1815624 (Migration) - [2018] AATA 2744

1815624 (Migration) [2018] AATA 2744 (11 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815624
MEMBER:Michael Ison
DATE:11 July 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 11 July 2018 at 4:33pm

CATCHWORDS
Migration – Cancellation – Subclass 050 (Bridging (General)) visa – Applied for a Subclass 790 (Safe Haven Enterprise (Class XE) visa – Criminal charges – Copies of criminal reports provided to the applicant – Right to privilege against self-incrimination – No prior criminal record – Cooperative with the Department – Fears potential social exclusion from ethnic community – Non-refoulement obligations – Decision under review affirmed

LEGISLATION
Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4E
Crimes Act 1958 (Vic) ss 74,320
Criminal Procedure Act 2009 (Vic) ss 28, 29 Schedule 2 cl 3.4
Migration Act 1958 (Cth), ss 65, 116, 195A, 197C, 359AA, 499, 501, 501CA

Migration Regulations 1994 (Cth) r 2.43 Schedule 1 Item 1305
Summary Offences Act 1991 (Vic) ss113, 113B
CASES
ACH15 v MIBP [2015] FCCA 1250
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288
Fattah (Migration) [2017] AATA 27872

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

[The applicant], a [age] year old citizen of Pakistan who arrived in Australia in 2013, was charged with two criminal offences on 25 May 2018 which led to his Subclass 050 (Bridging (General)) visa being cancelled and to him being detained in immigration detention that day.
For the purposes of this decision, the Tribunal will refer to [the applicant] as [Mr A]. [Mr A] has advised [Name 1] is his first name and [Name 2] is his second name only, as in the region of Pakistan where [Mr A] was born and raised surnames are not traditionally used. [Mr A] acknowledges [Name 2] has been used as his surname in his passport and other documents.
Issues before the Tribunal
The issues before the Tribunal are:
· Did the delegate of the Minister for Home Affairs have proper grounds to cancel [Mr A]’s Bridging E visa; and
· If proper grounds for cancellation existed, should [Mr A]’s visa be cancelled, noting that cancellation is discretionary and not mandatory in [Mr A]’s circumstances.
Tribunal’s decision
The Tribunal has decided that there were proper grounds for the cancellation of [Mr A]’s visa.
The Tribunal has also decided, after carefully considering the exercise of its discretion whether to cancel [Mr A]’s visa or not, that in [Mr A]’s circumstances his visa should remain cancelled for the reasons set out below.
Background
Based on [Mr A]’s evidence to the Tribunal, statutory declarations from [Mr A] dated 24 February 2017 and 15 June 2018,…

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 1815624 (Migration)

Details

AGLC: 1815624 (Migration) [2018] AATA 2744
Case: [2018] AATA 2744
Decision Date: 11 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr A against the cancellation of his Subclass 050 (Bridging (General)) visa by the Department of Home Affairs. Mr A, a maritime arrival asylum seeker from Pakistan, had applied for a Subclass 790 (Safe Haven Enterprise (Class XE)) visa. He was subsequently charged with two criminal offences, leading to the Department's decision to cancel his bridging visa. The Administrative Appeals Tribunal was required to determine whether the delegate had proper grounds to cancel the visa and, if so, whether the cancellation should be exercised in Mr A's circumstances, as the cancellation was discretionary.

The Tribunal considered several secondary considerations under Direction 63, including the impact on Mr A's family unit, the hardship he might experience, the circumstances of the alleged offences, and the potential consequences of cancellation. Mr A argued that his family in Pakistan, including his wife, young child, and elderly parents, would suffer considerable hardship if his visa remained cancelled, particularly given the difficult living conditions and high costs in Pakistan. He also raised concerns about potential social exclusion from his ethnic community and alluded to non-refoulement obligations.

