1803442 (Migration)

1803442 (Migration) [2018] AATA 494 (19 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803442
MEMBER:Louise Nicholls
DATE:19 February 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 19 February 2018 at 5:53pm
CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Seriousness of criminal charges – Applicant’s admission – Loss of employment – Loss of Centrelink benefits
LEGISLATION
Migration Act 1958, ss 116, 499
Migration Regulations 1994, r 2.43
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

The applicant is a citizen of Iraq and is [age] years of age. In November 2012 he arrived in Australia by boat and applied for protection [in] April 2016.
The applicant was last granted a Subclass 050 (Bridging (General)) visa [in] July 2016 and whilst holding that visa he was charged with four offences which allegedly took place between [a date in] December 2017 and [a date in] December 2017.
[In] February 2018 the delegate of the Minister for Immigration cancelled the applicant’s visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been charged with;
·Three counts of “[Criminal offence 1]”; s.192G(b) of the Crimes Act 1900.
·One count of “[Criminal offence 2]”; s.192E (1)(a) of the Crimes Act 1900.
This is an application for review of that decision and it was made [in] February 2018. The applicant provided a copy of the decision record dated [in] February 2018.
The decision record noted that at the departmental interview held [in] February;
·The applicant stated the grounds for cancellation do not exist because he was treated unfairly and someone is leading this against him. He stated the charges were incorrect.
·The applicant stated the visa should not be cancelled because the charges were not correct and he needs time to gather evidence and to cooperate with police. He noted that he had not been convicted of these offences and claimed he had not done anything wrong and had followed the rules. He stated he was a good person in the community for six years and did not have any other charges or problems with anyone. He wanted an opportunity to cooperate with police and his solicitor until his court matters were finalised.
·He claims the purpose of his stay in Australia was because his life was at risk in his country as he was working in the police.
·With respect to hardship he stated if his visa is cancelled and he needed to go back to Iraq he would face serious harm.
·With respect to the circumstances in which the ground for cancellation arose he stated it was not him that did this; it was other people. The police contacted him and he cooperated. The police showed up at his address and he went out to greet them.
The applicant appeared before the Tribunal on 15 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
On 16 February 2018 the solicitor acting for the applicant in relation to the criminal charges provided short submissions, a photocopy of credit and debit cards (7) held in the name of the applicant, [Police] Bail Acknowledgment and receipt for cash surety and a document purporting to be an agreement between a company named Financial Control and the applicant confirming that the applicant no longer has any finance under his name, namely for [a vehicle] ([January] 2018).
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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). 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?
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.
The applicant provided a copy of the cancellation decision record indicating that he had been charged with three counts of “[Criminal offence 1]”; s.192G(b) of the Crimes Act 1900 and one count of “[Criminal offence 2]” ; s.192E(1)(a) of the Crimes Act 1900. He stated that the charges were listed before the Local Court [in] February 2018 and had been adjourned to [later in] February 2018. This was confirmed by his solicitor.
The applicant gave oral evidence at the hearing that he had been charged with these offences.
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
In considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
Background
The evidence before the Tribunal is contained in the decision record, material provided by the applicant, his criminal solicitor and in the oral evidence given at the Tribunal hearing.
The applicant is [age] years of age and was born in Baghdad, Iraq. The applicant is a Shia Muslim and is married with three children. His wife and children are currently living in Baghdad in the family home. The applicant’s father has passed away and his mother has remarried and is living in Baghdad. He has one married sister and she is living in Basra in the south of Iraq.
The applicant’s wife is not working and is supported through the applicant’s savings and from rental income from a second property owned by the family in Iraq.
The applicant also told the Tribunal that he had a girlfriend in [Australian City 1], He stated that he had the use of her [motor] vehicle and was listed as a driver on her insurance however, gave no further personal details about the relationship.
The applicant arrived in Christmas Island by boat in 2012 and then moved to [another city] before he was released from detention in December 2012. He moved to [City 1] where he set up a [business] which he operated for three years from 2012 to 2015. He stated that as a result of some nerve problems in his hand he has not been able to work and has been in receipt of Centrelink benefits for a number of years.
