1816261 (Migration)

[2018] AATA 5844

1816261 (Migration) [2018] AATA 5844 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816261

MEMBER:Denis Dragovic

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 22 October 2018 at 11:09am

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – visa granted in contravention of the Act – granted in error and without legal basis – need for Australia to uphold its laws – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 46, 48, 116, 140
Migration Regulations 1994, r 2.07, Schedule 1, item 1303(3), cl 820.211(2)(d), Schedule 3

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 31 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(f) on the basis that the applicant’s Bridging Visa C was granted in contravention of the Act. 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 24 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. 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

5. 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)(f). 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?

6. A visa may be cancelled under s.116(1)(f) if the Minister is satisfied that the visa should not have been granted because the application for it, or its grant, was in contravention of the Act or of another law of the Commonwealth.

7. The Department has identified the granting of the applicant’s Bridging Visa to have been in error. For completeness I have included below a timeline of the applicant’s visa applications and the current cancellation:

Date	Type of Process
11 July 2017	Application for a protection visa
13 July 2017	Grant of a Bridging Visa 030
19 December 2017	Refusal of protection visa
21 December 2017	Bridging Visa 030 ceased
21 December 2017	New Bridging Visa 030 granted for 28 days to allow for the lodgement of a review
23 January 2018	Bridging Visa 030 ceased
23 February 2018	Bridging Visa 030 granted - This is the visa under consideration
31 May 2018	Cancellation of the visa under consideration
26 June 2018	Granting of a Bridging Visa 050 with no cease date

1. Section 46(3) of the Migration Act states that the regulations may prescribe criteria that must be satisfied for a visa application to be valid. Regulation 2.07 (1)(c) references Schedule 1 for other matters relating to the application. Item 1303(3) in Schedule 1 of the Migration Regulations states the following:

   (c)  Either:

   (i)  the applicant has made a valid application for a substantive visa that has not been finally determined; or

   (ii)  both of the following apply:

   (A)  application has been made, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application, and the judicial proceedings (including proceedings on appeal, if any) have not been completed;

   (B)  the applicant held a Bridging C (Class WC) visa granted on the basis of the applicant’s substantive visa application.

2. In considering Item 1303 I note that the applicant’s substantive visa application, being the protection visa application, had been refused on 19 December 2017. Following the refusal according to s.5(9) of the Act the applicant had a further period to seek review before the visa was finally determined. This period ended on 23 January 2018. As such the applicant did not meet the requirement in Item 1303(3)(c)(i) as her visa application has been finally determined. She did not seek judicial review and as such Item 1303(3)(c)(ii) was not met. As the requirements in Item 1303 were not fulfilled the applicant could not have been granted the Bridging Visa 030 legally.

3. I explained to the applicant in detail why her visa was cancelled. I enquired if she had received her Notice of Intention to Consider Cancellation (NOICC) her visa. She responded that she had. The NOICC was sent to the applicant on the 17 May 2018. She did not reply to the grounds for cancellation nor at the Tribunal hearing did she have an argument to present for why the grounds have not been made out.

4. Considering that the Migration Regulations require the applicant to have either a substantive visa application or a judicial review, neither of which apply to the applicant, I find that there are grounds for cancellation.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(f) 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

6. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has 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’.

7. The applicant travelled to Australia for what she claimed at the Tribunal hearing to be for reasons of fearing domestic violence. She first raised this claim on 31 May 2018 in her response to the Notice of Intention to Consider Cancellation (NOICC) of her visa currently under consideration. She explained to the Tribunal that her protection visa application had only listed political issues because another person had filled out the forms and she wasn’t sure what was written. She said that she had told the friend, [Ms A], who had written it that she was afraid of domestic violence. She signed the form but she claimed not to know what was written. I asked why she signed a form which she didn’t know what was written on it. She said that she read the application form, she was very scared and didn’t want to be illegal so she just signed the form and hoped that she would get a protection visa.

8. She explained to the Tribunal that when her husband was angry he would bite her. In a submission to the Department in response to the NOICC she said that she was once severely beaten. She claimed in that submission that she had sought support from the government but hadn’t received any because they favour Muslims.

9. She has  [children], [a number] live in ‘North Borneo’ where her ex-husband continues to reside and [a number] in Kuala Lumpur. I asked her why she didn’t move to Kuala Lumpur with her  [other] children to which she responded that she didn’t really like it there and she had previously sought work there but hadn’t been able to find any. She also said that she can’t get help from the government because they only help Muslims. I said to her that she had earlier mentioned that she feared her husband to which she added that she fears moving to Kuala Lumpur because she is afraid that her ex-husband will find her. I put to her that it appeared that she was adding this claim and that it wasn’t the real reason that she hadn’t stayed in Kuala Lumper. She responded that she didn’t want to tell people about her past and that is why she hadn’t told the Tribunal.

