Ramirez Mendoza (Migration)

[2019] AATA 6108

Ramirez Mendoza (Migration) [2019] AATA 6108 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Alberto Ramirez Mendoza

CASE NUMBER:  1920872

HOME AFFAIRS REFERENCE(S):           BCC2014/2730030 BCC2018/4148583

MEMBER:Russell Matheson

DATE:18 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa.

Statement made on 18 December 2019 at 12:59pm

CATCHWORDS
MIGRATION – cancellation – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – ground for cancellation – convicted of an offence – conviction and sentence set aside – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that prescribed grounds exist for cancellation of the applicant’s New Zealand Family Relationship (Subclass 461) visa because the Department received information that the applicant has been convicted of a criminal offence against the state of New South Wales. 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 appeared before the Tribunal on 17 December 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   Background

6. The applicant is a 37-year-old male national of Peru born in March 1982 who first came to Australia as the holder of a Student visa in March 2010. The applicant was granted a New Zealand Family Relationship (Subclass 461) visa on 26 November 2014. According to police information, the applicant was convicted of a criminal offence in April 2019 at Downing Centre Local Court resulting in his visa being cancelled by the Department in July 2019.

7. The applicant held a Subclass 461New Zealand Citizen Family Relationship (Temporary) visa as the partner of a New Zeeland Citizen. The applicant was granted the visa in 2014 and kept the Department updated with any new information. On 15 March 2018, the applicant informed the Department that the relationship had broken down; however his visa was still valid. The five year visa was due to cease on 26 November 2019, but he had the opportunity to reapply if he:

   ·Held a Subclass 461 visa or it was the last substantive visa he held;

   ·He is no longer a member of the family unit of the New Zealand citizen name in his first application as a result of a relationship breakdown; and

   ·He has not become a member of the family unit of another person.

8. His visa cancellation now threatens his ability to reapply for a further five-year visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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) of the Act relying on the prescribed ground r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations). 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.

   Does the ground for cancellation exist?

10. 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(10(oa) is relevant.

    Prescribed ground

    Reg 2.43(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));

11. It appears that the prescribed grounds existed for the cancellation of the applicant’s New Zealand Family Relationship (subclass 461) visa because the Department received information that the applicant has been convicted of a criminal offence against the state of New South Wales.

12. According to police information, the applicant had been convicted of the following criminal offence on 1 April 2019 at Downing Centre Local Court:

    ·Assault with act of indecency.

13. As a result of this conviction, the applicant was sentenced to a 24-month community corrections order commencing 1 April 2019 and concluding 31 March 2021. The applicant also incurred a fine of $2200.

14. As the applicant had been convicted of an offence against the law of New South Wales, his New Zealand Family Relationship (subclass 461) visa may be cancelled under s.116(1)(g) of the Act relying on prescribed ground r. 2.43(1)(oa).

15. On 19 June 2019 the applicant was notified by the Department in writing with a Notice of Intention to Consider Cancellation (NOICC). The applicant responded on 25 June 2019.

16. The applicant submitted in response to the NOICC documents that include:

    ·An appeal listing notice;

    ·A written response from the applicant;

    ·Certificate of recognition from the applicant’s employer MEGT Australia Ltd;

    ·Copy of Certificate of English from EmbassyCES;

    ·Copy of statement of attainment from Lloyds International College confirming completion of IELTS preparation course;

    ·Copy of Statement of Attainment from MEGT Institute;

    ·Copy of Diploma of Hospitality from Strathfield College; and

    ·Copy of Diploma in Cuisine Le Cordon Bleu.

17. The applicant provided the following documents to the Tribunal that include:

    ·An appeal listing notice;

    ·A Peruvian Certificate of Police Records;

    ·Three statutory declarations from friends of the applicant;

    ·A statutory declaration from a co-worker of the applicant;

    ·A letter of support from the applicant’s employer; and

    ·A statutory declaration from the applicant; and

    ·An Advice of Court result issued by the District Court of New South Wales dated 28 November 2019.

18. The applicant in response to the NOICC stated that he did not agree that there were grounds for cancellation and provided the following reasons:

    ·The matters are still pending an appeal in the District Court and he expects the court to make a favourable decision after considering all the evidence available;

    ·He has not come to the attention of police previously and is of good character and hence should be given the benefit of the doubt regarding this matter;

    ·He is currently employed as an Admissions officer at ABILITY English/MEGT and has been in the role for four years;

    ·He has demonstrated strict compliance with his visa conditions since November 2014 and has always been cooperative with the Department; and

    ·It would be unfair to cancel his visa at this stage while the appeal is still pending at court.

19. The delegate acknowledged that the applicant had lodged an appeal against his conviction but there was no guarantee the appeal would be successful and subsequently cancelled his visa on 25 July 2019.

20. The Tribunal set a review hearing date for the visa cancellation for 1 October 2019. On 27 September 2019 the applicant’s migration agent contacted the Tribunal via email stating the applicant was appealing his conviction and his case had been set down for the 24 September 2019 at the Downing District Court. However, the appeal had been deferred and listed for hearing on 28 November 2019. He further stated that the applicant was currently on a Bridging visa E, as a consequence of his visa being cancelled and he wanted to remain in Australia to attend the court hearing to clear his name as he maintains that he is innocent. The Tribunal found the request reasonable considering the circumstances of the applicant and deferred the review hearing until 17 December 2019 for the purpose of allowing the applicant holder to attend court.

21. The applicant submitted a statement at review stating that:

    ·    He had argued that his visa not be cancelled until his appeal case had been head;

    ·    He has now been vindicated as the Conviction Appeal has been upheld and the conviction and sentence imposed by the local court have been set aside;

    ·    The case has caused the applicant significant hardship, stress, and caused him uncertainty all based on an accusation, which has now been proven on appeal to have not been true;

    · It would seem harsh to cancel his visa under s.116(1)(g) when an appeal process is in process;

    ·    The applicant now faces the prospect that should the cancellation not be upheld; his original visa would have expired on 26 November 2019; and

    ·    The applicant might be able to justify an application based on factors beyond his control and there are compelling reasons to grant his Subclass 461 visa.

22. He further submits in his written statement the Subclass 461 visa allows him to apply given the above if:

    ·    He holds a Subclass 461 visa or it was the last substantive visa he held;

    ·    He is no longer a member of the family unit of the New Zealand citizen named in his first application as a result of a relationship breakdown; and

    ·    He has not become a member of the family unit of another person.

23. The applicant stated that he is not at present in any de-facto or married relationship with anyone so he would comply with this requirement. The applicant also expressed that he has to all effects been compliant with his previous visas. The Tribunal accepts the applicant has been compliant with the conditions of his visas.  

24. On 28 November 2019 the applicant’s agent contacted the Tribunal informing the Tribunal that the applicant’s conviction appeal has been upheld (case 2018/00232160-001) and the Downing Centre District Court of New South Wales has set aside his conviction and sentence imposed by the Downing Centre Local Court on 1 April 2019. The visa holder provided a copy of the Advice of Court Result to the Tribunal (TF 117). There is no evidence before the Tribunal of any intention to appeal the decision made by the District Court on 28 November 2019.

25. The Tribunal finds that the applicant’s conviction and sentence has been set aside and there is no conviction recorded against the applicant’s name, therefore grounds for cancellation do not exist. 

26. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa.

    Russell Matheson
    Member