1826868 (Migration)

[2018] AATA 4960

1826868 (Migration) [2018] AATA 4960 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826868

MEMBER:Michael Cooke

DATE:25 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2018 at 11:40am

CATCHWORDS
MIGRATION – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal history – further criminal charges – mother’s health – emotional stress – substance abuse – persecution in home country – homosexuality and apostate claims – access to medical treatment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 116, 375A

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 12 September 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)(g) on the basis that the applicant as a holder of a BVE had been convicted of various offences.. 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 27 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was the subject of a s.375A Certificate regarding an ongoing Court matter. The applicant was provided with a copy of the Certificate and the Tribunal invited him to comment. No comments were received from applicant.

5. The Tribunal finds that the s.375A Certificate clearly elaborates the nature of the information subject to the Certificate and the reason for the non-disclosure of the elaborated information. The Tribunal finds the s.375A Certificate is valid.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

   s.116(1)(g) - prescribed ground

8. 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(p)(i) is relevant.

9. The applicant has been convicted of five criminal offences. He has admitted his guilt and seeks forgiveness and the ability to rehabilitate.

   ·Possess prohibited drug Drug Misuse and Trafficking Act 1985 Section 10(1) Drug Offence : Non-Indictable fined $300

   ·Possession of equipment for administering prohibited drugs Drug Misuse and Trafficking Act 1985 Section 11(1) bond s.10 12 months

   ·Use vehicle with defective body or structural member Road Transport (vehicle Registration) Regulation 2007 Section 52(1)(A)(Ii) s.10 conviction with no other penalty

   ·Use Class A vehicle number plate obscured, defaced etc Road Transport (Vehicle Registration) Regulation 2007 Section 52(1)(A)(I) fine $200

   ·Drive vehicle, illicit drug present in blood etc 1st offence Road Transport Act 2013 Section111(1)(A) fine $450 disqualification driver – 3 month [date]/11/17-[date]/02/17.

10. The Tribunal finds the applicant has a criminal history and has been convicted of offences under NSW State law. He has not been jailed for the offences. The applicant held a Temporary (Bridging) visa Subclass 050. The Tribunal is satisfied that there are grounds for cancelling his visa under s.116(1)(g) and 2.43(1)(p)(i).

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

12. 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.

13. 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.

14. The secondary considerations are:

    ·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.

15. The Direction 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. 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’.

16. The Tribunal conducted a hearing on 27 September 2018 in person. The interpretation took place via telephone. The Tribunal pointed out that the reason he was being cancelled was because of the migration law in that he had previously engaged in and been convicted of criminal activity.

    The Hearing

17. The Tribunal outlined that the applicant has entered Australia as a ‘boat person’ or more correctly an ‘unauthorised maritime arrival’ and he was granted a temporary Protection visa. He agreed with the statement. The Tribunal referred to the applicant’s statement that he came to Australia because of his fear of being persecuted as a gay person. He spoke about his accompanying friend. He stated that he thought his friend in Iran had been killed as he was not sure as he did not have any recent news. They were coming together but the Iranian police captured him.

18. The Tribunal asked him why, after he was lucky enough to arrive in Australia and been granted a visa and given freedom why he prejudiced the opportunity to be granted a Protection visa when he was desperate to get out of Iran. He then engaged in considerable criminal conduct. He responded to the Tribunal that in Iran he had a clean life but because of enormous stress and bad friends around him after arriving in Australia this combined and dragged him towards using drugs. The Tribunal pointed out he was an adult person and claimed to be persecuted in Iran. He knew what damage that drugs did from television and he had a brand new life to enjoy. He said in response to the observation that he did not know what to say. That time was very stressful and he later discovered it was the worst mistake in his life.

19. The Tribunal asked him whether he had been convicted of any matter at his appearance at [the] Courthouse [in] 2018. He said there was no outcome. The Police had talked to him and told him he was innocent. The Tribunal asked him why they would say that. He said he helped them to find the murderer of one of his friends. They knew the full details of his life. He was helping the Police to find the murderer of his friend in [another country] and they had located him thanks to his help. At his Court appearance they transferred his file to another Court and they had all the documents he had given to the Police. He would be notified by his lawyer of his next appearance at [the] Court. They were going to let him know at the hearing before the actual Court appearance.

