1808222 (Migration)

[2018] AATA 1820

1808222 (Migration) [2018] AATA 1820 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808222

MEMBER:Antoinette Younes

DATE:11 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2018 at 11:06am

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Criminal offences – Seriousness of allegations – Existence of Australian child and wife – Medical condition

LEGISLATION
Migration Act 1958, ss 116, 127, 338, 359AA, 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

1. This is an application for review of a decision dated 30 January 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 delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been charged with a number of offences under NSW laws. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 10 April 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.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Does the Tribunal have jurisdiction?

5. A threshold issue is whether or not the applicant has lodged his application for review out of time with the resulting effect that the Tribunal does not have jurisdiction to review the matter.

6. Department records indicate that the applicant was notified by hand of the cancellation of his visa on 30 January 2018, whilst he was at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater. On 3 March 2018, he was released from the MRRC. He lodged the application for review on 23 March 2018, whilst at Villawood Immigration Detention Centre (VIDC).

7. Section 127(2) of the Act sets out the prescribed manner for the notification of a decision to cancel a visa, namely that:

   a.it must specify the ground for cancellation and

   b.state whether the decision is reviewable under part 5 or part 7 and

   c.if there is a right to have the decision reviewed under part 5 or part 7 state

   (i)that the decision can be reviewed and

   (ii)the time in which the application for review may be made and

   (iii)who can apply for the review and

   (iv)where the application for review can be made.

8. The notification form provided to the applicant stipulated:

   Bridging visa cancellation

   If you are in immigration detention because of the decision to cancel your bridging visa and wish to lodge an application for review you must do so within two (2) working days after the day on which you received this notice.

   If you are not in immigration detention and wish to lodge an application for review, you must do so within seven working days after the day on which you received this notice.

9. The applicant lodged his application for review whilst in immigration detention. He was in immigration detention because of the cancellation of his bridging visa. In these circumstances, there is argument that the applicant should have been re-notified given the change in his circumstances. This suggests that the notification letter provided to the applicant was defective and that the applicant was therefore not properly notified. The prescribed period for the applicant to lodge his application for review does not commence until he is properly notified. The decision became reviewable under s.338(4) of the Act. The Tribunal finds that there is a reviewable decision and a valid application for review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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.

12. The Tribunal informed the applicant of the privilege against self-incrimination, given that at the time of the hearing the criminal charges against the applicant were pending. The Tribunal explained to the applicant that the Tribunal is dealing with the cancellation of his bridging visa and is not determining whether he is innocent or guilty.

13. In accordance with s.359AA, the Tribunal advised the applicant that there is information before the Tribunal that on 24 January 2018, the New South Wales Police advised the Department that the applicant has been charged with the following offences:

    a.[Criminal Offence 1].

    b.[Criminal Offence 2].

    c.[Criminal Offence 3].

14. The applicant agreed with the information that he has been so charged and he provided explanations as discussed below.

15. On the evidence before it, the Tribunal is satisfied that the grounds for cancellation exist in accordance with s.116(1)(g), r.2.43 of the Regulations. 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

16. 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.

17. 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.

18. 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

19. The guiding principle articulates the Australian Government’s expectation that:

    a.Non-citizens residing in Australia are to abide by the law.

    b.The Australian authorities have low tolerance for criminal behaviour by non-citizens in the Australian community – “…It is a privilege and not a right to be allowed to live in the community…” 

    c.In order to effectively protect the Australian community and to maintain integrity and confidence in the migration system, the Government has introduced measures that support the education of bridging E visa holders about community expectations and acceptable behaviour.

    d.These measures encourage compliance with reasonable standards of behaviour and support the taking of compliance action, including consideration of visa cancellation, where Bridging E Visa holders do not abide by the law.

20. The Principles of Direction 63, at 4.3(5) state that “…where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging  E visas ought to be cancelled while criminal justice processes or investigations are ongoing”.

21. The Tribunal is satisfied that the rigour referred to is addressed to the question of whether to enter into consideration of cancelling the visa and is not suggesting that the power to cancel should be exercised rigorously.[1] This consideration requires the decision-maker to take the Government’s view as part of the matters to be weighed in the exercise of the discretion, rather than suggesting that the view is to be followed.[2]

    [1] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [28]-[31]

    [2] ACH15 v MIBP - Ibid at [33].

