1825643 (Migration)

[2018] AATA 4432

1825643 (Migration) [2018] AATA 4432 (11 September 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825643

MEMBER:Antoinette Younes

DATE:11 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 11 September 2018 at 6:24pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – engagement in work – pending criminal charges – credibility issues with witness evidence – best interest of children – exhausted review and judicial mechanisms – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48B, 116, 359AA

Migration Regulations 1994 (Cth), Schedule 8, Condition 8101

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8101. 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 10 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses.  The hearing was conducted with the assistance of interpreters in the Malay, Hindi and English languages.  The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8101 attached to the applicant’s visa. This condition requires the visa holder not to engage in work in Australia.

7. During the hearing, the Tribunal referred to the pending criminal charges relating to common assault and assault with act of indecency and gave the applicant a warning that he has the right not to answer questions if he considered the answers self-incriminatory. The Tribunal acknowledged the submissions that the applicant intends to enter a plea of not guilty. The Tribunal however explained to the applicant that there are different legal processes and tests involved in the determination of the criminal charges and the review before the Tribunal.

8. In support of the application for review, the applicant provided a copy of the delegate’s decision record.  In the course of the hearing, the Tribunal referred to the delegate’s decision record in which it is noted that:

   1)[In] July 2018, the applicant allegedly committed the offences of common assault and assault with act of indecency whilst at [location] (Farm). According to the [State 1] Police Statement of Facts, the applicant was located at the Farm [in] July 2018 and he was driving a [vehicle] around the Farm for other workers to conduct work.  The [State 1] Police Statement of Facts indicates that on at least two occasions, the applicant was conducting work activities at the Farm.

   2)A number of documents were located that appear to be employee rosters/timesheets indicating that the applicant may be working as a [Occupation 1].

9. The decision record further indicates that during a Departmental interview, the applicant stated that he often accompanies to the Farm his friend and landlord, [Mr A] who is a [Occupation 2] and that at the Farm, he volunteers in order to help other workers but he is not paid. The applicant is reported to have stated that [Mr A] supports him financially and that the rosters/timesheets related to [Mr A’s] work (who does not live at the same address where the documents were located). In written submissions to the Tribunal dated 8 September 2018, the applicant denied stating at the interview that he helped other workers.

10. In accordance with s.359AA, the Tribunal discussed with the applicant the information contained in the [State 1] Police Statement of Facts that:

    ·He [works] at the Farm.  At around 4 PM on [a day in] July 2018, he and the alleged victim were travelling around the Farm in a [vehicle] where the alleged victim would get out at certain points and [do certain tasks]. He was driving the [vehicle] whilst the alleged victim was seated in the front passenger seat of the vehicle. No other persons were inside the vehicle at the time.

    ·Around 10:45 AM on [another day in] July 2018, the alleged victim and the applicant were travelling around the Farm in a [vehicle] where the alleged victim would get out at certain points and [do certain tasks]. He was driving the [vehicle] whilst the alleged victim was seated in the front passenger seat of the vehicle. No other persons were inside the vehicle at the time.

11. The Tribunal indicated that the information suggests that he was working on at least two occasions, inconsistent with condition 8101. In response, the applicant denied that he was working on the Farm. He stated that sometimes he goes out to the Farm with his friend Mr [A]. He stated that although he was at the Farm on [date] July 2018, he was not driving the [vehicle] around the Farm. He stated that he was sitting in the passenger seat and was not driving other workers around as claimed. He stated that the police have never verified this information. In relation to the [earlier] July 2018 allegation, the applicant stated that he was not at the Farm at that time but he was at home. In written submissions dated 8 September 2018 and orally, the representative contended that information in the police facts sheet has not been tested and given the applicant’s intention to enter a plea of not guilty, the Tribunal should be cautious in relying on this material.

12. The applicant gave evidence that he came to Australia on 25 November 2012 on [a short term] visa and subsequently applied for two visitor visas, the first of which was granted but not the second one. He stated that he later applied for a protection visa. He gave evidence that he was married and has been separated but not yet divorced. He stated he has two children aged [age] years and [age] years both of whom live in India with his parents.

13. The Tribunal referred to the written submissions in which it is noted that the applicant had applied for a protection visa which was refused, that subsequent applications for review and appeals were unsuccessful, and that ministerial intervention request was also unsuccessful. The Tribunal also referred to the submissions that a second application for a protection visa was deemed invalid due to s. 48B of the Act and that a refused medical treatment visa is before the Federal circuit Court of Australia [in] 2018. The Tribunal noted that it appears to the Tribunal that his protection claims have been fully assessed which means that the Tribunal may not be satisfied that there is a real risk or a real chance of serious or significant harm facing the applicant, in case of his return to India.

14. In oral evidence and in written submissions, the applicant indicated that he is supported by members of the Indian community [who] have provided him with clothing, food, rent payment, and financial assistance.

