1820362 (Migration) - [2018] AATA 4386

1820362 (Migration) [2018] AATA 4386 (22 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820362
MEMBER:John Billings
DATE:22 August 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 22 August 2018 at 12:38pm

CATCHWORDS
MIGRATION – Cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to Australian community – criminal charges – intervention orders – serious nature of allegations – false information on visa application – paternity of children – DNA testing – marital status – financial support for children – separation from children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 148, 359AA, 359A, 375A

CASES
Gong v MIBP [2016] 561
MIBP v Singh [2016] FCAFC 183
Newall v MIMA [1999] FCA 1624
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 5 July 2018 made by a delegate of the Minister for Home Affairs under s.116 of the Migration Act 1958 (the Act) to cancel the Subclass 010 (Bridging A) visa held by the [applicant].
After giving notice of intention to consider cancellation (NOICC) and receiving a response from [the applicant], the delegate cancelled the visa under s.116(1)(e) on the following basis. The delegate concluded that the presence of [the applicant] in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community, or the health or safety of an individual or individuals. The delegate’s conclusion was based on evidence that [the applicant] was charged on 19 April 2018 with certain criminal offences: see below. The delegate exercised discretion to cancel the visa.
[The applicant] applied to the Tribunal for review on 12 July 2018. He provided a copy of the primary decision to the Tribunal.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
[The applicant] appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from his friend, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Ugandan and English languages.
[The applicant] was represented in relation to the review by his registered migration agent. The representative attended the hearing.
[The applicant] is [an age] year old national of Uganda. He arrived in Australia [in] November 2016 holding a [Visitor] visa. He was accompanied by three boys identified in the application for the Visitor visa as his children. The boys are aged [age], [age] and [age] years. The boys’ mother is [Ms B]. [Ms B] is a…

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 1820362 (Migration)

Details

AGLC: 1820362 (Migration) [2018] AATA 4386
Case: [2018] AATA 4386
Decision Date: 22 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant against the Department's decision to cancel his Bridging A (Class WA) visa. The dispute arose from allegations of serious criminal conduct, including harm to children and Ms B, and the provision of false information on a visa application concerning paternity, marital status, and financial support for children. The applicant also faced issues related to intervention orders and separation from his children.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the serious nature of the allegations, the applicant's compliance with visa conditions, the potential hardship resulting from cancellation, the circumstances in which the ground for cancellation arose, and the applicant's purpose for travel and stay in Australia.

The Tribunal found that the ground for cancellation under s 116(1)(e) was established, noting the serious allegations of criminal conduct and risk of harm. In exercising its discretion, the Tribunal weighed various factors. While acknowledging the applicant's pending Protection visa application and his need to work to support children, it also considered the significant hardship cancellation could cause, including potential prolonged immigration detention. However, the Tribunal gave considerable weight to the circumstances in which the ground for cancellation arose, finding they did not weigh in the applicant's favour, particularly in light of the intervention orders made for the protection of Ms B and the children, and the applicant's admission that he did not oppose these orders.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Bridging A visa, concluding that, on the whole of the evidence and submissions, cancellation was warranted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The Department’s file includes a non-disclosure certificate given under s.375A of the Act. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The Tribunal provided a copy of the certificate to [the applicant] in July 2018 and invited submissions as to the validity of the certificate. In a written submission received by the Tribunal on 7 August [the applicant’s] representative said that “we believe this certificate to be deemed invalid”. There is no basis expressed for that belief. While there appears to be some confusion in the wording of the certificate and its reference to folio numbers, the certificate is valid, in the Tribunal’s view. In any event, the Tribunal has discharged its obligations under s.359A of the Act including in relation to material covered by the certificate. The evidence before the Tribunal includes that many serious allegations and counter-allegations have been made especially by [Ms B] and [the applicant]. The allegations against [Ms B] include that it was she who physically abused the children. Message screen shots were submitted to support that allegation. Within the body of evidence that includes the allegations, there is evidence that the Federal Circuit Court accepted that [the applicant] at least had a relationship with the children that meant he should be permitted access. There is evidence in the form of a report to the Court on behalf of the Victorian Department of Health and Human Services (“DHSS”) made in February 2018. The document refers to reports and investigations dating from September to November 2017. The report includes reference to allegations that [the applicant] harmed [Ms B] in the presence of the child and that he harmed the children. In relation to the children, the report concludes that allegations to the effect that [the applicant] had harmed them had not been substantiated. At one point the observation is made that both [Ms B] and [the applicant] were found “equally credible or not credible”. The report refers in particular to a statement by [Pastor F] made in November 2017 to the effect that he played a role in supervising access by [the applicant] to the children at a restaurant that month. [Pastor F] considered that the children were happy in [the applicant’s] company but that the eldest ran away to a police station and said he did not want to go with him or see [the applicant]. [Pastor F] “observed” that the oldest child had been “trained and coached” to do that. The Tribunal has mentioned intervention orders. A copy of an interim intervention order dated [in] September 2017 was submitted to the Tribunal. The order was ostensibly made against [the applicant], who was at court, for the protection of [Ms B] and the children. [The applicant] told the Tribunal that a final order was made subsequently, both for his protection and the protection of [Ms B] and the children. He said in effect that he did not oppose the order because he had to get back to work to support himself and did not want to remain at court.

Decision

Reasons for decision

Considering all the circumstances as far as they can be determined on the whole of the evidence before the Tribunal, and considering the submissions made on behalf of [the applicant], the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.John BillingsSenior Member

Ratio Decidendi

Legal Principle Established

For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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 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’. The Tribunal first considers the purpose of [the applicant’s] travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. [The applicant] travelled to Australia as a Visitor but he has since lodged an application for a Protection visa that has yet to be determined. This is a factor that weighs in [the applicant’s] favour. The Tribunal next considers the extent of compliance with visa conditions. The primary decision indicates that there were no conditions on the Bridging A visa. There is no material before the Tribunal to indicate that [the applicant] has not complied with conditions on any other visa. This factor has limited weight in [the applicant’s] favour. The Tribunal now considers the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by cancellation. Cancellation may mean that although [the applicant] has been granted bail he could be held in immigration detention for twelve months or more. It was submitted on his behalf that this will have been unfair if he is finally acquitted. If [the applicant] is not committed to stand trial he may not be in immigration detention for as long as that, serious as any further period of detention would be. In the meantime, [the applicant] told the Tribunal that he needs to work to support the children in Australia and the children in Uganda. The Tribunal inquired as to [the applicant’s] physical and mental health. He described his health as “perfect”, though he did say that he had received counselling while in detention: he said that he is worried about what is going to happen and he is worried about his children “back home”. In the meantime [the applicant] is separated from the children in Australia yet he told the Tribunal that he did not oppose final intervention orders that include orders made for the protection of the children. Ultimately, this is a factor that has some weight in favour of not cancelling the visa. Next the Tribunal considers the circumstances in which the ground of cancellation arose and especially whether the circumstances in which the ground for cancellation arose were beyond [the applicant’s] control. The Tribunal has considered the evidence in support of allegations that [the applicant] has committed serious offences and poses a risk of harm to persons. The Tribunal considers that the circumstances in which the ground of cancellation arose do not weigh in [the applicant’s] favour.