1806109 (Migration)

1806109 (Migration) [2018] AATA 844 (19 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1806109
MEMBER:Louise Nicholls
DATE:19 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 19 March 2018 at 1:04pm
CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Pattern of criminal behaviour – Nature of offences – Dependence on alcohol – Offences related to multiple incidents
LEGISLATION
Migration Act 1958, ss 116, 499
Migration Regulations 1994, r 2.43
CASES
ACH15 v MIBP [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

The applicant is a citizen of Sri Lanka and is [age] years of age. In October 2012 he arrived on [Islands] by boat, was taken to [another island in] October 2012 and returned to Australia [in] October 2013. He applied for a Safe Haven Enterprise temporary visa in 2016; however, his application has not yet been determined.
The applicant was last granted a Subclass 050 (Bridging (General)) visa [in] July 2017 and whilst holding that visa was convicted of three offences which took place between April 2017 and September 2017.
[In] March 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 convicted of the following offences [in] December 2017.
·Stalk/intimidate intend fear physical harm (personal)-T2; s.13(1) of the Crimes (Domestic and Personal Violence) Act 2007(NSW).
·Possess unauthorised prohibited firearm –T2; s.7(1) of the Firearms Act 1996 (NSW).
·Assault occasioning actual bodily harm- T2; s.59(1) of the Crimes Act 1900 (NSW).
This is an application for review of that cancellation decision and it was made [in] March 2018. The applicant provided a copy of the decision record dated [in] March 2018.
The decision record noted that at the departmental interview held [in] March 2018:
·The applicant agreed that he had been convicted of the charges set out above. He stated it was a serious matter for which he sincerely apologised. He acknowledged that he has been convicted of a number of criminal offences.
·The applicant asked for a final chance and stated that whilst he acknowledged it is a serious matter, it was a mistake and he had apologised for his conduct. He claimed he would never re-offend and has moved to get away from trouble. If his visa is cancelled his whole life will be affected.
·The applicant stated that he had left Sri Lanka and lived as a refugee in [Country 1] for 22 years. He travelled back to Sri Lanka in 2006 but had problems and was questioned so he decided to leave again.
·The applicant stated in relation to the degree of hardship he would suffer if his visa was cancelled that he has had no problems here, he is not working but needs to get a job to pay his phone bill. He has no family in Australia.
·In relation to the circumstances in which the ground for cancellation arose, he stated that he did not know what happened in 2017 and thought it was a bad time in his life. He stated that living in [Suburb 1] was a problem as he had a lot of trouble there. He stated his problem started due to his heavy drinking. He stated he does not drink heavily anymore, only a few beers. He stopped four months ago and has only had the occasional beer. His father passed away in October 2017 and that caused him a lot of distress.
·He stated he is now living with some good people in [another suburb] and never goes to [Suburb 1] anymore. He has no contact with [a witness] and is complying with all his sentencing directions and requirements.
·The delegate found the applicant to be corporative, polite and engaging in conversation. He also stated he appeared to be remorseful.
The applicant appeared before the Tribunal on 14 March 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. The applicant gave evidence about his background, the grounds of cancellation, the circumstances giving rise to the cancellation and other matters relevant to the review.
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.
Background
The applicant is [age] years of age and was born in [Town 1] in the northern province of Sri Lanka. The applicant and his family moved to live in [Country 1] when the applicant was about two years of age and he lived in a refugee camp in [Country 1] for many years.
The applicant gave evidence his father passed away in September 2017 and his mother is living in a refugee camp in [Country 1]. He has [a number of] siblings; one sister lives in Sri Lanka in [Town 1], one sister lives in the refugee camp in [Country 1] and his [brothers] live and work in [Country 1].
The applicant left [Country 1] for Sri Lanka in 2005 and claims he went to live in [another area] for about one year before he returned to [Country 1] in 2006.
In 2012 he flew from [Country 1] to Sri Lanka and then came to Australia by boat. He arrived in the [Islands] in October 2012 where he remained for about three weeks until he was taken to Nauru where he stayed for about one and a half years. He was brought to Australia in 2013 and was detained in the Curtin detention centre for about six months.
After his release from detention he lived and worked in [an Australian city] for about two years before he embarked on an online course to enable him to work on the National Broadband Network and eventually moved to [Australian City 1]. He obtained work with the NBN contractors [digging] ditches and laying conduit for about one year until that work was suspended.
He moved back [to] an address in [Suburb 1] [City 1] in about 2016. When he first arrived in [Suburb 1] he was not working for about 2 to 3 months and then found work in [another] industry.
He had some issues with local people in [Suburb 1] in 2017 and this resulted in him having to leave his work. He was unemployed for a number of months and in receipt of Centrelink benefits but also used his savings and the sale of some [personal items] to support himself.
The applicant is not married and is not in any current relationship.
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(p)(i) is relevant.
The applicant provided a copy of the cancellation decision record indicating that he had been convicted of Stalk/intimidate intend fear physical harm (personal)-T2; s.13(1) of the Crimes (Domestic and Personal Violence) Act 2007(NSW); Possess unauthorised prohibited firearm –T2; s.7(1) of the Firearms Act 1996 (NSW and Assault occasioning actual bodily harm- T2; s.59(1) of the Crimes Act 1900 (NSW). He had been convicted of these offences in the Local Court [in] December 2017.
The applicant also gave oral evidence at the hearing that he had been convicted of these offences. He told the Tribunal that he had pleaded guilty and had received sentences for 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. The Tribunal has also 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’.
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 his mother would be affected if his visa was cancelled because he was sending $100 every fortnight by way of money order to her in [Country 1]. He stated that his brothers in [Country 1] and his sisters also send money towards his mother’s financial support. He stated that he sent the money by way of money order through a company called [name].
Hardship to visa holder
The applicant stated that he is almost [age] years of age and for [most] of those years he has lived in camps or detention centres. He feels his whole life has been spent in camps and if he has to remain in the detention centre he will be psychologically affected.
He stated that he faces an uncertain period of time in detention; he may die from disease and will not be able to cope mentally with the situation. He agreed that medical services are provided to detainees in the detention centre but that he has chosen not to seek medical attention from those medical services. He explained that he had a headache and approached the centre for some [medication]; they gave him two tablets and he started vomiting and collapsed and decided he would not seek any further medical attention.
Circumstances in which the ground for cancellation arose.
The Tribunal noted that the applicant had been convicted of the three criminal offences set out above. It advised the applicant that the Tribunal had been sent NSW Police fact sheets relating to those offences.
the Tribunal invited the applicant to comment on, or respond to, information in the New South Wales Police Fact Sheets which would be the reason, or part of the reason, for affirming the decision under review. It explained the relevance of the information and advised the applicant he could seek further time to comment on, or respond to that material.
The Tribunal outlined the matters contained in first fact sheet and advised him that it was relevant because the information was relevant to the circumstances in which the ground for cancellation arose and had to be weighed with other matters.
It was noted in the fact sheet that In April 2017 the victim was seated at a bus stop in [Suburb 1] near the railway station. The applicant was holding [an item] extended in one of his hands and was pacing up and down the street shouting in the Tamil language “this is my area I don’t care about police.”
The applicant walked up the ramp of the railway station holding the [item] in his hand and was talking with his friend, the co-accused. The applicant ran towards the victim holding the [item] in both hands and using a downward force struck the [item] against the victim’s head at least 2 to 3 times. The force struck down the victim bringing him to his knees and he placed his hands up in an attempt to protect his head. At this time, police arrived on the scene and engaged in a foot pursuit of the applicant through a street in [Suburb 1]. During the pursuit the applicant threw the [item] away. The accused was arrested and cautioned and taken to the police station. Police considered that he was affected by alcohol and he was allowed recovery time before being read his rights. The applicant participated in an interview where he agreed that he was the owner of the [item] and that he did run away from police while holding the [item]. He denied the allegation of assault against the victim and told police he had seen the victim seated at the bench near the bus stop and thought he was in trouble.
The applicant elected to respond to this information at the hearing.
He stated that his friend, the co-accused, and the victim were fighting and he came out from his apartment and tried to separate them with his vacuum pole. He agrees he was walking up and down the street and he also mentioned that a Sri Lankan boy had his wallet stolen at the very spot. He claimed his intention was only to separate the people fighting, that he was very drunk at the time and he accidentally hit the victim. His friend ran off and the fight developed between the applicant and the other person. He ran away from police because he thought they were going to arrest him. He did not know what the fight was about because he was too intoxicated.
