1822068 (Migration)

1822068 (Migration) [2018] AATA 4086 (24 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1822068
MEMBER:Michael Ison
DATE:24 August 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 24 August 2018 at 11:02am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – whether the applicant has been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 417, 499
Migration Regulations 1994 (Cth), r 2.43(1)(p)(i)
CASES
ACH15 v MIBP [2015] FCCA 1250
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 30 July 2018 made by a delegate of the Minister for Home Affairs protection to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is [Mr A] who is [a] Lebanese national.
The delegate cancelled [Mr A]’s visa under s.116(1)(g) and r.2.43(1)(p)(i)) on the basis that [Mr A] was convicted, in his absence, of terrorism offences in Lebanon in 2014.
Issues before the Tribunal
The issues before the Tribunal are:
·whether grounds exist to cancel [Mr A]’s visa; and
·if so, whether the discretion to cancel [Mr A]’s visa should be exercised.
Tribunal’s decision
The Tribunal has decided that there were 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 the cancellation of his visa should be affirmed.
Background
The Tribunal accepts the following as the background to [Mr A]’s application before the Tribunal, based on the evidence of [Mr A], his brother [Mr B] and the documents [Mr A] or the Department provided to the Tribunal.
[Mr A] first came to Australia [in] June 2005 on a [temporary] visa that was valid to [July] 2005, which is when [Mr A] departed Australia.
[Mr A] then returned to Australia [in] May 2010 on another [temporary] visa that was valid to [August] 2010.
On 31 May 2010 [Mr A] applied for a protection visa which was refused by a delegate of the Minister on 24 May 2011. [Mr A] sought review of that refusal by the Refugee Review Tribunal, as it was then known, which on 30 August 2011 affirmed the delegate’s decision.
On 4 October 2011 [Mr A] sought review of the Tribunal’s decision by the Federal Magistrates’ Court, as it was then known. [In] June 2012 the Court dismissed [Mr A]’s application for judicial review.
On 27 July 2012 [Mr A] made a request for Ministerial intervention under s.417 of the Act. The Minister declined to act, confirming this to [Mr A] on 22 January 2013.
Due to changes made to the Act which came into force in March 2012, [Mr A] was able to make an application for complementary protection, despite the rejection of his claim to being a refugee. On 15 November 2012 [Mr A] made such a claim.
On 18 May 2015 a delegate of the Minister rejected [Mr A]’s claim for complementary protection. On 20 May 2015 [Mr A] appealed that decision to this Tribunal.
On 20 July 2018 this Tribunal, differently constituted, rejected [Mr A]’s claim for complementary protection. [Mr A] has appealed that decision to the Federal Circuit Court and provided the Tribunal with documents confirming this.[1]
[1] Tribunal file, folios 110 to 113.
On 30 July 2018 [Mr A] attended an office of the Department at the request of the Department, allegedly because the Department wanted to explain the rejection of his application for complementary protection by the Tribunal. The delegate of the Minister [Mr A] met with allegedly did not explain the Tribunal’s complementary protection decision but instead, at 4.05pm served [Mr A] with a Notice of Intention to Consider Cancellation of a visa (NOICC).
[Mr A] was given 20 minutes to read the NOICC, which was written in English.
At 4.25pm on the same day the delegate interviewed [Mr A] to obtain his responses to the allegations in the NOICC.
At 5.33pm on the same day the delegate handed [Mr A] a handwritten decision cancelling his Bridging E visa on the ground in s.116(1)(g) and r.2.43(1)(p)(i) that he had been convicted of offences in Lebanon in 2014.
[Mr A] was then placed in immigration detention that same day, being [a particular date in] July 2018.
On 31 July 2018 [Mr A] applied to the Tribunal to review the cancellation of his Bridging E visa. [Mr A] provided the Tribunal with a copy of the NOICC and the decision to cancel his visa as well as a copy of the Tribunal’s 20 July 2018 decision rejecting his application for a protection visa on complementary protection grounds.
The Tribunal hearing
[Mr A] appeared before the Tribunal on 3 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his brother, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
[Mr A] was represented in relation to this review by his registered migration agent, [Mr C] of [a company]. [Mr C] participated in the Tribunal hearing by telephone.
For the following reasons, the Tribunal has concluded that the decision to cancel [Mr A]’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if the Minister 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) and r.2.43(1)(p)(i). 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?
Section 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(1)(p)(i) is relevant. That is that the Bridging E visa holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.
As noted above, [Mr A] provided the Tribunal with a copy of the delegate’s decision to cancel his Bridging E visa. In that decision the delegate found:
Information received by the Department from the Administrative Appeals Tribunal (The Tribunal) states that the visa holder has been convicted of terrorist charges in Lebanon.
