1828867 (Migration) - [2018] AATA 5229

1828867 (Migration) [2018] AATA 5229 (19 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1828867
MEMBER:Kira Raif
DATE:19 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 19 October 2018 at 9:31am

CATCHWORDS
MIGRATION – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant may be a risk to the public health, safety or good order of the Australian community– Criminal charges –mental health issues – applicant is the subject of an AVO – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 359A
Migration Regulations 1994
Mental Health (Forensic Provisions) Act 1990
CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien & Ors v MIMA (1998) 89 FCR 80

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 28 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).
The applicant is a national of Sri Lanka, born in[year]. He was granted his most recent Bridging visa on 2 August 2016. On 28 September 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act. The applicant replied to the Notice and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 9 and 18 October 2018 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. In light of the applicant’s health issues, the Tribunal encouraged the applicant to seek representation and sought additional information from the Department, which was discussed with the applicant.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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)(e). 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.
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder 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…

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.

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Details

Case: [2018] AATA 5229
Decision Date: 19 October 2018

CaseChat Overview and Summary

The applicant sought review of a decision to cancel their Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The cancellation was based on the applicant potentially posing a risk to the health, safety, or good order of the Australian community, stemming from criminal charges, mental health issues, and an apprehended domestic violence order against them. The Administrative Appeals Tribunal was required to determine whether the visa should be cancelled, considering the discretionary power available to it.

The Tribunal considered various factors in exercising its discretion. It acknowledged the applicant's compelling need to remain in Australia while awaiting the outcome of a substantive visa application, given their history of torture and persecution in Sri Lanka. The Tribunal also noted the applicant's compliance with visa conditions and the significant hardship, including financial and psychological distress, that cancellation and potential detention would cause to the applicant and their family in Sri Lanka. However, the Tribunal also had regard to the circumstances that led to the cancellation ground, specifically the applicant's potential risk to others, despite the applicant's claims of no recollection of the events leading to the apprehended domestic violence order and assertions of not being a risk.

Ultimately, the Tribunal concluded that, when considering all the circumstances, the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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 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 The applicant told the Tribunal that he was shot and tortured in Sri Lanka and that is the reason he came to Australia. The Tribunal is prepared to accept that the applicant has a compelling need to remain in Australia while his application for a substantive visa is being processed. The applicant was granted the Bridging visa to await the outcome of an application for a substantive visa. The applicant told the Tribunal that he made an application and is still awaiting the outcome. The Tribunal is mindful that the outcome of any substantive visa application would not be affected by the outcome of this review as the two are independent. The extent of compliance with visa conditions There is no evidence of the applicant not complying with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) If the applicant does not hold a visa, and unless he is granted another one, he may be an unlawful non-citizen and may remain in detention. Such detention maybe lengthy while his application for another visa is being considered. The Tribunal accepts that ongoing detention may cause significant hardship to the applicant, in particular given his medical needs. The applicant told the Tribunal that his wife’s health had been affected by shelling and she cannot look after their four children. The applicant told the Tribunal that his wife and children are in Sri Lanka. The Tribunal is not convinced that the decision on the applicant’s bridging visa will assist the applicant’s wife to physically care for the children. The applicant told the Tribunal that if he is not in detention, he can work and provide for his family. Now that he cannot work, his wife has to work rather than care for the children. However, the applicant also told the Tribunal that he was unable to get a job in the past and he was supported by Centrelink payments, which he used to save and send to his family. The Tribunal accepts that the cancellation of the visa and resultant detention would cause financial hardship to the applicant and his family. Circumstances in which ground of cancellation arose The ground for cancellation arises because the Tribunal formed the view that the applicant’s presence in Australia may be a risk to others. The applicant states that he has no recollection of the events leading to the AVO but he claims he is not a risk to anyone. Past and present behaviour of the visa holder towards the department