20. The Tribunal then read from the NOICC document made by the delegate as to the reasons why the delegate cancelled his visa. This indicated he had been convicted of various criminal offences. There were three possession charges for drugs where he was convicted but instead fined and bonded. He was not jailed. There were vehicle charges regarding a dangerous axle and an obscured number plate and driving with drugs in a vehicle. He was not jailed for these convictions.

21. The Tribunal noted that he had been granted a temporary Protection visa in 2013.The Tribunal asked him why he had gone onto a Bridging visa. He said he had been given it whilst awaiting the outcome of his Protection visa application. He was originally not allowed to work but was later allowed from September 2015. However, he was not allowed to engage in criminal conduct. He was asked when he became involved in drugs. He informed that when he found about his mother’s health. He was under enormous stress and had to pay a lot of money for her medication. He then took up drugs after a friend had suggested it. He did not remember exactly when it started but an Asian housemate encouraged him to use ‘ice’ (methamphetamine) to relax. He was reluctant at first but he later realized how much a problem it became for his life. His mother was still sick. A [company] had then offered him work and he obtained an ABN number.

22. The Tribunal asked him how he afforded drugs when not employed. He said it was not just him but a group of his friends would assist to pay the balance of the purchase. His contribution depended on how much he would pay as to how much they gave him. He did not remember how long he started using it and what year but it was a month or two before he was stopped by the Police. He then realized his problem and had stopped using. He was arrested in June 2017 in [a suburb].

23. He went to the Detention Centre two weeks previously. He was invited to come to Immigration and he was then detained. His visa expired in September 2018 so he was taken to the Detention Centre. The Department had granted him a BVE in 2016 and another on 12 August 2016 expiring on 12 September 2018. Thus the expired visa was the last granted BVE. He was not aware they had granted that visa and when he needed to use Medicare his case manager gave him a piece of paper to that effect. The Tribunal noted that every visa he had been granted incorporated condition 8564 which said the ‘Holder must not engage in criminal conduct’ and this had happened from [a date in] June 2014. Taking drugs meant he was in breach of that condition especially when stopped by the Police in [a suburb] that day.

24. The Tribunal asked the applicant what reasons he had not to cancel his visa. The grounds existed to cancel the visa but the cancellation was discretionary. The Tribunal then explored the applicant’s history. The Tribunal observed the applicant’s luck in being allowed to stay in Australia after feeling Iran in 2013. But from 2014 every visa granted him obliged him to ‘not engage in criminal conduct’. The Tribunal asked him why, in that situation, he would impugn his possibility of getting permanent residency by taking drugs in breach of his condition. What went on his head that he prejudiced his stay in Australia it asked? The applicant responded that all he could say was that it was a huge mistake. He had led a clean life he was going to work with his landlord and people around him would agree. He did not touch anything further and step by step he was getting better including working in [an industry].

25. The Tribunal asked him what reasons there would be to set aside the cancellation. He said that he could swear and promise and state that he would continue to live like (cleanly).He would help his mother and live a healthy life. He wanted to make his life better and his mother’s as well. He could not go back to Iran. The Tribunal asked why. He said they would kill him for being gay and changing religion. He had tried other religions and took good things from all religions and did not follow just any religion. The applicant claimed that he needed to support his mother financially as she had a medical condition that required ‘super expensive’ medication for a blood disease that affected her heart. He had been working in [an industry] before he was detained and wished to return to that profession. He said he could not return to Iran as he was homosexual and they (presumably authorities in Iran) could possibly kill him. He claimed that his boyfriend in Iran might have been killed. He was not sure what exactly happened to that person and did not have recent news.

26. The Tribunal said the question it needed to ask itself was to cancel or not cancel after weighing up all the information available to it. It had to be satisfied that the grounds for cancellation outweighed the ground for not cancelling. As it was discretionary it was up to the Tribunal whether to set aside or affirm the decision based on the evidence before it. The Tribunal summarized his claims and that the applicant claimed he had ‘turned over a new leaf’, did not take drugs anymore and had turned his life around. He wanted to work to raise money to live his new life and send money to his mother. He said not only supporting her but her medication was very expensive as it was imported. All he knew was that it was a blood disease which affected her heart. The applicant said in his final claim that he would not do anything bad again because his mother would have a heart attack and even a little wrong turned out to be a bad wrong. He had just started work but his boss knew him a long time. He had been seen handcuffed and did not want people to think about ‘those dirty things’.

27. The interpreter then finished interpreting. The tape was still on and the applicant then complained about the interpretation and that the interpreter had missed aspects of his oral evidence. But that was okay he said. In reference to his criminal history he said ‘Maybe he had done something wrong. He did not intend it - it just happened’. In Iran he had a clean life and did not even smoke. He did small things wrong since he came here and he did not want that to happen again.

    Consideration of relevant primary and secondary considerations, and any other relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·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

28. The applicant entered Australia as an Unauthorised Maritime Arrival (UMA) [in] November 2012. He stated to the Department in his Protection visa claim (and to the Tribunal in oral evidence) that he feared for his life in Iran because he was gay. He has made the further claim subsequently that he now likes all religions and not one in particular. He argues, therefore, that he has a compelling need to remain in Australia based on his fear of being persecuted in Iran as a homosexual and as a claimed apostate according to the laws of Islam. The Tribunal accepts (from the evidence found in his successful Protection visa claim) that he would suffer serious harm if he returned to Iran. The Tribunal makes no finding on the claim he could be harmed as a potential apostate. The Tribunal gives these considerations significant weight in favour of not exercising the discretion to cancel his visa.

    ·the extent of compliance with visa conditions

29. The applicant - whilst under a BVE - breached conditions 8564 – must not engage in criminal activity and 8566 must not breach the Code of Behaviour - a requirement signed up to by all unauthorised maritime arrival persons. The Tribunal gives this consideration significant weight in favour of affirming the cancellation.

    ·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

30. The applicant has been convicted of a numerous criminal offences such as:

    ·    possess prohibited drug

    ·    possession equipment for administering prohibited drugs

    ·    Use vehicle with defective body or structural member

    ·    Use Class A vehicle with number plate obscured or defaced etc,

    ·    Drive vehicle, illicit drug present in blood 1^st offence

31. The applicant is the subject of other more recent (2018) criminal charges:

    ·Supply prohibited drug – indictable quantity (not cannabis)

    ·Assault with act of indecency x3

32. The Tribunal notes that the applicant has a criminal history and faces further criminal charges. He has claimed to have reformed and taken a positive path and wished to lead a ‘clean life’. He claims he fell into addiction from the influence of bad friends and the stress of his mother’s health condition. However, even though the applicant has been presented with the opportunity to reform and live a ‘clean life’ he is now the subject of further drug charges (including supply) and three charges of assault with indecency.  When weighing up the applicant’s claims he had reformed (with his prior conduct and recent charges) the Tribunal finds this information weighs heavily in favour of cancellation.

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

33. The applicant self-evidently will suffer financial hardship as he will be prevented by his detention from working following a cancellation. He claimed in the hearing to be subsidising his mother’s health care. This would presumably also be curtailed financially by any further detention. Going on his oral evidence to the Tribunal this has the potential to create some psychological hardship to the applicant. The applicant claimed to the delegate that if he was put into the Detention Centre he would kill himself as he would not be able to tolerate it.

34. He insisted to the Tribunal that as a gay person he could not return to Iran as he feared being killed. These claims, therefore, do concern potential psychological and emotional hardship. As against these claims the applicant does not have any family members in Australia. As an Iranian citizen he would normally be able to return there with all the privileges and rights available to him on return. However, he faces the issue of his homosexuality and the claim that he is now an apostate of Islam. These considerations would effectively prevent his return as he would face serious harm as a consequence.

35. The applicant has indicated to the delegate that he agreed the convictions do exist and have happened to him. He admits he did use drugs and ‘was not feeling well’. He disagreed with the obscured number plate conviction that was imposed on him. He thought the claim by the Police that the registration number was unreadable was an exaggeration. He agreed there was a possibility that he could have his visa cancelled but there was also a possibility he could be forgiven.

1. The Tribunal is satisfied that the cancellation of the applicant's Bridging E visa has caused and will continue to impose hardship on the applicant with him having to remain in detention. The Tribunal acknowledges the applicant's evidence that he would prefer to remain in the community.  If he was working he could provide support to his mother and be productive. The Tribunal is also mindful of the fact that if the applicant's visa is cancelled, he will not be able to apply for a further Bridging visa (Schedule 1 Item 1305). He would, therefore, remain in detention until his status in Australia is resolved, which could take some time given his further Court matters.

