1714221 (Migration)

[2017] AATA 2644

1714221 (Migration) [2017] AATA 2644 (11 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714221

MEMBER:Louise Nicholls

DATE:11 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 11 July 2017 at 11:40am

CATCHWORDS

Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Criminal charges – Breach of conditions – In a relationship with an Australian citizen – Applicant’s medical condition

LEGISLATION

Migration Act 1958, ss 116, 375A, 376, 378, 499

Migration Regulations 1994, r 2.43

CASES

ACH15 v MIBP [2015] FCCA 1250
MIBP v Singh [2016] FCAFC 183
Singh v MIBP [2016] FCCA 2464

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Iraq and is [age] years of age. He arrived in Australia by boat [in] September 2012. He was held in detention until [February] 2014 when he was released on a bridging visa.

2. The applicant was granted a Subclass 050 (Bridging (General)) visa [in] February 2017. Whilst holding that visa the applicant was charged with 3 offences [in] June 2017.

3. [In] June 2017 the delegate of the Minister for Immigration cancelled the Subclass 050 (Bridging (General)) visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been charged with;

   ·[three specified charges].

4. This is an application for review of that decision and it was lodged [in] July 2017. The applicant was represented in relation to the review by his registered migration agent.

5. The applicant provided the Tribunal with a copy of the decision record dated [in] June 2017. The decision record noted that at the departmental interview held on [that day in] June 2017;

   ·The applicant stated he arrived in Australia [in] September 2012 by boat. He denied the allegations against him and is intending to plead not guilty. The applicant has no family in Australia but claimed that he became engaged to be married 4 months before the interview. He claimed he has been working as [occupation 1] and also started his own [business]. He was sending money to his family in Iraq and if his visa was cancelled his family would be affected by the loss of income.

   ·The applicant was co-operative with the Department during the interview.

6. The applicant provided a number of documents to support his application for review, including;

   ·Submissions made by the applicant’s representative dated 10 July 2017.

   ·Copy of cancellation decision of [June] 2017.

   ·Applicant’s identity documents.

   ·Invitation from the Department for the applicant to apply for a Safe Haven Visa sent to the applicant at [Address 1] [in] November 2016.

   ·Acknowledgement of a valid application for a safe haven visa and request for evidence from Department of Immigration sent to the applicant at [Address 1] [in] February 2017.

   ·Tenancy agreement for [Address 2].

   ·Rent and costs ledger for [Address 2], for the period of [April] 2016 to [April] 2017.

   ·Letter from the applicant’s criminal lawyer, [Lawyer A], dated [in] July 2017.

   ·Magistrate’s Court of [State 1] Information Sheet on the charges.

   ·[State 1] Police apprehension report.

   ·Letter from the applicant’s fiancé, [Ms A].

   ·Letter from a friend of the [applicant], dated [in] July 2017.

   ·Letter from [Mr A] of [Employer 1].

7. The applicant appeared before the Tribunal by video conference from [City 1] on 10 July 2017 to give evidence and present arguments. The applicant gave evidence in English but was also assisted at the Tribunal hearing by an interpreter in the Arabic and English languages.

8. The applicant gave evidence about his background, his family, his current circumstances and other matters relevant to consideration of the cancellation of his bridging visa.

9. Following the hearing the applicant’s representative provided further evidence, including

   ·Bail order made by the [State 1] Magistrates Court - [in] June 2017

   ·Applicant’s [utility] account for [Address 1] dated [in] November 2016.

   ·[Ms A’s] citizenship certificates dated [in] January 2005 and a copy of the biodata page of her Australian passport.

10. As a preliminary issue the Tribunal advised the applicant that the Departmental delegate issued a certificate pursuant to s.375A of the Migration Act restricting information in Folios 1-4 and 31-32 of the Department’s papers. The certificate in question states that the information has been provided in confidence by the [state] police and disclosure may prejudice ongoing proceedings.

11. However, the documents in ff 1-4 appear to be a series of emails between police and the Department verifying that the applicant was a person of interest and later charged with a series of offences, a fact of which he is well aware. The documents in 31-32 are copies of the [state] Police apprehension report, a report which the applicant had in his possession and which was provided to the Tribunal by the applicant.

12. The applicant was invited to make submissions on the validity of the certificate and appeared perplexed by the invitation as he was well aware of the charges against him and the contact between police and the Department. Further he had provided a copy of the police apprehension report to the Tribunal himself. His representative advised that he did not wish to make any submissions on the validity of the certificate.

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

    CONSIDERATION

14. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

15. 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. 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

16. The applicant claims to be a citizen of Iraq and is [age] years of age.  He was born and grew up in [the] south of Iraq and he and his family are Shia Muslims.