The AAT (sic) provided the Department with a full English translated copy of the 2014 court decision of the visa holder’s conviction on Terrorism offences.
The AAT sought to have the 2014 court document formally verified. Accordingly, the AAT accepted that the 2014 court document is genuine.
The visa holder during interview stated that he had been convicted of terrorist charges in 2014 in absentee, 5 years after he fled Lebanon as he feared for his life from the Lebanese intelligence.
Therefore it appears the grounds exist for the consideration of the visa cancellation under s116(1)(g) and Reg. 2.43(1)(p)(i) of the Migration Act 1958.[2]
[2] Tribunal file, folio 95.
It is not contested that [Mr A] was convicted, in his absence, of terrorism offences in Lebanon by the Lebanese [Court] on [a particular date in] 2014. The offences included conspiring against State national security and the selling of arms. [Mr A] was sentenced to the death penalty in his absence.
[Mr C] conceded that there were grounds under s.116(1)(g) and r.2.43(1)(p)(i) to cancel [Mr A]’s Bridging E visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(p)(i) 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, in summary:
·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.
Direction 63 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.[3]
[3] Direction 63, cl.5.1.
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’, which provides that the following considerations are relevant to any exercise of the power under s.116 to cancel a visa:
·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 extent of compliance with visa conditions;
·degree of hardship that may be caused (financial, psychological, emotional or other hardship);
·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;
·past and present behaviour of the visa holder towards the Department;
·whether there would be consequential cancellations under s.140;
·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;
·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;
·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties; and
·any other relevant matters.
Consideration of discretion – guiding principles
The primary and secondary considerations set out in Direction 63 are established in the context of guiding principles, set out in clauses 4.2 and 4.3 of Direction 63. Those guiding principles include:
4.2(1) The Government is committed to ensuring that non-citizens given the privilege of living in the Australian community on Bridging E visas behave in a manner that is in accordance with Australian laws and which respects Australia’s community values and standards of democracy, multiculturalism, respect, inclusion, cohesion, tolerance, and cooperation. The principles below are of critical importance in furthering that objective.
4.3(3) The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.
4.3(5) … [W]here Bridging E visa holders are charged with the commission of a criminal offence or otherwise suspected of engaging in criminal behaviour or being a security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
4.3(6) The person’s individual circumstances, including the seriousness of the actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
Consideration of discretion – primary considerations
The primary considerations under Direction 63 referred to above are set out in clause 6.1(1) of the Direction:
a. the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework; and
b. the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The rigour referred to in clause 6(1)a has been found to mean rigour in relation to whether to enter into consideration of cancelling the visa and not that the discretion to cancel should be exercised rigorously.[4] The Tribunal therefore:
… must take [the Government’s] view as part of the matters to be weighed rather than simply to follow the view.[5]
[4] ACH15 v MIBP [2015] FCCA 1250 at [28]-[31].
[5] ACH15 v MIBP [2015] FCCA 1250 at [33].
In considering the discretionary considerations below I have kept in mind the relevant principles set out by the Government and have had regard to the Government’s view.
The best interests of any children under the age of 18 in Australia
The other primary consideration in the Direction refers to the best interests of children in Australia under the age of 18 years.
[Mr A] told the Tribunal he is not married and does not have any children. This consideration is neutral and neither weighs in support of, or weighs against, the cancellation of [Mr A]’s Bridging E visa.
Consideration of discretion – secondary considerations
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] told the Tribunal he lives with his [mother]. [Mr B] told the Tribunal there are [a number of] siblings from their family in Australia, all of whom apart from [Mr A] are [Australian citizens]. [Mr B]’s evidence is their mother is not an Australian citizen and came to Australia in 2012 on a [temporary visa] and subsequently applied for a protection visa, which has not finally been determined. They also have [a number of] sisters in Lebanon who are all married.
There is a threshold issue of the relevant family unit in [Mr A]’s circumstances. Most commonly the family unit of the applicant is a parent with children. In this case [Mr A]’s family unit, which is his mother and siblings, consists entirely of adults and all of those adults have family units of their own.
[Mr A] says he is the primary carer for his mother with some assistance from [Mr B] and their sister in Australia. He told the Tribunal his mother has [specified medical conditions] and has not been sleeping well since [Mr A] has been detained.
The Tribunal was not provided with any documents confirming these medical conditions. I give the evidence about [Mr A]’s mother’s medical conditions limited weight given the absence of evidence before the Tribunal confirming her medical history, conditions, treatment and prognosis.
[Mr A] is concerned his mother may stop eating and taking her medication. He is concerned she may soon become an insulin dependent diabetic. The Tribunal gives this evidence little weight as it is speculative.
For reasons not evident to the Tribunal [Mr A] says he has only told his mother, [Mr B] and his sister in Australia that he is in immigration detention. His remaining brothers and their families do not know of his detention and they have been told he is in Sydney.
[Mr B] told the Tribunal if [Mr A] remains in immigration detention he will need to move in with his mother to care for her which may lead to his separation and even potential divorce from his wife with whom he has three [minor children].
When the Tribunal questioned [Mr A] and [Mr B] about the support and assistance their mother receives from their other siblings they both responded that their brothers are married with children and have their own lives to lead and do not help care for their mother. [Mr B] told the Tribunal their sister in Australia sometimes takes their mother to medical appointments but apart from this their other siblings do not visit [Mr A] and their mother’s house and their mother is living on her own whilst [Mr A] remains in detention.
[Mr B] said if [Mr A] is released from immigration detention then [Mr B] will be able to remain living with his own family and see his children.
The Tribunal gives the evidence of the impact of cancellation on [Mr A]’s mother and brother [Mr B] moderate weight only. In relation to [Mr A]’s mother she is relatively young, there is no independent evidence of her medical conditions before the Tribunal or of her care needs in general. The Tribunal accepts [Mr A]’s mother is diabetic, but the evidence before the Tribunal is that condition is managed by their mother taking a tablet twice a day and through her diet.
On the evidence before the Tribunal, [Mr A]’s mother does not seem to have significant care needs, certainly not to the extent that [Mr B] would need to, as compared to choose to, move in with his mother to care for her. The Tribunal also does not accept that [Mr B] would be separated from his wife and children or that divorce would be a natural and reasonable consequence of the ongoing detention of his brother given [Mr B] and his family live in the same suburb as [Mr A] and their mother.
[Mr B] also told the Tribunal in these circumstances he does not think [Mr A]’s detention will have any impact on their other siblings. The Tribunal accepts this evidence.
[Mr B] became very upset at times during the hearing when giving evidence about his brother’s situation. The Tribunal finds that the ongoing cancellation of [Mr A]’s visa will cause emotional and psychological hardship to [Mr B] and to their mother.
The Tribunal finds that the impact of the cancellation of [Mr A]’s visa on his birth family weighs against the cancellation of the visa, but for the reasons above gives this only moderate weight.
The degree of hardship that may be experienced by the visa holder if the visa is cancelled
[Mr A] gave evidence that he was imprisoned in Lebanon without charge for two years from 2007. He told the Tribunal being detained in immigration detention has reminded him of his imprisonment and he has found it hard to sleep in detention and is very tired.

[Mr A]’s evidence to the Tribunal is that a doctor or nurse at the immigration detention centre took a sample of his blood for his diabetes and he has had an injection the day before the hearing but he was not sure what the injection was for and could not recall when the blood test occurred. He told the Tribunal he has not taken any medication for the past year, including for his non-insulin dependent diabetes, preferring instead to exercise at the gym.
[Mr A] says he has not seen a counsellor since he has been in detention and his mother and brother [Mr B] were allegedly told by detention centre staff they could not visit [Mr A] for the first five days of his detention. [Mr A] has his mobile telephone with him in immigration detention and is using that to stay in touch with his mother and brother. He told the Tribunal he feels very isolated in immigration detention.
[Mr B] told the Tribunal that he feels his brother is really oppressed because he has been in Australia for eight years and has not ever done anything unlawful but has now been placed in immigration detention. He says the charges against his brother in Lebanon are incorrect and he alleges their family were treated very poorly by Lebanese authorities.
[Mr B] said his brother is stressed and depressed and he offered to guarantee that his brother will not do anything wrong in Australia, including by posting a financial surety for him. He also said that [Mr A] had strong support in the community and he could get 3,000 people to give evidence his brother is a good man.
[Mr A] provided the Tribunal with a copy of a six page report dated [in] January 2018 from [Counselling Service 1], a counselling service operated by [a particular non-governmental organisation] ([Counselling Service 1] report).[6] The report states [Mr A] attended for counselling from November 2010 to early 2012 and then self-referred from June 2016 with the counsellor who wrote the report having seen [Mr A] 16 times from October 2016. The report states:
[6] Tribunal file, folios 32 to 34.
Medical and psychiatric History
[Mr A] has been a patient of [a particular doctor], from [a particular healthcare provider] located in [a particular suburb] since July 2015. [Mr A] reported that he had been taking antidepressant medication… From August 2015 until December 2016, but that he stopped taking it since he felt that he was becoming addicted to the medication. He also described experiencing side effects including drowsiness, weight gain and insomnia. He said that he was a diabetic and had high blood pressure in the past, and that he had taken medication for these conditions, but that these conditions had since improved.