Prior to his detention the applicant lived in a townhouse in [City 1] and shares this property with another tenant. His share of the rent is $360 a fortnight. He receives a sum of approximately $500 in Centrelink benefits each fortnight.
Primary Considerations.
One of the prescribed primary considerations in cl.6 of the Direction is the Government’s view that the prescribed grounds in r.2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3]
[1] cl.6(1)(a) of Direction No.63.
[2] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [28]-[31]
[3] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [33].
The other primary consideration in the Ministerial Direction refers to the best interests of children in Australia under the age of 18 years. At the Tribunal hearing the applicant stated that were no children under 18 years who would be affected by the cancellation.
Secondary Considerations
Impact on the family unit
The applicant gave evidence that if his bridging visa was cancelled his children would be upset and form a bad view of their father because they will think that he is being held as a criminal in prison. He stated that he keeps in contact with his children by telephone and becomes very upset when he speaks to them. He claimed that in the past his family had to move homes from time to time to avoid danger.
Towards the end of the hearing the applicant mentioned that he had a girlfriend in Australia and that she was the owner of a car which he drove on a regular basis. He stated that he was named on her insurance policy as an authorised driver. However, the applicant did not give any further evidence on her circumstances and made no claim that she would be affected by the cancellation.
Hardship to Visa Holder
Immediately before he was taken into detention the applicant was in receipt of Centrelink benefits and had not been working since 2015. Thus the cancellation of his bridging visa would not result in a loss of employment or employment income.
The applicant claimed that he has lived in the same townhouse for the past 5 years. He has had a number of housemates; however at the moment he and a friend are joint tenants in the property. He stated that his friend had [an injury] after an accident and the applicant helps his friend with transport and medical appointments.
Circumstances in which the ground for cancellation arose
At the hearing held on 15 February 2018 the Tribunal explained to the applicant his right to invoke the privilege against self-incrimination. It explained to the applicant that, as charges were still pending against him, he had the right to refuse to answer any question if the answer would tend to incriminate him. It explained that if he chose to answer questions his answers could be used in criminal or other proceedings.
The applicant stated that after he was arrested and charged [in] February 2018 he was taken by police to the [local] Police Station where he spent the night in custody. He declined an interview with police on the basis that he wished to seek legal advice.
He was taken before the Local Court [in] February 2018 and was granted bail on conditions. He stated those conditions were to remain at his current address, to report to police daily and not to approach the airport. His housemate arranged to pay the surety after the weekend and he was released after three days in custody. The applicant’s criminal solicitor provided a copy of the bail conditions to the Tribunal and that document confirms his evidence.
His criminal charges were before the Local Court [in] February 2018 and charges were adjourned to [a later date in] February 2018.
The applicant confirmed that he engaged a solicitor who will continue to act for him in the criminal proceedings. When asked how he managed to pay this solicitor given his Centrelink income as well as his rent and living expenses, he stated his friend was helping him.
The Tribunal was provided with the [Police] Fact Sheet relating to the arrest and charging of the applicant. The Tribunal invited the applicant to comment on or respond to material in that fact sheet which would be the reason or part of the reason for affirming the decision under review.
The Tribunal outlined the factual circumstances alleged against the applicant in the fact sheet, in particular;
·[In] December 2017 the applicant attended [Vehicle 1] dealership in [a suburb] and spoke to a staff member.
·He expressed interest in a particular [vehicle] and was taken for a test drive and indicated that he would like to purchase a vehicle. Sales staff drafted a finance application on the basis of the applicant’s [driver’s] license, his Medicare card and his [bank] card.
·The applicant stated on the finance form that he was employed as a [position] by a company “[Name]” and that he had held this position since 2012. He stated he received an annual income of $[amount] and had a number of personal assets amounting to $[amount].
·He provided a telephone number and the names of two people as references. Finance was approved on condition that the applicant provided payslips, group certificates, housing and tenancy records.
·These records were provided by email and [Vehicle 1’s] Financial Services completed the finance approval.
