1822068 (Migration) - [2018] AATA 4086

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…

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 1822068 (Migration)

Details

AGLC: 1822068 (Migration) [2018] AATA 4086
Case: [2018] AATA 4086
Decision Date: 24 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr A against the cancellation of his Bridging E visa by a delegate of the Minister. The dispute arose after Mr A was served with a Notice of Intention to Consider Cancellation of a visa and subsequently had his Bridging E visa cancelled on the grounds that he had been convicted of offences in Lebanon in 2014. Mr A had previously applied for a protection visa and a complementary protection visa, both of which had been refused. The Tribunal was required to determine whether grounds existed to cancel Mr A's visa and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider two primary issues: first, whether the grounds for cancellation under section 116(1)(g) and regulation 2.43(1)(p)(i) of the Migration Regulations 1994 were made out; and second, if grounds existed, whether the discretion to cancel the visa should be exercised in Mr A's circumstances. The latter required consideration of Direction No. 63, which outlines specific primary and secondary considerations, including the government's view on rigorous application of cancellation grounds and the best interests of any children under 18 in Australia.

The Tribunal found that the ground for cancellation was established, as Mr A had been convicted in his absence in Lebanon in 2014 of terrorism offences, including conspiring against State national security and selling arms, for which he was sentenced to death. Mr A conceded that these grounds existed for the cancellation of his Bridging E visa. In considering the exercise of discretion, the Tribunal had regard to the principles in Direction No. 63, including the government's expectation that bridging visas ought to be cancelled when non-citizens are suspected of criminal behaviour. After carefully considering all relevant circumstances, the Tribunal affirmed the decision to cancel Mr A's Bridging E visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; andb. 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.