1810600 (Migration)

[2018] AATA 1958

1810600 (Migration) [2018] AATA 1958 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810600

MEMBER:Justin Meyer

DATE:26 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2018 at 9:12am

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether ground for cancellation exists – Criminal charges laid against applicant – Whether the visa should be cancelled – Where applicant has been found guilty of serious offences – Limited evidence of rehabilitation – Applicant poses a more than negligible risk to the community – Degree of hardship does not overcome grounds for cancellation – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 499
Migration Regulations 1994 (Cth), r 2.43(p)(ii)

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 13 April 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 information was received by the Department of home affairs from [police]. The following charges were laid:

   ·possession of drugs of dependence;

   ·stealing;

   ·driving motor vehicle on suspended license;

   ·retention of stolen goods;

   ·dishonestly obtain property by deception

3. The Tribunal does not have court or police documents before it to confirm the above charges. However the Tribunal read out the description of the charges from the delegate’s decision (which was provided to the Tribunal by the applicant) and the applicant agreed that these charges were indeed correctly described.

4. The delegate noted that the court date [in] March 2018 had been arranged which would enable assessment of a conviction. The delegate gave this information substantial weight considering the applicant to be a risk to the community.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

   S.116(1)(g) - prescribed ground

10. 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(p)(ii) is relevant.

11. This relevant provision under r.2.43 is extracted as follows:

    Grounds for cancellation of visa (Act, s 116)

    (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

12. The applicant gave oral evidence at the hearing that he had been charged with the offences as described by the delegate.

13. For these reasons the Tribunal is satisfied that the ground for cancellation under s.116(1)(g) exists. 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

14. 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.

15. 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.

16. 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.

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. 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’

    Background

18. The evidence before the Tribunal is contained in the decision record, material provided by the applicant, his representative, and in the oral evidence given at the Tribunal hearing.

19. The applicant is [a particular] age and was born in Iran. The applicant gave evidence that he came to be in in Australia as a boat arrival in 2013 with his family. His parents and other members of his family are subjects of refugee protection application made to the Department of Home Affairs in 2017. That application has not yet been decided, and the applicant did not have a clear estimate of when a decision would be made.

20. The applicant has been living in the Australian community after spending [a number of] days in detention in 2013. The applicant up until his arrest was living with his parents in [a particular Australian city].

21. The applicant studied English in Australia, did certain vocational courses and completed year 12. He has a [certificate] in [a particular field]. His desire is to have an apprenticeship.

22. The applicant gave evidence that in 2011 he was going through a difficult time in Iran, began growing his hair and wearing different clothing. He was given a hard time for this in Iran and could not go to school because of certain incidents surrounding this situation. He said that his father is a Christian in a country where everybody must be a Muslim and his father risked the prospect of jail in Iran.

23. The applicant gave evidence that he has a brother who did not make it to Australia but returned to Iran from Indonesia. His brother in Iran had difficulties with the authorities because in the words of the applicant, his car was stolen and a week or two later he made a complaint to police. In the interim his car were used in [the commission of a crime]. The applicant said that his brother in Iran was eventually released and exonerated. This is said to have occurred in the middle of 2017.

24. The applicant submitted that he and his family were very worried about his brother’s situation at this time. The applicant’s mother he states has [various medical conditions]. She had [a medical emergency] during this period and was taken to [a particular hospital] for treatment where she unfortunately had another [medical emergency]. The applicant submitted that he was very worried about his mother and that she means the world to him. He said when he saw her in a hospital bed he was lost. At the same time his other brother in Australia, [Mr A], the only source of support that he had, was going through a difficult time because his baby was born with [problems].

25. The applicant submitted that in this extreme stressful situation he was left with no emotional support and he failed to find help and support. He made poor choices which led him to end up mixing in the wrong company and being introduced to [a drug]. He said that his criminal history arose in the context of [drug] use. Expensive drugs created a habit and led to his offending, including being arrested for shoplifting. He took responsibility and pleaded guilty to the charges against him.

26. The applicant submitted that [the drug] helped him relax and cope with his emotional struggle. He became dependent upon it. His Centrelink income was insufficient to support his drug habit.

27. The applicant added that the magistrate he appeared before agreed to his request to remain in remand, to enable him to be clean from drug use. He eventually received a 12 month Community Correction Order. He has not served this order because he was placed in detention after the cancellation of his visa. The applicant stressed continually that he was remorseful for what he had done, sorry about his drug use and made promises to his family and to the Tribunal to live an honest and law-abiding life.

28. The applicant does not have any children and is not looking after any children. The applicant has a girlfriend who he met at school and the parties have been together for three years. The applicant’s girlfriend’s father died [a number of] months ago and has been experiencing a difficult time.

    Primary considerations

29. One of the prescribed primary considerations in cl.6 of the Direction is the Government's view that the prescribed grounds in r.2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework. The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously. The decision-maker must take the government's view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.

30. The other primary consideration in the Ministerial Direction refers to the best interests of children in Australia under the age of 18 years. At the Tribunal hearing the applicant stated that there were no children under 18 years who would be affected by the cancellation.

    Secondary Considerations

    Impact on the family unit

31. The applicant gave evidence that if his bridging visa was cancelled he would not be there for his family or for his girlfriend. He said that every day in detention was just another day wasted.

32. However, the applicant did not give little further detail on these circumstances and made no claim about how his girlfriend would be affected by the cancellation, other than her stress levels due to the death of her father.

    Hardship to Visa Holder

33. Immediately before he was taken into detention the applicant was in receipt of Centrelink benefits and had not been working. Thus the cancellation of his bridging visa would not result in a loss of employment or employment income.

34. The applicant claimed that he was living amongst hardened people at the detention centre which had a negative effect upon him. He also stated that he was the only young person at the centre or in his vicinity. This made him feel that he was anxious or depressed and that he was wasting every day there. I do not have expert evidence before me about his psychological state.

    Circumstances in which the ground for cancellation arose

35. At the hearing the Tribunal was told by the applicant that he pleaded guilty to the charges as earlier described. Neither he nor his representative could say for certain whether the conviction had been entered. However he stated that his time in [the remand centre] had counted towards his punishment, and that he was also on a 12 month community correction order. He stated that the magistrate dealing with his matter had expressed concern that he should be imprisoned at all. He added that the detective in his matter had assisted him to be drug-free by enabling him to enter the remand centre for a period where he could not access drugs.

36. As earlier mentioned, the applicant did not submit any documents about his charges and possible conviction, his imprisonment, or police documents and the Tribunal only has oral evidence and the description of the delegate. Nonetheless the Tribunal accepts that matters proceeded in the way described.

37. The Tribunal notes that police considered the offences were serious, the offending was intentional. The Tribunal also notes the contrition of the applicant. The Tribunal finds that the applicant showed remorse and wishes to have a productive life in Australia working in a trade assisting his brother. The applicant’s brother, [Mr A], gave evidence about how the applicant would end up working with him in his small business were he to be released.

38. The applicant’s brother also stressed that he would take the applicant to a [doctor] familiar with the Iranian community. A plan was expressed to place an implant into the applicant’s abdomen to ensure that he would be clean and clear of drugs. The applicant’s brother also stressed that in the past he had taken the applicant to an expert to assist him with his drug habit but this did not succeed. The applicant’s brother stressed that the applicant had a high IQ and was capable, had learned English well and had no such episode in his life before.

    Consequences of cancellation

39. If the applicant's bridging visa is cancelled he will remain in detention until his migration status is finalised. He will either be granted a substantive visa and released from detention; or he will depart Australia.

40. The Tribunal notes that the applicant has applied for a Protection visa in 2017 which is still under consideration.

41. The applicant states that he is not facing any more charges, which I accept.

42. The Tribunal has no information which points to how the applicant's substantive visa application will be managed by the Department.

43. However, the Tribunal is satisfied there is no prospect that the applicant will be held in indefinite detention.

    Conclusion

44. The Tribunal has given due weight to the Government's view referred to in paragraph 24 as a primary consideration. The Tribunal has had regard to the principle that the Australian government has a low tolerance to criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis and who do not hold a substantive visa.

45. The Tribunal finds that there are no children under the age of 18 years in Australia who will be affected by the cancellation.

46. The Tribunal finds that the applicant has been found guilty of serious offences.

47. Whilst the Tribunal accepts that if the applicant's bridging visa is cancelled his family will be upset because he is in detention, it also notes his family may accept that he must accept the consequences of his actions.

48. The applicant was not employed before his visa was cancelled and thus does not face the loss of employment as a result of the cancellation. It would appear that neither he nor his family will suffer a significant loss of income or lifestyle if his visa is cancelled.

49. The applicant stated that he had a girlfriend in Australia, however, there is no evidence regarding her circumstances (other than her grieving a recently lost father), or how cancellation would affect her or their relationship and the Tribunal has not taken her situation into account.

50. The applicant put to the Tribunal that he needed to be released from detention to regain his life and fit into the community as a responsible citizen. However the Tribunal is concerned that only a short period has elapsed since the drug use of the applicant and his problems with the police and the law. The Tribunal concludes that there is still some possibility that the applicant would encounter similar problems and choices were he to be released from detention at this stage.

51. The delegate remarked that he considered the applicant still to be a risk to the community. The Tribunal has a substantially similar view, and concludes that there is some possible risk to the community if the applicant were to be released back into the community at this time. The early signs from the applicant’s evidence about a changed attitude were positive. However the Tribunal cannot conclusively find at this point that there is no risk or negligible risk to the Australian community.

52. The applicant also stated that after a period on Centrelink benefits and a period of self-improvement and education which has already occurred he was proposing to work in the business of his brother and this was a reason warranting his release. This may be a laudable intention on his part, but considering his current circumstances it may be that these intentions will have to wait until his migration status is resolved.

53. The Tribunal accepts that if his visa is cancelled he faces an uncertain period of detention and that this may cause some hardship.

54. However, the Tribunal has concluded the visa should be cancelled. It has considered government's low tolerance of criminal behaviour as set out in the primary considerations, the relatively serious nature of the criminal offences with which he is charged, and the applicant's admission of guilt weigh in favour of cancellation. He will not suffer a loss of employment as a result of cancellation and the loss of Centrelink income will not have a significant impact on the applicant or his family. These factors outweigh his apparent change behaviour, the impact on his family and the uncertain period of detention which are factors which might indicate the visa should not be cancelled.

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

    DECISION

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

    Justin Meyer
    Member