17. His father is [age] and his mother is [age] years of age. His father is a retired [occupation 2] and his mother cares for the home and children. He has [specified siblings] in Iraq. He stated that his siblings are studying; some at college and some at school.

18. The applicant arrived in Australia by boat from [another country] [in] September 2012 when he was [age] years of age. He was held in detention in Christmas Island, then in the detention centre in [a different location] before being held in community detention [in] [City 1]. He was granted a bridging visa [in] February 2014. The applicant has been invited to apply for a Safe Haven Enterprise visa and made his application for that visa [in] January 2017. He has not yet been interviewed in relation to his application.

19. After he was released from community detention he and two friends rented a house in [City 1]. He went to English lessons each day and is now articulate in English. Once he reached a certain level of English proficiency he found work as [an occupation 1] and was hired to work [in occupation 1] in the [related] industry. He has been working for the same employer since he started working and he has also started his own business.

20. He met his current fiancée through [social media] and their relationship has developed over time. He stated that his fiancé is [age] years of age, of Iraqi ethnicity and is a Shia Muslim. He approached her parents and asked permission for the couple to marry and they agreed. He stated she is studying to be [an occupation] and she lives with her family in [City 1] and is a permanent resident. After the hearing his representative advised that the applicant’s fiancée is an Australian citizen and provided a copy of her citizenship certificate and passport to confirm this advice.

21. The documents indicate that officers of the [state] Police entered a property [at Address 1] in January 2017 and found [specified] equipment. They found [other items] and located a fingerprint on the side of [one]. They found the fingerprint belonged to the applicant and that he had been a tenant at the property. The applicant was located, arrested and subsequently charged with the offences set out above.

    Does the ground for cancellation exist?

22. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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(1)(p)(ii) is relevant.

23. The applicant provided a copy of the cancellation decision record indicating that he had been charged with the following offences in [State 1];

    ·[three specified charges].

24. The applicant gave oral evidence at the hearing that he had been charged with these offences and he was due to appear in court next in August 2017. He also provided a copy of the Magistrate’s Court of [State 1] Information Sheet and the [State 1] Police apprehension report which outlined the charges set out above.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. 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

26. In considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

27. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

28. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

29. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.

30. The evidence before the Tribunal is contained in the decision record, the representative’s submissions, the applicant’s statements, documents provided by the applicant and in the oral evidence given at the Tribunal hearing.

    Primary Considerations

31. One of the prescribed primary considerations in cl.6 of the Direction is the Government’s view that the prescribed grounds in r.2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3]

    [1] cl.6(1)(a) of Direction No.63.

    [2] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [28]-[31]

    [3] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [33].

32. The other primary consideration in the Ministerial Direction refers to the best interests of children in Australia under the age of 18 years. At the Tribunal hearing the applicant stated that were no children under 18 years in Australia who would be affected by the cancellation.

    Secondary Considerations

    Impact on the Family Unit

33. The applicant gave evidence that he had been sending about $[amount] AUD to his parents and siblings in Iraq every fortnight.  He stated that the situation in Iraq was very difficult at the moment and that he was the only one of his family members working and providing income for the family’s support.  He stated that the money that he sends to his family is used for food and other necessities.

34. He stated that his family members in Iraq are dependent on him and were very upset when they heard his visa had been cancelled.  His mother also was very concerned about his health in detention.  He stated his father was [age] years old and unwell and the other children in the family were all studying at school or college.

35. The applicant stated that he has a number of friends who he met when he was in detention and they have kept up their friendships since release from detention.  He stated that his friends were very committed to him; he regarded them as brothers and they had lent him money towards his legal expenses.

36. He stated that if he remained in detention he would not be able to work and continue to send money to his family in Iraq, he could not provide support and assistance to his fiancée in her [studies] and could not save towards his wedding expenses.

    Hardship to Visa Holder

37. The applicant stated that when he attended the interview with departmental officers in June 2017 he was very shocked when he heard that his visa had been cancelled.  He was taken into detention and on the first day in detention suffered [a medical condition] and has had continuing medical treatment for [this condition].

38. He also gave evidence that he is engaged to be married to his fiancée, [Ms A], and separation from her makes it hard to maintain their relationship.  He stated that she visits him every second day in detention but that prolonged detention will make it very difficult for the couple to continue their relationship.  He met his fiancée through [social media] and then introduced himself to her family and asked for their permission for the couple to get married.  They agreed and he has a good relationship with his fiancée’s family and they had planned to marry in about 6 months time.  The money that he was saving towards the wedding costs has been used towards his legal costs and this has had a significant impact on the couple’s plans.

39. He stated that he was very demoralised in detention and felt that all his achievements in learning English language skills and obtaining and keeping employment had been negated by the visa cancellation.

    Circumstances in which the ground for cancellation arose

40. At the hearing held on 10 July 2017 the Tribunal explained to the applicant his right to invoke the privilege against self-incrimination. It explained to the applicant that, as charges were still pending against him, he had the right to refuse to answer any question if the answer would tend to incriminate him. It explained that if he chose to answer questions his answers could be used in criminal or other proceedings.

41. The applicant gave evidence that one day he was playing [sport] when his fiancée rang him and told him the police had attended her home.  She told him the police were looking for him so he returned to her house.  The police arrested him and took him to the local police station. He was later charged with the current charges.  After a few days he was granted bail and is required to report each Wednesday as part of his bail conditions.

42. On his first attendance at court in June 2017 two officers from the Department spoke to him and obtained some personal details.  He made an appointment to attend an interview at the Department which took place [in] June 2017.  At the interview he was asked a number of questions and then waited 2 hours and was told that his visa had been cancelled.

43. With respect to the circumstances relevant to the charges, the applicant told the Tribunal that he had been living in a shared house with 2 friends at [Address 1] but decided in early 2016 to find his own accommodation so that his fiancée could visit without his friends being present.  He explained that he was from a traditional culture where it would be uncomfortable for his fiancée to be present in a house with other young males.

44. He stated he found accommodation at [Address 2] through [a named] website.  He claims that he commenced his tenancy [in] April 2016 and that he paid rent until September 2016.  He decided to terminate his tenancy in September 2016 and the ledger records provided by the applicant show that he commenced paying rent from [April] 2016 and that his last payment took place on [a date in] September 2016.  The ledger showed he had some arrears which may relate to the period of notice he was required to give to end the tenancy. The tenant ledger also shows that the amount owing as at [a date in] October 2016 was $[amount] and this was the final amount owing. The ledger shows the applicant made [number] weekly payments from [April] 2016 to [September] 2016 making a total payment of $[amount] in total rent paid together with a bond of $[amount].

45. The applicant also provided a copy of a tenancy agreement which the landlord had proposed for the period of [October] 2016 to [April] 2017 but this tenancy agreement was not signed by the applicant.

46. The applicant gave evidence that after he left [Address 2] he returned to live with his friends at [Address 1] for about a month and then leased a single room on his own at [Address 3] where he was living on his own immediately before he was detained.

47. He stated that he was shocked by the charges made against him and denied that he had anything to do with [the stated activity] and that he intended to plead not guilty in the Magistrates Court and defend the charges.  He explained that he had previously lived in the house used for [this activity] and that police had found an [item] with his fingerprints on it and as far as he is aware this is the reason for the charges against him.  He stated he had left that property in September 2016 and knew nothing about how the property was used after he had vacated the property.

48. At the time he was charged he declined to answer any questions on legal advice. He has engaged a criminal lawyer, [Lawyer A], who provided a letter setting out further details of the matters with which the applicant has been charged.  [Lawyer A] also provided his opinion as to the possible length of time the matter will take before the courts, if it proceeds.  He stated that it could be 18 to 24 months before a trial is listed if the matter goes to a trial.

49. The applicant told the Tribunal that he hopes that the evidence showing he vacated the property and his lack of involvement in that property at the relevant time will be put before the Magistrates Court in August 2017 and that the matter will be resolved by charges being dropped. However he acknowledged there was no guarantee that this would occur.

1. There is nothing before the Tribunal in any the documents that either the Department or the applicant has provided which indicates that there is any other evidence, other than fingerprint and tenancy evidence, to support the charges which have been made against the applicant.  [Lawyer A] stated that the police may undertake investigations which could yield further evidence however at this stage nothing further has been put to the applicant.

2. The applicant denied that he was guilty of the charges and confirmed his intention to continue to plead not guilty to the charges.

3. He also stated he needed to be able to work to earn income to pay for his legal representation in relation to the criminal proceedings as well as for assistance in his application for a Safe Haven Enterprise visa.

   Consequences of cancellation

4. If the applicant’s bridging visa is cancelled he will remain in detention until the finalisation of his application for a Safe Haven Enterprise visa. He will either be successful and be granted a visa or his application will be refused and he will eventually leave or be removed from Australia. There is no prospect of indefinite detention. 

5. He is a citizen of Iraq, is able to obtain a travel document and return to Iraq.

   Other relevant matters

6. The applicant is engaged to be married to his fiancée who is an Australian citizen. It is possible he may be able to apply for a partner visa in the future if the parties continue in their relationship.

7. There is no evidence of any non-compliance with the conditions of previous bridging visas.  The applicant voluntarily attended an interview with departmental officers and was compliant throughout the interview.  He has obtained work in the Australian community, has supported himself as well as members of his family.

8. The applicant gave evidence that he applied himself diligently to English lessons after he was released from detention and now has a good knowledge of English which has enabled him to find work and participate in the community.

   Conclusion

9. The Tribunal has considered the oral evidence before the Tribunal, the documents provided by the applicant and submissions made by the applicant’s representative.

10. With respect to the primary considerations the Tribunal has given due weight to the Government’s view referred to above as a primary consideration. The Tribunal has had regard to the principle that the Australian government has a low tolerance to criminal behaviour, of any nature, by noncitizens who are in the Australian community on a temporary basis and who do not hold a substantive visa. The Tribunal finds that there are no children under the age of 18 years in Australia who will be affected by the cancellation and thus is not a consideration in the determination of the application.

11. The evidence before the Tribunal is that the cancellation decision refers to charges for 3 criminal offences arising from activities said to have taken place at a property at [Address 2].

12. The applicant strongly denies the allegations that he was involved in any criminal conduct at those premises. He stated that he vacated those premises in September 2016 and there is some evidence which supports his oral evidence.  The material before the Tribunal indicates that the evidence linking him to the offences is fingerprint evidence from [an item] and evidence of his residence in the subject property a few months before the discovery of the [stated activity].  It would appear that the applicant can give an explanation for the possible presence of his fingerprints at the property given his previous residence.  He has pleaded not guilty to the charges, has engaged a criminal lawyer to defend the criminal proceedings and has been granted bail with reporting conditions by the Magistrates Court in [State 1].

13. The Tribunal accepts that the applicant was working as [an occupation 1] and earning income immediately before he was taken into detention and if the visa is cancelled that the loss of income will have an impact on the applicant’s ability to pay for his legal representation, wedding expenses and to assist his family in Iraq.  The Tribunal considers this will cause him and his family significant hardship.

14. The Tribunal also accepts that the relationship between the applicant and his fiancée may be affected if he is detained for any lengthy period of time.  Whilst the evidence is that his fiancée is visiting him in detention he also has given evidence that his fiancée is studying [an occupation] and is only [age] years of age and long-term visiting may not be a viable option for the couple.

15. The Tribunal accepts that the applicant’s childhood [medical condition] has returned in detention and that he is receiving medical attention for [this condition].  Whilst the Tribunal considers the medical attention that the applicant is receiving in detention is satisfactory it considers that the stress and conditions of detention may have exacerbated his [medical condition] and that it would be in his interests to be living in his own accommodation in the community.

16. The documents provided by the applicant indicate that he is well supported by his fiancée and her family and his employer who provided a reference for the applicant following his detention.

17. In the event that the applicant is convicted of the charges brought against him in the future, the Department may choose to cancel his visa on the basis of such conviction.

18. The Tribunal has taken account of the following; that the applicant denies the allegations against him and is actively defending those charges, there is no evidence of injury or harm caused to any persons as a result of the applicant’s alleged conduct, that the applicant and his family will suffer considerable financial hardship as a result of the visa cancellation, that the applicant and his fiancée will be separated for a lengthy period of time which may affect their relationship, and tjhat the applicant has made an effort to learn English and find employment in circumstances where he came to Australia on his [own]. Taking all these factors into account, the Tribunal considers that the applicant’s bridging visa should not be cancelled.

19. The Tribunal has taken into consideration the seriousness of the charges against the applicant but given the lack of any information suggesting there is other evidence to support these charges, finds that the matters set out above outweigh this consideration.

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

    Addendum

21. The Tribunal notes the delegate’s decision to restrict the disclosure of certain documents pursuant to s.375A of the Act. Care should be taken when considering the issue of certificates restricting disclosure given the Tribunal’s procedural fairness requirements.

22. The Tribunal is under a legal obligation to invite an applicant to make submissions on the validity of such certificates. If documents require restriction some thought should be given to the use of s.376 of the Act which gives the Tribunal discretion in whether the material should be disclosed and how it should be disclosed.

23. The documents covered by the certificate in this matter were, respectively, case management emails which did not appear to include any protected information and a police apprehension report which had already been provided to the applicant by [State 1] Police when he was charged. Despite the futility in inviting the applicant to make submissions on this certificate, the Tribunal was required to do so to ensure it had not made a jurisdictional error.

24. In Singh v MIBP [2016] FCCA 2464 (Judge Jarrett, 23 September 2016) at [41] the Court found that the Tribunal was required to provide the applicant with a copy of the s.375A certificate to satisfy its procedural fairness obligations, so that the applicant could have the opportunity to challenge the basis on which the certificate was issued. This decision was upheld on appeal: MIBP v Singh [2016] FCAFC 183 (Kenny, Perram and Mortimer JJ, 19 December 2016) in which the Court found that there is real utility in disclosing the existence of a certificate to an applicant because its issue has an immediate and adverse impact on an applicant’s entitlement to participate meaningfully in a hearing. The applicant should then have the opportunity to make submissions on the validity of the certificate

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Louise Nicholls
    Senior Member