1802717 (Migration) - [2019] AATA 4810

1802717 (Migration) [2019] AATA 4810 (18 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1802717
MEMBER:Michael Cooke
DATE:18 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
Statement made on 18 June 2019 at 12:00pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) – Subclass 030 (Bridging C) – criminal conduct – spousal application withdrawn – anonymous dob-in – allegation of contrived relationship – not properly notified – jurisdictional error – did not inform Department of relationship breakdown – convictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 349
Migration Regulations 1994 (Cth), r 2.43
CASES
Meng v MIAC [2007] FMCA 173

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

This is an application for review of a decision dated 29 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa was made out. The prescribed ground set out in r.2.43 of the Regulations (r.2.43(1)(oa) was the relevant ground.
The applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsoring partner - [Ms A].
The applicant was represented in relation to the review by his registered migration agent.
The applicant’s adviser sent a comprehensive submission to the Tribunal addressing the validity of the cancellation and reasons for not cancelling (T1, ff. 36-39). She commented thus:
The following submissions address firstly the issue of the Department's letter of 20 November 2015 which attached the Bridging Visa C Grant Notice, being the visa the subject of the cancellation. I then set out in some detail the reasons and the factors which weigh in favour of the applicant's visa not being cancelled.
The Tribunal observes that the representative’s submission informs that the applicant departed Australia voluntarily. The decision to cancel the applicant’s visa (pursuant to s.116 of the Act) is reviewable by the Tribunal if the applicant was in Australia at both the time of the delegate’s decision and at the time the application for review was made (ss.338(3) and s.347(3)). The decision to cancel the applicant’s visa was made on 29 January 2018. The application for review was lodged on 2 February 2018.The applicant left Australia on 9 February 2018. The Tribunal finds, therefore, that he was in Australia at both times and meets the requirements for jurisdiction.
An Invitation to Comment pursuant to s.359A of the Act was sent to the applicant’s authorised recipients as follows:
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [Mr B]
I…

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 1802717 (Migration)

Details

AGLC: 1802717 (Migration) [2019] AATA 4810
Case: [2019] AATA 4810
Decision Date: 18 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of his Bridging C visa by the Department of Home Affairs. The applicant had initially entered Australia on visitor and student visas, and after a partner visa application was lodged, he was granted a Bridging A visa, which was later refused. A Bridging C visa was subsequently granted while the applicant pursued a Federal Circuit Court appeal against a previous refusal of his partner visa application. The appeal was finalised in favour of the Department.

The primary legal issues before the Tribunal were whether the applicant's visa should be cancelled under section 116(1)(g) of the Migration Act 1958 (Cth) due to criminal convictions, and whether the Tribunal should affirm the Department's decision to cancel the visa. The Tribunal was required to consider the relevant circumstances in exercising its discretion to cancel the visa, including matters outlined in the Department's Procedures Advice Manual (PAM3), such as the purpose of the applicant's stay, his compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal reasoned that while there were no specific matters mandated by the Act or Regulations for consideration in the exercise of the cancellation discretion, it had regard to relevant circumstances including departmental guidelines. The applicant's claim of a compelling need to remain in Australia was significantly undermined by his voluntary departure for Greece shortly after his Federal Circuit Court appeal concluded. Furthermore, the Tribunal gave no weight to the applicant's claim of being unaware of his work rights ceasing, attributing this to a departmental error in notification. The applicant's claims of financial hardship were also given little weight, as he had voluntarily chosen to reside in Greece since February 2018, negating his assertion of hardship due to economic conditions there, and his sponsor was financially independent. The Tribunal also noted that while a s.375A Certificate was presented, it chose not to utilise the adverse information contained within it, as sufficient grounds for cancellation were established by the applicant's criminal convictions, which were readily available from the Department's decision record.

The Tribunal concluded that the decision to cancel the applicant's visa should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The case before the Tribunal is the subject of a s.375A Certificate. The Tribunal is satisfied that the Certificate is valid and informed the applicant. The Tribunal discussed the matter with the applicant in the hearing. The Tribunal explained that the information outlined on the Certificate was confidential and it was so to protect the privacy of the source. The applicant was concerned that he was not able to access the confidential information when he was undergoing a legal process. The Tribunal explained to him that informants speak to the Department from time to time and their information forms part of the Department’s visa processing. Their identity cannot be revealed because the information is given in confidence. The Tribunal informed the applicant it did not intend to use the information. With the permission of the Tribunal the representative addressed her client and explained to him what she had discovered in the Department file. She explained that she had reviewed the whole file but certain information was confidential by law and he should accept that. The applicant accepted that the Tribunal was unable to reveal information covered by the Certificate for privacy reasons. The Tribunal has since presented the s.375A Certificate to the applicant for comment (see above) including the ‘gist’ of the information covered by the Certificate. As was stated to the applicant in the hearing, the Tribunal has chosen not to utilize the s.375A Certificate adverse information in its decision. The information available to it from the Department’s decision record (found on the Tribunal file) is sufficient basis to finalize the review. The s.375A information concerns the applicant’s relationship and other allegations. The Tribunal finds this information is not relevant to the issue at hand which is the conviction of the applicant for various offences against NSW State law. This information was readily available from the delegate’s decision record (on the Tribunal file). The Tribunal is charged with considering whether his visa should be cancelled as a result of those ‘prescribed grounds’ (the convictions outlined in the decision record) pursuant to s.116(1)(g). The Tribunal then outlined to the applicant the principal themes in his case and which his representative had included in her lengthy submission to the Tribunal. The Tribunal then elaborated on these themes during the hearing. 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.Particulars of the ground for cancellation:

Ratio Decidendi

Legal Principle Established

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’.Discussion and consideration of any relevant factors, including the Departmental guidelines and matters raised by the applicant. Departmental guidelines cover such matters as:·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant entered Australia initially on Visitor and Student visas. He was refused a further Visitor visa. He had been pursuing a long-distance relationship with [Ms A] over a number of years, both in Greece and Australia, which culminated in a Partner visa application being lodged on 19 May 2014. This allowed the applicant to be granted a Bridging A visa with work rights. This visa was refused on 6 August 2015 and a subsequent Bridging C visa was granted (without work rights) pursuant to his subsequent Federal Circuit Court appeal. The applicant (via his representative) has argued that he was unaware that his work rights had ceased (see par 9 submission evidence above). This Court appeal was based on a No Jurisdiction decision by the Tribunal when he lodged his appeal against the refusal of his Partner visa application at the AAT (MRD Division). The Federal Circuit Court hearing was finalised on 8 February 2018 in the Minister’s/Tribunal’s favour. The applicant has claimed his de facto partner relationship is still on foot but he departed for Greece on 9 February 2018. The Tribunal gives this latter event significant weight against the claims of the applicant that he has a compelling need to remain in Australia.·the extent of compliance with visa conditions The applicant has informed that he was working in Australia despite having Condition 8101 ‘No Work’ attached to his present Bridging C visa. The Tribunal gives this consideration no weight. Self-evidently the applicant had never been correctly informed of this situation by the Department due to a misaddressed email notification (see par 9 submission evidence above).·degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant has claimed financial hardship will be caused to him by the cancellation. The applicant claimed he would suffer hardship if he were compelled to return to Greece because of the economic conditions in that country. Yet since February 2018 he has voluntarily chosen to live in Greece which negates this claim. The sponsor is herself financially independent of the applicant. There is no evidence that she would be suffering economic hardship caused by the return of the applicant to Greece as she previously lived with her daughter in her own home and has travelled to Greece. The Tribunal gives any consideration of financial hardship little weight.