10. I do not accept that the applicant did not know what was written in her application form as she had provided the necessary biographical details which are correct but only the claims were inconsistent according to the applicant. In addition her responses to why she hadn’t remained in Kuala Lumpur reflected a disliking of the place along with a lack of job opportunity and only after prompting did she add that she feared her husband would find her. I find her claims to be concocted for the purpose of remaining in Australia. If she had genuinely feared returning to Malaysia and sought protection for reasons of domestic violence then she could have had her friend, who the applicant said had prepared the application, write the actual reason rather than have made up an alternative story of political claims. Furthermore, she would have responded in detail to why she feared remaining in Kuala Lumpur in response to my questions.

11. I accept that she doesn’t like Kuala Lumpur and would find it hard to find work there. I did not accept her claims of domestic violence. Noting that the applicant had an opportunity to present her claims and that her protection visa was considered by the Department and she was found not to be owed protection I give little weight against cancelling the visa when considering the purpose of her travel and stay in Australia.

12. There is no information before me that indicates that the applicant had any visa breaches nor that her past and present behaviour towards the Department has been adverse, a matter for which I give little weight against cancelling her visa for the reason that it is a bare minimum expectation for visa holders.

13. The applicant claimed that she will suffer hardship if she is required to return to Malaysia. The Department received a letter from her [Child] who lives in Kuala Lumpur explaining why he would not be able to support her. Similarly another letter was received from her [other child] in Kota Kinabalu explaining that she would be unable to support her mother. She said that she has a partner, [Mr B], a [age] year old Australian, and that they have been together for two years. At the time of the hearing he was overseas. I asked if he knew that her visa was being cancelled prior to departing Australia. She said that he did. I proceeded to call her partner, [Mr B], whose contact details had been provided as a witness.

14. Mr [B] said that she would make a terrific Australian. He said that she wants to work, is honest and had been a hard worker previously in [Country 2]. She said that they had lived together for six months and that she wouldn’t require any medical assistance. He added that he is fond of her. While I acknowledge a separation from her partner will cause hardship to both I note that they can apply for a partner visa for her either while she remains on-shore (pending she meets Schedule 3 compelling circumstances) or was she to be removed when she is off-shore.

15. The applicant also explained that she has had health issues and had provided medical evidence. I noted to her that these amounted to outpatient appointments and I put to her that they weren’t serious. She agreed that they weren’t.

16. I accept that returning to Malaysia will be difficult; the applicant will need to find work and a place to live. I also accept that it is likely she will not be allowed to apply for an on-shore partner visa and as such physical separation will lead to emotional and psychological hardship but I give little weight to the medical claims for the reason that they are minor and have been treated. Overall I give moderate weight against cancelling the visa when considering the level of hardship that she and her partner will face.

17. In considering the circumstances in which the cancellation arose I note that it was not the applicant’s fault but I do note that it was granted in error and without a legal basis. I place considerable weight upon the need for Australia to uphold its laws and when having breached them to rectify the error while giving the aggrieved person due process. This is being achieved through the cancellation process and now appeals process to this Tribunal. That there is a discretionary element to this process ensures that any adverse impact upon the applicant is considered. Despite the error not being the applicant’s fault I note that no commitments have been claimed to have been made as a result of the error and so no unexpected burden arises. She has in effect benefitted from the error by remaining with her partner longer. When considered overall, I give considerable weight in favour of cancelling the visa as it is important that the law is applied correctly.

18. I note that there are no consequential cancellations under s.140 and that she will be subject to s.48 of the Act which limits the applicant’s ability to apply for further visas while she remains on-shore. This section of the Act allows for the applicant to apply for an on-shore Temporary Partner (Class UK) visa, though, as discussed above she would need to meet cl.820.211(2)(d) which refers to Schedule 3. Furthermore, she is also bared under s.48A from making a further application for a protection visa. Cancellation will not lead to her becoming an unlawful non-citizen as she currently has another valid Bridging Visa (BE-050) granted 26 June 2018. Nor will she face indefinite detention for the same reason. Overall, I give these facts little weight against cancellation as they present a challenge in that she will have to navigate the bureaucratic processes to apply for future visas but they reflect the intended consequences of legislation with no unexpected consequences to the applicant that haven’t been considered earlier.  

19. I have also considered whether there are international obligations which would be breached. Was this visa to be cancelled the applicant has another Bridging Visa with which she will remain in Australia as such the cancellation of this visa does not trigger any refoulement concerns.

20. The applicant submitted a letter of support from [an agency] which noted that she had been volunteering and was valued for her contributions and would be an asset to any employer and the Australian community. I note that this appeal is for the purposes of a Bridging Visa cancellation and not for a substantive visa that would give her the right to work or become a permanent resident. Nevertheless, I give this evidence little weight against cancelling the visa for the reason that it goes towards her good character.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Denis Dragovic
    Senior Member