Saadati (Migration) - [2021] AATA 4356

Saadati (Migration) [2021] AATA 4356 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Reza Saadati
CASE NUMBER:  2106967
HOME AFFAIRS REFERENCE(S):          CLF2021/17758
MEMBER:Denis Dragovic
DATE:31 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa.

Statement made on 31 August 2021 at 7:16am
CATCHWORDS
MIGRATION – cancellation – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – risk to safety of individuals – criminal charges – assault and threats to wife and children – family violence interim order – contradictory and inconsistent claims by applicant and wife – compliance with order – ongoing plans to purchase business in Australia – probative basis for finding – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
CASE
Gong v MIBP [2016] FCCA 561
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant had been charged with criminal damage, make threats to kill and recklessly cause injury. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from a business acquaintance Mohamad Alkhalidi. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
The applicant was reminded that under Australian law he does not have to answer questions about the offences he is alleged to have committed if his answers may tend to prove that he has committed an offence. I explained that if he does decide to answer the questions, then the evidence he gives may be used against him in the criminal proceedings. If he decides not to answer the question, I will make my decision on the information I have before me.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)(ii).
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Saadati (Migration) [2021] AATA 4356
Case: [2021] AATA 4356
Decision Date: 31 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Saadati, against the cancellation of his Business Skills (Provisional) visa (Subclass 188). The cancellation was based on the grounds that his presence in Australia posed a risk to the safety of individuals, specifically his estranged wife, due to allegations of assault and threats, and a Family Violence Interim Intervention Order. The applicant and his wife presented contradictory accounts of the events in question, and the applicant had failed to appear in court for criminal charges related to the alleged domestic violence, subsequently returning to Iran.

The primary legal issue before the court was whether the applicant's presence in Australia constituted, or could constitute, a risk to the health or safety of any individual, as contemplated by section 116(1)(e) of the Migration Act 1958 (Cth). This required the Tribunal to determine if there was a probative basis for such a finding, even if that basis was merely a possibility arising from past events, acknowledging that this threshold is low. The court also had to consider the irreconcilable nature of the competing narratives presented by the applicant and his wife, and the limited investigative steps taken by the Tribunal.