He stated that the police did not understand what he was telling them, he was not given an interpreter at the time of his interview and felt it was unfair that he was charged. He also stated that in [Suburb 1] area there were many people with knives and the police were called many times due to assaults and robberies. His own mobile phone had been snatched some months before the incident.
The Tribunal also outlined the matters contained in second fact sheet and the relevance of this information.
The fact sheet noted that the applicant had been receiving Centrelink payments of $535 per fortnight and he agreed this was correct for about six months whilst he was not working.
The fact sheet noted that the victim had been working [in] [a local supermarket] directly opposite the home of the applicant. The applicant’s front window looked directly into the [supermarket] store.
Around January 2017 the applicant started to show interest in the victim. He was often howling at the victim from his window when she was outside the store, he threw objects such as a glass bottle at the victim from his window and he attended the store and attempted to tip her in cash.
The applicant also attempted to add the victim on his social media [account] and sent her messages using [messaging]. She rejected his requests. She reported these incidents to her supervisor at [a supermarket] but did not report them to police.
[In] September 2017 the victim was sitting outside [a supermarket] with a work colleague after they finished their shift. The applicant approached them and he walked past the victim and her colleague. When the applicant was about 2 metres away from the victim he lifted his shirt. The victim and her colleague both observed a [handgun] placed in the applicant’s waistline. The gun appeared to be authentic. The applicant turned towards the victim when he lifted his shirt and then continued walking for a few metres before he stopped and turned again to face her.
The victim contacted police and made a statement. The police then attended the applicant’s address in [Suburb 1] and he was placed under arrest, cautioned and searched.
The applicant told police he had a gun but it was only plastic. It was not real; it only looked real. The police then attended his apartment and he showed police the gun and it was seized by police. The applicant was taken to the local police station and he was charged. Police noticed that the applicant was affected by alcohol at the time of his arrest.
When he was interviewed he admitted he bought a plastic gun which he modified to look real. He stated it made him feel confident and to take photographs with his friends.
The applicant elected to respond to the information at the hearing.
He stated that he had the gun in his pocket not his waistline but everything else was accurate. He claimed he bought a plastic gun from a “dollar shop” because the area he lived in was unsafe and if he went to the hotel at night he wanted to gun to defend himself if he had problems. He claimed that [Suburb 1] was an unsafe area and even the police did not come without being armed.
The applicant told the Tribunal that when the matter was before the Local Court [he] was represented by a solicitor [and] pleaded guilty. He received a sentence of 250 hours of community service, a suspended 4 month term of imprisonment and a 3 year bond with a condition that he attend drug and alcohol counselling.
After the sentence he started fulfilling his community service sentence by attending on Fridays to do maintenance and cleaning work. He had been unable to obtain an appointment for drug and alcohol counselling before his detention.
Consequences of cancellation
The applicant made an application for a Safe Haven Enterprise Visa in 2016. His application has not been determined by the Department and he gave evidence he has not received any requests for an interview or further information.
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. There may be a period of uncertain detention, but the Tribunal is satisfied that there is no prospect of indefinite detention.
Other relevant matters

The applicant stated that after he had been charged he moved from [Suburb 1] to a family home in [City 1] where the people he lived with were Australian citizens of Sri Lankan background. He described them as good people who helped him return to work on [March] 2018 and have provided him with good emotional support. He claims that he has reduced his drinking and only has an occasional beer.
At the time the applicant was charged with the offences an apprehended violence order was made against the applicant in relation to the victim of the gun offence. That order remains in place.
Conclusion
With respect to the primary considerations, the Tribunal has given due weight to the Government’s view 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.as a primary consideration. 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 convicted of three offences against the laws of New South Wales as set out above. The Tribunal finds that the applicant has been convicted of offences involving violence causing an injury and [other offences involving] a member of the community. He has been given a suspended sentence, a 3 year bond and a community service order of 250 hours.
On the evidence, the member of the public who had been [involved] with the replica gun did not have a relationship with the applicant and, did not in any way, encourage his attention. She worked in the [supermarket] store across the road from his apartment and was subjected to his unwelcome attention for many months before she contacted police. The evidence indicates that the applicant intimidated her by howling at her, throwing objects at her from his window, trying to tip her whilst she was at work and attempting to contact her through [social media] between January and September 2017. She had reported these incidents to her supervisor but did not report the applicant’s conduct to police until it escalated into more threatening behaviour with his use of a replica gun to frighten her and her colleague.
When asked about this incident he stated he had bought the replica gun at a “dollar” shop and had only kept it to protect himself in the event of attacks and threats against him in the [Suburb 1] area. However, the Tribunal does not accept this as an excuse for his conduct. It appears from the evidence that he used the replica gun to intimidate the victim when she was sitting outside her place of work and the use of the replica weapon was unprovoked.
He also stated that since the apprehended violence order was made he had no further contact with the victim and had no intention of approaching her. The Tribunal considers the reason he has not approached the victim of the stalking is because he is the subject of an apprehended violence order and not because he has decided that it was right thing to do.
With respect to the separate incident which took place in April 2017, the evidence indicates the applicant attacked and injured another member of the public with a [weapon]. This person had been sitting outside a railway station. The applicant claimed that his co-accused friend and the victim had got into a fight. He came out of his apartment with [an item] to break up the fight but instead became involved in the fight when his friend ran off. He admitted he was affected by alcohol at this time and could not remember the reason his friend had got into the fight with the victim. The Tribunal notes that the victim was injured and required medical treatment for his injuries.
The applicant stated that he had problems with alcohol but that he had recently reduced his drinking to more reasonable levels. However, the Tribunal noted that despite being required to attend drug and alcohol counselling he had not attended any appointments with a drug and alcohol counselling service prior to his detention. It is not clear whether he was not able to attend due to resourcing issues with the service or whether he had not yet made an appointment. In any event, other than for his own evidence that he has reduced drinking, there is no other evidence to support any significant change in his drinking behaviour.
The applicant gave oral evidence, which the Tribunal accepts, that he had been working for a substantial period of his time in Australia and would not be able to work if his bridging visa was cancelled. It also accepts that he was sending a sum of money to his mother in [Country 1] whilst he was working and that he will not be able to send her money in the immediate future if his visa is cancelled. However, it also notes his evidence that his brothers and sisters are jointly providing support for his mother and that she is not totally dependent on the applicant’s remittances.
The Tribunal also notes the applicant’s evidence that he has spent a large proportion of his life living in refugee camps in [Country 1] and in detention in Australia and that he feels his youth has been wasted living in such an unsettled lifestyle. He claimed he would be psychologically affected if he remained in detention. He also stated that he is unwell in detention but when questioned he stated that he did not wish to use the medical services provided in the detention centre because he had a bad experience with the provision of Panadol when he was first detained. Notwithstanding his reluctance to use the services the Tribunal considers that he has medical services available to him in detention and that if he needs medical attention he can access those services.
The applicant gave evidence that he has no other relationships which would be affected by the cancellation of his bridging visa.
The Tribunal accepts that the applicant faces an uncertain period of detention and this may cause hardship due to the inevitable restrictions placed upon persons held in detention. However, accommodation, food and other necessities are provided in detention.
Overall the Tribunal considers that the applicant’s visa should be cancelled. It has considered the government’s low tolerance of criminal behaviour as set out in the primary considerations, the violent and intimidatory nature of the offences with which he has been convicted and his apparent dependence on alcohol with the resulting adverse impact on his behaviour. The applicant’s intimidating and harassing conduct towards the [worker] from [the supermarket] continued from January to September 2017. Further there is a separate and unrelated incident in April 2017 which gave rise to the convictions for assault occasioning actual bodily harm. The Tribunal considers that this is not a situation where the applicant has been convicted of offences relating from a single incident which might, in different circumstances, suggest that his visa should not be cancelled. These offences and the surrounding evidence point to a pattern of behaviour which is of serious concern given the injuries caused to one member of the public and the fear caused to another member of the public.
These factors outweigh the impact on his mother, his inability to work whilst his visa is cancelled and the uncertain period of detention and its psychological impact which are factors which might otherwise indicate that his 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 844

19 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction