1821402 (Migration)

[2019] AATA 3327

1821402 (Migration) [2019] AATA 3327 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821402

MEMBER:Rachel Westaway

DATE:18 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 July 2019 at 5:41pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of offences – unlawful non-citizen for significant period – s.375A Certificate valid – disputes details of incident that led to conviction – custody of niece – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189, 359A, 375A, 376
Migration Regulations 1994 (Cth), rr 2.12, 2.43; Schedule 4, Public Interest Criterion 4013

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 18 July 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)(g) on the basis that a prescribed ground for cancelling the visa applies to the holder. 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 20 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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.

   Background

7. [The applicant] came to Australia as the holder of a visitor visa subclass 676 [in] September 2008. His visa ceased [in] March 2009 and he became unlawful. On 8 February 2017 [the applicant] applied for a protection visa however the first application was considered invalid so he applied again. He was granted a bridging visa C in relation to this application. [The applicant] explained to the Tribunal that his protection visa application has not been assessed yet.

8. On 15 June 2018 the Department received information that [the applicant] had been charged and convicted [in] May 2018 with threat to damage property and unlawful assault and was fined an aggregate of $1500.

9. As a consequence of this, [the applicant] was sent a Notice of Intention to Consider Cancellation and he responded to this on 27 June 2018. The delegate decided to cancel the visa.

10. As a result [the applicant]’s bridging visa was cancelled and he applied for review of the decision to the Administrative Appeals Tribunal.

    Certificates and 359(A)

11. The Tribunal noted that the Department also issued certificates under s.375A of the Act on 26 July 2018 in relation to third party information, the disclosure of which would result in a breach of privacy.

12. The Department also issued a certificate under s.375A of the Act in relation to third party information, the disclosure of which would result in a breach of privacy.

13. The Tribunal provided [the applicant] with a copy of the s.375A Certificate on 26 July 2018 and explained that the Tribunal found it to be valid but not relevant to the review because the information pertained to other people not relevant to the issues at hand. [The applicant] was invited to comment on the validity of the certificate which he acknowledged but had no comment on.

14. Post hearing the Tribunal received another certificate dated 24 April 2019. This certificate was issued under s.376 of the Act. On 24 June 2019 the Tribunal sent a copy of the certificate to the applicant inviting the applicant to comment on the validity of the certificate. The Tribunal found the certificate valid. The Tribunal summarised the information for the applicant and put it to the applicant under s.359(A) of the Act as a reason or part of the reason for affirming the decision and invited the applicant to comment. The Tribunal explained why the information was relevant to the review.

15. The applicant responded on 8 July 2019 and sent a statutory declaration to the Tribunal. He denied [specified details of the criminal charges] and stated he did not make threats to kill or destroy property.  He acknowledged he lived in Australia without a visa and explained that he was not aware of his options but has since been granted a bridging visa C and has been meeting the conditions on this.  He also declared he has not worked in Australia and is currently not working.

    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(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

16. In applying for review of the decision to cancel the applicant’s bridging visa, the applicant supplied the Tribunal with a copy of the delegate’s decision. Detailed within the decision and confirmed by the applicant was information indicating the applicant was convicted of threatening to damage property and unlawful assault [in] May 2018 in [named] Court.

17. The Tribunal notes that the applicant disagreed that the grounds for cancellation exist, however it is a matter of fact that the applicant was charged and subsequently convicted and in his response to the Notice of Intention to Consider Cancelling he outlined the issues around the conviction but did not address the issue of the actual conviction.

18. The Tribunal explained the grounds for cancellation and explained the process of the review indicating that cancellation is not mandatory and that the Tribunal has discretion.

19. The applicant was asked if he understood why his visa was cancelled and he said that there was a dispute between his girlfriend and it led to a charge and conviction.

20. At hearing, the applicant accepted that the ground for cancellation was made out and confirmed the conviction

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists.

22. 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

23. 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 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

24. [The applicant] confirmed to the Tribunal that he comes from India and he has been in Australia since 2009. He explained that he previously visited Australia in the same year and came for two months. He explained the situation was bad in India and he came to Australia with the primary purpose of obtaining protection and arrived on a visitor visa. He confirmed he has [a brother, Mr A,] in Australia and that [Mr A] is offshore at present. [Another relative] lives in Sydney with her children.

25. [The applicant] was asked if there was any specific reason why he must remain in Australia. He confirmed that he fears returning to India. He said Australia is a good country.

26. The Tribunal has considered the applicant’s concerns pertaining to his return to India and his protection visa application. The Tribunal accepts that [the applicant] sought protection in Australia by applying for a protection visa. The assessment of this visa will be addressed as a separate matter and the outcome of that assessment will provide [the applicant] with protection if it is deemed that he meets the criteria and he will still be provided with an opportunity to remain in Australia until at least his protection visa application is finalised. As such, the Tribunal gives no weight to this in favour of the applicant.

    circumstances in which ground of cancellation arose.

27. The visa holder has provided the following information with his response to his NOICC:

    He was in a long term relationship with [Ms B] and the two parties had worked hard together to obtain custody of ‘[Ms C] from DHS’. [Ms C] is the applicant’s niece. She is approximately [age]. He does not have custody of her. She is with [Ms B]. He separated from her after the dispute.

    The two parties argued about what TV channel to watch and this led to a minor fight.

    The visa holder states because he did not have permission to work he was sitting at home and this led to anxiety and depression. He states [Ms B] had enough of supporting him with food and rent and this led to a build-up of tension.

    [Ms B] claimed the visa holder assaulted her and the visa holder was subsequently charged with Unlawful Assault and Threat to Damage Property.

    While the visa holder acknowledges he was charged with these offences, he states he was treated unfairly by Victoria Police. The visa holder states due to his ‘lack of communication skills’ he was ‘unable to provide them with exact information’. The visa holder states that while [Ms B] claimed the red marks around her [Body Part 1] were due to his assault, it was actually caused by the child [Ms C] holding her [Body Part 1].

    The visa holder states ‘photographs taken by Police reflected nothing other than their pre assumption that I am an offender because I am male’.

    The visa holder states he was told by [Ms B] that he must accept responsibility for the incident or she would lose custody of [Ms C] to ‘DHS’. The visa holder states if [Ms C] was taken back by ‘DHS’ she would likely be placed in Foster Care. The visa holder states [Ms C]’s mother was raised in foster care and ‘lost track of her life and her life is absolute mess and she has been in and out of jail’.

    As the visa holder did not wish for this to happen to the child he ‘sacrificed his own dignity and took everything on himself and accepted the charges’.

28. The visa holder acknowledges he has received a conviction. He said he did not want to waste court time or police time but the mark on his partner’s [Body Part 1] was due to holding the child and not from him. He said that [Ms B] had custody of [Ms C] however he did everything. He bathed her and fed her. He stated that [Ms B] is a [Country 1] citizen. She had depression and her ex-husband took all of her property. He stated he did not do anything and she got angry. He acknowledged he yelled. The Tribunal places no weight on the circumstances as outlined by the applicant in favour of not cancelling the visa. The circumstances were not beyond his control and whilst he may have been motivated by the custody issues pertaining to [Ms C], the applicant is expected to deal honestly with the police as he does with the Department.

29. The court told him to do the anger management course and he has done this. He supplied the Tribunal with a copy of the ten course programme he undertook.

30. He explained in his response to the NOICC that in India males can shout at their female partners and get away with this and he was use to a different culture and he has never been charged with an offence in the past and it will not happen again. He stated it was an isolated incident

31. [The applicant] explained that [Ms C] is the child of his brother who was in Australia and is currently out of the country. [Ms C]’s mother is in prison. [The applicant] explained that he loved [Ms C] and was concerned for her safety. He explained that he was in a stable relationship with [Ms B] and they took custody of [Ms C] when her father left and she had no parents. He explained that [Ms B] was given the custody of [Ms C]. The Tribunal asked why this was not shared custody and why [the applicant] wasn’t given custody given he was the blood relative and he was unable to provide a reason.

32. He explained that he did everything for [Ms C] and explained that because he loved her and the police were investigating the complaint by [Ms B] he took the blame because he was worried that [Ms B] would lose custody of [Ms C] if the police charged [Ms B] then DHS (Department of Human Services) will take [Ms C] away.

33. He said that there is an active intervention order in place which prevents him from seeing [Ms B] and consequently he cannot see [Ms C].

34. The Tribunal accepts that the cancellation arose out of an altercation between [the applicant] and his former partner and that he claims he took the blame in order to ensure [Ms B] does not loose custody of [Ms C]. Whilst the Tribunal has considered [the applicant]’s account of the events which lead to the conviction it accepts that the police conduct thorough investigations based on the evidence before them and that the evidence was found to be sound and [the applicant] guilty. Whilst the [applicant] may have lied to the police it is not for the Tribunal to revisit the events and a police investigation and charges and consequently a conviction was made and the Tribunal places weight on these facts.  The Tribunal does not consider the events to be beyond the applicant’s control in spite of what the motivation may have been.

35. The Tribunal has also considered the allegation that was put to the applicant stating he [details deleted] and made threats to kill and destroy property. Whilst the Tribunal acknowledges that the applicant has provided a statutory declaration stating he did restrain his partner but did not make threats to kill and destroy property, the Tribunal considers restraining someone against their will to be serious and does not give weight to the applicant’s declaration given the matter has been investigated by law police and the matter heard in court and the applicant convicted.

36. Furthermore the Tribunal has concerns about the applicant’s credibility and consequently the credibility of his explanations given he remained unlawful in Australia from 26 March 2009 until 8 February 2017. Whilst the applicant has explained he did not know options available to him, the Tribunal does not accept that it took nearly eight years for the applicant to determine his migration options.

37. Considering the circumstances and seriousness of the conviction, the concerns pertaining to the credibility of the applicant’s explanation and his time spent unlawfully in Australia, the Tribunal gives no weight in favour of the applicant.

    the extent of compliance with visa conditions

38. The Tribunal discussed the applicant’s significant period of unlawfulness and he explained that he was not aware of rules and had limited English. He confirmed that he was in Australia for approximately 5-6 years without a valid visa. He said that he went to Sydney to see a lawyer and he was told something that he did not understand. He said it was because of his lack of English.

