RAJIB (Migration)

[2020] AATA 1429

RAJIB (Migration) [2020] AATA 1429 (17 April 2020)

,

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD RAJIB

CASE NUMBER:  1921381

HOME AFFAIRS REFERENCE(S):          BCC2019/2914845

MEMBER:Wan Shum

DATE:17 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 17 April 2020 at 5:41pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to safety of individual – domestic violence conviction, community corrections order and apprehended violence order – discretion to cancel visa –completion of behavioural change program – hopes for continuation of relationship – wife’s completion of study and plans for further study – application for review affirmed

LEGISLATION

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

CASES

Gong v MIBP [2016] FCCA 561

Tien 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 1 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant posed a risk to the safety of an individual in the Australian community, namely Ms Sadia Afrin, his spouse.. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by a registered migration agent.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. On the hearing response form, it was indicated that the applicant wished the Tribunal to take evidence from Ms Sadia Afrin. However, she did not attend on that occasion. The Tribunal arranged a further hearing on 18 February 2020 following the outcome of the Local Court hearing and additional information provided, including the variation of the Apprehended Violence Order. Both the applicant and Ms Afrin attended.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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), which allows for cancellation 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. 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.

   Background

7. On 5 June 2019, the applicant was charged by NSW Police with the offences of assault occasioning actual bodily harm (Domestic Violence) and intentionally choke etc person with recklessness.

8. The delegate considered that there was a ground to cancel the applicant’s visa under s.116(1)(e).

   Does the ground for cancellation exist?

9. 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].

10. 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.

11. In the circumstances of this case, as set out in the delegate’s decision record, an enforceable Apprehended Violence Order (AVO) was implemented against the applicant and named Ms Afrin as the person who requires protection. The applicant was arrested and subsequently charged by NSW Police on 5 June 2019 with the offence of assault occasioning actually bodily harm (Domestic Violence); intentionally choke etc person with recklessness.

12. In response to the notice of intention to consider cancellation sent by the delegate to the applicant on 3 July 2019, the applicant admitted that he committed domestic violence against Ms Afrin which was fuelled by alcohol and his anger, but that he never wanted to hurt her. It was a one-time incident that was out of his character. He denied choking her and was working to get his relationship back. He stated that he takes full responsibility for his actions that day but that he is “not guilty”, and sincerely regrets his actions. He referred to having contacted Baptist Care Service for men’s behavioural change and was enrolled in a course to start on 31 July 2019. The applicant advised that there is a matter in relation to the incident at the Local Court and his court hearing date was set for 18 November 2019. The applicant referred to the importance of his being able to access professional help; being able to attend the Court hearing and seek justice; his life being in danger if he had to return to Bangladesh as his wife’s family would not forgive him if he is not able to prove that he has changed. He claimed that he is not a threat to Ms Afrin’s wellbeing nor posing any risk to her safety and requested that his visa not be cancelled.

13. Before the Tribunal, the applicant provided a further statement regarding his relationship with Ms Afrin and also a copy of an email addressed to Sutherland Local Court from Ms Afrin. The applicant referred to his upcoming Court appearance in relation to the charges. The Tribunal was advised that the applicant would plead guilty to the charge of assault but not guilty to the charges of choking.

14. In Ms Afrin’s email, she relevantly states that they have been married nearly 5 years and that she “[wishes] to fix our relationship and continue living with him. I am willing to go counselling if necessary. Also I got call from support, my husband … doing Anger Management or Mens Behavior Change Program… I support [the applicant] and I believe we fix our relation very soon. I hope to put this things behind us and continue to living together.” (sic)

15. On the hearing response form, Ms Afrin was listed as a person whom the applicant wished the Tribunal to take evidence. It was acknowledged however that this could not be arranged at present because of the AVO in force. The applicant stated that he had not had any contact with Ms Afrin and did not know where she is currently residing. He expressed an understanding of the terms of the AVO, and indicated that he did not want to breach the AVO.

