1814079 (Migration)

[2018] AATA 2101

1814079 (Migration) [2018] AATA 2101 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814079

MEMBER:Denis Dragovic

DATE:25 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 25 May 2018 at 3:39pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General)) visa – Serious criminal charges – Detailed police reports – Anonymous dob-in letters – Unable to verify information – Limited mitigating circumstances – Partner withdrawn family violence charges – Partner believes she is pregnant – Decision under review affirmed

LEGISLATION
Migration Regulations 1994, ss 116, 359AA, 375A, 499
Migration Regulations 1994 r 2.43

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 15 May 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).

2. The delegate cancelled the visa under s.116((1)(g) Reg 2.43(1)(p)(ii) on the basis that the applicant was charged on two separate occasions; (1) on 23 January 2018 he was involved in a traffic related incident from which six charges under the Road Safety Act were issued and (2) on 12 March 2018 he was involved in a series of incidents with his fiancé from which the following charges were made: wilful damage/injure property, criminal damage, possess cannabis, possess controlled weapon without excuse, false imprisonment, unlawful assault, recklessly case injury, threat to inflict serious injury and threat to destroy/damage property. 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 23 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [employer] and [fiancé]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant submitted a psychologist’s report from 2016. He is no longer meeting with a psychologist upon his own choice. He was not taking any medication during the lead up to the hearing nor on the day of the hearing. I find that the applicant was able to present his evidence based upon his clarity of thought and lucid explanations.

5. Submissions that were received and considered by the Tribunal on the day of the hearing:

   a.Letter of reference from [the] applicant’s employer, in which he writes that the applicant is hard working, organised and reliable. He also appeared in person and provided the same evidence.

   b.Second statement provided to Police by [the] applicant’s fiancé, in which she provides alternative explanations for the events which led to the charges against the applicant

6. Procedurally, when receiving evidence from the applicant I had asked the witnesses to leave the room and then I heard from each of the witnesses with the applicant out of the room before putting any adverse information to the applicant.

7. 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

8. 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(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?

9. 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.

10. At the hearing I put to the applicant that the cancellation of his visa was made under s.116(1)(g) regulation2.43(p)(ii) which states, ‘has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country’. I asked him whether there is any reason for me to believe that the grounds for cancellation have not been made. The applicant admitted that he had been charged.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in 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

12. 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.

13. 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.

14. 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.

15. 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 circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The best interest of a child

16. The applicant’s fiancé believes that she is pregnant. She has missed a period and is ‘dry reaching’. They have not as yet confirmed her pregnancy. The applicant said that he sees his role as being a supportive father. Due to the indeterminacy of the pregnancy, the child not yet being born and the applicant being able to re-apply for a bridging visa in the future if and when his circumstances change but recognizing the child even unborn will benefit from his presence in the form of support he can give its mother I give little weight against the cancellation of the visa.

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

17. The applicant has stated that he is alone in Australia other than his fiancé. He is worried about his wife and his unborn child. He just found a job and believes that he can get back to his job and support his fiancé if he was released now but is concerned that if he remained longer in detention he wouldn’t be able to return to work. He is concerned about his fiancé’s ability to move around when she reaches 5 or 6 months of pregnancy. He is concerned about his inability to provide for her while detained.

18. The applicant’s fiancé also provided information on how she sees his cancellation affecting their family unit. She said that she was already struggling financially and was stressed because of the circumstances.

19. In considering the impact upon the family unit I have taken a view that the time frame should be for a period of a few months for the reason that the applicant has scheduled court cases to hear his charges in May and June. Depending upon the outcome he will either be in a position to reapply for a bridging visa, at which stage the department will weigh the court’s decisions, or he will be incarcerated. Conditioned by this time frame I give this consideration limited weight against cancelling the visa for the reason that his fiancé is at the earliest stages of her pregnancy (was she at a later stage I would give it more weight for the reason of the needs of her and the unborn child).

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

20. The applicant fears that if his visa is to be cancelled he would not be able to see his child. If his wife is pregnant, bearing in mind that no medical evidence has been sought or presented, then the child won’t be born for another seven months. I give this claim little weight against cancelling the visa for the reason that as noted above I have taken a view that the time frame for this decision should be for a period of a few months.

21. Of more concern is the applicant’s health. He entered into detention just as he was apparently diagnosed with a [medical condition]. He claims to have been vomiting blood. He claims not to have received adequate medical treatment from within detention. If this is to be believed it is of great concern that the applicant would be treated in this way. Although there is no third party evidence of his ailment I accept his and his fiancé’s claims that he is suffering from a [medical condition] and requires medical treatment.

22. In considering the claims I have reviewed available reports on the expectations for the quality of services provided within detention including:

    a.Joint Select Committee on Australia’s Immigration Detention Network – Final Report (March 2012), Parliament of Australia

    b.Delivery of Health Services in Onshore Immigration Detention (September 2016), Australian National Audit Office

23. I note that the contract to provide health services requires the provider ‘to provide health services to detainees at the standard available in the general Australian community.’[1] Though, as noted in the 2012 report, there have been ‘persistent and serious concerns’ about the adequacy of the services. The extent of the health services provided to detainees includes:

    Primary health care, including nurse and general practitioner consultations, is provided at clinics located within the detention facilities. Most detainees receive prescribed medication at set medication distribution times. Mental health, dental and optical consultations are also to be provided within detention facilities. Access to external specialists, hospitals and other allied health services, is facilitated by IHMS referral arrangements.[2]

    In reviewing both reports I find that the visa holder will be able to access health support to the level that he has access to while in the community. In his specific case it appears accessing it may prove a bureaucratic nightmare that shouldn’t be the case, this is of concern and should be addressed by the Department, but as it relates to this decision it is not an insurmountable challenge, especially for someone who speaks English as the applicant does. As such I give this little weight against cancelling the visa.

    The circumstances in which the ground for cancellation arose

    [1] Joint Select Committee on Australia’s Immigration Detention Network – Final Report (March 2012) available at accessed on 16 January 2017

    [2] Australian National Audit Office, Delivery of Health Services in Onshore Immigration Detention - Summary and recommendations available at accessed on 16 January 2017

24. The Department had a s.375A certificate stating that ‘These documents have either been provided in-confidence by the [Police/AFT] to the Department or contain internal Departmental emails or working documents.’ I do not accept that internal Department emails and working documents constitute a valid public interest basis upon which to withhold the information without further information explaining why. I accept that some files would have been provided in confidence by the police/AFP. Problematically, the certificate does not list which files. Instead, in the preceding section TRIM reference numbers are listed. There is no way for the Tribunal to connect those reference numbers to what was provided. As such I have chosen to provide a limited summary to the applicant for the reason of procedural fairness in those circumstances in which his claims were contradicted by the evidence before me. When doing so I put the information to the applicant under s.359AA from the Preliminary Brief by the police of the incident on the [date] January, Preliminary Brief by the police of the incident on the [date] March and the two anonymous dob-in letters.

25. Regarding the driving offences as described in [2] the applicant admitted that he was speeding. He claimed that he was excited driving his fiancé’s new [car]. His registered speed was 132kmph in a 70kmph zone. The applicant claimed that when the police stopped him he didn’t argue with them and admitted to having being speeding. I told him that the police report says that when he was stopped he argued with the police claiming that he wasn’t driving at 130kmph. I also told him that it states that when the officer asked him for his name and address he gave another name and address. Furthermore, it is recorded that he tested positive for drugs in his blood. He responded that he didn’t argue with the police officer. As for the ID, he said that he has an international license with no picture on it, but he had a friend’s ID which he produced but not with the intent of claiming it as his own. Instead the police mistakenly assumed he was producing it for that reason. As for the drugs in his system, he said that he had smoked marijuana at a New Year’s Eve party and it still remained in his blood.

26. I note Ministerial Directive 63 which guides the decision making process states, ‘In applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be generally be given greater weight than information from other sources.’ In this instance the competing claims are so contradictory that there is no possibility of confusion either he complied, accepted responsibility and didn’t argue or he did not. Either he presented his friend’s ID as if it were his own or not. Noting the Ministerial Directive quoted above I give substantial weight in favour of cancelling the visa for the reason of the seriousness of the charges and there being no credible mitigating factors.

27. Regarding the other charges listed in [2] which occurred on the 12 March, he maintains that he hadn’t done anything wrong and will be acquitted in court. He admits that there was an argument. She was asked to make a statement, he claims and she concurred that she didn’t want to but felt compelled to and under the stress of the entire day made claims that led to the charges but she subsequently withdrew them (as per the statement she submitted to the Tribunal).

28. He recalled that it began in the morning when he had an argument with his fiancé on the balcony and a phone was broken. He gave her another of his phones and she saw messages on [a social media account] from another woman and suspected him of cheating on her. He claimed that his account had been hacked. In the afternoon he went to pick her up from her work place. While in the car they started fighting again and she was still angry with him such that she head butted the dashboard. He claims that he didn’t hit her. He claimed that he didn’t know what to do. He was scared and stressed because of the state she was in so he stopped the car when he saw the police. He claims that he got out and ran to the police and asked the police for help. I put to him that the police report records the incident as beginning with the police seeing the fiancé screaming in the car and they ‘located’ the vehicle not him approaching the police. 

29. Upon searching the car the police found a large meat cleaver for which they charged him with the possession of a controlled weapon without excuse. He explained this as being a part of his BBQ set and in his culture it is common for me to carry them with them in cars as they often BBQ together.

30. Alone in the room without the applicant, the fiancé said that she couldn’t fully remember the details of the CBD incident, but recalls that she hit her head on the dashboard, couldn’t explain why and that he stopped the car because she was having a panic attack. Her screaming caught the attention of the police who were behind them but without sirens. She said that both of them exited the car at the same time just as the police were coming to them.

31. I asked the applicant to return to the room before putting to him adverse information which I had received from the witness. I put to him under s.359AA that his fiancé had had a different recollection of the [incident] to his in which he claimed that he stopped the car when he saw the police and that he ran towards the police and his fiancé was behind him at the time. He persisted with his story while the fiancé in the room at the time added that she may have been mistaken as it was a day she was hoping to forget.

32. I have three different accounts of critical elements of the day in question. It remains in dispute as to whether the fiancé head butted the dashboard and whether the applicant stopped the car proactively or the police stopped him. That the fiancé has withdrawn her statement negates the basis of some of the charges in a court of law but leaves open in this instance issues of his and her credibility. The above referenced guidance from Ministerial Directive 63 regarding evidence from independent and authoritative sources being given greater weight applies for information that remains contradictory.

33. As such I find that the police report suggests that the circumstances surrounding this incident are of serious concern. The offences are serious offenses. As such I give substantial weight in favour of cancelling the visa for the reason the credibility of the police report, the seriousness of the charges and there being minimal mitigating factors.

    The possible consequences of cancellation

34. I have considered whether cancellation could result in indefinite detention or removal in breach of Australia’s non-refoulement obligations. At this stage the applicant does not face either as his permanent visa application, a SHEV, is still pending.

35. I have also considered the length of stay in detention. As noted above, when the charges against the applicant are determined his circumstances will have changed and he will be able to apply for a new bridging visa. It will be then that an extended period in detention becomes a possibility. But at this stage I give little weight against cancelling his visa for the reason that remaining in detention for a period of even a few months still is a deprivation of liberty.

    Any other Considerations

36. I notified the applicant under s.359AA of two anonymous dob-in letters and explained that one claimed he had been involved in the importation of drugs, people owe him millions of dollars and that he is involved in fights and threatens people. The other anonymous letter says that he had threatened to kill his fiancé’s family members. He said that he doesn’t have any money and that his fiancé even pays for lawyers. He has asked for money from his Iranian parents. Other than marijuana he claimed not to have touched any drugs. He denied being involved in any importation of drugs. Regarding the second letter, he said that he hasn’t been to his fiancé’s parents’ place. He said that he had only seen his mother-in-law twice. I give no weight to the anonymous letters for the reason that the information is not verifiable nor can I place weight on it based upon the credibility of an unknown source.

1. The applicant’s fiancé provided evidence to the Tribunal. She began by making a statement explaining that she is withdrawing the family violence charges and that it was a misunderstanding. Based upon some of the charges being dependent upon the statement of the fiancé I give this moderate weight in favour of not cancelling the applicant’s visa.

2. Considering the circumstances as a whole, in particular the seriousness of the charges and the greater weight given to independent sources of information such as the police reports while recognising the fiancé and her unborn child will be in need of the applicant and noting the fiancé’s withdrawal of some of her claims, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Denis Dragovic
   Senior Member