22. The Tribunal appreciates that the applicant has not been found to be guilty of the offences with which he has been charged, however, the Tribunal considers those charges to be serious and mean that the visa should be cancelled.

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

23. The applicant gave evidence that he has a wife and a nine-year-old boy in Sri Lanka. He said in 2012 he married an Australian citizen, Charlee whose surname he did not know. He stated that the marriage was in accordance with the Hindu culture and that he has a daughter from that relationship, Adchaya who was born in 2013. The Tribunal asked the applicant if he had any evidence to corroborate his claim that he has a wife and a daughter in Australia and he confirmed that he does not.

24. In accordance with s.359AA, the Tribunal discussed with the applicant information contained in MRT Decision Record Number 1420532 (Folios 40-42) where there does not appear to be any reference to the applicant having a wife and a child in Australia. The applicant replied by asking the Tribunal to “forget about this… please don’t write it down”. He stated that he had told a prison guard about his Australian wife and child. He confirmed however that he does not have any corroborative evidence.

25. The Tribunal asked the applicant about any application for [another] visa and he stated that it was ongoing.

26. In accordance with s.359AA, the Tribunal discussed with the applicant information in relation to his application for review of a decision dated 12 January 2018, concerning the refusal of an application for a [visa]. The Tribunal noted that there does not appear to be mention of the applicant’s Australian wife and child, particularly as the applicant was interviewed on 7 December 2017. The applicant agreed that he had not mentioned this previously, apart from his claim that he had told a prison guard.

27. The applicant has provided medical notes from 2016 indicating that he suffers from [a mental disorder] and the Tribunal has given regard to the clinical diagnosis. The Tribunal accepts that the applicant suffers from this disorder and that on his own evidence, he continues to take medication. In the course of the hearing, the applicant was polite, cooperative and he responded well to the Tribunal. 

28. There are a number of evidentiary problems as outlined in relevant parts of the decision and on the evidence, the Tribunal is not satisfied that those evidentiary problems were impacted by the applicant’s [disorder]. The applicant appeared to the Tribunal to be coherent and he did not have difficulties in understanding the questions or responding.

29. The Tribunal has carefully considered the evidence. The Tribunal finds it difficult to accept that prior to the hearing on 10 April 2018 and apart from his claim that he had told a prison guard, there is no mention of the applicant having an Australian wife and child. The applicant has not provided any corroborative evidence to support this claim. The Tribunal considers the claim of having a child and a wife in Australia to be significant claims and the fact that, apart from the claim that the applicant had told a prison guard, those claims had not been mentioned previously raise serious doubts for the Tribunal. The applicant appeared before the Tribunal in matter number [XXXXX XX] and he was interviewed by the Department in relation to the subclass [number] visa as late as December 2017, both subsequent to the claimed birth of the child and the marriage and the fact that he did not mention those matters are difficult to accept. On the evidence and in light of those concerns, the Tribunal is not satisfied that the applicant has a child and a wife in Australia.

30. The Tribunal accepts the applicant’s ongoing claim that he has a child and a wife in Sri Lanka. The Tribunal is satisfied that the Direction refers to the best interest of the child under the age of 18 in Australia and the applicant’s son is in Sri Lanka. Therefore, the consideration is not relevant.

    The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

31. For the reasons outlined earlier, the Tribunal is not satisfied that the applicant has a wife and child in Australia. In relation to the impact on the family unit in Sri Lanka, the Tribunal is not satisfied that there is impact on the family unit to mean that the visa should not be cancelled. It may be arguable that the applicant’s family in Sri Lanka would benefit from his presence in Sri Lanka.

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

32. In the course of the hearing, the applicant gave evidence that because of his detention, he has been unable to access his accounts with the ANZ Bank and the Commonwealth Bank. He also stated that he has been unable to get personal items from his former residence. He said in case he would be deported, he needs time to organise his affairs. He requested the Tribunal to direct the Department and other responsible authority to allow the applicant to access his bank accounts. The Tribunal indicated to the applicant that the Tribunal does not have any such authority.  Although it is plausible, that the applicant has encountered difficulties with the banks and in accessing his personal items, the Tribunal is not satisfied that this would amount to a degree of hardship to mean that the visa should not be cancelled.

