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

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.
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.
[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].
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.
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.
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…

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.

Continue reading 1714221 (Migration)

Details

AGLC: 1714221 (Migration) [2017] AATA 2644
Case: [2017] AATA 2644
Decision Date: 11 July 2017

CaseChat Overview and Summary

This matter concerned an application by a citizen of Iraq, who arrived in Australia in September 2012 and was subsequently granted a Bridging E visa. The applicant was facing criminal charges arising from activities discovered at a property where he had previously resided. The Minister had cancelled the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, on the grounds that he had been charged with criminal offences. The applicant disputed the allegations and had pleaded not guilty to the charges.

The primary legal issue before the Tribunal was whether the ground for visa cancellation under section 116(1)(g) of the Act was made out, and if so, whether the visa should be cancelled having regard to all relevant circumstances. The Tribunal was required to consider the evidence linking the applicant to the alleged criminal conduct, the applicant's personal circumstances, including his engagement in the community, employment, relationship with his fiancée (who was an Australian citizen), and a pre-existing medical condition.

The Tribunal found that while the government's view of a low tolerance for criminal behaviour by non-citizens was a primary consideration, the evidence linking the applicant to the offences was not conclusive. The Tribunal noted that the fingerprint evidence was from an item at a property where the applicant had previously resided, and he provided an explanation for its potential presence. Furthermore, the applicant had pleaded not guilty, was defending the charges, and had been granted bail. The Tribunal also considered the significant hardship the applicant would face if his visa were cancelled, including the impact on his ability to fund his legal defence, his wedding expenses, and to support his family in Iraq. The Tribunal also took into account the potential exacerbation of his medical condition in detention and the impact on his relationship.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal found that the evidence did not sufficiently establish the ground for cancellation and that, in light of the mitigating circumstances, including the applicant's strong ties to the community, his relationship, and his medical condition, cancellation was not warranted.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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? 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 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. 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. 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. 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. 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. 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?