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

1. 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).

2. 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.

3. 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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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’.

   Does the ground for cancellation exist?

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant has been charged with a number of offences under the law of [a particular state].

11. [In] January 2018 the applicant has been charged with the following:

    a.Take / detain person with intent to obtain advantage

    b.Common assault

    c.Possession of prohibited drug

12. [In] December 2017 the applicant has been charged with the following offence:

    a.Stalking / intimidate intend fear physical harm

13. [Earlier in] December 2017 the applicant has been charged with the following offences:

    a.Destroy or damage property under $2000

    b.Affray

    c.Wield a knife in a public place

14. [Earlier in] December 2017 the applicant has been changed with the following offence:

    a.Possession of prohibited drug

15. [In] July 2017 the applicant has been charged with the following offence:

    a.Common assault (DV)

16. The applicant confirmed in his written submission and oral evidence to the Tribunal that he has been charged with these of offences. The applicant argues in response to the NOICC that he has not engaged in such conduct and that there were ‘misunderstandings’. In oral evidence to the Tribunal the applicant confirmed the charges but stated that he pleaded not guilty and the case has not been resolved. The applicant said that the events occurred because his mental health was affected.

17. The Tribunal acknowledges that there is no finding of guilt. However, the ground for cancellation arises due to the charges, rather than convictions or a finding of guilt. It is not for this Tribunal to determine whether the applicant is guilty of these offences. The Tribunal finds that the applicant held a Bridging E visa and that he had been charged with offences under the state law. The Tribunal finds that the ground set out in r.2.43(1)(p)(ii) is made out. The Tribunal finds that there are grounds for cancelling the visa held by the applicant under s.116(1)(g) of the Act and r.2.43(1)(p) of the Regulations.

18. 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

    Primary considerations

    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

19. The applicant has been charged with the offence described above. It has been held that the first of the two primary considerations means that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework rather than that the power to cancel should be exercised rigorously, that is, strictly. The decision maker must take the government’s view set out in that consideration as one of the matters to be weighed rather than simply following that view: see ACH15 v Minister for Immigration [2015] FCCA 1250. The Tribunal acknowledges that consideration of the entirety of his circumstances is necessary when exercising the discretion.

    The best interests of any children under the age of 18 in Australia who would be affected by the cancellation

20. The applicant told the Tribunal there are no children who would be affected by the cancellation of his visa.

    Secondary considerations

    The impact of a decision to cancel the visa on the family unit

21. 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.  

22. 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.

23. 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

24. 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.

25. 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.

26. The applicant referred to his poor mental health. The applicant states that he is depressed as a result of being in jail. The Tribunal is mindful, however that the applicant is detained because he has been charged with a series of criminal offences and his evidence to the Tribunal is that he has been refused bail. That is, the applicant’s detention will not be affected by the grant of the bridging visa and, conversely, if the cancellation is set aside, the applicant will continue to be in jail until his charges are resolved or until he is granted bail. The applicant told the Tribunal that his court hearing is in August and if he holds a bridging visa, he may be released after that date. That presupposes that the charges will be resolved on that date (and there is no evidence of that), that the applicant will be found not guilty or, if found guilty, he will be given a non-custodial sentence. The Tribunal considers such assumptions hypothetical. In the circumstances of this case, the Tribunal does not consider that it is the cancellation of the bridging visa that is causing the applicant’s detention.

27. Nevertheless, the Tribunal accepts that if the applicant is granted bail or if the charges are resolved in his favour, he may be released from criminal detention and if he does not have a visa, the applicant will remain in immigration detention. The Tribunal accepts that continuous detention is likely to cause considerable hardship to the applicant.

28. The applicant told the Tribunal that he has a [mental health] condition and it affects him in jail. The applicant told the Tribunal that he is receiving treatment while in jail but it is ‘awful’ and the pills make him worse. The applicant confirmed that he is a seeing a doctor for his condition and the doctor confirmed that he needs to take these pills. The Tribunal is satisfied that the applicant is receiving treatment for his condition. The Tribunal is not satisfied that the nature of the treatment is adversely affected by the applicant’s visa status. That is, the applicant will receive medical treatment for his condition whether or not his visa is cancelled and whether or not he is detained.

    The circumstances in which the ground for cancellation arose

29. The ground for the cancellation arises because the applicant has been charged with a number of offences. In response to the NOICC the applicant is recorded to have stated that the charges arose due to ‘misunderstandings’ and that he did not do what he was charged with. The applicant did not wish to discuss the circumstances of the offences with the Tribunal, having been warned about self-incrimination.

    The possible consequences of cancellation

30. One of the most significant consequences of the cancellation is that the applicant would not be a holder of a visa and would be subject to mandatory detention while his substantive visa application is being processed. The cancellation of the bridging visa would not adversely affect the processing of the substantive visa application.

    Any other matter considered relevant

31. The applicant told the Tribunal that he is not guilty. That is not an issue before the Tribunal and it is up to the criminal courts to make that determination.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant held a Bridging E visa and because he was charged with offences under state law. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant because the applicant will remain in detention, even if he is released from criminal detention, although the Tribunal is mindful that at present, the applicant is subject to criminal detention which will remain in place irrespective of the outcome of this review. The Tribunal accepts that while in detention the applicant has very limited or no income and is unable to support his family and he also has more limited communication with his family. The Tribunal acknowledges the applicant’s evidence about his medical condition, although the Tribunal also notes the applicant’s evidence that he is seeing a doctor and receiving treatment.

33. Against these considerations, the Tribunal notes that the offences with which the applicant has been charged are multiple. The charges span a period exceeding six months. The offences involve violence towards others, as the charges include multiple instances of common assault, detaining a person with intent to obtain advantage, affray and wielding a knife in public. There are also drug related charges. These charges are very serious. There are no children affected by the cancellation.

34. 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

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Kira Raif
    Senior Member