33. The Tribunal has accepted that the applicant suffers from [a] disorder. In the course of the hearing, he gave evidence that prior to coming to Australia, he was diagnosed with[a mental illness].  The medical evidence he provided indicate that he suffers from [a mental] disorder. The applicant told the Tribunal that in detention he has access to his medication, nursing care and if needed psychiatric care. The Tribunal is of the view that the applicant is a vulnerable person by virtue of his clinical presentation and the Tribunal has given this aspect weight. However, the Tribunal is not satisfied that this means that the applicant faces a degree of hardship as a result of being detained to conclude that the visa should not be cancelled. On his own evidence, he has access to his medication, as well as medical and nursing care.

34. The Tribunal has considered the applicant’s circumstances very carefully and the Tribunal takes this opportunity to express its sympathy for the applicant who is a vulnerable person but on the evidence before it, the Tribunal is satisfied that if the applicant were to remain in detention, he would not suffer a degree of hardship to mean that the visa should not be cancelled.

    ·the circumstances in which the ground for cancellation arose;

35. The applicant has accepted that he has been charged with the following offences:

    a.[Criminal Offence 1]

    b.[Criminal Offence 2]

    c.[Criminal Offence 3]

36. The applicant’s visa was cancelled on the basis of the fact that he has been charged. In response to the notice of intention to consider cancellation, the delegate’s decision record notes that the applicant indicated that he had never done anything in Sri Lanka.

37. In the course of the hearing, the applicant gave evidence that he was working for a real estate agent who took out an AVO against the applicant but he did not know about the order. He stated that the real estate agent had owed him money and he was not paying his wages.

38. In accordance with s.359AA, the Tribunal advised that MRT Decision Record Number [XXXXX XX] indicates that on 9 December 2014, the applicant was charged by NSW Police with two counts of [criminal offences]. The applicant stated that those charges were later dismissed. The Tribunal has decided to give the applicant the benefit of the doubt and accepts on the evidence that the charges in 2014 were dismissed. The Tribunal therefore has not taken those previous charges into consideration in concluding that the visa should be cancelled.

39. The Tribunal appreciates the significant principle in our justice system, namely, the presumption of innocence. The Tribunal acknowledges that the applicant has been granted bail but the grant of bail is a different process to that of the cancellation of the visa. The cancellation regime in this instance enables a decision-maker to cancel a visa, after consideration of relevant matters including those referred to in Direction Number 63. It is clear that charges alone without conviction could mean that a visa can be cancelled.

40. The Tribunal has considered the circumstances that led to the cancellation of the visa and in consideration of the evidence as a whole, the Tribunal is satisfied that the circumstances, do not mean that the visa should not be cancelled.

    ·the possible consequences of cancellation;

41. Cancellation of the applicant’s bridging visa means that he could remain in detention until other arrangements are made, including but not limited to, the outcome of the criminal proceedings. He could encounter difficulties in obtaining any further Australian visas. The Tribunal is satisfied that those are lawful consequences of the legislation and in his case, they do not mean that the visa should not be cancelled.

42. The applicant has advanced an argument that he does not wish to be in detention essentially because he cannot access his bank accounts or personal belongings.  The Tribunal is of the view that personal preferences or desires need to be considered contextually, taking into account the other considerations as contemplated by Direction No.63.

    ·Any other matter considered relevant.

43. The information before the Tribunal indicates that the applicant has made [other] claims. In accordance with s.359AA, the Tribunal referred the delegate’s decision record dated 12 January 2018, concerning the refusal of the application for a [permanent] visa (Folios 43-54). The Tribunal indicated that the refusal decision concludes that the applicant is not a person in respect of whom Australia has [visa]obligations.  The Tribunal notes that the applicant has lodged a review with the Tribunal which is yet to be determined. However, unless the Tribunal reaches different conclusions, the delegate’s decision dated 12 January 2018 remains in force. 

44. The Tribunal is satisfied that the consideration of the applicant’s [claims] would be part of the review process which would further consider whether he has a well-founded fear of persecution, or whether there is a real chance or a real risk of the applicant facing serious or significant harm if he were to return to Sri Lanka.  On the evidence before it, the Tribunal is not satisfied that any obligations, [would] be breached as a result of the cancellation.

45. The Tribunal has carefully considered the applicant’s independent and cumulative circumstances including his explanations as outlined above. However and on balance, the Tribunal is not satisfied that those circumstances outweigh the other considerations of Direction No.63, or that they mean that the visa should not be cancelled. The Tribunal is satisfied that the charges are serious because they involve allegations of violence against another person.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Antoinette Younes

   
   Senior Member