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police reports – Anonymous dob-in letters – Unable to verify information – Limited mitigating circumstances – Partner withdrawn family violence charges – Partner believes she is pregnant – Decision under review affirmed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

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).
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.
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.
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.
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
Procedurally, when receiving evidence…

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 1814079 (Migration)

Details

AGLC: 1814079 (Migration) [2018] AATA 2101
Case: [2018] AATA 2101
Decision Date: 25 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Bridging E (Class WE) visa held by the applicant. The dispute arose from serious criminal charges laid against the applicant, which formed the basis for the visa cancellation. The Tribunal was tasked with determining whether the cancellation was justified and whether the discretion to cancel the visa should be exercised.

The legal issues before the Tribunal included whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether the power to cancel the visa should be exercised in accordance with Direction No. 63. This Direction mandates consideration of specified primary and secondary factors, including the government's view on rigorous application of cancellation grounds, the best interests of any children under 18, the impact on the family unit, hardship to the visa holder, the circumstances of the cancellation ground, and potential consequences.

The Tribunal found that the ground for cancellation under section 116(1)(g) was satisfied. In exercising its discretion, the Tribunal applied Direction No. 63, weighing the primary considerations of government policy and the best interests of children against secondary considerations such as family impact and hardship. While the applicant's fiancé believed she might be pregnant and the applicant expressed a desire to support her and their potential child, the Tribunal gave little weight to this consideration due to the pregnancy being unconfirmed and the applicant's ability to re-apply for a bridging visa should his circumstances change. The Tribunal also noted the applicant's concern for his fiancé's well-being and his ability to provide for her, but ultimately affirmed the decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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. 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 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 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.