16. The applicant told the Tribunal what led to the charges and confirmed that he had been attending weekly sessions run by Baptist Care for anger management and men’s behavioural change. He expressed regret for his actions. The Tribunal put to the applicant whether he is or may be or would or might be a risk to the health or safety of Ms Afrin. He said “never”. The Tribunal asked him whether he thought he was a risk to her safety on 5 June 2019, when the alleged acts occurred. The applicant said that it was the first time, and he apologised for his actions. He acknowledged that he made a mistake when he hit her and that he definitely did the wrong thing but that no-one is going to be at risk. He asked for a chance to prove himself.

17. The applicant’s representative confirmed that he was acting for the applicant in relation to the Court matter as well. He said that there would be a plea of guilty to common assault, but a plea of not guilty to choking. In terms of the AVO, he said that they would be seeking to remove condition 2 which states: “You must not approach Sadia AFRIN or contact her in any way, unless the contact is through a lawyer”. Reference was made to the email from Ms Afrin to the Court dated 25 October 2019, and the representative considered that it what was likely in response to a subpoena to attend the hearing. The Tribunal notes that she agreed to attend the Local Court in her email.

18. The representative undertook to provide the finalised AVO, court outcome, transcript of hearing and confirmation from Baptist Care as to the applicant’s participation in the course. He confirmed that the matter would be finalised on 18 November 2019, and the applicant would be sentenced on that day. He added that they were anticipating that the police may withdraw the charge in relation to choking for evidentiary reasons.

19. The Tribunal agreed to adjourn the matter until 10 December 2019 to allow sufficient time to provide the documents referred to. It also indicated that it may seek evidence from Ms Afrin if required.

20. On 18 November 2019, the Tribunal received an email from the representative providing copies of the Court material including the Community Correction Order for the offence of assault occasioning actual bodily harm. He also confirmed that they were successful after hearing for the dismissal of the two choking charges. The representative advised that there was an Application to Vary AVO which is being filed by Ms Afrin so that the condition 2 can be removed and they will recommence living together.

21. On 12 December 2019, the Tribunal received a copy of the varied AVO, which removed condition 2. It confirms that the date of order was 11 December 2019 and the order is in force for 2 years from 12 June 2019. The Tribunal did not receive a copy of the transcript until 2 April 2020.

22. The Tribunal arranged a second hearing to allow Ms Afrin an opportunity to give evidence as a witness in this matter. This second hearing was held on 18 February 2020. The parties advised that they were now living together again. The applicant confirmed that he was convicted in relation to the charge of assault and sentenced to 16 months community corrections order.

23. In terms of the conviction, the transcript of Court proceedings indicates that the judge took into account the plea of guilty to the charge of assault occasioning actual bodily harm. That the judge did not consider there was sufficient evidence to be satisfied on the material before the Court of choking. The Tribunal notes that Ms Afrin attended those proceedings and gave evidence now that though she told the police at a point in time, that there was choking involved in the proceedings and she has signed the document in which the interview during which the choking claim is set out.  The Court noted that Ms Afrin has given evidence on oath in this court today that choking did not take place and that she did not make the claim of choking immediately after the incident occurred. Before the Tribunal, Ms Afrin explained that she did not understand what choking meant and only that he had pulled on her jumper such that there was pressure on her neck from the collar of her jumper. This appears consistent with her evidence in Court.

24. In the judgment, the Court on sentencing stated that:

    people go to gaol for this offence at this seriousness, this level.  I have to assess how serious this is, and in terms of assault occasioning actual bodily harm I have seen the video and I think it is at least at the mid‑level of seriousness.  But you have pleaded guilty at the first given opportunity, you have never had any other offences of a similar nature and as both the prosecutor and the defence lawyer, Mr Kassem have said, these matters have to be dealt with in a particular way, and that is the Court must impose a penalty, it lets you know and lets the rest of the community know that domestic violence is a completely unacceptable way for parties to conduct themselves.  Goodness gracious, 97, 98% is men against women in domestic relationships.

    When I take all of those matters into account I record a conviction on sequence 1, there is a community corrections order for a period of 16 months.  You will be subject to the supervision and guidance of the community corrections. 

25. The applicant told the Tribunal that when he reported to Community Corrections and showed them evidence of having completed the Baptist Care men’s behaviour change program called Facing Up, that he was told he no longer needed to report. The Tribunal requested confirmation of this but despite a number of requests, it has not been provided to date. However, nothing turns on this.

26. In any case, the applicant has pleaded guilty to the assault and there is clear evidence of this from the photographs taken of Ms Afrin after the incident and the record of the interviews which occurred immediately after the assault. The Tribunal has taken into account that the applicant has completed the Baptist Care men’s behaviour change program, Facing Up, which is a program that runs for two hours a week for 20 weeks. It notes that the AVO has been altered and the applicant is now living with Ms Afrin again. In terms of whether the applicant might be a risk to Ms Afrin’s safety, while Ms Afrin has indicated that she would not provoke him by contacting her ex-boyfriend again, and the applicant has sworn off alcohol, the Tribunal considers that the wording of “may be a risk” sets a low bar. Therefore, it finds that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals, specifically his wife, Ms Afrin.

27. For these reasons, 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

28. 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

29. The applicant and his wife both gave evidence that they came to Australia to pursue further education, specifically the wife undertook study towards a Masters which she completed, and then subsequently applied for Subclass 485 visas, for which the wife was the primary applicant. Their Subclass 485 visas were due to cease in June/July 2020, until the applicant’s visa was cancelled. Now only Ms Afrin holds a subclass 485 visa. Ms Afrin said that it was her turn first to pursue a Masters degree and then it would be her husband’s turn to study. The applicant did not say he wanted to study now, and while Ms Afrin said that she was planning to undertake further study she had not enrolled in any courses. The applicant has stated that he wants to remain in Australia with his wife and that he has supported her through her studies and will continue to do so. The Tribunal has taken into account that the parties came to Australia for Ms Afrin to pursue a higher degree, which she has already done. It thus considers that their purpose for coming to Australia has been achieved. The subsequent substantive visa obtained by the parties, the Subclass 485 visa, is temporary only, to enable a person to pursue employment options and potentially remain in Australia by contributing their skills. The Tribunal understands that both parties are working at Brasserie Bread in different departments, unrelated to their field of study.

    The extent of compliance with visa conditions

30. The Tribunal is not aware of any specific breach of a condition of the visa held, as opposed to a general requirement to abide by the laws of Australia.

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

31. The parties said that they wish to remain together in Australia, and their plans are for Ms Afrin to pursue further study. However, Ms Afrin did not provide details of a course she wished to pursue with any certainty and she had not yet enrolled in a course. The Tribunal accepts that there would be a degree of hardship from the cancellation of the applicant’s visa, and that this may impact on Ms Afrin undertaking further study in Australia if she decided to return with him to Bangladesh. However, Ms Afrin has already completed a Master degree, which was the reason given for their travel to Australia, and it cannot be said that they had not been able to pursue their dreams of Ms Afrin obtaining a further degree in Australia. Both parties are from Bangladesh and could return there together. There is no evidence before the Tribunal which supports a conclusion that they would not be able to pursue further studies or be employed there. Their parents and extended families are in Bangladesh and could provide financial, psychological and emotional support during the initial re-adjustment period. While the applicant had stated previously that his wife’s family would not forgive him if he does not show that he has changed, the parties have reconciled and he did not raise this again or elaborate on this assertion on review. In any case, both the applicant and his wife held temporary visas and it was always a possibility that they would have to return unless they applied for a permanent visa and even then, their eligibility for any such visa would need to be assessed. In the circumstances, the Tribunal does not consider that the degree of hardship would be significant.

    Circumstances in which 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

32. The circumstances in which the cancellation arose was an act of domestic violence against his wife in which she received a cut to the lip and bruises on her body, which was described by the judge in the Court hearing as “mid level seriousness” in terms of assault occasioning actual bodily harm. While the Court was reasonably lenient in terms of the sentence in this case (compared to a gaol term), it appears that this was partially because of the applicant’s plea of guilty. In terms of whether it could be said that the circumstances were beyond his control, the Tribunal notes that the applicant referred to alcohol consumption affecting his behaviour, but does not consider that consuming alcohol and behaving violently is beyond his control. The Tribunal accepts that the applicant has completed the Baptist Care men’s behaviour change program and the AVO has been altered so the applicant is now living with Ms Afrin, who attended the Tribunal hearing to support his case.

    Past and present behaviour of the visa holder towards the department

1. The applicant has cooperated with the department throughout this process. The Tribunal is not aware of any previous issues regarding his behaviour towards the department. The Tribunal does not consider that the applicant’s behaviour towards the department would impact on the cancellation decision.

   Whether there would be consequential cancellations under s.140

2. There are no consequential cancellations as the applicant’s visa was granted as a dependent on his wife’s.

   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

3. A visa cancellation may result in the applicant being detained under s189 and removed from Australia under s198 of the Act as he would no longer hold a valid visa. The Tribunal considers that it is unlikely that the applicant would be detained indefinitely as a consequence of this cancellation if he abides by the conditions of his bridging visa E and voluntarily departs. The Tribunal acknowledges that there are currently travel restrictions in place and limited flight availability due to COVID19, the coronavirus, which may have an impact on when he is able to depart, but he can apply for a further visa if his BVE is about to cease and then departs when he is able to do so.

4. Having regard to his visa status and immigration history, s.48 of the Act would prevent the applicant from applying for the majority of visa classes while in Australia. Nonetheless, he is able to make a valid visa application for a restricted class of visas, such as a protection visa, without the Minister’s intervention. The applicant may be impacted by a PIC 4013 ‘risk factor’ due to his cancellation under s.116(1)(e), which is a criterion for the grant of some visas, however it does not prevent him from making a valid application. It operates to prevent the grant of a visa to persons for a period of three years. The Tribunal considers that this is a legitimate consequence of the legislation and notes that it may be waived if the applicant’s circumstances justify the granting of the visa. It does not consider that the possibility of a 3-year exclusion period is a reason which outweighs the reasons for cancelling the visa.

   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. The applicant has stated that his life will be in danger if he had to return to Bangladesh as his wife’s family would not forgive him if he is not able to prove that he has changed. The Tribunal has considered this claim which was made when he responded to the notice of intention to consider cancellation. The applicant did not repeat the claim that he remained in fear of his wife’s family on review, and no evidence was given to support his assertion. Noting also that they have reconciled, the Tribunal is not satisfied on the evidence that his life would be in danger for the reasons he previously asserted.

6. In terms of non-refoulement obligations, these are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

7. The possibility of removal is not a direct consequence of the cancellation of the visa. Given the circumstances of this case involve a plea of guilt and a Court sentence of 16 months community corrections order, the Tribunal has considered whether this amounts to a character issue which could prevent a valid application or prevent them meeting the criteria. Having regard to the s.501 of the Act, it is not clear that the Department would find that he did not pass the character test based on this charge. The Tribunal also notes that the applicant may be able to apply for a protection visa and does not accept, given his available options in Australia, cancellation will result in his removal to Bangladesh in breach of Australia’s non-refoulement obligations.   

8. However, the Tribunal does not consider on the evidence before it that there is a risk of any residual harm, other than what may be canvassed in a potential protection visa application, if the applicant was to return to Bangladesh. The Tribunal considers that there are no international obligations, including non-refoulement and best interests of the children as a primary consideration, which would be breached as a result of the cancellation. It is possible that if the applicant were to make a protection visa application, and it was refused, the applicant may be subject to indefinite or prolonged detention.

   Conclusion

9. The Tribunal has taken into account that the applicant claims to take full responsibility for assaulting his wife and his claims that he had never assaulted her before and will not drink again. It has taken into account that he has completed a course with Baptist Care about anger management, that he remains employed and has the support of a community organisation. It has also taken into account that both parties are currently living together and that they wish to remain in Australia together, purportedly for Ms Afrin to undertake more study. While the parties have decided to live together again in a spousal relationship, the Tribunal considers that they do not need to stay in Australia to do so. It has taken into account the degree of hardship that may be faced and the possibility of indefinite or prolonged detention if he does not depart voluntarily. Having considered his circumstances, the Tribunal has formed the view that the above factors are outweighed by the nature and seriousness of the assault, which he pleaded guilty to, and the visa being a temporary one. The Tribunal considers that these matters outweigh the reasons for not cancelling the visa and does not consider that the applicant’s circumstances alone, or combined with his wife’s, demonstrate a compelling need to remain in Australia.

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

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Wan Shum
    Member