…
Summary
[Mr A] presents as being affected physically and psychologically by the traumatic events he reports experiencing, including imprisonment, torture and an attempt on his life. These reported experiences have also impaired his ability to relate to people and to associate freely with others in the community. He finds it difficult to trust others and he exhibits strong self-isolating tendencies.
[Mr A] has consistently displayed anxiety, depressive and post-traumatic stress symptoms whilst engaged with [Counselling Service 1]. In addition, he has continued to express a strong subjective fear of return to Lebanon. In my opinion, [Mr A]’s psychological presentation is consistent with his reported trauma history.[7]
[7] Tribunal file at folio 33 and 32 (back).
The report was helpful to the Tribunal as the counsellor who wrote it has seen [Mr A] 16 times in the 15 months to January 2018 when the report was written. This means the counsellor was well placed to observe [Mr A]’s behaviour and demeanour and any changes in those over time. The Tribunal notes that the counsellor is not a medical practitioner but did have access to a 2010 report on [Mr A] from a clinical psychologist.
It is apparent to the Tribunal that [Mr A] is experiencing some hardship in immigration detention and that this hardship is exacerbated by the mental health illnesses that [Mr A]’s counsellor has observed and reported on above. This is a significant consideration for the Tribunal.
The Tribunal also accepts [Mr A]’s evidence, the evidence of his brother [Mr B] and the submissions of [Mr A]’s migration agent that [Mr A] has now been living in Australia for eight years without any adverse dealings with police or the Department. The Tribunal accepts that this reflects positively on [Mr A]’s ability to live in the Australian community and has also created a sense of unfairness for [Mr A] which is adding to the hardship he is experiencing by being placed in immigration detention as a result of the cancellation of his visa by the delegate.
Having found the degree of hardship [Mr A] is experiencing is exacerbated by his particular circumstances, the Tribunal notes that [Mr A]’s visa was cancelled in accordance with the migration law and his detention is in accordance with and an intended outcome of the migration law. [Mr A]’s migration agent made submissions to the contrary but the Tribunal deals with those submissions below under the ‘Any Other Matters’ consideration.
The Tribunal finds that this consideration weighs against the cancellation of [Mr A]’s visa. The Tribunal was able to give this consideration only moderate weight because the evidence before the Tribunal is that [Mr A] has chosen not to take medication for his alleged past trauma or his current medical conditions. [Mr A] will have some access to doctors, medication and counselling support in immigration detention, which may assist to moderate some of the hardship [Mr A] is experiencing if he chooses to access those services.
The circumstances in which the ground for cancellation arose: whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
[Mr A]’s evidence is that on [a particular date in] 2007 he sold [a particular item] to a person who was later arrested by Lebanese Intelligence on terrorism charges, as an alleged member of Fatah al-Islam. [Mr A] said the purchaser did not pay him in full and when he pursued the purchaser for the balance of the purchase payment he was implicated with the purchaser and similarly accused of terrorism by Lebanese Intelligence which resulted in [Mr A] being imprisoned without charge for two years from 2007 to 2009.
[Mr A] alleges he was tortured in prison and forced to say things that were not true. He was released from prison in [2009] and came to Australia [a number of] months later in May 2010 and applied for a protection visa as he fears he will be harmed or killed if forced to return to Lebanon.
In 2014, while [Mr A] was in Australia, the [court in] Lebanon convicted [Mr A] of terrorism charges in his absence and allegedly would not let his Lebanese lawyer appear on his behalf. He was sentenced to death, although in the Tribunal’s decision on [Mr A]’s protection visa application, which [Mr A] provided to the Tribunal, it is noted that there is a moratorium on the death penalty in Lebanon where a prisoner sentenced to death has not been executed for 14 years.[8]
[8] Tribunal file, folio 81.
[Mr A] told the Tribunal that after he was released from prison in 2009 and before coming to Australia a member of the Lebanese Intelligence services tried to assassinate him outside his apartment in [2009]. [Mr A] alleges he arrived home by car at [a particular time of day] and was entering his apartment block building when a member of the Lebanese Intelligence services, who he recognised and spoke to by name, ran up behind him and shot him in [a particular part of the body]. The man [Mr A] alleges shot him he says he learned whilst in prison had a brother killed in a battle between the Lebanese National Army and an organisation [Mr A] described as a terrorist organisation, Fatah al-Islam.
[Mr A] told the Tribunal he managed to get to [his apartment], that he was sharing with his mother and sister, and rang the police who he alleges did not take his call seriously. [Mr A] told the Tribunal he then rang his brother in law and then rang a friend who is a doctor, who thought [Mr A] was ringing to cancel a dinner they were to have together the next evening.
[Mr A] told the Tribunal his doctor friend came and [covered the wound] and took him to a nearby hospital, with his brother in law following them to hospital, where [Mr A] stayed for [a number of] days.
[Mr A] gave evidence that he only found out about his conviction in Lebanon when a brother in law telephoned him and told him it was on Lebanon news on TV. [Mr A] contacted his solicitor in Lebanon who sent a copy of the decision with his sister when she came to Australia. [Mr A] says he then spoke to his migration agent who advised the court decision needed to be translated into English.
[Mr A] says he does not have any association with Fatah al-Islam, the convictions are incorrect, his evidence the court relied on was obtained by the Lebanese Intelligence services torturing him when he was detained in prison without charge and all he did was sell [a particular item], for which he was not paid in full.
The Tribunal did not find [Mr A] to be a particularly convincing witness in relation to this evidence and other key evidence such as the care needs of his mother (referred to earlier). For example, it seemed unlikely to the Tribunal that [Mr A]’s conversation with his doctor friend, allegedly occurring [at a particular time of day] in circumstances where [Mr A] was shot and bleeding, would have included a discussion about whether [Mr A] was going to cancel a dinner engagement they had.
[Mr A]’s description of the shooting appears to be inconsistent with other evidence provided by [Mr A] to the Tribunal. In his oral evidence [Mr A] mentioned only that he knew the member of the Lebanese Intelligence service who allegedly shot him by name. He did not mention to the Tribunal that he was a neighbour, let alone a trusted friend. In the [Counselling Service 1] report [Mr A] provided to the Tribunal, his counsellor noted:
[Mr A] reported that a few months after his release, there was an attempt on his life. He said that he was shot at by a neighbour, with whom he had been previously friendly. The bullet entered [a particular part of his body]. Visible scarring can be seen on [that same body part]. [Mr A] said he was hospitalised for [a number of] days and was then discharged. [Mr A] said that he was shocked that his neighbour had done this, since they had been on good terms. After this incident, he said he no longer trusted anyone except his mother. [Mr A] said that after this, he remained within his house and would leave the house usually only once or twice in a fortnight. [Mr A] spoke of the attempt on his life as a betrayal by a trusted friend and neighbour. He described that after the initial shock of being shot, he felt anger and was there after not able to trust anyone outside his family.[9]
[9] Tribunal file, folio 33 (back).
The [Counselling Service 1] report makes no mention that the person who allegedly shot [Mr A] was a member of the Lebanese Intelligence services. It mentions only that he was a trusted friend and neighbour. This seemed, at first, to be inconsistent to the Tribunal.
However, in the Tribunal’s decision on [Mr A]’s application to review the decision of a delegate to refuse to grant [Mr A] a protection visa, [Mr A] is quoted as explaining that his neighbour worked with Lebanese Intelligence services. The Tribunal accepts when viewed in this context that [Mr A]’s oral evidence is potentially not inconsistent with the [Counselling Service 1] report [Mr A] provided to the Tribunal or the evidence he provided previously to the Tribunal, differently constituted, on his protection visa review.
The omission of the detail of the alleged shooter being a friend and neighbour from [Mr A]’s oral evidence and the omission of the detail that the alleged shooter was a member of the Lebanese Intelligence services from the [Counselling Service 1] report did cause the Tribunal to doubt the credibility of [Mr A]’s evidence in this regard as the Tribunal would usually expect such key details to be consistently retold by a witness.
In his oral submissions to the Tribunal, [Mr A]’s migration agent asked the Tribunal to give significant consideration to the [Counselling Service 1] report which the Tribunal has done here and in relation to consideration of the hardship cancellation of his visa may visit upon [Mr A].
In providing the report to the Tribunal, [Mr A]’s migration agent submitted:
Our clients (sic) psychological condition has been well documented and the Department is well aware of his condition – refer to the attached report from Freedom (sic) House.[10]
[10] Tribunal file, folio 87 (back).
The Tribunal can give the report only limited weight in relation to this consideration because the counsellor largely reproduces only what [Mr A] told the counsellor are the circumstances of his trauma. The report confirms [Mr A]’s psychological presentation to the counsellor is consistent with [Mr A]’s reported trauma history but the counsellor does not verify or express an opinion about the cause or causes of that trauma stating that [Mr A] ‘presents with symptoms indicative of a person who has experienced traumatic events’.[11]
[11] Tribunal file, folio 33 (back).
[Mr A]’s migration agent also submitted in their written submission to the Tribunal:
35. The latest advice from our client’s legal representative in Lebanon, dated [in] August 2018 (refer to attached, marked with letter “C”), states that that (sic) he was placed on trial in absentia and was unable to exercise his right to defence (sic). The advice further states that the evidence placed against him was totally worthless and the ruling was a grave injustice against him. The advice goes on to make further damning assessment of the case including the use of torture to extract information from the accused, being devoid of legal representation and placed in wretched jail conditions.[12]
[12] Tribunal file, folio 86.
The Tribunal gives this evidence limited weight because [Mr A]’s Lebanese solicitor does not set out the basis on which he asserts the matters noted in his statement. [Mr A]’s solicitor does not set out, for example, how he assessed the evidence against [Mr A] as ‘totally worthless’. The statement makes very general statements about Lebanese security agencies and their practices without relating these statements back to [Mr A]’s specific circumstances.
As noted above Direction 63 provides:
5.1 how to exercise the discretion
… (5) in applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be generally be (sic) given greater weight than information from other sources.[13]
[13] Direction 63, paragraph 5.1(5).
The Tribunal has before it a court record from Lebanon, provided by [Mr A] with a certified interpretation into English, of [Mr A]’s criminal convictions in Lebanon. The Tribunal accepts the court record as genuine. Against this, the Tribunal has [Mr A]’s evidence and the evidence of his solicitor in Lebanon and counsellor in Australia. For the reasons set out above, the Tribunal did not find [Mr A]’s evidence in this regard credible or convincing and the Tribunal was only able to give limited weight to the evidence of his solicitor in Lebanon and counsellor in Australia in relation to this consideration for the reasons set out above.
The Tribunal, on the evidence before it, does not accept [Mr A]’s evidence or the submissions, both written and oral, of [Mr A]’s migration agent that the convictions recorded against [Mr A] in 2014 in Lebanon had no reasonable basis. The Tribunal acknowledges that the convictions were recorded without [Mr A] responding to the charges but there is no information before the Tribunal to indicate that criminal process was not conducted in accordance with Lebanese law.
The Tribunal therefore does not accept that there are circumstances beyond [Mr A]’s control that led to the cancellation of his visa.
This consideration weighs in favour of the cancellation of [Mr A]’s visa and the Tribunal gives this consideration great weight.
The possible consequences of cancellation, including whether cancellation could result in indefinite detention or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s migration status
[Mr A]’s migration agent provided the Tribunal with a stamped copy of an application for review filed with the Federal Circuit Court on 2 August 2018[14] seeking judicial review of the Tribunal’s decision of 20 July 2018 affirming the decision of the delegate to refuse [Mr A] a protection visa.
[14] Tribunal file, folios 110 to 113.
[Mr C], in oral submissions, acknowledged that as [Mr A]’s application for a protection visa is now subject to judicial review it remains a live matter that has not yet been determined.
In those circumstances, the Tribunal is not prepared to find that the cancellation of [Mr A]’s visa will result in either indefinite detention or occur in circumstances that may cause Australia’s non-refoulement obligations to be breached.
This consideration is neutral as it neither weighs in support of or against the cancellation of [Mr A]’s Bridging E visa.
Any other matter
[Mr A]’s migration agent submitted to the Tribunal, both orally and in writing, that as [Mr A] had lived in the Australian community without known adverse incident for eight years he is not a danger to the community and is simply a person seeking Australia’s protection in circumstances where he has been convicted of offences in absentia where he could not defend himself based on evidence obtained by torture.
In a written submission to the Tribunal dated 1 August 2018, [Mr C] wrote:
26. Our clients (sic) past conduct in Australia has demonstrated that he is compliant and is not a danger to the strength community. His cooperation with the department since his arrival in Australia has been exemplary. The Departments (sic) cancelation (sic) decision notes his exceptional cooperation. …
32. Our client does not present any danger to the Australian community. He has been residing in Australia since 2010 and has maintained a clean police record in this country.
33. There is nothing before the Tribunal or the Department which indicates that he may present as a potential danger to the Australian community.[15]
[15] Tribunal file, folios 86 and 87 (back).
During the hearing the Tribunal discussed these submissions with [Mr C] who accepted that his client’s visa had been cancelled under s.116(1)(g) and r.2.43(1)(p)(i) on the basis of a criminal conviction (in Lebanon) and had not been cancelled under s.116(1)(e) on the basis that [Mr A]’s presence 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.
[Mr C] also submitted to the Tribunal that he was bewildered as to why the Department had acted now to cancel [Mr A]’s visa when his application for a protection visa remains a live matter. According to [Mr C] the Department has known of his client’s convictions in Lebanon for a considerable time:
22. The Department of Home Affairs has been aware of [[Mr A]’s] criminal convictions in Lebanon since at least 2014, but did not cancel his associate (sic) bridging visa E until 30 July 2018 (same day the AAT decision was handed down).
