia since that time.

3. On 23 June 2016 the applicant was granted the Bridging A visa as he applied for a combined UK-820 temporary partner visa and a BS-801 permanent partner that same day. This regularised his migration status in Australia. The Bridging A visa was to last until the applicant was notified that the permanent partner visa had been finally determined or withdrawn.

4. On 20 July 2017 the applicant was granted a UK-820 temporary partner visa on the basis that he was in a spouse or de facto relationship with an eligible sponsor. Although this visa is temporary in nature, it can provide a pathway to permanent residency in Australia through the grant of a BS-801 permanent partner visa. A criterion for the granting of the permanent partner visa is that the applicant holds a temporary partner visa.

5. Section 82(2) provides that the bridging visa held by the applicant ceased to be in effect when he was granted the temporary partner visa. As a result of the granted of the temporary partner visa, the applicant’s Bridging A visa ceased to be in effect.

6. On 20 November 2019 the applicant’s temporary partner visa was cancelled by the Department. Section 68(4) of the Act provides that a bridging visa which ceases to be in effect under s.82(2) will come into effect again in the event of the applicant not holding a substantive visa. A substantive visa includes both temporary and permanent partner visas. Accordingly, the applicant’s Bridging A visa became effective once again.

7. On 20 November 2019 the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) of the Bridging A visa under s.116 of the Act.

8. The NOICC advised the applicant that his Bridging A visa may be cancelled if the decision-maker was satisfied that a prescribed ground for cancelling the visa applied to the applicant: s.116(1)(g). The NOICC advised that prescribed grounds appeared to exist under Regulation 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations).

9. This regulation provides that for the purpose of s.116(1)(g) of the Act, a ground for cancellation is that the Minister is satisfied that the holder has been convicted or an offence against the law of the Commonwealth, a State or Territory (whether or not visa holder held a visa at the time of the conviction and regardless of the penalty imposed (if any).

10. The NOICC detailed that the Queensland Police Service had informed the Department that the applicant appeared at the Chinchilla Magistrates’ Court on 3 October 2019 in relation to the following charges:

    · Contravention of a Domestic Violence Order on 28 February 2019 contrary to s.177(2)(B) of the Domestic and Family Violence Protection Act 2012 (Qld)

    · Contravention of a Domestic Violence Order between 8 March 2019 and 12 May 2019 contrary to s.177(2B) of the Domestic and Family Violence Protection Act 2012 (Qld)

    · Contravention of a Domestic Violence Order on 10 August 2019 contrary to s.177(2B) of the Domestic and Family Violence Protection Act 2012 (Qld)

    · Contravention of a Domestic Violence Order on 11 August 2019, contrary to s.177(2)(B) of the Domestic and Family Violence Protection Act 2012 (Qld)

    · A family violence offence of wilful property damage on 15 August 2019, contrary to ss.469(1) and 47(9) of the Criminal Code 1899 (Qld)

    · Contravention of a Police Protection Order on 16 August 2019 contrary to s.178(2) of the Domestic and Family Violence Protection Act 2012 (Qld)

    · Contravention of a Domestic Violence Order between 27 August 2019 and 5 September 2019 contrary to s.177(2)(B) of the Domestic and Family Violence Protection Act 2012 (Qld)

11. The NOICC detailed that the applicant had been found guilty, convicted and sentenced to 42 days imprisonment for the offences committed on 11 August 2019, 15 August 2019 and 16 August 2019. For the remaining offences, the applicant was found guilty, convicted and sentenced to 2 years’ probation.

12. The NOICC detailed that the Department considered that ground for cancellation existed, and invited the applicant to comment on this information to demonstrate why the ground for cancellation did not exist, or to give reasons why the visa should not be cancelled and to provide any supporting evidence.

13. On 4 December 2019 the applicant responded to the NOICC through a submission by his migration agent Tanguy Mwilambwe MARN 1570409.

14. On 19 December 2019 the delegate decided to cancel the Bridging A visa. The delegate was satisfied that the ground for cancelling the visa outweigh the reasons not to cancel he visa. The delegate therefore decided to cancel the Bridging A visa. As a result of the Bridging A visa cancellation, the applicant became an unlawful non-citizen in Australia.

15. On 2 January 2020 the applicant applied to the Tribunal for a review of the decision to cancel the Bridging A visa.

16. For the sake of completeness, on 5 February 2020 the applicant’s application for a BS-801 permanent partner visa was refused by the Department because the applicant was no longer the holder of a temporary partner visa. The applicant applied to the Tribunal for a review of the BS-801 permanent partner visa refusal in case: 2003750. This review application remains ongoing.

