1815860 (Migration)

1815860 (Migration) [2019] AATA 2171 (20 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815860
MEMBER:Michael Cooke
DATE:20 May 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 20 May 2019 at 3:57pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – no response to s 359A letter – not entitled to appear before the Tribunal – applicant in jail – unrepresented – procedural fairness – Interview conducted – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – number of crimes convicted for – severity of sentence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359C
Migration Regulations 1994 (Cth), 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 25 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) on the basis that the applicant had been convicted of offences against the laws of the State of NSW. 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 Tribunal issued an Invitation pursuant to s.359A on 21 March 2019 to the applicant’s official recipient (a Migration Agent - [Mr A]) who did not respond to the Invitation as he claimed he no longer represented the applicant (T1,ff.53-54)
The particulars of the information are:
·Information from NSW Correction Services indicates that you ([the applicant]) were convicted of 8 criminal offences and sentenced to terms of imprisonment of 6 months ending [in] August 2018. This was then followed by a further term of imprisonment of 3 years ending [in] February 2021 with a non-parole period of 2 years and 6 months ending [in] May 2020.
· The offences concerned were the following:
§ Contravene prohibition/restriction in AVO (Domestic)
§ Act with intent to influence witness -TI
§ Use carriage service to menace/harass/offend
§ Common Assault (DV) - T2
§ Assault occasioning actual bodily harm (DV) - T2
§ Contravene prohibition/restriction in AVO (Domestic)
§ Assault occasioning actual bodily harm (DV) – T2
This information is relevant to the review because it indicates that you have been convicted of offences against the laws of the State of NSW.
This information is relevant because you are the holder of a Subclass 050 (Bridging) (General)) visa.
This information is further relevant because as a result of the preceding information a prescribed ground for cancelling a visa applies to you pursuant to s.116(1)(g) of the Act.
It is further relevant information because:
‘if the Minister is satisfied that the visa holder (you) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)’
Your Bridging visa may be subject to cancellation pursuant to reg.2.43(1)(p)(i) of the Migration Regulations.
Relevantly, if we rely on all this above information in making our decision, we may find that there are grounds to affirm the cancellation of your Subclass 050 Bridging visa.
You are invited to give comments on or respond to the above information in writing.
The Tribunal became aware that the applicant’s authorised recipient had informed it that he no longer represented the applicant. However, the applicant had failed to amend his Tribunal information so as to delete his former agent as his authorised recipient. Thus his former agent was still his authorised recipient for the purposes of a s.359A Invitation and despite the cessation of their professional relationship. The Tribunal was obliged to forward the s.359A Invitation to the agent as his authorised recipient.
The agent did not respond to the Invitation per se but reiterated in response that he no longer represented the applicant. As there was no response to the Invitation - pursuant to s.359C of the Act – the applicant lost his right to a hearing.
Thus the applicant was in jail and it appeared probable that he had never have seen either the Invitation or its contents. The Tribunal located him in the appropriate correctional facility and a copy was sent to him. He did not respond to the Invitation. Naturally he had no agent to explain the Invitation to him as he was unrepresented.
The Tribunal thought it appropriate under the circumstances to extend him a measure of procedural fairness by conducting an Interview with him so as to explore his visa situation directly for the purposes of conducting a de novo review of his visa cancellation.
The applicant appeared before the Tribunal in an Interview on 15 April 2019 to answer questions and present arguments.
The applicant is not represented in relation to the review.
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
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
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(p)(i) is relevant.
The applicant had argued to the delegate that he had not been convicted. He had arguments with his wife as she suspected him of being unfaithful to her. However, he claimed that this was untrue. He claimed the charges in 2007 and 2010 only resulted in good behaviour bonds for 12 months. He had a year of incarceration to go and he did not face any further charges. He said nothing really happened and his partner kept apologizing. He had still kept in contact with his partner when they were married. His wife had “lost it” and the Police came and he was charged and had issues with an AVO. She (his wife presumably) came to his house. The police said he should have called them. There was no such thing as justice. He still loved her and helped her financially. The date for his appeal was July 12 2019.
The applicant in the Interview attempted to argue that he saw a chance for an appeal of his case. The judge was very biased against him. There was video footage but no pictures. He argued that the whole scenario had evolved from his wife’s jealousy over a former girlfriend. The whole thing became confused due to her misunderstanding of the friendship he had with the former girlfriend. He admitted his stupidity in maintaining his friendship with the former girlfriend and that he had been the cause of the problem.
As can be seen from the s.359A information the applicant has been incarcerated for a raft of criminal convictions. The Tribunal is, therefore, satisfied that certain grounds specified in that provision (s.116(1)(g) are made out.
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 visa should be cancelled.
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’.
Consideration of relevant primary and secondary considerations, and any other relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:
·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant indicated that he came to Australia initially to study in 2010 but financial hardship led to him discontinuing his studies. He later married and was sponsored for a Partner visa by his wife. However, it appears his application was s.48 barred and found invalid. He also applied for a Protection visa but this was refused. He subsequently applied for review of the refusal but this was affirmed. The applicant’s time in Australia has been spent largely on Bridging E visas. The Tribunal is not satisfied from the evidence before it that the visa holder has a compelling need to travel to or remain in Australia. The Tribunal gives this consideration no weight in favour of the applicant.
·the extent of compliance with visa conditions
There is no evidence that the applicant has breached any visa conditions attached to his Bridging E visas issued initially in 2010 and 2011. The Tribunal gives this consideration some positive weight in favour of the applicant.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant stated that he supported his family overseas. He does not have any savings overseas or in Australia. He said he still supports his wife in Australia though this would be difficult now that he has been sent to jail. He has a sister living in Australia. The Tribunal gives this consideration some weight in favour of the applicant.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The cancellation is being considered because of events which led from a married relationship breakdown to violent consequences for the sponsor and jail for the applicant. The applicant’s relationship has broken down as a result of family violence perpetrated by him according to the Courts. The applicant’s violent behaviour has a led him to be convicted of a considerable number of criminal offences related to family violence and his married relationship has ended. The circumstances in which the ground for cancellation arose were not beyond the visa holder’s control
The Tribunal gives this consideration maximum weight in favour of cancellation.
·past and present behaviour of the visa holder towards the Department
The applicant has been co-operative with the Department. The Tribunal gives this consideration some positive weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
Not applicable
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Cancellation would result in the visa holder being unlawful and liable to detention. At present he is incarcerated and will remain in jail for a further 12 months. At the completion of his time in prison the applicant would be further detained if his visa were cancelled. The Tribunal gives this consideration no weight in favour of the applicant. The applicant would be prevented by s.48 from making a further Partner application onshore. The Tribunal gives this consideration no weight in favour of the applicant.
·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a Mauritian citizen and the Tribunal is satisfied that no international obligations including non-refoulement would be breached were his visa to be cancelled. The applicant does not have any children. The Tribunal gives this consideration no weight in favour of the applicant.
·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties
Not applicable
·any other relevant matters
In mitigation the applicant has insisted that the entire marital breakdown circumstance was a product of his stupidity in pursuing a friendship with a former girlfriend. When his wife found out she became incensed. This set off the train of events that led to his charging for various family violence crimes. He said that it was all a misunderstanding derived from her jealousy. The Police had mishandled the circumstances. He was appealing the sentence because he had been the victim of injustice.
The Tribunal has considered the responses the applicant gave in the Interview but when this information is weighed against the severity of his sentence and the raft of crimes he was convicted for - the Tribunal gives this consideration no favourable weight.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Michael Cooke
Senior Member

[2019] AATA 2171

20 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice