1806553 (Migration) - [2018] AATA 3718

1806553 (Migration) [2018] AATA 3718 (18 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1806553
MEMBER:Kira Raif
DATE:18 July 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s subclass 050 (Bridging (General)) visa.

Statement made on 18 July 2018 at 2:46pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the ground for cancellation exists – Applicant charged with a number of offences under state law – Whether the visa should be cancelled – Where applicant has been refused bail – Where applicant will remain in custodial detention even if visa is reinstated – Where applicant will suffer hardship if visa is cancelled – Grounds for cancellation outweigh grounds for reinstatement – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(g), 499
Migration Regulations 1994 (Cth), r 2.43(1)(p)
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 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 6 March 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of Iran, born [on a particular date]. He was last granted a Bridging E visa on 8 December 2016. On 6 March 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act. The applicant replied to the Notice 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 18 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian 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 the present case, the ground in r.2.43(1)(p) is relevant.
In considering whether to cancel a Bridging E visa on the…

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 1806553 (Migration)

Details

AGLC: 1806553 (Migration) [2018] AATA 3718
Case: [2018] AATA 3718
Decision Date: 18 July 2018

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of the applicant's Subclass 050 (Bridging (General)) visa. The applicant had been charged with a number of offences under state law and was in custodial detention, having been refused bail. The dispute before the Tribunal was whether the ground for cancellation existed and, if so, whether the visa should be cancelled, considering the applicant's circumstances.

The legal issues before the Tribunal were whether the ground for cancellation of the applicant's visa had been established, and if so, whether the visa should be cancelled. This involved weighing the factors that might support reinstatement of the visa against the grounds for cancellation, particularly in light of the applicant's ongoing detention and the potential hardship he might face. The Tribunal was required to consider the impact of cancellation on the applicant's family unit, both within Australia and overseas, and the applicant's personal circumstances.

The Tribunal reasoned that while the applicant had an uncle in Australia, there was no evidence that this uncle was part of his family unit. The Tribunal accepted that the applicant's mother and younger brother in Iran relied on him financially, and he had provided support prior to his detention. However, it noted that his family had managed to meet their needs since his detention, and therefore, they were not considered members of his family unit for the purposes of the assessment. The Tribunal also considered the applicant's claim that he would be killed if returned to Iran, but noted that this was a separate issue from the visa cancellation and would be assessed in other applications. Regarding hardship, the Tribunal found that the applicant's evidence did not suggest he would be unable to obtain family support, and that his financial needs would likely be met while in detention. Ultimately, the Tribunal concluded that the circumstances giving rise to the cancellation grounds, and the nature of the alleged conduct, outweighed other considerations.

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 there are some factors that may be against the cancellation. However, in the Tribunal’s view, the circumstances in which the grounds for cancellation arise and the nature and extent of the alleged conduct to which the charges relate, outweigh other 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 told the Tribunal there are no children who would be affected by the cancellation of his visa. Secondary considerationsThe impact of a decision to cancel the visa on the family unit The applicant has an uncle in Australia. While the Tribunal accepts that there is a familial connection, there is no evidence that this uncle is a member of the family unit of the applicant. The applicant told the Tribunal that his mother and younger brother live in Iran and are financially dependent on him. The applicant said that his family have financial problems. Before his detention, he did not work but was receiving Centrelink payments and was sending money to his mother. The applicant said that since his detention, he has not been able to speak to his family overseas because of the expense. The applicant said that while he has been detained, his mother continues to work, although it has been hard for her. His uncle cannot afford to support his family. The applicant has not provided any evidence of having provided support to his mother and brother but the Tribunal is prepared to accept that he has provided financial support in the past prior to his detention. The Tribunal also notes that the support has not been provided since the applicant’s detention and despite that, his family has been able to meet their financial and other needs. The Tribunal is not satisfied that the family overseas are members of the applicant’s family unit. However, the Tribunal accepts that they rely on the applicant and would prefer for the applicant to remain in Australia and to continue the financial support. The Tribunal also accepts that the applicant’s ability to communicate with his family overseas is limited as a result of his incarceration. The degree of hardship that may be experienced by the visa holder if the visa is cancelled In response to the NOICC the applicant stated that he travelled to Australia to avoid harm in Iran and he would be killed if he was to return to Iran. The Tribunal is mindful that the decision on the present application would not in any way affect any other application that the applicant presently has, or will make. That is, if the applicant believes he is owed protection, that claim will be assessed separately and independently of the present process. The applicant’s evidence is that if his visa is cancelled, he cannot work and he would have to rely on his family for support, which would cause him financial hardship. The applicant’s evidence does not suggest that he would be unable to obtain support from the family, merely that his preference is to be financially independent. The Tribunal accepts that if the applicant’s visa is cancelled and if he is not granted another visa, he may remain in detention and may be unable to work. However, given the applicant’s evidence that he can access family support, the Tribunal does not accept that would cause financial hardship to him. The Tribunal is also mindful that if the applicant remains in detention as a result of his visa being cancelled, most of the applicant’s financial needs are likely to be met.