23. Both the AAT and the Department were aware of the 2014 Lebanese Court conviction. However, because the matter was still pending before with (sic) AAT, it was considered a live matter and Department (sic) did not move to cancel the associated Bridging Visa E given that the claims to be determined by the AAT are directly relevant to the Lebanese court conviction. Moreover, in light of the fact that a judicial review has now been filed the Department should not have cancelled his associated Bridging visa E, as the status of the matter remains live (to be judicially determined).[16]
[16] Tribunal file, folio 87.

[Mr C]’s submission is in error in one material respect. The delegate cancelled [Mr A]’s visa on 30 July 2018 but the Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant [Mr A] a protection visa on 20 July 2018, 10 days earlier and not on the same day as [Mr C] submitted.

100. As the Tribunal discussed with [Mr C] during the hearing, once the ground under s.116(1)(g) and r.2.43(1)(p)(i) is enlivened it is a matter for the particular delegate as to whether and when they choose to exercise that power.
101. In [Mr A]’s circumstances his bridging E visa was cancelled on 30 July 2018, as noted above, 10 days after the Tribunal refused his application for a protection visa. According to documents [Mr A] provided to the Tribunal, [Mr A] lodged an application with the Federal Circuit Court to review the refusal of his protection visa application on 1 August 2018.[17]
[17] Tribunal file, folio 54 (back).
102. This means at the time the delegate cancelled [Mr A]’s Bridging E visa, being 10 days after the Tribunal refused his protection visa application, there was no application to the Federal Circuit Court on foot. Whether the Department should have waited longer before cancelling [Mr A]’s Bridging E visa is a matter that the Tribunal will not speculate on.
103. [Mr C] raised one other matter. [Mr C] wrote to the Tribunal on 3 August 2018 in the following terms:
On approximately 10am, 30 July 2018, our office received a telephone call from [Department of Home Affairs] officer, named ______, whose telephone number is 03 _________. She requested to talk to [Mr C] of this office. We advised the case officer that [Mr C] is not available. She then asked if we can pass on a message to [Mr C] to call her immediately.
[Mr C] subsequently called the case officer ______, who advised him that our client’s AAT decision has been made and that given his mental history they suggest that he attends the office of [Department of Home Affairs] in order that they can hand him the AAT decision record and ensure that he is okay and properly advised. She advised that we will be able to advise him in private and then they also wished to provide him with his options.
We thought that such action is highly irregular and telephoned our client advising him of the negative AAT outcome and the [Department of Home Affairs] request that he attends their office, given his history of mental illness. Our client attended the [Department of Home Affairs] office in (sic) the same day, in the afternoon, where he was detained and no issue about his mental history was discussed.

104. In essence, the Tribunal understands [Mr C]’s concerns to be that his client was, in the Tribunal’s words, lured to the Department’s offices for the purpose of being detained rather than for the purpose of the Department officer wanting to explain the Tribunal’s refusal of [Mr A]’s application for a protection visa in circumstances where the Departmental officer had a genuine concern for [Mr A]’s health.
105. If those allegations and the Tribunal’s understanding of them are correct then the actions of the relevant Departmental officer or officers are of concern. Such concerns do not affect the conduct of the Tribunal’s jurisdiction. The Tribunal undertakes a merits review in which all evidence and relevant information is considered by the Tribunal afresh before the Tribunal makes its own findings of fact and then applies the migration law to those facts to reach the correct or preferable decision.
106. The Department has a well-established process for dealing with such complaints and if [Mr A] or his migration agent are not satisfied with any Departmental response to a complaint then the matter can be pursued with the Commonwealth Ombudsman, whose office investigates complaints from people who believe they have been treated unfairly or unreasonably by an Australian Government agency.
Departmental policy relevant to the exercise of 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
107. [Mr A] came to Australia in 2010 to visit family and then applied for a protection visa. [Mr A]’s application for a protection visa has not been finally resolved so the Tribunal accepts he has a compelling need to remain in Australia while his claims to protection are being considered. This consideration weighs against the cancellation of [Mr A]’s visa.
The extent of compliance with visa conditions
108. The evidence of [Mr A] and his brother [Mr B] is that [Mr A] has complied with the conditions attached to his Bridging E visa, including regular reporting to the Department.
109. The delegate when cancelling [Mr A]’s visa noted:
The visa holder has been generally compliant with his visa conditions.[18]
[18] Tribunal file, folio 6.

110. The Tribunal does not know what ‘generally compliant’ in this context means. There is no information before the Tribunal to indicate that [Mr A] has been found to have breached any of his visa conditions. The Tribunal accepts [Mr A]’s evidence that he has complied with his visa conditions.
111. This consideration weighs against the cancellation of [Mr A]’s visa.
The degree of hardship that may be caused. The circumstances in which the ground of cancellation arose. Whether there are mandatory legal consequences arising from cancellation. Whether any international obligations would be breached by cancellation.
112. Each of these considerations has been considered and addressed when the Tribunal considered the primary and secondary criteria under Direction 63 above.
113. For the sake of clarity, the Tribunal does not find there are any mandatory legal consequences arising from the cancellation of [Mr A]’s visa or breach of any international agreements that Australia is bound by because [Mr A]’s immigration status has not been finally resolved. As noted above, based on documents provided to the Tribunal by [Mr A] the Tribunal’s affirmation of the decision of the delegate to refuse to grant [Mr A] a protection visa is subject to judicial review by the Federal Circuit Court.
The past and present behaviour of the visa holder towards the Department
114. [Mr A]’s evidence is that he has always been open, honest and co-operative with the Department. [Mr A] says this is most recently indicated by him voluntarily attending the Department’s offices for a meeting he thought was to discuss the Tribunal’s adverse decision in relation to his application for a protection visa, where he was handed a NOICC, interviewed, had his visa cancelled and was detained.
115. The delegate when cancelling [Mr A]’s visa noted:
The visa holder has been cooperative in his dealings with the Department, presenting when requested and lodging visa applications/appeals on time.[19]
[19] Tribunal file, folio 6 (back).

116. The Tribunal accepts this evidence and finds [Mr A] has been cooperative with the Department. This weighs against the cancellation of [Mr A]’s visa.
Whether there would be consequential cancellations under s.140
117. The information before the Tribunal is that there will not be any consequential cancellations arising from the cancellation of [Mr A]’s visa.
118. This consideration is neutral and does not weigh in support of, or against, the cancellation of [Mr A]’s visa.
If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties
119. [Mr A]’s Bridging E visa is a temporary visa.
120. This consideration is neutral and does not weigh in support of, or against, the cancellation of [Mr A]’s visa.
CONCLUSIONS
121. It is not contested that [Mr A] has been found guilty of serious criminal charges in Lebanon, including charges of terrorism. On that basis there are grounds to consider the cancellation of [Mr A]’s Bridging E visa.
122. In considering the primary and secondary discretionary considerations under Direction 63 and the discretionary considerations under Departmental policy for the cancellation of visas the Tribunal has come to the view that on balance the considerations that weigh in favour of the cancellation of [Mr A]’s visa outweigh the considerations that weigh against cancellation.
123. In accordance with one of the primary considerations under Direction 63, the Tribunal has kept in mind the Government’s view that every instance of non-compliance with r.2.43(1)(p) should be considered for cancellation, in accordance with the discretionary cancellation framework.
124. The considerations that weigh in support of cancellation are the circumstances in which cancellation arose being that [Mr A] was convicted of terrorism offences in Lebanon in 2014. While [Mr A] sought to establish the unreasonableness of those convictions the Tribunal was provided with a certified copy of a translation of the court decision into English and it was not apparent to the Tribunal based on the copy of this court decision that there was any irregularity or unlawfulness associated with the decision. The Tribunal gave this consideration great weight in the circumstances. This is consistent with paragraph 5.1 of Direction 63 which requires the Tribunal to give information and evidence from independent and authoritative sources, such as in this case from an overseas court, greater weight than information from other sources such as the written statements from [Mr A]’s counsellor in Australia and solicitor in Lebanon.
125. The considerations that weigh against cancellation are:
·Cancellation will cause emotional and psychological hardship to [Mr A]’s mother and brother [Mr B], although this is ameliorated by there being four other siblings in [Australia] and the Tribunal not accepting some of the claimed hardship to [Mr A]’s mother based on the available medical evidence and the Tribunal finding some of the hardship [Mr B] claims to be not reasonable or credible;
·Cancellation will cause [Mr A] a degree of hardship while he is detained in immigration detention, which is exacerbated by [Mr A] having lived in Australia for eight years without any adverse issue with authorities, contributing to a sense of unfairness for him. The Tribunal found that [Mr A]’s medical conditions will exacerbate the hardship he is experiencing in immigration detention, but the weight the Tribunal gave this consideration overall was reduced because of [Mr A]’s choice not to take medication that may assist the management of those conditions;
·Under the Department’s policy in relation to the cancellation of visas:
o[Mr A] has a reason to stay in Australia while his protection claims are being considered;
o[Mr A] has complied with his visa conditions during his time in Australia; and
o[Mr A] has been cooperative with the Department and has presented to the Department when requested.

126. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
127. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Michael Ison
Senior Member

[2018] AATA 4086

24 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice