1802479 (Migration)

[2018] AATA 829

1802479 (Migration) [2018] AATA 829 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802479

MEMBER:Denis Dragovic

DATE:6 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 06 March 2018 at 1:51pm

CATCHWORDS
Migration – Cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – Applicant convicted of an offence – Sexual Assault – Remorse shown by applicant – Remorse only shown after repeat offending – Ill family member in the community – Alternative care available – Purpose of applicant’s visa not affected by cancellation

LEGISLATION
Migration Act 1958, ss 48, 116(1)(g), 189, 375A
Migration Regulations 1994, r 2.43(1)(oa)

CASES
R v D, WD [2013] SASCFC 32 (3 May 2013)

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] January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of an offense. 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 27 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. A section 375A certificate was attached to the Department’s file. A copy of the certificate was provided to the applicant at the hearing. The Tribunal explained the significance of the certificate and ruled that it was valid. The Tribunal provided a summary of the type of documents behind the certificate and emphasized that they did not contain information relevant to this review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). 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?

7. 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(oa) is relevant.

8. The applicant held a temporary Bridging A visa and according to the delegate’s decision has been convicted of one offence of sexual assault, as such this appears to satisfy the requirements of regulation 2.43(1)(oa).

   (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

9. I asked whether the applicant had been convicted to which the applicant responded that he had. I explained that this meant that the ground for cancellation existed. The applicant did not have any further comment to add.

10. I note that the applicant has appealed his conviction. A letter was provided by his barrister to the Tribunal. In it the barrister provides an update on the case and opines on how the judge may rule when the case resumes. For the purposes of this element I note that courts have considered and concluded that a properly recorded conviction remains valid unless and until set aside on appeal (see for example R v D, WD [2013] SASCFC 32 (3 May 2013) at [111]).

11. 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

12. 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’.

13. I asked the applicant to tell me why the visa should not be cancelled. He responded that if he doesn’t receive a bridging visa he can’t stay in Australia nor can he go back to Sri Lanka. He explained that his father is alone since his mother and other family members are in Sri Lanka and that his father had [a medical procedure a number of] months ago and doesn’t have anyone to support him. His father is also on a bridging visa. They came together to Australia and applied for protection together. Medical evidence was provided of his father’s condition.

14. The applicant explained that he had two encounters with the law. The first was considered in [a particular court] where he received [a particular sentence] but without conviction. In [another] court he received [a period of time in] jail and [other conditions] along with being listed on a sex offender register for [a number of] years. He emphasized that his last offence was committed in [2016] and that two years had passed since without any other transgression of the law. He said that he accepted that he was at fault. He stated that he wants to live as a new person. He claimed that he has remorse for the person affected by what he did.

15. There is no evidence to suggest that the applicant has not complied with his visa conditions other than the acts at the centre of this review.

16. I have also considered the degree of hardship that may be caused to the visa holder and family members. As noted above the applicant is concerned about the impact on his father. [A number of] months ago his father [developed a particular medical condition] and the applicant was there at the time. He recalled to the Tribunal [details of his father’s condition] and so he is concerned that was something to happen again he wouldn’t be able to call for help. I put to him that if he was allowed back into the community he would be working most of the day and away from his father to which he responded that at least he will be with him at night which gives his father a degree of assurance.

17. I asked the applicant to explain the circumstances around which the ground for cancellation arose. He explained that he was [details of sexual assault committed by the applicant]. He explained that he was acting at that time with a sound mind and is still not sure why he did what he did and that he regrets it.

18. I asked him about his earlier transgression in 2016. He explained the circumstances of that incident by saying that he was [details of sexual assault committed by the applicant]. He said he regretted that incident. I put to him that he should have learned his lesson the first time. He responded that he regretted doing what he did.

19. There is no indication that the applicant has not been cooperative with the Department as such I give little weight against cancelling the visa.

20. No other people’s visas would be cancelled under s.140 due to this cancellation as such I give this consideration no weight.

21. I find that indefinite detention is not a possibility stemming from a cancellation decision and as such I give no weight to this consideration.

22. I do accept that upon cancellation the applicant would become an unlawful non-citizen liable to be detained under s.189. The applicant’s protection visa application is currently with the Administrative Appeals Tribunal where it has been since 23 February 2018. If the visa is cancelled and the applicant remained in detention without seeking an alternative non-substantive visa the protection visa application would be considered a ‘priority’ and attended to more quickly. For this reason I give little weight against cancelling the visa.

23. Due to s48 of the Act the applicant will be barred from apply for a further visa whilst still in the migration zone, unless the visa is for a limited prescribed class. I give this little weight against cancelling the visa for the reason of the array of options open to the applicant.

24. I have also considered whether Australia has obligations under relevant international agreements such as whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations. As the applicant’s protection visa appeal is still pending and is currently with the AAT, even was he to remain in detention I find that there isn’t a risk of Australia breaching its international obligations as his claims will be duly considered. As such I give no weight on this matter.

25. The applicant has claimed sincere remorse for his actions. While I believe that to be genuinely held it is only after he transgressed a second time and a more substantial penalty was handed that he realized his mistakes. Considering that the circumstances surrounding the second act include a prior sexual assault at which time the illegality of such a transgression was conveyed in no uncertain terms I give substantial weight in favour of cancelling the applicant’s visa. While it is a fact that his father will remain alone in the community if the applicant’s visa is to be cancelled and this would mean that his father may be at additional risk was he to fall ill again due to not having someone around I give this little weight against cancelling the visa for the reason that the applicant acknowledged he would spend a good portion of the day at work or doing other errands leaving only the evening. Furthermore, there are numerous electronic mechanisms by which at risk individuals can ensure rapid access to emergency health care. The applicant’s reason for being in Australia, namely seeking protection, is not affected by a possible cancellation as his application would proceed and as such I give no weight to this consideration. In the applicant’s favour he has complied with other visa conditions, has been cooperative with the department, has a more limited list of visas that he can reapply for and is liable to detention for which collective I give moderate weight against cancelling the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Denis Dragovic
    Senior Member