2. It is possible that this potential situation will have an adverse impact on the applicant’s well-being. The Tribunal was informed by him in oral evidence that prolonged detention could have adverse consequences - particularly with his mental health. He has the ongoing added burden of his history of drug addiction.

3. The Tribunal accepts that a decision to uphold his cancellation will have negative impact on the applicant’s psychological well-being. However, after taking his situation into account the Tribunal is fortified by the fact that the applicant will have access to medical and psychological practitioners in detention. He will also be able to receive on-going medical treatment whilst detained for his addiction issue. The Tribunal has considered the degree of hardship that may be caused to the applicant but gives this latter consideration considerable weight in favour of exercising the discretion to cancel the visa.

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

4. There is no evidence that the applicant has behaviour concerns towards the Department. He appears to have co-operative at all times. The Tribunal gives this latter consideration some positive weight in exercising the discretion not to cancel the visa.

   ·whether there would be consequential cancellations under s.140

5. Not applicable

   ·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

6. The applicant is already in detention. The Tribunal has considered the possibility of indefinite detention as a possible consequence of cancellation. The Tribunal is also mindful of the fact that if the applicant's visa is cancelled, he will not be able to apply for a further Bridging visa (Schedule 1 Item 1305). He would, therefore, remain in detention until his status in Australia is resolved. This could take some time given his further Court matters. The Tribunal gives this consideration some positive weight in exercising the discretion not to cancel the visa.

   ·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

7. The Tribunal has no evidence that the applicant has any children. In the applicant’s case he was granted a Protection visa (XD 785) in 2018 on the basis of a well-founded fear of persecution as a homosexual if he were returned to Iran.  The Department delegate (after processing his Protection visa claim) found the following:

   I am satisfied that if the applicant returns to Iran and has same-sex relationships or otherwise expresses his sexuality as he has done in both Iran and Australia, there is a real chance that he will be identified as homosexual and suffer harm. I find this harm would take the form of harassment, assault, arrest, detention, morality charges and associated punishment at the hands of the Iranian authorities, and discrimination, harassment and abuse from members of society (including his relatives). I find that this amounts to serious harm within the meaning of s5J(4)(b).

8. The Tribunal is satisfied that the applicant will face serious harm if he is returned to Iran. The Tribunal finds this consideration weighs considerably`in favour of not cancelling the applicant’s BVE. 

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

9. Not applicable.

   ·any other relevant matters

10. The Tribunal observes that the Ministerial guidelines state that the Australian government has a low tolerance for criminal behaviour by non-citizens residing in the Australian community on a temporary basis and who do not hold a substantive visa. The guidelines note that Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa whilst awaiting the resolution of their immigration status.

11. The Tribunal is aware that the applicant's criminal history in Australia coincides with his abuse of methamphetamine (‘ice’). The Tribunal has heard the applicant's claims he has addressed his substance abuse and has quit his illegal drug taking. He has insisted that he is remorseful for his conduct. However, despite criminal convictions for methamphetamine use in June 2017 and other criminal behaviour (which involved fines and bonds and no custodial sentence) the applicant has, yet again, come into contact with the criminal justice system in 2018. This has culminated in the recent serious charges (in 2018) mentioned earlier in this decision.

12. The Tribunal acknowledges that the applicant will be defending those charges and has the presumption of innocence. But having regard to the seriousness of the charges (along with the applicant's existing criminal history in Australia) and having regard to the relevant primary and secondary discretionary considerations, the Tribunal finds that the applicant's Bridging E visa should remain cancelled.

13. The applicant complained about the interpretation (in English) following the end of the hearing when the tape was still on momentarily. The Tribunal makes the following findings. The interpreter was an authorised person interpreting in the Persian (Farsi) language. At no stage during her interpretation did the applicant seek to correct or interject or complain about the interpretation. The Tribunal had to allow an extra hour to elapse from the start of the hearing following his request to have an interpreter. This was something he had not previously requested. During the hearing the applicant at various times made comment in English. The Tribunal has had regard to his complaint but rejects his contention that the interpretation was somehow negligent or incorrect.

    DECISION

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