1810214 (Migration)

[2018] AATA 2263

1810214 (Migration) [2018] AATA 2263 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810214

MEMBER:Louise Nicholls

DATE:8 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 08 May 2018 at 2:53pm

CATCHWORDS

Migration – Cancellation –­ Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the grounds for cancellation exist – Whether the applicant has committed a criminal offence – Pending criminal charges against the applicant – Charges alone not proof of crime committed – Lack of evidence of charges provided to Tribunal – Decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 195A
Migration Regulations 1994 (Cth), r 2.25, Schedule 4, PIC 4022, Schedule 8, Conditions 8564, 8566

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. The applicant is [a particular] age and claims to be of Faili Kurdish ethnicity. He claims he was born in Iraq, expelled by Saddam Hussein about 50 years ago and since that time lived in Iran. He arrived in Australia by boat in May 2013.

2. This is an application for review of a decision dated 11 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with conditions 8564 and 8566 which were conditions attached to the bridging visa granted to him on 7 March 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who attended by conference telephone.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)(b). 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.

   Documents provided to the Tribunal

8. The applicant for review was lodged on 12 April 2018. The applicant provided a copy of the delegate’s decision record dated 11 April 2018.

9. The Department provided the Tribunal with

   ·A copy of the delegate’s decision dated 11 April 2018.

   ·A copy of compliance client interview dated 11 April 2018.

   ·A copy of the applicant’s signed Code of Behaviour 13 May 2014.

   ·A copy of the [Court 1] “Certificate of Record” setting out a history of the applicant’s appearances in relation to the charges made against him.

10. On 4 May 2018 the applicant’s representative provided very comprehensive written submissions which addressed a number of matters. He also sought an adjournment of the hearing to await the outcome of the criminal process. The submissions discussed the prejudice the applicant may suffer if he was asked questions relating to the outstanding criminal charges, made submissions on; the applicant’s background and character, the circumstances of the outstanding charge, on whether the grounds for cancellation were made out as a matter of law, the applicant’s health and the prospect of indefinite detention. He also provided

    ·A copy of medical records relating to the applicant.

    ·A translated letter from the applicant’s wife and children.

    ·A letter confirming that the applicant is a Faili Kurd, with three signatories from [a particular location in Iran].

    ·A letter attesting to the applicant’s good character from a friend dated [in] April 2018.

11. The delegate’s decision refers to a letter from the applicant’s representative and several documents provided on 14 March 2018, however, the Tribunal has not been provided with a copy of these documents.

12. The Tribunal has not been provided with a copy of the police fact sheets, the prosecution or police brief of evidence, witness statements, submissions made to the Department or any other documents which might shed light on the circumstances of the charge against the applicant.

    Background

13. The applicant is [a particular number of] years old and claims he was born in Baghdad in a Faili Kurdish family. He stated that he and other members of his family were expelled from Iraq by Saddam Hussein about 45- 50 years ago. The applicant speaks Farsi and Kurdish.

14. Faili Kurds constitute a small ethnic minority in both Iraq and Iran. DFAT reports[1] that

    2.1 Faili (also spelled Feyli) Kurds originate from the Zagros Mountains, in what is now the Kermanshah region of Iran. Many migrated to Baghdad and other areas of what is now Iraq at the beginning of the 20^th century. Generally, they are distinguished from other Kurdish groups by their religion (Shiism), location and language (see further details at ‘Demography’, below).

    2.2 In 1968 following the takeover of power by the Baath party in Iraq, the Sunni-dominated regime began to treat the predominantly Shia Faili Kurds with suspicion and hostility. Following the Islamic Revolution in Shia-dominated Iran in 1979, the Iraqi regime became increasingly hostile towards Iran and accused Faili Kurds in Iraq of supporting Iran.

    2.3 Beginning in the late 1970s, hundreds of thousands of Faili Kurds were stripped of their Iraqi citizenship and were expelled from Iraq, mostly to Iran. Estimates of the number deported range from 130,000 to 300,000. However, the exact numbers affected by this policy are difficult to verify. Many Faili Kurds’ citizenship documents were confiscated as was their property.

    [1] Department of Foreign Affairs and Trade Thematic Report Faili Kurds in Iraq and Iran 3 December 2014

15. The applicant claimed that he was [a particular] age when he moved to Iran and that he lived in a number of different locations in Iran, eventually ending up in [a particular location in Iran]. He is married with [a number of] adult children; his wife and [a number of] children live in Iran and [the remainder] are living in Australia. He claimed [a number] of his children have permanent residence in Australia.

16. He arrived in [Australia] by boat about 5 years ago and was taken to a hospital in [Australian City 1] due to his health problems. He told the Tribunal that he has applied for a protection visa, he has a representative in [Australian City 2] but he is not aware of the stage to which his application has progressed. He does not think that he has attended an interview in relation to his claims for protection.

17. Prior to being taken into detention he was living in [Australian City 3] with his daughter and son in law. They have now moved to [Australian City 2].

18. The applicant’s representative submitted that the applicant has had serious health problems and provided medical reports to support that evidence. Those reports indicate that he has cardiac health issues, hypertension, osteoarthritis, hernia, early onset dementia and a number of other conditions.

    Does the ground for cancellation exist?

    s.116(1)(b) - non-compliance with conditions

19. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa.

20. In this instance condition 8564 and condition 8566 attached to the applicant’s visa.

    ·     Condition 8564 states that the holder must not engage in criminal conduct.

    ·     Condition 8566 states that if the person to whom the visa is granted has signed a code of behaviour that is in effect for the visa, the holder must not breach the code.[2]

    [2] Note 1:    Some visas may be granted with or without an application (for example, see regulation 2.25).Note 2:    The requirement to sign a code of behaviour may be imposed by public interest criterion 4022 or in accordance with section 195A of the Act.

21. The delegate’s decision record states that the delegate was satisfied that the applicant had breached 8564 and 8566. It noted that information before the delegate was that the applicant had [in] June 2017 been charged with “indecently assaulting a person – aggravated offence” and [in] February 2018 had been charged with “engaging in sexual intercourse with a person without consent”. These charges arose out of two sets of different circumstances.

22. The delegate stated that the applicant had been charged with indecently assaulting [a minor] [in] June 2017, however, the delegate accepted the matter had not been proceeded with in [Court 1]. The delegate stated that he or she gave this information “a little weight” in the applicant’s favour given the charges did not proceed. It is not clear to the Tribunal how this was taken into account in making the decision.

23. The delegate also noted that on [a particular date in] February 2018 the applicant had been arrested, charged and remanded in criminal custody for engaging in sexual intercourse with a person without consent. [In] March 2018 he was released on home detention bail to await the outcome of the charge in [Court 1]. The applicant has agreed that this charge is still outstanding.

24. Despite the applicant’s denials that he had committed any crime, the delegate found he had been charged with the offence and as a result found that he was in breach of condition 8564 which provided that the applicant must not engage in criminal conduct. It appeared that the delegate drew an inference from the charge that the applicant therefore must have engaged in criminal conduct. However, the Tribunal considers that this inference cannot be drawn until there is evidence of a criminal conviction or other compelling evidence which leads to the conclusion that the applicant has engaged in criminal conduct, such as an admission.

25. The delegate also found that the applicant signed a Code of Behaviour on 13 May 2014 and the Code contained a list of expectations, one of which was, he must not make sexual contact with another person without that person’s consent, regardless of their age and must never make sexual contact with someone under the age of consent.

26. The delegate noted that, in the applicant’s letter of 12 March 2018, he stated he had not committed any crime. However, the delegate drew an inference from the fact that the applicant had been charged with a sexually based criminal offence that he had breached the Code of Behaviour and found that the applicant had breached condition 8566.

27. The Certificate of Record of [Court 1] shows that the applicant was initially charged with one count of “Indecently assaulting a person–aggravated offence” but that [in] March 2018 those charges were withdrawn. The outstanding charge is “Engage in sexual intercourse with a person without consent”. The applicant’s representative confirmed that this charge was still before [Court 1] and the Director of Public Prosecutions had yet to make a decision as to whether to proceed with the charge.

28. The Certificate of Record only records the charges laid, the date of various court appearances and the outcome of bail applications. There is no material which outlines the circumstances which gave rise to the charge; there are no witness statements, police fact sheets or briefs of evidence. The only material on the circumstances of the charges has been provided by the applicant.

29. The applicant agrees, and the Tribunal accepts, that the applicant is facing a charge of engaging in sexual intercourse without consent. The applicant’s representative’s submissions note that the applicant is currently facing a single criminal charge.

30. The applicant’s representative submitted that it was highly unlikely that the outstanding charge would proceed on the basis that the evidence against the applicant was very weak. He referred to exculpatory evidence provided in a statement made by a police witness and also pointed to several weaknesses in the prosecution case. These included the character of the complainant, the lack of corroborative evidence, a delay in making the complaint to police, several significant inconsistencies in the complainant’s evidence and conflict between the nature of the allegations and the implausibility of those allegations given the applicant’s poor health.

31. The applicant’s representative has submitted that the applicant’s lawyers will be making submissions to the [Australian State 1] Director of Public Prosecutions for the charge to be withdrawn.

32. The Tribunal accepts that these are matters which will be properly considered in due course in the criminal justice system of [Australian State 1]. However, in the absence of any other evidence or any admissions made by the applicant that he has been guilty of criminal conduct or conduct breaching the Code of Behaviour the Tribunal cannot be positively satisfied that the applicant has breached conditions 8564 and 8566. The charge on its own is not sufficient to support a conclusion that the applicant has breached the relevant conditions.

33. At the hearing the Tribunal noted that there did not appear to be sufficient evidence to support the grounds for cancellation set out in s.116(1)(b). However, it pointed out to the applicant that the Department may choose to cancel his bridging visa on other grounds set out in s.116 of the Act.

34. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Louise Nicholls
    Senior Member