1803338 (Migration) - [2018] AATA 1195

1803338 (Migration) [2018] AATA 1195 (12 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803338
MEMBER:Kira Raif
DATE:12 March 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 12 March 2018 at 2:44pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) – Subclass 050 ( Bridging (General)) – Substantive visa being processed – Ground for cancellation – Criminal record – Convicted of a number of offences – Charged with further offences and the charges remain outstanding – Applicant disputes convictions – Detained upon the visa cancellation – Feels threatened by other detainees – Needs professional help and access to services – Seriousness of the latest offence outweighs grounds for non-cancellation
LEGISLATION
Migration Act 1958 ss 116, 499
Migration Regulations 1994 r 2.43
CASES
ACH15 v Minister for Immigration [2015] FCCA 1250
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

This is an application for review of a decision dated [February] 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa (Bridging E visa) under s.116 of the Migration Act 1958 (the Act).
The applicant is a national in Myanmar (Burma) born in December 1997. He had been granted a Bridging E visa in December 2015. The visa was previously cancelled but reinstated following the decision of the Tribunal (differently constituted). On [date] February 2018 the applicant was issued with the Notice of Intention to Consider Cancellation under s.116(1)(g) of the Act. The applicant provided his response and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision
The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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.
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 considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in…

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 1803338 (Migration)

Details

AGLC: 1803338 (Migration) [2018] AATA 1195
Case: [2018] AATA 1195
Decision Date: 12 March 2018

CaseChat Overview and Summary

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) by a visa holder whose Bridging E (Class WE) visa, subclass 050, had been cancelled by the Minister. The cancellation was based on the applicant's criminal record, which included convictions for several offences and outstanding charges for further offences. The applicant disputed the convictions and argued that his detention following the visa cancellation posed a threat to his safety and well-being, necessitating access to professional help and services.

The Tribunal was required to determine whether the decision to cancel the applicant's visa should be affirmed. This involved considering the grounds for cancellation, specifically the applicant's criminal history, against any grounds for non-cancellation. The Tribunal also had to assess the degree of hardship the applicant might experience if his visa were cancelled, including his mental health concerns and the availability of support systems both inside and outside of detention.

In its reasoning, the Tribunal acknowledged the applicant's claims regarding hardship, including his mental health issues and separation from support systems. While accepting that the applicant would have better access to support outside of detention, the Tribunal found that the applicant had not satisfied it that adequate support and healthcare, including mental health care, would be unavailable if he remained in detention. The Tribunal also noted that the applicant confirmed no children in Australia would be affected by the cancellation, and while his siblings in Burma relied on his income, the relevant policy focused on children in Australia. Ultimately, the Tribunal concluded that the nature and persistence of the offending, and the escalation in the seriousness of the most recent offence, outweighed the grounds for non-cancellation.

The Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa.

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

The Tribunal acknowledges that there are many factors that suggest that the applicant’s visa should not be cancelled, but the Tribunal has formed the view that the nature and persistency of the offending, and the escalation in the seriousness of the last offence when the applicant was warned about and was well aware of the consequences, outweigh such considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The applicant confirmed in oral evidence to the Tribunal that there are no children in Australia who would be affected by the cancellation. The applicant told the Tribunal his younger siblings in Burma rely on his income but the Tribunal is mindful that the policy refers to children in Australia and there are no children in Australia who would be affected by the cancellation. Secondary considerationsThe degree of hardship that may be experienced by the visa holder if the visa is cancelled The applicant claims that given his circumstances, he has a good prospect of being granted the permanent visa and of being permitted to remain in the Australian community. The applicant claims that the consequences of cancelling his Bridging E visa would adversely affect not only his interests but also the interests of the Australian community because his well-being and his capacity to re-enter the Australian community in a positive way may be damaged. As noted above, the Tribunal does not consider that the interests of the Australian community are limited to assessing the applicant’s well-being and future capacity to contribute, although these are certainly significant considerations. With respect to hardship, the applicant refers to his mental health concerns, stating he would experience a significant degree of hardship in detention. The applicant notes that he lived in supported accommodation and has been separated from his support systems. The applicant claims that his mental health and well-being are deteriorating because the targeted casework, counselling and treatment services are not available to him in detention and prolonged detention will exacerbate his condition. The applicant presented statements from several support organisations and the Tribunal accepts that he received support in the past and further support will be available to him in the future. However, the applicant has not satisfied the Tribunal that the same support systems, or different support systems, cannot be established if the applicant remains in detention. A statement from STARTTS received on [date] March 2018 suggests that the applicant will be able to continue with counselling even if he remains in detention, although the Tribunal acknowledges the writer’s opinion that the applicant’s progress may be adversely affected by his detention. The statement from Mission Australia also suggests that some, albeit limited, support may be available to the applicant in detention. There may well be other organisations that the applicant may be able to access that provide support to those in detention. Thus, while the Tribunal accepts that the applicant will have better access to support and better opportunities if he is not in detention, the Tribunal does not accept that the applicant will be denied support if he remains in detention. The applicant also claims that his mental health may be adversely affected as a result of his detention but the applicant has not satisfied the Tribunal that he would be unable to access relevant and adequate health care, including mental health care, while in detention.