·[In] December 2017 the applicant attended the [Vehicle 1] dealership and made arrangements to collect the [car] which had already been registered in his name. The car was released to the applicant who left the dealership with the car.
·[In] December 2017 the dealer received information from [Vehicle 1’s] Finance that aspects of the finance application were fraudulent. The dealer called the telephone number provided in the finance application however another person answered the phone and stated he would only return the vehicle if $[amount] was paid into his bank account.
·The dealer reported the car stolen and had been obtained by fraud. [The] Police located the car [in] December 2017 being driven by two men (not the applicant).
·[In] February 2018 detectives from [a suburb] did a door knock and attended the applicant’s home address. As a result of a phone call from police, the applicant returned to his home. At that time he was driving a new [model] [sports] car. The applicant parked the vehicle on the street and approached detectives.
·The applicant was placed under arrest and detectives conducted a search of the [car] finding eight recently acquired credit cards in his wallet.
·Police believe the applicant to part of a larger fraud syndicate in which the same modus operandi is utilised to obtain vehicles fraudulently via finance.
The Tribunal noted that police considered the offences were serious, the offending was calculated and the prosecution had a strong case.
The Tribunal put it to the applicant that the information was relevant because it concerned the circumstances in which the ground for cancellation arose which was one of the factors to be considered in determining whether the visa should be cancelled. It appeared that the applicant had been involved in calculated deceptive behaviour and fraud.
The Tribunal reissued its warning against self-incrimination and also reminded the applicant that he could seek further time to comment on, or respond to, the invitation to comment/respond.
The applicant stated he wished to respond at the hearing. He stated he has given all the information to his lawyer and he has been “put under injustice” and wanted to help police arrest the responsible people.
He claimed that he met a person named [Mr A] who told him he was working with an accountant who had large amount of money and property. The applicant wanted a personal loan because he was planning to open a shop. [Mr A] stated the accountant could get him a personal loan but he needed the applicant’s driver’s license, Medicare card and bank card. He gave those documents to [Mr A] and the accountant. After a week they told him that he was successful in getting a personal loan.
After that they told him he had finance approval for a car.
He claimed that he did not go to the [Vehicle 1] dealer and did not test drive [a car]. He did not give the dealer any information about himself. “They” told him to take the car because the car finance had been approved and the accountant wanted the car but did not want it in his name because “he was evading taxes or something”, but he wanted to give the [car] to his girlfriend.
He stated that the accountant was the one who was talking to the car dealer and the bank account and phone number details were his; he committed the fraud, not the applicant.
The accountant told the applicant to take this [car] from the dealer and he gave him [Vehicle 2] motor car as a guarantee but the applicant claims he did not drive the [Vehicle 2]. Later the applicant told them he would never take the [Vehicle 1] because he knew there was something wrong; his housemate was his witness.
The accountant (or [Mr A]) subsequently called him and told him he had paid $[amount] and had called the dealer to cancel the car but the dealer would not return his money. He appealed to the applicant to take the car and in one week he promised he would arrange for the ownership of the car to be transferred into another person’s name.
After that the applicant went to the dealer and that was the only time he went to the dealer. He claimed he did not know what information had been submitted. When he arrived at the dealers they gave him the papers, he signed the papers and they then gave him the keys and he took the car. He did not drive the [Vehicle 2] but “he left it with him”.
After a week he was told his personal loan was rejected. He told “them” that he did not like the car transaction from the beginning as he thought there was something wrong. He told them to return the car or cash equivalent to the dealer or change the ownership because he did not want to do anything wrong.
They gave him a paper which cleared his name with the finance company. He provided a copy to the Tribunal, that is; the purported agreement between a company named Financial Control and the applicant confirming that the applicant no longer had any finance under his name, namely for [Vehicle 1] ([January] 2018).
He went to the [Vehicle 1] dealer to check that paper and gave them this document and told them about the change of ownership. The dealer told the applicant the document was fraudulent and [car] had been seized by police. The dealer stated that they had been speaking to the applicant by telephone and he had asked them to reduce the price of [Vehicle 1]. However, the dealer noted that the person he had spoken to on the telephone about the transaction was someone else; not the applicant. The applicant claims he then gave his own telephone number to the dealer.

He claimed that the accountant sent him the document and he now knows it is not correct. If he was a criminal he would not go to the dealer and check if his name was clear.
The Tribunal asked the applicant why, if he had been concerned with the transaction, he had not reported his concerns to police. He stated he had been stupid.
He stated when police came looking for him [in] February 2018 he was attending his solicitor’s office. The police had initially gone to the wrong address, another unit. His housemate called him and told him police were at his home. The applicant told police he was coming to see them.
He stated that the [car] was his girlfriend’s car and she had bought it on finance; his name was on the insurance policy because he drove the car.
The cards found in his wallet were in his name; he stated they were not all credits cards; two were credit cards and the rest were debit cards. The Tribunal asked him to explain why he had eight cards in his wallet. He explained he had seven cards and used these cards when he had his own business before he went onto Centrelink benefits. He stated they were not recently acquired; they were old. The police returned the cards to him when he was granted bail.
He stated that the Local Court magistrate hearing his bail application had checked the credit/debit cards and police had returned the cards to him after his bail hearing. He claimed that police checked his girlfriend’s finance company and the issuers of his credit and debit cards to confirm that these documents were genuine. The applicant’s criminal solicitor provided a copy of the cards to the Tribunal.
When questioned about the allegation that he had attended the dealership, taken a test drive of the car and provided his driver’s licence, Medicare card and [bank] Card to the dealership he stated that he had not done so. He admitted he picked the car up from the dealer when it was delivered but claimed someone else had filled out the finance forms and provided the identity documents.
The Tribunal put it to him that he a person with his driver’s licence went into dealer and was allowed to drive the car. He claimed he did not give his licence to anyone; someone else must have impersonated him.
He hopes that the police will take note of his evidence denying any wrongdoing and check the CCTV to see if he is the person who went into the [Vehicle 1] dealer.
Consequences of cancellation
If the applicant’s bridging visa is cancelled he will remain in detention until his migration status is finalised. He will, either be granted a substantive visa and released from detention; or he will depart Australia.
The Tribunal notes that the applicant has applied for a protection visa (either a Temporary Protection visa or a Safe Haven Enterprise Visa) and his visa was refused by an officer of the Department of Immigration. [In] December 2017 the Immigration Assessment Authority (IAA) remitted his visa refusal to the Department with a direction that the applicant met the complementary protection criterion.
The applicant is currently facing four fraud based charges in the [criminal] court system. It is not clear in which court those charges will be heard or how long it will take to get to trial if the matter proceeds to a criminal hearing. In the event that the applicant is not granted a substantive visa he may have to remain in detention until the criminal charges are heard. If he is granted a substantive visa it appears likely that he will remain on bail until the charges are finalised in the criminal court system.
The Tribunal has no information which points to how the applicant’s substantive visa application will be managed by the Department. The IAA was not able to provide any advice as to the prospect of the Department granting or not granting a TPV or SHEV visa in the immediate future. However, the Tribunal is satisfied there is no prospect that the applicant will be held in indefinite detention.
Other relevant matters.
The applicant claimed that he needs his visa to be restored so that he would help the police find the persons responsible for the fraudulent transaction. He claimed he was the victim of identity fraud and that other persons have profited from the fraud.
The applicant stated that he had worked in his own business for a number of years when he first arrived in Australia but had been on Centrelink benefits for a number of years. However, he was now intending to start a business and get a personal loan.
Conclusion
The Tribunal has given due weight to the Government’s view referred to in paragraph 24 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.
The Tribunal finds that the applicant has been charged with four fraud based offences. It notes that police consider that there is a strong prosecution case against the applicant. Whilst he denies the allegations set out in the [Police] Fact Sheet, on his own account of events, he collected a [Vehicle 1] motor vehicle which had been registered in his name for the purpose of another person evading tax or other irregular purposes.
The charges against the applicant are serious charges and the Tribunal accepts that he denies that he is guilty of those offences. It will be a matter for the [criminal] justice system as to how those charges are resolved. There are many possibilities; the charges may be withdrawn, the matter may go to trial in the District Court, the charges may be downgraded or the applicant may plead guilty to one or more of the charges. It is, at this stage, impossible to speculate on the outcome as much will depend on the evidence contained in the police brief and in the applicant’s defence, if any.
The applicant claims he is an innocent victim of fraud, however, the Tribunal does not accept this characterisation. It considers he has not been able to satisfactorily explain why;
·he did not question [Mr A] and the accountant about why they had used his name to apply for finance for a [Vehicle 1] motor vehicle when he had expressed interest in a personal loan,
·how a person arranged a test drive of the [Vehicle 1] vehicle and made a finance application in his name with his [driver’s] licence, Medicare card and [bank] card. He claimed that someone else had impersonated him but he also stated that he would not have given his licence and other cards to another person.
·he did not contact the dealer or police when he claims he became suspicious of the transaction,
·he agreed to collect the [Vehicle 1] motor vehicle for another person when the car was registered in his name with finance approved to him,
·he was provided with [Vehicle 2] as a guarantee and did not adequately explain the purpose of this action.
Whilst the Tribunal accepts that if the applicant’s bridging visa is cancelled his children will be upset and may form an unfavourable view of the applicant because he is in detention, it also notes that it is likely his family will become aware of the criminal charges as he will be required to face court to answer those charges in the future.
The applicant gave evidence that his wife and children are currently living in the family home and are supported through other income and are not dependent on the applicant’s income for their support in Baghdad. The applicant was not employed before his visa was cancelled and thus does not face the loss of employment as a result of the cancellation. Whilst he may not be able to access Centrelink payments in detention his accommodation, food and other necessary expenses will be met. On his own evidence he only had an extra $140 per fortnight to cover all other necessary expenses and it would appear that neither he nor his family will suffer a significant loss of income or lifestyle if his visa is cancelled.
The applicant stated that he had a girlfriend in [City 1], however, there is no evidence regarding her circumstances or how cancellation would affect her or their relationship and the Tribunal has not taken her situation into account.
The applicant put it to the Tribunal that he needed to be released from detention to assist his solicitor and the police in their continued enquiries, however, the Tribunal notes that the applicant was speaking with a solicitor even before he was arrested by police and has continued to receive competent legal advice. He advised he had no concerns about funding his representation as his housemate and friend will assist him. The Tribunal notes that the applicant’s housemate has already provided a surety of $[amount] in cash so that the applicant could be released on bail and this suggests he also has the financial resources to continue to assist the applicant in funding his legal representation. The Tribunal considers the applicant’s solicitors are able to continue to advise him, take instructions and represent him whilst he remains in immigration detention. They are also able to convey any information provided by the applicant to police if those are his instructions. It does not consider that the cancellation of his visa would prevent him co-operating with police.
The applicant also stated that after a lengthy period on Centrelink benefits he was proposing to start another business and this was the reason he was seeking a personal loan. This may be a laudable intention on his part but considering his current circumstances, it may be that these intentions will have to wait until his migration status is resolved and the outcome of the criminal proceedings is known.
The Tribunal accepts that if his visa is cancelled he faces an uncertain period of detention and that this may cause some hardship.
However, the Tribunal has concluded the visa should be cancelled. It has considered government’s low tolerance of criminal behaviour as set out in the primary considerations, the relatively serious nature of the criminal offences with which he is charged, the applicant’s admission that he collected the [motor] vehicle knowing that, at best, there were irregularities with the transaction and he was assisting a person in evading tax. He will not suffer a loss of employment as a result of cancellation and the loss of Centrelink income will not have a significant impact on the applicant or his family. These factors outweigh his denial of the fraud charges, the impact on his family and the uncertain period of detention which are factors which might indicate the visa should not be cancelled.
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.
Louise Nicholls
Senior Member

[2018] AATA 494

19 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Charge

Statutory Construction

Natural Justice

Jurisdiction