17. On 10 March 2020 the applicant was invited to a Tribunal hearing at 10am on 1 April 2020 by videolink from the Brisbane Registry to the Sydney Registry to give evidence and present arguments concerning his Bridging A visa cancellation. On 26 March 2020 the Tribunal wrote to the applicant and advised that as a result of the COVIC-19 pandemic, the Tribunal would cease holding face to face hearings from 23 March 2020. The Tribunal considered the applicant’s review application suitable for a telephone hearing.

18. On 1 April 2020 the applicant appeared at the Sydney Registry of the Tribunal by telephone. He spoke to the Tribunal by his mobile telephone and indicated that he was in his car outside his residence. The applicant was not assisted by his registered migration agent who indicated the morning of the Tribunal hearing that he was no longer assisting the applicant.

19. The Tribunal received written letters of support from Ms Emma Williams and Naomi Shearer after the Tribunal hearing and has considered those letters when making its decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. The Tribunal has considered the information contained in the NOICC, the Cancellation Decision, the written submissions dated 4 December 2019 made on behalf of the applicant as to why the Bridging A visa should not be cancelled, and the oral evidence that the applicant provided at the Tribunal hearing.

22. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    Does the ground for cancellation exist?

23. 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 and is detailed previously.

24. The available evidence is that the applicant has committed offences of breaching Domestic Violence Orders, a Police Protection Order and property damage. The written submissions conceded that the ground for cancellation, namely proven criminal offending, had been made out. At the Tribunal hearing the applicant also conceded that the ground for cancellation existed.

25. For these reasons, 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.

    The discretion to cancel

26. 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’.

    Circumstances of the offending

27. The Tribunal has first considered the circumstances which led to the applicant’s criminal offending. The applicant told the Tribunal that he was arrested by police and remanded pending his matters being determined. He was held in criminal custody for 42 days and was released upon pleading guilty to the charges as outlined above. The Tribunal accepts that the applicant pleaded guilty to the charges and there is no information before the Tribunal to suggest that he is not complying with his current probation order which was imposed on 3 October 2019. While the applicant in his written submission indicates that he is remorseful for his conduct, the Tribunal does not accept that remorse necessarily flows from a plea of guilty. There are times when a prosecution case is overwhelming and a person may have little practical ability to successful defend the charges due to the strength of the case. However, the only material that the Tribunal has available to it is the charges as detailed in the NOICC. The Tribunal has not had the benefit of reading the Statement of Facts which would have been before the sentencing judicial officer and is unable to satisfactorily assess the strength of the prosecution case against the applicant and to make an assessment whether the applicant is remorseful independent of the strength of the evidence. While the applicant provided a statement from Naomi Shearer which indicated that he was engaged with the Mens Change programme, the Tribunal does not accept that this is indicative of remorse, as it is required as part of a court order.

28. That being noted, the Tribunal was concerned by the applicant’s oral evidence to the Tribunal that the sentencing court did not have access to the messages that his partner had sent him which would have demonstrated that this were not as the police claimed or how things ‘went down’. The Tribunal explored this with the applicant and asked if the applicant had pleaded guilty to things that he had not done. The applicant said that he did do the things he pleaded guilty to, but that there were messages that his partner had sent him. To the Tribunal’s mind, this appeared to be an attempt by the applicant to shift the blame to the applicant’s partner and indicates to the Tribunal that the applicant is not in fact remorseful for his conduct. The Tribunal further notes that the applicant was charged with offences of breaching court orders and police orders, which were orders that prohibited the applicant from engaging in family violence conduct. Such orders are not between two parties, but are orders between the court and the applicant. Given the number of the breaches and the applicant’s attempt to suggest that his former partner has provided messages to him to somehow suggest that the offending was not as serious as the Tribunal might otherwise consider, the Tribunal really struggles to accept that the applicant is remorseful for his conduct.

29. The Tribunal also has regard to the applicant’s oral evidence that the offending related not only to his former partner who was the sponsor of his partner visa, but another partner as well. To the Tribunal’s way of thinking, the repeated nature of the applicant’s offending against two separate women was very concerning and suggests that the applicant is a person who has no respect for court orders and engages in conduct that gives rise to the need for such orders in the first place.

