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

1. 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).

2. 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.

3. 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.

4. The applicant was represented in relation to the review.

5. 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.

6. 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

7. 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 the Australian community; or

   (ii) the health or safety of an individual or individuals;

8. 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?

9. The applicant is an Iranian businessman who arrived to Australia on a subclass 188 Business Innovation and Investment (Provisional) Visa. The visa was granted on the 14 October 2020 and the applicant arrived on 12 December 2020 together with his wife and two children.

10. 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.

11. In the applicant’s case a notice of intention to consider cancellation (NOICC) dated 21 May 2021 was handed to the applicant with the grounds of cancellation being the following:

    It has come to my attention that you have allegedly engaged in violent and threatening behaviour which indicates you presence in Australia may be risk to the safety of individuals in the community namely your spouse Roghayeh Borji and two children Melisa Saadati and Amirashkan Saadati.

    Victoria Police advise you have been charged with the following offences:

    • Criminal Damage

    • Make Threats to Kill

    • Recklessly Cause Injury

    These charges relate to a reported incident with your spouse on 24 January 2021 where it is alleged you slapped her across the face, threw her to ground and began kicking her. Whilst you were kicking her it is alleged you stated to her ‘I will kill you’ in Persian.

    On 5 February 2021 a Family Violence Interim Order (FVIO) with full conditions was granted. This Order is in place until 31 December 2030 and lists you as the respondent with your spouse and two children as the protected persons.

    Victoria Police consider you are a danger to the safety and welfare of your spouse and two children. Given the serious nature of you alleged offending, including the alleged threats to kill directed towards your spouse and the existence of the FVIO with full conditions, I consider your continued presence in Australia may be a risk to the safety of individuals specifically you spouse Roghayeh Borji and your two children Melisa Saadati and Amirashkan Saadati.

12. In a submission by the representative the charges were clarified as being:

    ·Intentionally damage property valued at $50

    ·Threat to kill

    ·Recklessly cause injury

13. This narration reflects the charge sheets which were viewed by the Tribunal. In post-hearing submissions the representative informed the Tribunal that the charge of ‘Unlawful Assault’ was added. The representative referenced a letter from the applicant’s criminal lawyers and summarised their view that, ‘This charge is an alternative to the injury charge previously laid and suggests that Police accept that they do not have evidence of injury… The charge of unlawful assault is a less serious charge than the injury charge. It is an alternative charge to the injury charge and if the applicant was to be found guilty of the unlawful assault charge, the injury charge would be dismissed.’

14. The applicant was given the opportunity to respond to the NOICC. It is recorded in the decision record that the applicant responded by stating that he did not beat his wife, that he had provided a police check upon arrival to Australia which showed no prior record and that his wife must have beaten herself. He said that he has never raised his voice against his children or beat his wife. The applicant claimed that there is CCTV footage from their hallway that would show his wife leaving their apartment unharmed on the night at question and that regarding his failure to appear in the magistrates court he claims that his wife’s family bought him the plane tickets ‘so they could have their say that they were subject to domestic violence.’

15. The applicant’s visa was cancelled on the 21 May 2021.

16. At the time of this decision the applicant’s case before the Magistrate’s Court was at the mentions hearing stage. The applicant had pled not guilty. The applicant’s lawyer did not want the Tribunal to defer a decision until a final outcome was made in the criminal matter. I agreed with this approach as the applicant remained in detention and would continue to remain in detention for potentially several months if not more than a year.

17. At the hearing the applicant rejected the accusation that he had harmed his wife. We discussed the brief arguments he made in writing at the NOICC stage which allowed the applicant to provide a more detailed explanation. The applicant claimed that he wouldn’t have jeopardised his investments by committing domestic violence. I explained that just because someone spends a lot of money on their partner it doesn’t preclude them from committing domestic violence. I asked him to explain his logic. He said that he loves his wife and that after the death of her mother he spent a lot of money and made choices just so that she could be close to her sister. This, he said, is an indication of his love for her and why he wouldn’t harm her. In Iran he had a good job and was working and was wealthy. He provided his family a very good life. He said that his wife didn’t see her sister for twelve years until he took them to Australia so that his wife could be close to her sister.

18. The applicant claimed that through his 14-year marriage that his wife had never before made a complaint against him. I asked him about the law in Iran regarding family violence and whether women had rights such that she would feel comfortable lodging a complaint. He said that he didn’t know. I put to him that country information suggests that the Iranian government is reluctant to intervene in family matters.[1] He said that he doesn’t know.

    [1] Michael Azad Moradian, ‘Domestic Violence against Single and Married Women in Iranian Society An Overview of Current Iranian Research and Possible Underlying Etiology’, August 2009 

19. He had claimed that his wife’s sister, having applied and was granted protection in Australia, knew the processes and that his wife believed that by making allegations against him he would have to leave Australia while she could stay.