The court reasoned that while the threshold for finding a risk to safety is low, a probative basis is nonetheless required. It noted the significant discrepancies between the applicant's and his wife's accounts, including details of an alleged assault, the location of the applicant on a particular night, and his alcohol consumption. Despite some inconsistencies in the applicant's own evidence, such as the omission of his wife being on the telephone in a written response and the timing of his departure to Iran following his father's hospitalisation, the court found these did not sufficiently undermine his credibility. Crucially, the court gave weight to the evidence of a witness who had known the applicant for approximately eight months and intended to sell him a business. This witness found the applicant to be a good person, considered the wife's account not credible, and testified that the applicant had complied with the Family Violence Interim Intervention Order by not contacting his family and instead pursuing parenting orders through legal channels. The court concluded that the applicant's presence in Australia did not meet the threshold of being a risk to the health or safety of any individual.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 188 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We discussed whether he had to register through a QR code at the disco. I showed the applicant a picture of a QR code. Based upon the applicant’s answers it appears that they had to check in through the QR code system. At the hearing I suggested that this could be a line of inquiry by the applicant’s lawyers or the Tribunal, but research by the Tribunal found that Victoria’s Department of Health policy[2] individuals’ check-in information is typically only retained for 28 days, though information may be retained longer in certain circumstances. Before 28 May 2021 there was no uniform system of QR codes in Victoria and that prior to this date multiple systems were in use according to venues’ discretion. Prior to 4 June 2021 it was not mandatory for individuals to ‘check-in’ to a large number of venues, including retail stores and supermarkets. As such this avenue was not pursued further. [2] ‘Our privacy and security policy’, Service Victoria >We discussed why the applicant returned to Iran. The applicant left Australia on the 21 January 2021 and returned 21 April 2021. The applicant was not present at Ringwood Magistrates Court on 5 February 2021 when he was required to attend on matters related to the charges. A warrant was subsequently issued for his arrest for failing to appear on bail. At a 5 February hearing a Family Violence Interim Intervention Order with full conditions was granted. Upon the applicant’s return to Australia he was placed into hotel quarantine and then remanded by police on the 6 May 2021. He was refused bail and charged with failing to answer bail. I asked the applicant why he returned to Iran despite knowing that he had been charged at that stage. He said that his father had a mild heart attack. He said that he didn’t know that there were consequences to not attend the magistrates court at the time.In post-hearing submissions the applicant submitted a statement from his sister that explained the applicant and his family had led a good life in Iran, that the applicant is kind, compassionate and peaceful. The letter goes on to state that he has not committed any type of violence in Iran. Representative’s argumentsThe representative noted that there are no medical reports, photographs of injuries and no independent account corroborating the alleged injuries to the applicant’s wife. Furthermore, he argued that the statement from the wife’s sister also does not mention any injuries, which is correct. Regarding the description of the alleged assault the representative said that were there any visible injuries the police would have photographed them.The representative argued that Victoria police will charge persons ‘in these types of cases on the basis of a complaint having been made.’ This claim by the representative does not align with the Code of Practice for the Investigation of Family Violence in which it states, ‘After investigation and interview – determine whether there is sufficient evidence to charge an accused person or whether another disposition is required.’[3][3] 4.2.1The representative noted that the applicant was granted bail on the same day of the incident and claimed that this indicates that the police did not think that the applicant was an unacceptable risk. The representative argued that for the period that the applicant was in the Australian community following the alleged incident there is no evidence that the applicant came to the attention of the police for any other reasons or failed to comply with the intervention order. While this is true, the actual period is very limited covering a few days prior to his departure to Iran as upon return he was arrested on the 5 May and placed into detention on the 21 May 2021. I note that the Family Violence Interim Intervention Order is an interim order until such time as the charges are finalised. The representative noted that the applicant had not contacted his wife or children as required by the Order and instead has initiated proceedings in the Federal Circuit Court seeking parenting orders.The representative notes that according to the Iranian police clearance certificate submitted for his visa application, the applicant does not have any prior criminal history in Iran.The applicant submitted a letter from his father’s treating doctor from the Hematologic and Adult Diseases Medical Council in Iran dated 26 January 2021 certifying that his father was suffering from shortness of breath, COPD and cardio pulmonary disease. The applicant was arrested on the 5 May as a result of failing to appear at Court upon his return from Iran and having completed hotel quarantine. The applicant submitted a sms message from the 23 January 2021 as evidence that he attended a disco with his brother-in-law. The message, as translated in the representative’s submission states, ‘Let’s move (go) between 9.30pm – 10.00pm’. The representative claimed that it is more probable that he went to a disco at that time rather than fishing.The representative also submitted a statement from Mahir Qureshi of Starnet Legal who are representing the applicant in his criminal matter. The statement records that in speaking with the brother-in-law, ‘Mr Yagooti stated in words to the effect of ‘I have been to the disco with Mr Saadati but cannot recall the exact date.’” Given that he cannot recall the date I place no weight on this submission regarding whether the applicant had attended a disco on the night in question. The representative had sought to obtain the bank statements of the brother-in-law to ascertain whether there was proof that funds were expended at a disco on that night. The brother-in-law did not want to comply. As such the Tribunal contacted him and he was willing to comply. The bank statements provided show that there was no transaction on the 23 or the 24 of January. The absence of evidence of a transaction has little probative value as this could mean that he was fishing or alternatively it could mean that he paid cash at a disco or used another credit card. The Tribunal also wrote to the applicant on the 20 August 2021 asking the following:On page 3 of the Decision record the applicant is quoted as saying that there is CCTV footage from the hallway that shows his wife leaving the apartment ‘safe and sound’. Can you please provide a response as to why this CCTV footage has not been provided to the Tribunal?In addition, in the same section the applicant states that ‘They bought me the ticket to go to Iran…in my emails is the evidence that they bought the ticket.’ Can you explain the relevance of this and provide evidence of this claim. The response received by the Tribunal explained that they had contacted the building manager who said that CCTV footage was only available for the previous 28 days. An email from the manager was provided to the Tribunal that supported this. In addition, the applicant explained that he had assumed that the police would have pursued the footage and furthermore the applicant departed Australia three days after the alleged incident and as such had no ability to follow up. Regarding the purchased tickets, the applicant in written submissions by his lawyer explained this statement of the applicant as being because of his unfamiliarity with Australia and as such his wife’s family had arranged the ticket for him.The witness provided evidence. The witness was only known to the applicant for approximately 8 months. He was introduced to the applicant through the brother-in-law who worked for the witness. The introduction was for the purpose of providing advice on the business landscape in Australia and subsequently a business opportunity for the applicant to purchase a business in Australia—leading to the visa, which is in question, being granted. The applicant and the witness operate in the same field, the applicant in Iran and the witness in Australia. The witness said that he advised the applicant not to bring his family initially, as he said that it has been common in the community that when Iranians come to Australia that the rights afforded to women leads to problems and divorce. The witness has four businesses. He said that he was not compelled to sell any and that he had recently invested further funds in the business that the applicant was interested in purchasing. The brother-in-law ceased being in the employ of the witness nine years ago. The witness recalled when the applicant called him after the evening in question. The witness was told by the applicant that he was in a shared house and that he was in trouble. The witness offered to take him in but the applicant said to him that he needed to return to Iran. The witness claimed that while in Iran the applicant communicated with the witness regarding business opportunities. The witness said that he had not seen any negative behaviour by the applicant while he had lived with the witness following the applicant’s return from Iran, a period that amounted to about twenty days. During this period the applicant expressed an interest to proceed with purchasing the business. The applicant attended the business site every day and became familiar with the operations and employees. The applicant was then detained by Australian Border Force.The witness said that the applicant’s wife was not credible. He said that the applicant is a good person. ConsiderationsIt is worthwhile to once again recall the question that needs to be answered. Section 116(1)(e) requires the Tribunal to consider whether the presence of the applicant in Australia ‘is or may be, or would or might be, a risk’ to the health or safety of an individual or individuals. The individual in this case is the applicant’s estranged wife. 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]. This is a low bar. Nevertheless, there needs to be a probative basis upon which a finding in the affirmative is reached. In this case the applicant has presented a set of claims about the events of an evening in January 2021. Available to the police are another set of claims made by the applicant’s wife that are contradictory to those of the applicant. The differences aren’t limited to whether he assaulted her or who broke the crockery but extend to where the applicant was that night and whether he had drunk alcohol. What limited investigative obligation exists on the Tribunal has been exhausted by seeking QR codes and the bank statements of the brother-in-law. The outcome from the submissions, evidence obtained by the Tribunal and evidence available to the Tribunal is that the two competing narratives are irreconcilable. The applicant’s evidence had an internal inconsistency, namely in his written response there was no mention of his wife being on the telephone and instead he had written that she was angry at him. In addition, it appears an unlikely coincidence that the day after the alleged incident the applicant is notified of his father being hospitalised and as a result, he had to leave the country. But there can be many reasons for the inconsistent account, including that his response to the NOICC was made without the support of a representative and was clearly rushed as it was handwritten on a piece of paper and as a result, not all of the information was included. While the coincidence arising from his father’s ‘mild heart attack’ could be just that, a coincidence. None of the issues that arise in the applicant’s evidence suffice to dismiss the applicant’s statements as lacking credibility. The witness was convincing. He had not known the applicant prior to his interest in purchasing his business. While the witness has a vested interest in the applicant remaining in Australia and purchasing his business the evidence the witness gave appeared spontaneous and lacking any subtext. As such we have a situation in which there is a Family Violence Interim Intervention Order. The applicant has not shown any intent to breach it. He has complied with it by not contacting his family. He has worked through his lawyer to seek parenting orders. He has alternative accommodation arranged with the witness and has expressed an intention to find his own accommodation thereafter. I give some weight to the representative’s argument that the addition of unlawful assault was added to catch a situation in which there is insufficient evidence to prove recklessly cause injury. I give some weight to the witness’ evidence which supported the applicant’s evidence. I also give some weight on the witness providing support to the applicant such that his focus is on his business and working through his lawyer to accessing contact with his children and not to focus on seeking revenge. Based upon these circumstances I am satisfied that the applicant’s presence in Australia does not reach the threshold of ‘is or may be, or would or might be, a risk’ to the health or safety of an individual or individuals. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise. DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa.Denis DragovicSenior Member

Ratio Decidendi

Legal Principle Established

The witness said that the applicant’s wife was not credible. He said that the applicant is a good person. Considerations It is worthwhile to once again recall the question that needs to be answered. Section 116(1)(e) requires the Tribunal to consider whether the presence of the applicant in Australia ‘is or may be, or would or might be, a risk’ to the health or safety of an individual or individuals. The individual in this case is the applicant’s estranged wife. 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]. This is a low bar. Nevertheless, there needs to be a probative basis upon which a finding in the affirmative is reached. In this case the applicant has presented a set of claims about the events of an evening in January 2021. Available to the police are another set of claims made by the applicant’s wife that are contradictory to those of the applicant. The differences aren’t limited to whether he assaulted her or who broke the crockery but extend to where the applicant was that night and whether he had drunk alcohol. What limited investigative obligation exists on the Tribunal has been exhausted by seeking QR codes and the bank statements of the brother-in-law. The outcome from the submissions, evidence obtained by the Tribunal and evidence available to the Tribunal is that the two competing narratives are irreconcilable. The applicant’s evidence had an internal inconsistency, namely in his written response there was no mention of his wife being on the telephone and instead he had written that she was angry at him. In addition, it appears an unlikely coincidence that the day after the alleged incident the applicant is notified of his father being hospitalised and as a result, he had to leave the country. But there can be many reasons for the inconsistent account, including that his response to the NOICC was made without the support of a representative and was clearly rushed as it was handwritten on a piece of paper and as a result, not all of the information was included. While the coincidence arising from his father’s ‘mild heart attack’ could be just that, a coincidence. None of the issues that arise in the applicant’s evidence suffice to dismiss the applicant’s statements as lacking credibility. The witness was convincing. He had not known the applicant prior to his interest in purchasing his business. While the witness has a vested interest in the applicant remaining in Australia and purchasing his business the evidence the witness gave appeared spontaneous and lacking any subtext. As such we have a situation in which there is a Family Violence Interim Intervention Order. The applicant has not shown any intent to breach it. He has complied with it by not contacting his family. He has worked through his lawyer to seek parenting orders. He has alternative accommodation arranged with the witness and has expressed an intention to find his own accommodation thereafter. I give some weight to the representative’s argument that the addition of unlawful assault was added to catch a situation in which there is insufficient evidence to prove recklessly cause injury. I give some weight to the witness’ evidence which supported the applicant’s evidence. I also give some weight on the witness providing support to the applicant such that his focus is on his business and working through his lawyer to accessing contact with his children and not to focus on seeking revenge.