39. The Tribunal gives no weight to the applicant’s excuse that his English was limited and he didn’t understand. The applicant had sufficient time to enquire or he could have asked family members. As such the Tribunal places significant weight in favour of cancelling the visa on the bases that [the applicant] overstayed his visa by a substantial period of time.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40. The Tribunal asked the applicant what he would do if the visa was cancelled and what the consequences of this might be to him and his family.

41. He stated that he misses [Ms C]. He said he has been to the Department of Human Services but they are not helping him. He said that [Ms B] won’t let him see the child.

42. He was asked if there are any other factors the Tribunal could consider. He said he is like her mother and father. He claims when he lived with her he did everything and the last time he saw her it was at a Sikh temple.

43. He said that [Ms C]’s father sees the child but her mother does not.

44. The Tribunal accepts that [the applicant] has an attachment to his niece [Ms C] and that a cancellation of his bridging visa may limit his ability to seek out opportunities to see [Ms C]. However, [the applicant] has confirmed that he has not seen [Ms C] for a significant period of time as [Ms B] will not allow this and she has custody. He has also explained that DHS has also refused to assist him in seeing [Ms C]. Whilst the Tribunal accepts a cancellation would be disappointing, for [the applicant] it would have limited effect on his current situation and ability to see [Ms C]. Furthermore [the applicant] has a protection visa application waiting to be assessed and this would enable [the applicant] to remain in Australia until which time a decision is made. Therefore, the Tribunal gives only some weight in favour of the applicant and not cancelling the visa based on the limited hardship it is likely to cause. 

    past and present behaviour of the visa holder towards the department

45. [The applicant] has had limited engagement with the Department when it would be expected that he would and should have engaged far earlier than he did. Following the expiry of his visitor visa, he remained in the community for approximately eight years.

46. Whilst he has explained that he was unaware and his English was limited, the Tribunal does not accept this as a reasonable explanation for not seeking help and contacting the Department earlier. His behaviour is indicative of a disregard for the Department and Australian migration laws. There was nothing beyond his control which could explain this significant period of unlawfulness and disregard for the Department and it role and as such the Tribunal gives this no weight in his favour.

    whether there would be consequential cancellations under s.140

47. There are no other people who would have their visas cancelled should the applicant’s visa be cancelled. The Tribunal gives this no consideration.

    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

48. If [the applicant]’s bridging visa C is cancelled, he will be subject to a section 48 of the Act which will prevent him from applying for visas except those prescribed under r2.12(1). The Tribunal notes that [the applicant] has already applied for a protection visa, so the outcome of this will need to be considered. [The applicant] has not submitted any evidence that he would like to apply for any other visa.

49. [The applicant] may also be subject to an exclusion period by reason of Public Interest Criterion 4013 under schedule 4 of the Regulations. [The applicant] falls within the scope of subclause 4013(2) because his visa was cancelled under s 116 of the [Act]. Public Interest Criterion 4013 is an eligibility requirement applicable to all relevant temporary visas that the applicant may seek to apply for to return to Australia, such as a further Student or Visitor (Class FA)(Subclass 600) visa. This means that any temporary visa application lodged by [the applicant] within three years of the cancellation will be refused unless the conditions for waiver under the criterion are found to be satisfied and the criterion is waived.

1. [The applicant] may also be subject to detention under s.189 of the Act.

2. [The applicant] can apply for a bridging visa E as he has a pending protection application and this will enable him to remain in Australia until his application is finalised.

3. The Tribunal has considered the legal consequences of a cancellation of [the applicant]’s bridging visa. These consequences are the intended consequences of such a cancellation and considering the seriousness of the breach, the Tribunal gives these 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

4. [The applicant] has lodged an application for protection which has yet to be finalised. As such his claims will be assessed through this process. The Tribunal gives this no consideration.

   any other relevant matters

5. [The applicant] has argued that if his visa is cancelled, his ability to access [Ms C] and/or fight for access to [Ms C] will be limited and [Ms C] is his niece and blood relative. [The applicant] claims the Department of Human Services has stolen [Ms C] away from him and given her to [Ms B]. For the benefit of [Ms C], he took the blame for [Ms B] but he didn’t realise that she would stay with her. The applicant was asked if he ever had custody of [Ms C] and he said that [Ms B] was clever and kept his name off the custody but really he should have been on it. [Ms B] provoked him.

6. [The applicant] explained that he was unlawful at the time [Ms C] needed custody so he was not put on the application. He claims that he went two to three times to DHS with an appointment to try and see [Ms C] and he was unable to.

7. [The applicant]’s representative explained that [Ms C]’s father was on a bridging [visa] and wanted to make [another visa] application. He returned to India to make an offshore application. He is not permitted to see [Ms C].

8. The Tribunal has considered the applicant’s closeness to [Ms C] and his desire to have access to her, however, [the applicant] does not have custody of [Ms C] and he has confirmed himself that he has not seen her for a significant period of time.

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

   DECISION

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

    Rachel Westaway
    Senior Member