1719874 (Migration)

[2017] AATA 2888

1719874 (Migration) [2017] AATA 2888 (7 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719874

MEMBER:Brendan Darcy

DATE:7 September 2017

PLACE OF DECISION:  Melbourne

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 07 September 2017 at 12:04pm

CATCHWORDS

Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – No work condition – Irregular employment – Extent of compliance with other visa conditions – Degree of hardship – Lengthy wait for protection visa judicial appeal – Applicant’s separation from spouse – Whether any extenuating circumstances – Supporting family lifestyle choices

LEGISLATION

Migration Act 1958, ss 48, 116, 140

Migration Regulations 1994, Schedule 4, Public Interest Criteria 4013, 4014

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated [in] August 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The Department of Immigration and Citizenship granted the applicant his Subclass 050 (Bridging (General)) visa [in] September 2016. The applicant was notified that a delegate of the Minister was considering cancelling his Subclass 050 (Bridging E) visa and the decision to cancel the visa was made [in] August 2017.

3. The applicant was notified of the decision and his review rights by letter at interview [in] August 2017 and applied to the Tribunal to review the cancellation decision on 29 August 2017. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with one of the conditions imposed on his visa, namely condition 8101. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [name] who claimed to be the applicant’s spouse since 2011. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, [named], The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the the decision to cancel the applicant’s visa should be remitted. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the ground for cancellation exist?

7. Under s.116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that the holder did not comply with a condition of their visa.

8. In this instance, condition 8101 (no work) was attached to the applicant's Bridging E visa which was granted [in] September 2016. This condition required the applicant not to undertake activities that, in Australia, normally attracts remuneration.

9. According to the delegate’s decision record, the applicant admitted to working despite being aware of his 8101 (no work) condition but claimed that he only worked when required and not all the time. By way of background, the decision record states that on [a date in] August 2017, officers from  the Australian Border Force witnessed the applicant as [an occupation] at a workplace in [Suburb 1] and when questioned the client stated he owned and ran [Company 1] for approximately two years. 

10. After this, the applicant’s visa was cancelled [in] August 2015 and has been detained in an immigration detention centre in [city].

11. Prior to the hearing, the applicant’s representative submitted a legal submission which stated:

    ‘We accept that the ground for cancellation was made out as it was a breach of the No Work condition 8101.’

12. During the scheduled hearing, the applicant confirmed to the Tribunal the details outlined in the decision record about his breaching of condition 8101, including that he owned a business. The applicant described his business as one that generated irregular work little income; that he paid less than one thousand dollars in tax from this business; and that he would, on average, earn about a thousand dollars per month. The applicant also admitted to employing on a casual and irregular basis one employee who was found not be an unlawful non-citizen by immigration officials which the applicant said that he was unaware of this employee’s actual migration status.

13. The Tribunal also enquired of the applicant the reason he was granted his now cancelled bridging visa; with the assistance of his representative, the applicant explained that he wanted to remain with his spouse and that he was granted the bridging visa while a federal court fully determines a judicial appeal pertaining to the applicant’s protection visa that was not successful on jurisdictional grounds with a different Tribunal Member as outlined in the relevant decision record dated [in] August 2016 (AAT Number: 1609364).

14. The Tribunal accepts the applicant’s admission to the Department and the Tribunal that he was working in breach of condition 8101 and finds that owning and operating a business, even on a part time or irregular as the applicant admits to undertaking, amounts to work activities that normally attract remuneration.

15. Accordingly, as the applicant had not complied with condition 8101, the ground for cancellation existed in this case.

    Consideration for discretion

16. 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.

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

18. Overall the Tribunal found the applicant and the witness to have provided credible evidence about their circumstances; however the applicant demonstrated difficulties in answering questions about his visa history. Ordinarily these difficulties would invite the Tribunal to consider that the applicant was providing evasive and ambiguous answers because he lacked credibility. However, during the course of the hearing, it was apparent to the Tribunal that his testimony reflected a lack of diligence and curiosity about his visa history and related circumstances and not because the applicant was embellishing or fabricating claims.