30. The Tribunal notes that the applicant told the Tribunal that he has outstanding criminal charges which were listed on 3 April 2020 at the Gympie Magistrates’ Court. He told the Tribunal that the charges relate to contacting a person to obtain the telephone number of his former partner, and also a charge related to recording his partner. The Tribunal was unable to ascertain whether the later charge related to stalking or distributing an intimate image. The applicant told the Tribunal that the hearing that he has been advised that the hearing on 3 April 2020 has been postponed because of the current COVID-19 pandemic and he is unsure when his matter will return to court. The applicant told the Tribunal that he is pleading not guilty to those charges. As the Tribunal has no independent information concerning these charges. The charges were not before the delegate and the cancellation decision is only concerned with proven criminal conduct. Accordingly, the Tribunal has disregarded the fact that the applicant has outstanding criminal charges when making its decision about whether to cancel the Bridging A visa. This information is irrelevant to the Tribunal’s task.

31. When it comes to the charges that the applicant has pleaded guilty to, the Tribunal is very concerned. The Tribunal noted to the applicant had engaged in family violence by breaching those orders and the Tribunal views this offending very seriously. The impacts of family violence are well known and this type of offending should not be tolerated. The Tribunal’s view is that the circumstances of the applicant’s offending weigh strongly in favour of cancelling the Bridging A visa.

    The purpose of the visa holder’s travel and stay in Australia, and whether the applicant has a compelling need to travel to and remain in Australia

32. The applicant remains in Australia in connection with a review of the decision to refuse to grant him a BS-801 permanent partner visa. The applicant’s evidence is that he is separated from the sponsor, and that he has not seen his three children for over 12 months. The Tribunal queried why the applicant is continuing with his review application in light of the fact that he is no longer in a relationship with his former partner. The applicant told the Tribunal that he was unsure about the permanent partner visa review, and he had lodged this because he was told to do so by his migration agent. The applicant said that he wished to remain in Australia as his life was here and that he wished to see his children.

33. In the Tribunal’s view, the applicant is not staying in Australia because he seeks to satisfy the criteria for a permanent partner visa, but is pursuing the review application because he wants to remain in Australia in the hope of seeing his children in the future and because he has created a live for himself with a business as a horse farrier, as he described his employment to the Tribunal. These considerations have nothing to do with a partner visa, and the Tribunal finds that his purpose in remaining in Australia are for reasons not connected with a genuine intention to review the partner visa refusal decision. This consideration weighs heavily in favour of cancelling the Bridging A visa.

    The extent of compliance with visa conditions and attitude towards the Department

34. Both of the applicant’s Bridging A visa and UK-820 temporary partner visa had no conditions attached to them. Therefore the Tribunal cannot give any weight to compliance with visa conditions as a factor in favour of not cancelling the Bridging A visa.

35. The Tribunal notes that there is no evidence to suggest that the applicant has a poor attitude to the Department, such as being verbally abusive or threatening to staff. The absence of any adverse behaviour is a factor that weighs in favour of not cancelling the Bridging A visa.

    The degree of hardship that may be caused to the applicant and any family members

36. The Tribunal accepts that if the Bridging A visa cancellation decision is upheld, the applicant will likely be held in immigration detention pending removal from Australia to Ireland. There is nothing to stop the Department from removing the applicant from Australia despite him having an ongoing review with the Tribunal concerning the decision to refuse his BS-801 visa. However, immigration detention is not punitive. It is an administrative measure to ensure that unlawful non-citizens are not at liberty in the community. The Tribunal is not satisfied that immigration detention equates to hardship.

37. The Tribunal does accept that there would be some hardship to the applicant being removed from Australia and returned to Ireland. The Tribunal acknowledges that the applicant has a business in Australia as a horse farrier and that his business would fold if he were to be removed from Australia. However, the applicant clearly has skills that could be utilised to secure employment in Ireland. His mother remains there and he is in contact with her. The Tribunal does not accept that the applicant would find himself destitute in Ireland if he was returned there. The Tribunal is satisfied that the applicant would be able to make a life for himself in his home country.

38. In the written submission, the applicant claimed that he provided financial support for his children. At the Tribunal hearing, the applicant disclosed his financial obligations in Australia, but did not state that he was providing financial assistance to his former partner or their three children. He has not seen his children for 12 months and does not know where they live. The children reside with their mother. The submission also raised the importance that the children continue to have a relationship with the applicant who has presumed shared parental duties for the children. The Tribunal accepts this as a general proposition, but in the applicant’s circumstances, the Tribunal struggles to accept that the applicant has a relationship with his children. He has not seen them for 12 months, and there are no Family Law Orders in place to secure parenting arrangements. The applicant indicated to the Tribunal that he did not have the financial means to pursue such orders at this time, but was pursuing mediation through the Mens Challenge programme, which he is completing as part of his probation order. However, at this stage, there is nothing currently in place. The Tribunal does accept that there would be some psychological or emotional hardship from the applicant being in another country from his children, but there would be no hardship to his children given the lack of relationship between him and his children presently. This may change in the future, or it may not. The Tribunal is simply not in a position to speculate about these future events. The Tribunal is dealing with the facts at present. Accordingly, the Tribunal gives the hardship faced by the applicant some weight in favour of not cancelling the Bridging A visa, but gives the claimed hardship on behalf of the applicant’s children no weight in favour of not cancelling the Bridging A visa.

