1805868 (Migration)

[2018] AATA 5259

1805868 (Migration) [2018] AATA 5259 (27 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805868

MEMBER:Kira Raif

DATE:27 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 27 September 2018 at 4:09pm

CATCHWORDS
MIGRATION – Cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant had been convicted of offences – an unlawful non-citizen– – breached condition 8101 ­– applicant worked illegally – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, rr 1.43, 2.43

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

1. This is an application for review of a decision dated 23 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Fiji born in [year]. She was granted a Class WC Bridging visa C (BVC) on 4 December 2015. On 1 February 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the Bridging visa under s. 116(1)(g) and r. 1.43(1)(oa) because the applicant had been convicted of offences. The applicant provided her response to the NOICC and her visa was cancelled on 23 February 2018. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 27 September 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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)(oa) is relevant. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (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))

   Does the ground for cancellation exist?

5. The applicant provided to the Tribunal a copy of the primary decision. It indicates that on [date] December 2017 the applicant was convicted of the following offences in [a] Local Court:

   a.Larceny value > $15,000, sentenced to 12 months imprisonment, suspended on enter bond

   b.Receive / dispose of stolen property, sentenced to 12 months imprisonment, suspended on enter bond

   c.Dishonestly obtain financial advantage etc by deception, sentenced to s. 9 bond of 2 years.

6. In her written submission to the delegate the applicant states that she was paid for her work in [a specified field] which she could pawn for cash but she was unable to repay the money and the employer reported her to the police. In oral evidence to the Tribunal the applicant said that she and her employer took the [product] together and she thought it was her employer’s [product] but it was not.

7. The applicant does not deny that she has been convicted of the above offences. The Tribunal finds that the applicant has been convicted of offences against the state law. The applicant held a temporary (bridging) visa other than a bridging visa in subclass 050 and 051 and other than a Special Category visa. The Tribunal is satisfied there are grounds for cancelling her visa under s.116(1)(g) and r.2.43(1)(oa).

8. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

9. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   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

10. According to the primary decision record, the applicant entered Australia in August 2015 holding a [temporary] visa. The applicant did not depart Australia before the expiry of her visa but remained in Australia as an unlawful non-citizen. She made the application for a substantive visa on 30 November 2015.

11. The purpose of the bridging visa is to enable the applicant to remain in Australia while her substantive visa application is being processed. The applicant’s evidence to the Tribunal is that her substantive application remains undecided. The substantive visa application will not be affected by the cancellation of the bridging visa. As that application is ongoing, the Tribunal accepts that there is a need for the applicant to remain in Australia during the processing of her substantive visa application.

    The extent of compliance with visa conditions

12. The primary decision record indicates that the applicant’s Bridging visa did not permit her to work. In her written response to the NOICC the applicant refers to her employment in Australia. The applicant confirmed in oral evidence to the Tribunal that she has been working in Australia and that she did not have permission to work. That applicant’s evidence indicates that she breached condition 8101 of her bridging visa.

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

13. The applicant states in her submission to the delegate that she cannot return to Fiji because she has nowhere to stay. She claims she has been subjected to family violence in Australia and a psychogical assessment found that she suffered from post-traumatic stress disorder. She received counselling. She is serving a good behaviour bond in the community and does charitable work.

14. The Tribunal acknowledges that the applicant is unwilling to return to Fiji at present. However, the cancellation of her bridging visa would not affect the processing of her substantive visa application and if the applicant is found eligible for that visa, she would be granted that visa. That is, the cancellation of the bridging visa will not result in the applicant being required to leave Australia while her other visa application is being processed.

15. The applicant told the Tribunal that if her visa is cancelled, she will be in Australia unlawfully. The Tribunal acknowledges that unless the applicant is granted another visa, she may be an unlawful non-citizen and will be subject to detention. The Tribunal accepts that ongoing detention, which may be for a lengthy period, may cause hardship to the applicant. The Tribunal also accepts that if the applicant remains in detention, she will have limited opportunities to engage in other activities, including counselling, charitable work and others.

    Circumstances in which ground of cancellation arose

16. The ground for cancellation arises because the applicant has been convicted of offences while holding a temporary visa.

17. The applicant explained in her submission to the delegate that she was paid for work in [a certain field] but as she was unable to repay the money, her relationship with the employer soured and she was reported to the police. The applicant stated that she relied on her partner but he did not provie adequate support and was abusive.

    Past and present behaviour of the visa holder towards the department

18. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

19. The applicant confirmed in oral evidence that there are no persons who would be affected by the consequential cancellations under s. 140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

20. If the applicant’s visa remains cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that the applicant will be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The existing substantive visa application would not be adversely affected as a result of the cancellation of the bridging visa. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

21. The primary decision record indicates that the applicant was found not to be a refugee by a delegate of the Minister in February 2016. She has appealed that decision and the matter is presently before the Tribunal. If it is determined that Australia has protection obligations in relation to the applicant, the applicant may be granted a protection visa. The Tribunal finds that Australia’s non-refoulement obligations will not be breached as a result of the cancellation of her bridging visa.

22. The applicant told the Tribunal there are no children affected by the cancellation.

    Any other relevant matters

23. The applicant told the Tribunal she has been living in Australia since August 2015, initially on a [temporary] visa and she later applied for another visa. The applicant refers in her written submission to doing charitable work and being a good person. If the applicant is not in detention, she can continue to perform such activities. The Tribunal acknowledges that she may have limited or no opportunities to do so if she is detained.

24. The Tribunal has considered the applicant’s circumstances. The applicant has been convicted of offences and the Tribunal has found there are grounds for cancelling her visa. The Tribunal accepts that the cancellation of the visa may cause hardship to the applicant because unless she is granted another visa, the applicant is likely to remain in detention and such detention may be lengthy. If detained, the applicant will not be able to engage in various activities she participated in previously. The cancellation of the visa may also affect future applications that the applicant may wish to make.

25. The Tribunal finds that the cancellation of the visa will not breach Australia’s international obligations. The Tribunal is mindful that while the applicant wants to remain in Australia, the decision on the present application will not affect her application for the substantive visa. The applicant referred to her employment in Australia and the Tribunal notes that such employment may have been in breach of visa conditions.

26. Overall, the Tribunal gives greater weight to the circumstances in which the ground for cancellation arises. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Kira Raif
    Senior Member