    Additional Visa History

19. The applicant, a Sri Lankan national, was asked to outline his migration history during the scheduled hearing. The applicant was granted a [student visa] [from] August 2008 until [August] 2011.

20. The applicant claimed he married his witness who was also a Sri Lankan national, on March 2008. (The applicant submitted a copy of his 2011 marriage certificate).  The couple have no children. The applicant claimed that he applied for ‘a partner visa’ in August 2011. When the Tribunal challenged the applicant that his application for a partner visa would be unlikely given his spouse was a holder of student visa at the time, the applicant responded that his migration agent/lawyer told him he was applying for a partner visa. The Tribunal enquired if the applicant had applied to become a secondary applicant to his wife’s student visa, the applicant was unsure but he unsuccessfully appealed the matter to both the Tribunal, differently constituted, and then to the Minister. Later in the hearing, the witness clarified that the visa application was actually a student visa and that his applicant was unsuccessful because he did not sufficiently attend his classes. Both the applicant and the witness claimed the applicant returned to Sri Lanka due to his parents’ poor health.

21. When the applicant explained the written reasons in his protection visa application he claimed he faced a well-founded fear of persecution if he returned to his country of nationality, he stated that according to his culture, he and the witness were to be respectable and should remain in Australia as a married couple where they were married.

22. Based on the applicant having provided overall credible, albeit often vague and inexplicit, testimony, it accepts that the applicant’s visa history as outlined by him and the witness. 

23. The Tribunal has also undertaken research to find out when the applicant’s federal court appeal will be heard. According the Federal Circuit Court’s registry, the applicant’s matter before a federal court judge will not be heard until [a date in] May 2019, meaning the matter will be fully determined, at least, by May 2019.

    The purpose of the visa holder’s travel to and stay in Australia

24. The purpose of the applicant remaining in Australia while holding his cancelled visa is for his protection visa appeal to be fully determined by a federal court. The Tribunal gives this some weight in favour of the applicant’s visa not remaining cancelled.

25. However the overall purpose of the applicant provided oral evidence that his purposes in travelling to and remaining in Australia was to begin a new life as a student with career prospective and the capacity to form a family.  However there is evidence in the applicant’s visa history that he has not approached his own residency in Australia in manner commensurate with a former holder of a [student visa] and who can speak proficient English. Furthermore, the applicant did not demonstrate any sophisticated knowledge about such complex matters during the hearing. The applicant provided an outline of his claims for protection but he had difficulties in understanding ‘having a well-founded fear of persecution’ which is elemental in protection visa applications and requested in writing that he be able to return to Sri Lanka to see his parents which actually undermined his protection claims.[1] He admitted to not reading the decision records of unsuccessful visa applications and claimed he just allowed his then migration agent/lawyer to direct him which indicated a severe lack of due diligence on his part.   In contrast, the applicant’s spouse has been able to hold successive substantive visa and a plausible pathway towards permanent residency. The delegate in the decision record indicated that the applicant has made frivolous applications so he can work in Australia. Ordinarily such negligence invites the Tribunal to conclude that the purpose in remaining in Australia has been making vexatious visa applications because the applicant feared he will be ineligible for any further student or work visas and was willing to work unlawfully solely for money.

    However, based on the evidence of the applicant and the witness, the Tribunal accepts that the applicant is genuinely committed to his wife and it is accepted that they both want to remain in Australia to develop their careers and form a family.  The Tribunal notes that the applicant has not applied vexatiously for any partner or family visa but married the witness while both of them were temporary resident visa holders.  The applicant has also been consistent that he unsuccessfully to apply as a secondary applicant to his wife’s visa. Accordingly the Tribunal accepts that the applicant main purpose in remaining in Australia is to be with his wife and it places some weight towards his visa not remaining cancelled.