20. Regarding the allegation that his wife had harmed herself. The applicant said that she had beaten herself before. He described an earlier incident in which she was passing on money to her parents, and one day he told her that she shouldn’t do that as he is working hard to be able to live their lives and she got angry and hurt herself. He said that when she gets angry, she can’t control herself. He said in that instance she was hitting herself with her hands on her face. Another instance was when her mother passed away and they were at her grave, she was hurting herself as she was so emotional.

21. At the hearing I asked the applicant to explain what happened on the night in question. He said that he went with his brother-in-law to a disco while his wife went to a restaurant with their children and sister. He said that he then returned home, and she was talking to her father on the telephone. She was screaming into the phone that her father shouldn’t have done that and that he had betrayed her mother. He said that he believes that she was angry as her father married shortly after her mother had died and this was the first time she had learned about this. Then she hung up the phone and took the plates and broke them in anger. He claims that he was there and had tried to stop her. He said that he tried to calm her, but he couldn’t, at which point she left the room.

22. I read to him what he wrote in response to the NOICC. He wrote that when his wife returned, she was nervous and upset and she was shouting at him regarding why he had gone to the disco. Then he went downstairs and asked his wife’s sister for help. By the time he had returned she had broken all of the glasses and cups.

23. I put to him to him that there were inconsistencies between what he claimed had happened in his response to the NOICC and what he was telling the tribunal had happened. He said that maybe she was pretending to be on the call. He said that he was with his wife for about thirty minutes during which period she was nervous and angry. He then left the apartment and went to find out from his sister why she was angry. Prior to going downstairs, he claimed that only one glass had been broken, but when he came up again, he noticed that the room was covered in broken shards. He said that the half an hour that he remained in the apartment with his wife was after her call with her father had ended. 

24. The applicant said that the inconsistency could have arisen as a result of the NOICC being prepared several months ago and that he could have recorded events incorrectly. He repeated that when he came home that evening, he noticed that she was talking on the phone. He said that she suddenly got angry and broke one glass, so he went down to find out from his sister to find out why she was angry, then he returned and noticed that she had broken more glasses and more plates. Then she got angry and left the apartment. He claimed that he remained in his unit for half an hour as he thought that his wife will calm down after talking to her sister, but then while waiting the police came and detained him.

25. I put under s 359AA portions of the statement made by the applicant’s wife to the police on 5 May 2021, three months after the event. I explained that it was relevant to the review as it provides a contradictory account of the evening. I explained that subject to his comments it may lead the Tribunal to find that his account of the events of that evening are not credible. In turn, I explained, that this would be the reason or part of the reason for affirming the cancellation.

26. In the statement his wife wrote that she went to the restaurant as the applicant had also stated. But I noted that she said that he went fishing as opposed to the disco as he had claimed. She said that by the time she came home the applicant had already drunk alcohol and that he was angry as to why she had worn a particular dress and not pants and that she was wearing makeup. She wrote that he had threatened that he would take her back to Iran, bash her and kill her or make her life so bad that she would kill herself. She wrote that the applicant was the one who smashed the dishes and threw things around. She wrote that he had hit her (specifically that he slapped her on her left side so hard that she heard whistling in her hear, that he banged her head against a wall, started kicking and punching her and grabbed her hair and pushed her to the floor and continued to hit her) and prevented her from leaving the apartment. She wrote that in Iran he would drink alcohol, start fights and that he had sexually assaulted her in Iran.

27. The applicant said that he rejects his wife’s accusations. He said that he loved his wife. He said that he has never drunk alcohol. He said that he spends most of his time in the gym.

28. The applicant said that he has gone a few times fishing with his brother-in-law. I asked for the name of the disco, but the applicant said that he didn’t know.

29. 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.

30. 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 arguments

31. The 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.

32. 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] 4.2.1

33. The 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. The brother-in-law ceased being in the employ of the witness nine years ago.

7. 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.

8. The witness claimed that while in Iran the applicant communicated with the witness regarding business opportunities.  

9. 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.

10. The witness said that the applicant’s wife was not credible. He said that the applicant is a good person.

    Considerations

11. 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.

12. 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.

13. 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.

14. What limited investigative obligation exists on the Tribunal has been exhausted by seeking QR codes and the bank statements of the brother-in-law.

15. 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.

16. None of the issues that arise in the applicant’s evidence suffice to dismiss the applicant’s statements as lacking credibility.

17. 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.

18. 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.

19. 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.

20. 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.

    DECISION

21. 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.

    Denis Dragovic
    Senior Member