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

1. 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).

2. 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.

3. 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.

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

   Relevant law

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)(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.

6. 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 segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

7. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

8. There is no definition of ‘risk’ in the Act or Migration Regulations 1994 and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001).  The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong at [41]).

9. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

   Does the ground for cancellation exist?

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Bridging E visa on 2 August 2016. On 27 September 2018 NSW Police issued an AVO identifying the applicant as a defendant.

11. In his response to the NOICC the applicant is recorded to have stated that he would not commit any crimes and would not do any ‘other things’. In oral evidence the applicant told the Tribunal that he could not recall any of the circumstances that led to the AVO being issued. The Tribunal adjourned the hearing to obtain information about the applicant’s criminal matters. Information provided by the Department, which was the subject of the Tribunal’s s. 359A letter to the applicant, indicates that in February 2017 the applicant was charged with wounding a person with intent to cause grievous bodily harm. That charge was dismissed as [the] Magistrate [found] that the applicant was suffering from a mental condition or mental illness so that it would be more appropriate to deal with him in accordance with the Mental Health (Forensic Provisions) Act 1990.

12. The applicant told the Tribunal that he could not recall the circumstances that led to the charges but he also said that he was not involved in any fight but was blamed. The applicant told the Tribunal that because he had been shot by the army in Sri Lanka, his memory is poor and he cannot recall these events.

13. The applicant told the Tribunal that he was placed in [a] jail before his immigration detention. That suggests that the applicant had not been granted bail in relation to the charge.

14. With respect to his medical treatment, the applicant told the Tribunal that he is taking tablets for the “pain in his head and problems in his head”. The applicant said that he was given medication after being checked by doctors in Sri Lanka. He has also seen doctors in Australia. The applicant stated that he had undergone counselling [and] he sees doctors for the problems with his head. The applicant said that he has been taking medication for two to three years and has been seeing a counsellor for about the same period. The applicant stated that nothing has changed since his charges had been dismissed. He said he was X-rayed since he was placed in immigration detention but the results have not yet come back. The applicant’s evidence is consistent with the IHMS medical records received by the Tribunal which confirm that the applicant has received some treatment and has been referred for further treatment.

15. The applicant told the Tribunal that he is not a risk to anybody. He said that he does not talk to people much and he has not had a fight with anyone. The applicant states he had been severely affected by the situation in Sri Lanka and he did not come to Australia to fight. The applicant states that he used to be a heavy drinker before and his drinking caused his problems. After he was placed in jail, he spoke to his children and decided to stop drinking. The Tribunal is mindful that since his decision to stop drinking, the applicant has not spent any time in the community and had very limited opportunity to test his resolve. The applicant’s evidence is that he has spent close to two years in prison and that he was transferred to [a] IDC from prison. Thus, while the Tribunal acknowledges the applicant’s evidence that he made the decision not to drink, the Tribunal does not consider it persuasive when the applicant may not have had many opportunities to obtain alcohol during his incarceration.

16. The Tribunal finds that the applicant had been charged with a serious offence, although the charge was dismissed, it was dismissed under the Mental Health (Forensic Provisions) Act 1990. The applicant has also been issued with an AVO. The person named in the AVO is the alleged victim in relation to the wounding charge. The fact that the applicant has been issued with the AVO may indicate that the applicant has been assessed as being a risk to the person protected by the Order.

17. The Tribunal is concerned that the applicant’s condition, coupled with the alcohol dependency which he admits to, may cause the applicant to engage in violent behaviour in the future. The applicant claims he no longer uses alcohol but the Tribunal does not consider that undertaking to be persuasive in circumstances where the applicant did use alcohol prior to his detention, by his own admission, and has not had many opportunities to obtain alcohol during his detention. The Tribunal also acknowledges that the applicant has received some medical treatment for his condition. He told the Tribunal that he has seen counsellors and has taken medication but there is no medical evidence before the Tribunal, for example in the form of psychotically reports or other medical reports, to indicate that the treatment the applicant has receive has effectively helped him deal with the issues that may have affected his behaviour in the past. There is no probative evidence before the Tribunal that the applicant’s mental health condition has been effectively managed. In the absence of such evidence, the Tribunal considers there is a real risk that the applicant will engage in criminal, violent or anti-social conduct in the future if he is released into the community.

18. Having regard to the previous charge and the ongoing AVO, the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the safety of the Australian community or the safety of an individual or individuals. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

19. 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

20. 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

21. 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.

22. 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

23. 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)

24. 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.

25. 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.

26. 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

27. 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

28. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

29. There are no persons who would be affected by 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

30. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. He is presently in detention and there is no suggestion that he will be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The cancellation of the bridging visa will have no effect on any other application that the applicant has made.

    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

31. The applicant has four children overseas. There are no children in Australia who would be affected by the cancellation.

32. The applicant’s evidence is that he used to provide financial support to his children prior to his detention as he was receiving Centrelink benefits. The Tribunal accepts that financial hardship may be caused to the applicant’s children as a result of the cancellation of his visa because the applicant will not have the opportunity to financially support his family.

33. As for Australia’s protection obligations, the Tribunal is of the view that the applicant is eligible to seek a protection visa in Australia. There is no reason why such an application cannot be made, if it has not already been made. The applicant’s claims would be assessed as part of that application and if it is found that the applicant is owed protection, such a visa may be granted to the applicant. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the bridging visa being cancelled.

34. The applicant told the Tribunal that his two brothers live in Australia. He said that one of his brothers is unwell and he wants to look after his brother. The applicant told the Tribunal that if he is released, he would stay with his brother.

35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others. The Tribunal accepts that considerable hardship may be caused to the applicant as a result of the cancellation because it will result in the applicant being detained and the applicant will be unable to provide financial support to his family overseas. The applicant has been cooperative with the Department and there is no evidence of any other breaches. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. The Tribunal’s concern is with the circumstances in which the ground for cancellation occurred, as the applicant is the subject of an AVO in relation to another person and was previously the subject of charges. The applicant’s own evidence is that in the past he heavily relied on alcohol. There is little probative evidence to satisfy the Tribunal that the applicant has received, or is receiving, adequate medical treatment to alter his conduct in the future.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Kira Raif
    Senior Member