The Tribunal found that proper grounds for the cancellation of Mr A's visa existed. In exercising its discretion, the Tribunal acknowledged Mr A's financial support for his family in Pakistan, though the extent of this support was not entirely clear. While Mr A's family unit was already separated, the Tribunal considered the potential hardship to his extended family. Ultimately, the Tribunal affirmed the decision to cancel Mr A's visa, concluding that in his circumstances, the visa should remain cancelled.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has also decided, after carefully considering the exercise of its discretion whether to cancel [Mr A]’s visa or not, that in [Mr A]’s circumstances his visa should remain cancelled for the reasons set out below.Background Based on [Mr A]’s evidence to the Tribunal, statutory declarations from [Mr A] dated 24 February 2017 and 15 June 2018, written submissions submitted on [Mr A]’s behalf and other documents [Mr A] provided to the Tribunal, the following is the background to the cancellation of [Mr A]’s visa. [Mr A] is a maritime arrival asylum seeker who was born in [Town 1] in Pakistan and grew up with his parents [and several siblings]. He is of Pashtun ethnicity and a Shia Muslim. He has a wife and young child in Pakistan who live with his wife’s parents. [Mr A] left Pakistan fearing persecution because he is university educated and had worked for a contractor working with [western forces] in Afghanistan for [a few] years. This led to [Mr A] receiving threats to his life from unidentified people who [Mr A] believes were members of the Pakistani Taliban and other Sunni extremist groups. [Mr A] says these threats caused him to fear for his life and that fear remains should he ever return to Pakistan. [Mr A]’s evidence is that his parents and siblings also felt at risk and left Pakistan to live in [Country 1]. [Mr A]’s representatives told the Tribunal one of [Mr A]’s brother’s lives in [Country 2] and another fled to [Country 3]. [Mr A] said his parents and most siblings have now returned to Pakistan but move house regularly and do not disclose their current address. After arriving in Australia, [Mr A] was initially held in immigration detention before being released into the community and obtaining work rights. [Mr A] applied for a Safe Haven Enterprise (Class XE)(Subclass 790) visa on 27 March 2017. His application has not been assessed and he held a Bridging E visa until it was cancelled on 25 May 2018. [Mr A]’s most recent employment has been as a [driver], working on a casual basis. He has worked as a [driver] for over a year. On 21 May 2018 it is alleged [Mr A] picked up a female passenger at her home at approximately 9.14pm (Victorian time) who instructed [Mr A] to drive to her workplace which was around 15 minutes’ drive from her home. At the end of that journey it is alleged interaction occurred between [Mr A] and the passenger that led to [Mr A] being charged with two criminal offences. [Mr A] was arrested by Victoria Police [in] May 2018 and charged with the offences. Victoria Police released [Mr A] on bail of his own undertaking to attend the Magistrates’ Court at Melbourne [in] August 2018, without any other conditions. An officer from the Department of Home Affairs (the Department), who is an authorised delegate of the Minister, attended the police station where [Mr A] was charged and served [Mr A] with a notice of intention to consider the cancellation (NOICC) of his visa. The Departmental officer allowed [Mr A] a short time to read the NOICC, interviewed him to obtain his response to the matters alleged in the NOICC and then subsequently served [Mr A] with a hand-written decision to cancel [Mr A]’s visa. [Mr A] was subsequently detained by the Department of Home Affairs and placed in immigration detention where he currently remains.The Tribunal hearing

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The issues before the Tribunal are:· Did the delegate of the Minister for Home Affairs have proper grounds to cancel [Mr A]’s Bridging E visa; and· If proper grounds for cancellation existed, should [Mr A]’s visa be cancelled, noting that cancellation is discretionary and not mandatory in [Mr A]’s circumstances.Tribunal’s decision The Tribunal has decided that there were proper grounds for the cancellation of [Mr A]’s visa. The Tribunal has also decided, after carefully considering the exercise of its discretion whether to cancel [Mr A]’s visa or not, that in [Mr A]’s circumstances his visa should remain cancelled for the reasons set out below.Background Based on [Mr A]’s evidence to the Tribunal, statutory declarations from [Mr A] dated 24 February 2017 and 15 June 2018, written submissions submitted on [Mr A]’s behalf and other documents [Mr A] provided to the Tribunal, the following is the background to the cancellation of [Mr A]’s visa. [Mr A] is a maritime arrival asylum seeker who was born in [Town 1] in Pakistan and grew up with his parents [and several siblings]. He is of Pashtun ethnicity and a Shia Muslim. He has a wife and young child in Pakistan who live with his wife’s parents. [Mr A] left Pakistan fearing persecution because he is university educated and had worked for a contractor working with [western forces] in Afghanistan for [a few] years. This led to [Mr A] receiving threats to his life from unidentified people who [Mr A] believes were members of the Pakistani Taliban and other Sunni extremist groups. [Mr A] says these threats caused him to fear for his life and that fear remains should he ever return to Pakistan. [Mr A]’s evidence is that his parents and siblings also felt at risk and left Pakistan to live in [Country 1]. [Mr A]’s representatives told the Tribunal one of [Mr A]’s brother’s lives in [Country 2] and another fled to [Country 3]. [Mr A] said his parents and most siblings have now returned to Pakistan but move house regularly and do not disclose their current address. After arriving in Australia, [Mr A] was initially held in immigration detention before being released into the community and obtaining work rights. [Mr A] applied for a Safe Haven Enterprise (Class XE)(Subclass 790) visa on 27 March 2017. His application has not been assessed and he held a Bridging E visa until it was cancelled on 25 May 2018. [Mr A]’s most recent employment has been as a [driver], working on a casual basis. He has worked as a [driver] for over a year. On 21 May 2018 it is alleged [Mr A] picked up a female passenger at her home at approximately 9.14pm (Victorian time) who instructed [Mr A] to drive to her workplace which was around 15 minutes’ drive from her home. At the end of that journey it is alleged interaction occurred between [Mr A] and the passenger that led to [Mr A] being charged with two criminal offences. [Mr A] was arrested by Victoria Police [in] May 2018 and charged with the offences.

Ratio Decidendi

Legal Principle Established

The secondary considerations under Direction 63 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 impact of a decision to cancel the visa on the family unit including whether it will result in the temporary separation of a family unit [Mr A]’s evidence, noted above, is that his family unit is already separated with his wife and son remaining in Pakistan living with his wife’s parents and that he supports them financially. In oral evidence to the Tribunal [Mr A] confirmed his financial support for his family in Pakistan. [Mr A] told the Tribunal he sent AU$1,000 to his family about 10 days before the hearing, giving the money to a friend to give to his family before [Mr A] was placed in immigration detention. At the time of the hearing [Mr A] had been in immigration detention for 21 days. [Mr A] could not recall how much or how often he sent money to his family in Pakistan but said he sometimes sends hundreds of dollars and other times thousands of dollars through a variety of means. In discussion with the Tribunal [Mr A] said depending on how much he could save he would send money monthly or every second or third month. [Mr A]’s difficulties in recalling specific dates or amounts of financial support or being confused as to when he last sent money to his family does not cause the Tribunal to doubt that [Mr A] has been financially supporting his family in Pakistan. It does mean the extent of that financial support is not clear to the Tribunal, which reduces the weight the Tribunal gives to [Mr A]’s evidence in this regard. In written submissions [Mr A]’s representatives submitted that he also supports his “other immediate family members in Pakistan”.[9] [9] Tribunal file, folio 139 (back). [Mr A] gave evidence that his parents are elderly and cannot work and in his religion and culture it is part of his responsibilities to support his parents when they are elderly. It is not obvious to the Tribunal that [Mr A]’s parents are part of his family unit in the sense intended under the Act or Regulations when [Mr A] is married and has a wife and child to support. There is no definition of family unit for this purpose in the Act or Regulations. For present purposes the Tribunal will allow [Mr A] the benefit of considering his parents to be part of his extended family unit. [Mr A] gave evidence that if his Bridging E visa was to remain cancelled and he was to remain in immigration detention that his extended family would suffer considerable hardship. [Mr A] told the Tribunal that there are a lot of problems for his family and their conditions of living are not good with food and living costs being expensive, having to travel by taxi in Pakistan being expensive and if anyone becomes sick medical treatment in Pakistan being very expensive.