15. A witness gave evidence that he has known the applicant for about two years, although he was not certain and that they had met through friend. The witness gave evidence that he last saw the applicant about two weeks ago and that he has helped the applicant by giving him sums of money in the amounts of $50 or $100 for food. The Tribunal asked the witness how often he gave the applicant money and the witness indicated that he did so whenever the applicant needed money but it was around 2 to 3 times a week. The Tribunal asked the witness if he knows if the applicant is married and the witness confirmed that he does not know because they did not talk about such things. The Tribunal asked the witness what they talked about and he stated that they talked about personal things but he did not want to tell the Tribunal about those personal things. The witness stated that the applicant owes him an amount of money, approximately $4000 to $5000. When this was discussed with the applicant, he indicated to the Tribunal that his understanding was that the witness was helping him and the money advanced was as a gift.

16. Another witness gave evidence that she and the applicant have been in a relationship for about 2 to 3 months. She stated that she was aware that the applicant is in detention but when asked if she knew the reasons, she stated that the applicant has been detained because he was caught without a visa. She confirmed that she was only aware of this reason. The Tribunal asked the witness if she was aware that the applicant had been charged with criminal offences, she initially stated that she does not know but later elaborated on her answer by saying that she had heard from some people of claims of molestation made by a woman which she does not believe. The Tribunal asked the witness if she knew whether the applicant has been working and she stated that they have only known each other for a short period of time and she did not know whether he was working. Subsequently, she stated that he was not working.

17. There is inconsistent information before the Tribunal. There is information that the applicant works [at] the Farm, and that on two occasions namely [date] and [date] July 2018, he was driving [a vehicle] whilst an alleged victim would get out at certain points and [do certain tasks]. As referred to in the delegate’s decision record, during the interview the applicant had stated that he volunteers at the Farm to help other workers. This is inconsistent with the applicant’s version of events that he has never worked at the Farm, although he said he went to the Farm with [Mr A].

18. The representative contended that the [State 1] Police Facts Sheet is prejudicial to the applicant.  The Tribunal is not bound by the rules of evidence and the Tribunal may inform itself of any matter in such a manner that the Tribunal considers appropriate.

19. In relation to the material relating to the allegations, the Tribunal is satisfied that the allegations of the circumstances of the assault are relevant as they provide a context so that the Tribunal is not considering the review in isolation. Those matters are directly relevant to the question of whether the applicant had worked. 

20. It is correct that the allegations have not been tested or proven, but that does not mean that it is appropriate for the Tribunal to consider the issues in a vacuum. The material is relevant because it provides a context to the breach. The material is also relevant in terms of the weight that the Tribunal could give to the applicant’s explanations about the breach. The Tribunal is satisfied that the allegations of work on the Farm have significant probative value that outweighs the risk of prejudice. It is in the interest of a fair review that the Tribunal takes into account all relevant information to ensure the making of a correct and preferable decision.

21. The Tribunal acknowledges that the version of events as recorded in the [State 1] Police Facts Sheet has not been tested, it is nevertheless relevant information and the Tribunal has decided to give it some weight.

22. In relation to the to be employee rosters/timesheets, although the Tribunal has doubts, the Tribunal accepts as plausible the submissions that [Mr A] uses a second room in the applicant’s flat to do work and that the documents belong to [Mr A].  However, this does not mean that the applicant was not working at the Farm.

23. The Tribunal has noted and gives some weight to the submissions that when the applicant was being interviewed, the telephone call with the interpreter failed and the interview was finalised without an interpreter. However the applicant is noted to have said that while at the Farm, he volunteers to help the other workers and the Tribunal prefers the reported version because it is difficult to see why the person who interviewed the applicant would be noting this information in case of any doubt.

24. The Tribunal observes that the interview is recorded to have commenced at 8:47 AM and finished around 10 AM. At various stages of the decision record, the delegate reiterated the applicant’s confirmation that he “volunteers”, “helps out”, “helping the other workers”, but is not paid. Accordingly, the Tribunal is not satisfied that the applicant had difficulties explaining himself or that there were difficulties due to interpreting.

25. The Tribunal was not impressed with the witness who gave evidence that he has assisted the applicant financially who now owes him approximately $4000-$5000; the witness did not know of the applicant’s marital history and he was particularly evasive when asked to elaborate on what other matters he and the applicant talked about, which leads the Tribunal to give his evidence limited weight. The applicant’s claimed partner did not know the reason for his visa cancellation, and her understanding of the charges was from a third party and with limited details. Her understanding about whether he worked was also limited and confused. The Tribunal gives her evidence limited weight.

26. The applicant has claimed that he has suffered from anxiety and depression and that he has been under the treatment of [a doctor] who has prescribed medication, the names of which the applicant could not recall. The applicant gave evidence that for financial reasons, he did not go to see a psychologist as recommended by [the doctor]. The applicant has not provided any independent corroborative evidence of his claims of anxiety and depression but despite this, the Tribunal accepts as plausible that the applicant has suffered from those ailments, however, on the evidence before it, the Tribunal is not satisfied that the evidentiary difficulties are related to the applicant’s ailments.

27. The Tribunal has given regard to the submissions that relevant visa holders can engage in volunteer work without breaching condition 8101, that if the applicant had been involved in [Occupation 1], he would not have been at home at 7:15 AM on [date] August 2018 and he would not have said hello to Border Force personnel or brought himself to their attention. The Tribunal is not persuaded by those submissions; the applicant is denying engaging in any work whatsoever, so it is futile to discuss what would amount to volunteer work. Being at home at 7:15 AM does not exclude the possibility that he was working and there could be many explanations for why he was at home at that time. Engaging with Border Force personnel does not mean that the applicant was not working.

28. In consideration of the evidence as a whole, although the Tribunal accepts as plausible that the applicant has been helped by members of the Indian community [in] terms of food and accommodation, the Tribunal is not satisfied that the applicant has not engaged in work at the Farm. On the evidence, the Tribunal is satisfied that the applicant has worked at the Farm, in breach of condition 8101, attached to his visa. 

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

30. 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

31. The applicant arrived in Australia on 25 November 2012 as the holder of [a short term] visa which was valid for only 16 days. He extended his stay by applying and being granted a visitor visa. A subsequent application for a visitor visa was refused and the applicant applied for a protection visa in March 2013 and this was also refused. The refusal was upheld by the Refugee Review Tribunal and on appeal to the Federal Circuit Court, the Federal Court and the High Court. In 2017, he lodged a medical treatment visa which was also refused and the refusal was upheld by the AAT. He has a pending Judicial review in relation to that matter in the Federal Circuit Court for hearing [in] 2018.

32. The purpose of the applicant’s [short term] visa was to travel and stay for a specified period of time. The applicant has remained in Australia, albeit lawfully subsequent to the expiry of that visa for approximately six years. The applicant is no longer in Australia for the purposes for which the [short term] visa was granted. The evidence before the Tribunal indicates that the applicant has intended to remain in Australia and has made various visa applications consistent with that intention.

33. Currently, the applicant has claimed to be in a relationship. The Tribunal notes that the relationship has been ongoing for 2 to 3 months and the Tribunal does not consider this to be a compelling reason for the applicant to remain in Australia. The applicant has two children who live in India with his parents. He has no other family in Australia.

34. The Tribunal is not satisfied on the evidence that the applicant has a compelling need to remain in Australia.

    ·the extent of compliance with visa conditions

35. Apart from the current non-compliance, there is no evidence of other non-compliance.

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

36. The applicant has claimed that he suffers from anxiety and depression and although this is plausible, the Tribunal is not satisfied that the applicant would face a degree of hardship to mean that the visa should not be cancelled.

    ·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

37. As discussed earlier, the applicant’s visa was cancelled for breach of condition 8101. The applicant has denied working but the evidence before the Tribunal indicates and the Tribunal has found that the applicant has engaged in work in Australia and consequently he is in breach of condition 8101. Looking at the applicant’s circumstances, there is no evidence before the Tribunal that working was beyond his control.

38. The Tribunal gives weight to this consideration in deciding that the visa should be cancelled.

    ·past and present behaviour of the visa holder towards the department

39. There is no evidence before the Tribunal that the applicant has conducted himself in a concerning manner towards the Department and the Tribunal has given this aspect some weight in his favour.

    ·whether there would be consequential cancellations under s.140

1. There is no evidence of consequential cancellation 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

2. The applicant could become unlawful and may be subject to detention but these are intended consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

   ·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

3. The applicant gave evidence that he has two children, both of whom are under 18 years and live with his parents in India. The Tribunal is satisfied that it is in their best interest if the applicant were to be with them in India. On the evidence, the Tribunal is not satisfied that Australia would be in breach of any obligation relating to the children in case of the applicant’s return to India.

4. The applicant has made protection claims which have been assessed and determined. He has exhausted review and Judicial mechanisms. The Tribunal is satisfied on the evidence that the applicant’s protection claims have been assessed and that there is not a real chance or a real risk of the applicant facing serious or significant harm in case of his return to India.

5. On the evidence, the Tribunal is not satisfied that Australia would be in breach of any international obligation if the applicant were to be returned to India.

   ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

6. The applicant held a bridging visa and not a permanent visa and therefore this consideration is not applicable in his case.

   ·any other relevant matters

7. The Tribunal is not aware of any other relevant matters which require consideration.

8. The Tribunal has considered the applicant’s circumstances very carefully. The Tribunal considers the breach of a condition to be significant and should therefore be accorded considerable weight.

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 050 (Bridging (General)) visa.

    Antoinette Younes

    
    Senior Member