Rodriguez Durruthy (Migration)

[2018] AATA 23

Rodriguez Durruthy (Migration) [2018] AATA 23 (4 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nolgendris Rodriguez Durruthy

CASE NUMBER:  1717749

DIBP REFERENCE(S):  BCC2017/1534371

MEMBER:Kira Raif

DATE:4 January 2018

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 04 January 2018 at 11:42am

CATCHWORDS
Migration – Cancellation – Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa – Criminal history – Risk to the good order of the Australian community – Hardship – Family stress – Difficult to resettle in home country or New Zealand 

LEGISLATION
Migration Act 1958 ss 116, 116(1)(e)

CASES
Tien v MIMA (1998) 89 FCR

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 2 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant is a national of Cuba, born in October 1988. He was granted the New Zealand Citizen (Family Relationship) visa in December 2015. On 1 September 2017 the delegate issued the applicant 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 the same day. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 3 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and step-daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 or the Tribunal 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.

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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he was granted the New Zealand Citizen (Family Relationship) visa in December 2015 on the basis of his relationship with a New Zealand citizen. On 26 April 2017 the Department received information that the applicant had been charged by NSW Police with the following offences:

   a.Common assault

   b.Stalking and intimidation; and

   c.Armed with intent.

8. The police allege that on 26 April 2017 the applicant walked into the kitchen, kicked a basket containing sports gear spilling its content on the floor and continued to verbally abuse the victim. He returned to the lounge and threw approximately six grapes at the victim, causing pain. He continued to verbally abuse the victim and became increasingly aggressive and then spat into the victim’s face. The applicant then grabbed the victim by her hair and pulled her to the ground, dragged her to the kitchen and verbally abused and threatened her, stating ‘watch what will happen if you call the police’. He then grabbed the victim by the throat making it difficult for her to breathe and causing pain to her neck. Whilst the applicant held the victim by her throat, he took a 30 cm knife and pointed the blade at the victim and stated ‘watch what will happen if you call the police’. He then pointed the handle towards the victim and continued to state to the victim to call the police. The victim stated that she feared that he was going to stab her. The applicant then walked into the bedroom holding the knife and began packing his bags.

9. The applicant confirmed in oral evidence to the Tribunal that he had been charged with four offences. He said two of the charges were withdrawn – assault and occasioning actual bodily harm and harm with intent. The applicant said he pleaded guilty to the other two charges of stalking / intimidating to cause fear and common assault involving domestic violence and he was given a one year good behaviour bond.

10. The applicant told the Tribunal that he is not a violent person. He said he made a mistake but he is not a risk to anyone in Australia. His personality is not violent and he is not a risk. The applicant’s partner and step-daughter also gave evidence to the Tribunal stating that the applicant is not a violent person and his behaviour was not typical for him.  

11. With respect to the incident that led to the conviction, the applicant said that on that day he was worried about his family and drank some beers. He was watching erotic movies which his wife questioned. He was very stressed and they had an argument and started to push each other and shout obscenities at each other. His wife told him she would call the police and he was angry. He grabbed the knife but denies pointing it to his partner, noting that this charge has been withdrawn. The applicant said that his wife left the family home and went to the police and later on the police came and told him he was under arrest. The applicant said that initially he was issued with an AVO that did not allow them to be together but it was later amended to the basic order that he cannot commit domestic violence or intimidate his partner but it allows them to live together. That AVO is in place until April 2018. He is also required to undergo counselling.

12. The applicant’s partner, who also gave oral evidence to the Tribunal, also outlined the circumstances surrounding the incident. She said there had been a lot of stressors at the time, she had health issues and there were financial problems and the applicant was working too much to support the family. Ms Rodriquez, his partner, said all these matters affected the way they behaved towards each other.

13. The applicant told the Tribunal he has never been charged with any other offence and has never been convicted of any other offence. The applicant told the Tribunal that since the incident, his communication with his partner has been good. They have told each other about their problems. The applicant said that he had completed about 14 sessions with the psychologist and he continues with these sessions every two weeks. The applicant’s evidence is that they were under a lot of strain at the time of the incident but since that time he has been undergoing rehabilitation.

14. The Tribunal has considered the circumstances that have led to the convictions. The Tribunal is prepared to accept that the applicant has been under stress at the time, and also that he consumed alcohol, which may have affected his behaviour but it is of considerable concern to the Tribunal that the applicant sought to resolve these issues with violence. The applicant admits there was a physical altercation and he admits to using a knife. Although the applicant claims he is not a violent person and this was out of character, it is of some concern to the Tribunal that if the applicant is again in a stressful situation, he may again resort to violence.

15. The Tribunal acknowledges the applicant’s evidence that he has been undergoing counselling and has given due weight to the report from Ms Zanberg which indicates that the applicant is not a threat to his wife or any other person. The Tribunal is mindful, however, that the wording of s.116(1)(e) is very broad. A ground for cancellation is made out if the presence of the applicant in Australia ‘may be’ or ‘might be’ a risk. The ordinary meaning of these words is sufficiently broad to cover a low level of risk.

16. Given the nature of the offences and the nature of the applicant’s conduct, the Tribunal has formed the view that the applicant’s presence in Australia may be or might be a risk to the safety of segments of the Australian community (such as those living with or near the applicant) or an individual or individuals (the applicant’s partner and family members). The Tribunal has formed the view that there are grounds for cancelling the visa.

17. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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

19. The applicant was granted a NZ Citizen (Family Relationship) visa to enable him to be with his partner. The applicant claims that he continues to be in a relationship with his partner and has given some evidence to the Tribunal about his relationship with his partner. The applicant’s partner and daughter gave oral evidence to the Tribunal confirming the relationship continues to exist and expressing their support for the relationship. The Tribunal accepts that the applicant is able to fulfil the purpose of his travel and stay in Australia.

    The extent of compliance with visa conditions

20. Nothing adverse is known to the Tribunal about the applicant’s compliance with visa conditions.

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

21. The applicant told the Tribunal that he came from a communist country where they are told lies about the outside world and it was difficult for him when he first left Cuba. The Tribunal is prepared to accept that evidence but the Tribunal notes that the applicant has been living in Australia for a number of years.

22. The applicant told the Tribunal he would suffer emotional and financial and other forms of hardship if his visa is cancelled. The applicant said it would be hard if he had to go back to Cuba as he would be far from his wife. She would have to come to Cuba or they would have to travel to New Zealand. The applicant said that there is poverty in Cuba. The Tribunal is prepared to accept that it may be difficult for the applicant to return to Cuba but the applicant’s evidence is that if his visa is cancelled, they would try to obtain a New Zealand visa. The applicant said that his wife has been living in Australia for about twelve years and works here and is settled in Australia.

23. The applicant told the Tribunal that if he was to return to Cuba, he would not get any benefits because he had been out of the country for two years and there is a lot of paperwork involved. He would also not be permitted to run a business, so he could not survive financially without support from his wife. The applicant said that his family in Cuba live in extreme poverty and cannot support him but his wife may be able to support him. The applicant said that his wife and daughter have the financial capacity to support him and will do that, but it would make things harder.

24. The applicant’s partner told the Tribunal that the consequences of the cancellation would be great. If she is to maintain the relationship, she would have to leave the country and leave her family, daughters who are vulnerable and her grandson who has a medical condition. Ms Rodriguez said that because he has been out of the country for two years, the applicant would be unable to have any income or run a business for a year and she would have to support him and his family financially, which would be a significant strain. Ms Rodriquez said that it would be difficult for her to settle in Cuba, as she does not speak Spanish and could not get a job. She could go to New Zealand but there is no guarantee that the applicant could get a visa in New Zealand. Ms Rodriquez said that her daughters and grandson would not go to New Zealand with her and if she is to leave Australia, she would have to leave her family. Ms Rodriquez also referred to the financial difficulties because it is difficult to transfer money to Cuba.

25. The Tribunal accepts that a considerable degree of hardship may be caused to the applicant and his family if his visa is cancelled.

    Circumstances in which ground of cancellation arose

26. Both the applicant and his partner spoke about the various difficulties the family experienced, financial and health issues and other concerns that caused stress to both of them, stating that the altercation occurred because of that stress.

27. The applicant has been convicted of two offences which involved violence against another person. The applicant told the Tribunal that he feels sorry about what happened but cannot undo what happened. The Tribunal does not consider that the circumstances in which the ground of cancellation arose were beyond the applicant’s control.

    Past and present conduct of the visa holder towards the department

28. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences

29. 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 and he may be subject to an exclusion period. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

30. There are no persons in Australia who would be affected by the consequential cancellations.

    Whether any international obligations would be breached as a result of the cancellation

31. There are no children who would be affected by the cancellation of the visa. The applicant spoke about having a good relationship with his partner’s grandson but there is little evidence of that relationship and no evidence to satisfy the Tribunal that the child would be adversely affected by the cancellation of the visa.

32. With respect to Australia’s protection obligations, the applicant described incidents when he was detained on four occasions when he was preparing paperwork for his application simply because he travelled from his province to the capital. The applicant said there is no freedom of movement. Cuba has a lot of restrictions, there is police everywhere and it is hard to live in that country. The applicant presented no documentary evidence to support these claims, including no evidence of his detention and the Tribunal is not prepared to accept the applicant’s claims without probative evidence.

33. Further, the Tribunal is mindful that the applicant is eligible to make an application for a protection visa. The Tribunal is of the view that if the applicant believes he is entitled to Australia’s protection, he can engage Australia’s protection obligations through a different visa process. Thus, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached if the visa is cancelled.

    Any other relevant matters

34. The applicant told the Tribunal that he has a good relationship with his wife’s children. The applicant said that his wife’s grandchild has a medical condition and he has a close relationship with the child. They have been living in the same household for the past few weeks. Additional evidence about the family circumstances has been presented in the applicant’s written post-hearing submission to the Tribunal. The applicant told the Tribunal that if his visa is cancelled and if he was required to leave Australia, he will try to maintain that relationship through phone and Facebook. The Tribunal is prepared to accept that the applicant has a close relationship with his partner’s family. The Tribunal does not consider, however, that the relationship can only be maintained if the family members live in the same household. That is, the Tribunal is not convinced that these relationships need to be adversely affected whether or not the visa is cancelled.

35. The Tribunal has formed the view that the applicant’s presence in Australia may be or might be a risk to others and that there are grounds for cancelling the visa. The applicant has been convicted of two offences, to which he pleaded guilty, and the applicant admits that there was an incident involving threats and violence towards his partner. The applicant admits that his behaviour was inappropriate. The nature of such behaviour and the applicant’s conduct constitute strong reasons, in the Tribunal’s view, why the visa should be cancelled.

36. However, the Tribunal places weight on the fact that the applicant had been receiving counselling regularly since the incident and continues to do that at present. The applicant gave evidence that the incident was out of character and that he has never had any other convictions and had never engaged in such behaviour previously and there is no evidence before the Tribunal to suggest that the applicant did engage in anti-social or harmful behaviour in the past. The Tribunal places weight on the psychologist’s assessment that the applicant poses no threat to his wife or anyone else, noting that the psychologist has completed several sessions with the applicant over the past six months. The Tribunal also places weight on the fact that even though there is presently an AVO in place, that AVO does permit the applicant and his partner to live together, suggesting that he has been assessed as not being a risk to his partner.

37. On their own, such matters would not be sufficient to exercise discretion in the applicant’s favour but the Tribunal has also formed the view that significant hardship would be caused to the applicant and his partner if the visa is cancelled because the applicant’s partner may have to leave Australia in order to maintain their relationship. The Tribunal accepts the evidence that Ms Rodriquez’s adult daughters are in a vulnerable state and require her support and, in the particular circumstances of this case, such support can best be provided by Ms Rodriquez remaining in Australia. The Tribunal accepts that it would be very difficult for the applicant’s partner to live in Cuba, with no language skills and little prospect of employment and while the applicant may be eligible to apply for a visa to live in New Zealand, he has no right to live in New Zealand at present. The Tribunal accepts the evidence that the cancellation of the visa will not only cause physical and emotional hardship, but also financial hardship to the family because the applicant will face employment restrictions in Cuba, at least initially upon return.

1. There are no known instances of non-compliance with visa conditions, no consequential cancellations and the Tribunal has formed the view that the cancellation of the visa would not be in breach of Australia’s international obligations.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

3. 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.

   Kira Raif
   Senior Member