1808326 (Migration) - [2018] AATA 5302

1808326 (Migration) [2018] AATA 5302 (29 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1808326
MEMBER:Michael Ison
DATE:29 November 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 29 November 2018 at 1:13pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with a criminal offence – consideration of discretion – nature of offence being charged – also serving an eight month sentence of imprisonment – impact on family unit – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.43
CASES
ACH15 v MIBP [2015] FCCA 1250
Hasran v MIAC [2010] FCAFC 40
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

This is an application for review of a decision dated 20 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa (Bridging E visa) under s.116 of the Migration Act 1958 (the Act).
The applicant [is] a [age] year old Sri Lankan national. [The applicant] also uses the name of [Alias 1].
The delegate cancelled the visa under s.116(1)(g) and r.2.43(1)(p)(ii) on the basis that on 18 March 2018 [the applicant] was charged with a number of criminal offences arising from allegations of a domestic violence related assault. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
[The applicant] applied to the Tribunal to review the cancellation of his Bridging E visa on 26 March 2018, providing a copy of the Notice of Intention to Consider Cancellation of a visa (NOICC) and the Decision to cancel his visa, both dated 20 March 2018, at the time of lodging his application for review.
I received [the applicant]’s application for review as the Presiding Member on 28 August 2018.
The Tribunal received a copy of the Department’s file in relation to the cancellation of [the applicant]’s Bridging E visa. The Department’s file included a copy of the four criminal charges filed against [the applicant] (under the name [Alias 1]) on 18 March 2018 and an accompanying undated two page Preliminary Brief – Statement Made by Informant (Preliminary Brief).[1]
[1] Department file, folios 8 to 10.
On 21 May 2018 a delegate of the Minister issued a certificate under s.375A of the Act certifying that it was not in the public interest that the Preliminary Brief be disclosed to anyone other than the Tribunal as it contains personal information that may be harmful to a third party.[2]
[2] Department file, folio 38.
On 29 August 2018, the informant, a sworn police…

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 1808326 (Migration)

Details

AGLC: 1808326 (Migration) [2018] AATA 5302
Case: [2018] AATA 5302
Decision Date: 29 November 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Bridging E visa. The applicant had been charged with multiple criminal offences, including an alleged assault on their then-partner who was pregnant at the time of the incident. The applicant was also serving an eight-month sentence of imprisonment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 was made out, and if so, whether the applicant's Bridging E visa should be cancelled. This involved considering the prescribed grounds for cancellation and exercising discretion in accordance with Direction No. 63.

The Tribunal found that the applicant had been charged with multiple criminal offences, satisfying the prescribed ground for cancellation. In exercising its discretion, the Tribunal applied Direction No. 63, which mandates consideration of the government's view that prescribed grounds for cancellation should be applied rigorously and the best interests of any children under 18 affected by the cancellation. While the Tribunal acknowledged the potential impact on a child if the applicant were the biological father, it noted a lack of definitive information regarding the child's birth and the applicant's paternity. The Tribunal also considered the seriousness of the alleged criminal behaviour and the government's low tolerance for criminal conduct by non-citizens on temporary visas.

The Tribunal affirmed the decision to cancel the applicant's Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant]’s Bridging E visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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) that the Minister is satisfied a prescribed ground for cancellation exists. Under r.2.43(1)(p)(ii) a prescribed ground includes being charged with a criminal offence. 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?s.116(1)(g) - prescribed ground A visa may be cancelled under s.116(1)(g) if the Minister 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. It provides:(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 the following: …(p) in the case of the holder of a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa — that the Minister is satisfied that the holder: …(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or The information before the Tribunal is that [the applicant] was charged with four criminal offences on 18 March 2018. The Tribunal has also received information from Victoria Police that on 28 August 2018 [the applicant] was charged with a further five criminal offences in a matter unrelated to the matter that led to the criminal charges dated 18 March 2018 being filed. There is no information before the Tribunal to indicate that any of those criminal charges have or may be withdrawn. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(p)(ii) exists. 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 In considering whether a Bridging E visa should be cancelled 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.

Decision

Reasons for decision

The remaining discretionary considerations under PAM3 of hardship to [the applicant], mandatory legal consequences, Australia’s international legal obligations and any other relevant matters have been addressed under the Direction 63 secondary considerations above. Conclusion

Ratio Decidendi

Legal Principle Established

The primary and secondary considerations set out in Direction 63 are established in the context of guiding principles, set out in clauses 4.2 and 4.3 of Direction 63. Those guiding principles include:4.2(1) The Government is committed to ensuring that non-citizens given the privilege of living in the Australian community on Bridging E visas behave in a manner that is in accordance with Australian laws and which respects Australia’s community values and standards of democracy, multiculturalism, respect, inclusion, cohesion, tolerance, and cooperation. The principles below are of critical importance in furthering that objective.4.3(3) The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.4.3(5) … [W]here Bridging E visa holders are charged with the commission of a criminal offence or otherwise suspected of engaging in criminal behaviour or being a security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.4.3(6) The person’s individual circumstances, including the seriousness of the actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.Consideration of discretion – primary considerations In considering the cancellation of [the applicant]’s Bridging E visa the Tribunal has kept in mind the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should result in every instance of non-compliance being considered for cancellation and has also kept in mind the guiding principles set out by the Government. The Preliminary Brief states the victim of [the applicant]’s alleged assault that led to the criminal charges dated 18 March 2018 was [the applicant]’s then partner who was “5 – 6 months pregnant” at the time. The Tribunal has no information before it to confirm that pregnancy or to indicate whether the alleged pregnancy of [the applicant]’s then partner culminated in the successful birth of a [child] or whether [the applicant] is, or is not, the biological father of that child if it has been born. If [the applicant]’s then partner has successfully given birth by now and [the applicant] is the biological father of that child then [the applicant] has a child under the age of 18 in Australia. The Tribunal is of the view, based on the information before it, that the ongoing cancellation of [the applicant]’s Bridging E visa would affect that child. Direction 63 provides guidance as to how decision makers should assess this consideration:6.2(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of any children under 18, who would be affected by the decision.a. In considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a bridging E visa under the prescribed grounds in regulation 2.43(1)(p) or (q) does not necessarily represent a final resolution of a person’s immigration status in Australia.[20][20] Direction 63, paragraph 6.2, page 4.