    [1] AAT Folio 65

    The extent of compliance with visa conditions

26. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. However, the applicant’s non-compliance with condition 8101 over a two year period is considered to be serious by the Tribunal. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

27. The applicant claimed that if he had to return to Sri Lanka and not be with his spouse who will remain in Australia that he will be deeply saddened and he could not bear the pain. The applicant further claimed that he risked embarrassment because he has reached the age of [age] and not achieved much. He claimed that because he has been away for about nine years from his country and he would face difficulties in resettling there. Although the applicant claimed his family would be happy to see him, the applicant also stated that his wife being separated from him would also lead her living with similar emotional pain. He said that the uncertainty around his migration status has led to the couple in delaying having children.  Asked if the applicant could return to Sri Lanka with his wife, the applicant claimed that as a couple they have become used to living in Australia since their arrivals and they did not want to lose their lives here.

28. If the applicant were to depart from Australia, voluntarily or otherwise, it is accepted that the applicant would be barred from re-entering Australia for up to three years as he will be subjected to the operation of s.48 of the Act. Furthermore the applicant is not guaranteed that his offshore visa will be approved as his offshore visa application will be subjected to the Public Interest Criterion 4013 for it to be granted. During the hearing, the witness provided testimony that she planned to apply for a permanent residency visa through the sponsored employment programme. The witness added that it was her intention to add the applicant to this prospective visa application as a secondary applicant and that her employer was supportive. Depending on this putative visa application being successful and timely, the applicant may spend less than three years offshore. During the hearing, the applicant claimed that the emotional hardship arising from this would be difficult. The Tribunal notes the applicant will have the support of his family back in Sri Lanka under such circumstances but that the separation from his life may be long term. Based on the likelihood of being separated from his wife for a considerable period of time which will exacerbate his emotional hardship, it places a significant weight towards the visa not being cancelled in this regard.

29. The applicant was given ample opportunity to elaborate on the financial or other hardship he would experience if he had to depart Australia for Sri Lank in the event of this visa remaining cancelled. No documents were submitted regarding any mental health problems that the applicant might be experiencing due to his uncertain migration status. The Tribunal finds that the applicant’s responses lacked any deep sense of material loss. However the Tribunal accepts that the applicant will experience some emotional and psychological hardship, if the visa were to remain cancelled. 

30. If both the applicant and his spouse were to return to Sri Lanka, the Tribunal finds that the applicant will not experience any great emotional loss and would have the mutual support of each other. In this regard, the Tribunal places some weight on the visa remaining cancelled.

31. Overall, in assessing the relevant evidence and findings, the Tribunal gives this factor some but not a significant, weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

32. According to the decision record, the applicant informed the Department that the applicant wanted to work to improve his wife’s lifestyle, by going out to dinner. During the Tribunal’s scheduled hearing, the applicant repeated that claim but also said he and his wife had trouble meeting living expenses. The witness provided oral evidence to the same effect. Both of them admitted to having a car loan for a [specified model car] and a pet dog. There is also submitted evidence that another car is registered in the applicant’s name.  The submission prior to the hearing claimed that the witness only earned [amount] Australian dollars while holding her [temporary] visa and that the applicant and the witness characterised this as inadequate during the scheduled hearing.

33. The Tribunal accepts that the applicant’s spouse only earns about [amount] Australian dollars and that meeting living expenses between two people on such an income will be challenging. However, there is no evidence that the applicant and his wife were living with any crippling debt, were materially deprived or at any significant risk if the applicant did not work. Indeed there is evidence of acquiring additional and unnecessary or even frivolous expenses such as eating out at restaurants and acquiring a pet with ongoing costs. While the Tribunal accepts the applicant was not motivated more out of a sense of pride than any total disregard for condition 8101, based on the evidence, it does not accept that the applicant and his wife did not have an adequate income on which both could be supported.

34. The Tribunal does not accept that the applicant’s circumstances leading him to breach condition 8101 had been either extenuating or beyond his control. The applicant and his spouse did not present any compelling or compassionate reasons for working unlawfully. The Tribunal gives these findings significant weight towards the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

35. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department but that he had admitted to have knowingly and wilfully breached condition 8101 over a two year period.  The Tribunal gives this some weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

36. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

37. The Tribunal accepts that if the visa remains cancelled that the applicant would remain in detention until, at least, his matter pertaining to his protection visa is to be heard by a federal court judge in May 2019. The Tribunal assesses that this is a significant amount of time – almost two years - and that this amount of time in detention would be disproportionately severe considering the condition he breached pertaining to working unlawfully and that there is no evidence that he has committed any criminal or other offence under Australian law. The Tribunal also accepts that this significant length of time will negatively impact on the applicant’s spouse and her emotional wellbeing. The Tribunal places a significant weight on this fact in favour of the visa not remaining cancelled.

38. If the visa was to remain cancelled and the applicant was to remain in detention, the applicant’s opportunities to remain in Australia will be considerably narrowed. During the scheduled hearing, the Tribunal said the applicant’s migration options would be considerably narrowed by the operation of PIC 4013 and 4014; however evidence was submitted that the applicant may be successful in requesting a Ministerial Intervention in order to overcome these challenges. The Tribunal finds this higher risk approach to the applicant regularising his migration status is open to him to pursue. However, the amount of time this may take is likely to be considerable and that the applicant will remain in detention apart from his spouse with his freedom of movement considerably restricted, until it is fully assessed. The Tribunal, accordingly, gives this some weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

1. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

2. If this visa is cancelled and because the applicant’s protection visa is not fully determined by the courts until 2019, the visa remaining cancelled, in of itself, will not mean that Australia is in breach of any of its international obligations, including its non-refoulement obligations. The Tribunal, accordingly, place very little weight on this matter.

   Other relevant considerations

3. The Tribunal has also considered whether the applicant will abide with conditions placed on him if his bridging visa is not remained cancelled. During the scheduled hearing, the applicant and the witness claimed that in combination with the financial support of the witness’ family and the witness’ family, there is no requirement that the applicant will have to work. However the applicant and the witness also admitted that they have a car loan and a pet dog over and above their living expenses. On this occasion, the Tribunal has provided the applicant with the benefit of the doubt that he will not further breach condition 8101, based on the very little money he earned previously, that he was primarily motivated to improve the couple’s lifestyle and not because his wife did not have enough income to meet both their living expenses. Furthermore, there is no evidence that the applicant has breached other conditions on his visa or broken any criminal or serious laws in Australia or that he poses any security threat to any individual or others in the community.

4. The Tribunal finds that the applicant is unlikely to breach any further conditions or any other Australian laws placed on his visa in the foreseeable future and it places some considerable weight on this finding.

   Overall Findings: Consideration of Discretion

5. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

6. The Tribunal’s findings in favour of this bridging visa remaining cancelled includes that the applicant did not have any extenuating or compelling circumstances to work unlawfully in Australia and the length of time that the applicant knowingly breached condition 8101 for frivolous reasons.

7. However, the Tribunal has placed considerable weight on the length of time the applicant is likely to remain in immigration detention while his protection visa matter is likely to be fully determined and the relative loss of movement and emotional distress this is likely to create towards the applicant and his spouse who has no history of non-compliance with the Department.  The Tribunal finds that the loss of movement for a long duration will be out of proportion with the applicant’s admitted history of visa non-compliance which is restricted solely to condition 8101 over a two year period when considering cumulatively these particular circumstances.  It is also satisfied the applicant will not further breach the conditions on his visa as his spouse has sufficient income for both of them. 

8. In considering the evidence provided and on weighing the above factors, the Tribunal has placed more weight on the cumulative findings and evidence in favour of not cancelling the applicant’s bridging visa over those countervailing findings and evidence in favour of cancelling the visa.

9. Accordingly, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled. 

10. The applicant should note that this conclusion was reached only marginally in his favour.

    DECISION

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

    Brendan Darcy
    Member