    Consequential cancellations under s.140 of the Act

1. If other people hold visas by virtue of the fact that they are members of the same family unit as an applicant, or hold a visa only because an applicant held a visa, or they have been granted a visa under s.78 of the Act and an applicant is the parent on such a person, then those visas are cancelled as a consequence of the decision to cancel the applicant’s visa. In the present case, there is no evidence before the Tribunal that the decision to cancel the applicant’s Bridging A visa will result in any cancellations of the visa held by any other person. The applicant’s children are Australian citizens and not visa holders, as is the applicant’s former partner. Therefore, consequential cancellations will not occur as a result of cancelling the applicant’s Bridging A visa, and accordingly the Tribunal gives potential cancellations no weight in favour of the discretion to not cancel the Bridging A visa.

   Legal consequences of the decision to cancel the Bridging A visa

2. As noted above, the Tribunal accepts that if the decision to cancel the Bridging A visa continues, the applicant will remain an unlawful non-citizen, be liable to immigration detention and removal from Australia to Ireland. The Tribunal does not accept that the applicant would be liable to indefinite detention, as there is no evidence before the Tribunal to suggest that Ireland does not accept involuntary returnees. The Tribunal also accepts that the cancellation decision will prevent the applicant from lodging further visa applications while he is onshore, save for a select number of visas: s.140. However, the legal consequences of the cancellation decision which result in the applicant remaining an unlawful non-citizen, being liable to immigration detention and removal from Australia are clearly consequences that were intended by Parliament. In the Tribunal’s view, it would be circular to suggest that these legal consequences should be a reason to exercise the discretion to not cancel the applicant’s Bridging A visa. The Tribunal gives the legal consequences of the decision to cancel the Bridging A visa no weight when deciding whether to exercise the discretion to cancel the Bridging A visa.

   Australia’s international obligations

   Australia is a signatory to various international treaties. However, the applicant has not raised that Australia would be in breach of its non-refoulement obligations by upholding the cancellation decision, and the Tribunal is not satisfied that any such obligations are owed to the applicant. Australia is also a signatory to the Convention on the Rights of the Child and has been a signatory since 17 December 1990. The applicant’s written submission claims that if the applicant were to be removed from Australia, his children would be impacted by the lack his financial support for his children because he would be unable to readily secure employment in Ireland given that he has a limited network, and that it was important that his children continue to have a relationship with the applicant. The submission also stated that the applicant’s children have the right to know their father, despite any of the criminal conduct.  The Tribunal does not consider that this Convention acts as an absolute to prevent the removal of an unlawful non-citizen from Australia but instead provides for contracting states to be bound by general principles, one of which is that children should grow up in a family environment. However, as noted in Article 9 of that Convention, where separation results from any action initiated by a contracting state, such as detention, imprisonment, exile, deportation or death, of one or of both parents or of the child, then the contracting party should provide essential information concerning the whereabouts of the absent family member unless the provision of the information would be detrimental to the well-being of the child. As noted previously, the Tribunal is not satisfied that the applicant’s children would be financially impacted by the decision to cancel the Bridging A visa. The applicant does not currently financially support them. In terms of the fact that the applicant’s children would not be able to have a relationship with their father, the Tribunal does not find this argument persuasive, because at the present time, the applicant does not have a relationship with them. While the Tribunal acknowledges that this may change in the future should Family Law proceedings commence, or may change when the children come of age and are able to make their own decisions about whether they wish to have a relationship with their father, at the present time, the applicant’s children will not be impacted by the cancellation decision. There would be nothing to stop the applicant having a meaningful relationship with his children by telephone, correspondence, or for his children to travel and see him in detention should the relationship improve while the partner visa refusal is being considered by the Tribunal. Alternatively, in the event that the applicant is removed from Australia as an unlawful non-citizen, there would be no impediment on a relationship being conducted through telephone, correspondence or visits by the applicant’s children to him in Ireland should the family dynamics improve in the future.

   CONCLUSION

3. Having considered all the material, the Tribunal has ultimately concluded that the grounds for cancelling the applicant’s bridging visa are not outweighed by the reasons to not cancel the bridging visa. The offending to which the applicant has been found guilty is very serious. The community rightly expects that non-citizens who engage in family violence while in Australia should have actions taken against their visas.

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Nathan Goetz

   
   

   Member