1829778 (Migration)

1829778 (Migration) [2018] AATA 5786 (22 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1829778
MEMBER:Mark O'Loughlin
DATE:22^nd October 2018
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 22 October 2018 at 4:47pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – charged with an offence against a law of a state of Australia – witness evidence of limited assistance – applicant honest and forthright with department – likely continued compliance with bail and visa conditions – seriousness of the charges – degree of hardship for applicant and family – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 499
Migration Regulations 1994 (Cth), r 2.43; Schedule 2
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 9 October 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 delegate cancelled the visa under s.116(1) (g) on the basis that a ground to cancel the applicant’s visa appeared to exist at r2.43(1)(p)(ii) because the applicant had been charged with an offence against a law of a state of Australia namely 5 counts of [Offence 1] and 4 counts of [Offence 2]. The delegate of the Minister further found that, this being a case in which the Minister may cancel the applicant’s visa, it was a case in which the Minister should exercise his discretion to do so . The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from: 4 witnesses.The Tribunal hearing was conducted with the assistance of an interpreter in the a language other than English and the English language.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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
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
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)(ii) is relevant.
The delegate of the Minister indicated that the applicant had been charged with 5 counts of [Offence 1] and 4 counts of [Offence 2].
The documentation available to the Tribunal suggests that the applicant was charged with 5 counts of [Offence 1] but only one count of [Offence 2].
This is not disputed by the applicant.
The delegate appears to have been mistaken about the number of counts of [Offence 2] with which the applicant was charged.
The Tribunal finds that this apparent error does not invalidate the finding that the applicant has been charged with an offence against a law of, relevantly, a state for the purposes of r2.43.
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
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 is in two parts.
Part one contains the Objectives of the Direction, gives General Guidance for decision makers and sets out Principles that provide a framework within which the Tribunal should approach the decision about whether or not to exercise the discretion to cancel the applicant’s visa.
Relevantly the General Guidance at 4.2 provides that:-
“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 repects Australia’s community values and standards of democracy, multiculturalism, respect, inclusion, cohesion, tolerance, and cooperation.”
The Principles appear at 4.3 and relevantly 4.3(5) provides that:
“…where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour…there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.”
Part two of the Direction identifies specified primary and secondary considerations that the decision makers must take into account where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
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.
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.
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’.
The first primary consideration in the Direction was satisfied by the decision by the delegate of the Minister to enter into consideration of cancelling the applicant’s visa. Given that the Tribunal only has power to review a cancellation decision already made this primary consideration is not relevant to the Tribunal’s decision as to whether or not to exercise its discretion to cancel the applicant’s visa.
The second primary consideration relates to the best interests of children in Australia who would be affected by the cancellation. There is no evidence that the applicant has children in Australia. The only evidence of any children in Australia with whom the applicant has been associated is in the statement of a witness who said that the applicant has “…positively impacted the lives of my two children providing a male figure within their life.”
The Tribunal finds that this is not enough to show that there are children in Australia whose best interests would be affected by the cancellation of the applicant’s visa and that the second primary consideration is not, therefore, relevant.
Before proceeding to consider the secondary considerations the Tribunal makes some observations about the relevant charges against the applicant and the circumstances in which he comes before the Tribunal.
There are no witness statements or details of the allegations.
A prosecution notice provided by the applicant says that he has been charged with 5 counts of [Offence 1] and one count of [Offence 2].
For each count the prosecution notice gives the date and place of the alleged offence and the names of the alleged victims. That was effectively the only documentary evidence about the offences available to the Tribunal.
The prosecution notice shows that the applicant entered pleas of not guilty to the charges in April of 2017 and was apparently granted bail. Bail conditions were imposed restricting the applicant from approaching or making contact with certain persons or from leaving the country.
The prosecution notice further shows that he did not attend on the next court date but that he appears to have given notice of a reasonable cause for his absence and his bail was renewed.
At the hearing before the Tribunal the applicant invoked his privilege against self- incrimination and declined to give evidence about the circumstances of the alleged offending behaviour.
The Tribunal makes no criticism of the applicant for so doing.
There was some evidence given about the alleged offending behaviour although none of that evidence was observation type evidence.
A witness gave evidence including that he understood that there are two complainants and that, in circumstances that are not relevant, [a relative] of one of them told him that the allegations against the applicant are false. Apparently this [relative] further said and that [the complainant] has a history of previously having made an unfounded [complaint] to police to procure a prosecution. That prosecution was ultimately abandoned due to the unreliability of the complainant’s evidence.
The witness said that he believes that the allegations against the applicant are likely to be false although he qualified that by saying that it was just his opinion based on what others had told [him].
The Tribunal finds that witnesses’ evidence, though truthful, is not sufficiently reliable to assist in making a finding about the strength or weakness of the prosecution case.
The Tribunal also heard evidence from another witness which included testimony that she has been told that the person who is filing charges has done this to someone else on another [occasion]. She said that in respect of the charges against the applicant she believed that [the applicant] had put himself in a compromising situation but that she did not believe that there had been [an offence].
Again, the Tribunal accepts the truthfulness of this testimony but finds that it is not sufficiently proximate to the circumstances of the offending to give the Tribunal any reliable insight into the weakness or strength of the prosecution case.
The applicant told the Tribunal that on the occasion in question he had been [drugged]. He also said that he is not guilty of the charges.
That is effectively the extent of the evidence available to the Tribunal in respect of the allegations and charges against the applicant.
The Tribunal is therefore obliged to consider exercising its discretion to cancel the applicant’s visa without any real insight into the strength or weakness of the prosecution case.
The applicant told the Tribunal that the police spoke to him on the day of the alleged offences. He said that he went to the police station for an interview and that he spoke to the police for 3 hours. He said that he told them he wanted a lawyer but that they wanted to know about his relationship with a particular person and about what had happened in the past. Apparently he discussed that with them.
He said that after that interview the police took him home and told him to expect them to call him back. He said that about 2 months later they asked him to come in to the station when he was interviewed briefly and charged.
They gave him a court date and advised him to get a lawyer.
The Tribunal generally accepts the applicant’s evidence about these matters. The applicant also said in evidence that he was not given bail and that he didn’t have any reporting conditions other than to come to court on court dates.
The Tribunal notes that this seems unlikely and further that the prosecution notice discussed above refers to bail being granted and to some conditions being imposed. The notice does not refer to any reporting conditions.
2 days after the hearing his representative provided the Tribunal with a document apparently from the applicant’s interstate lawyers relating to attending a police station in South Australia to answer his bail.
The Tribunal finds that the applicant was confused about the technicalities of his bail rather than untruthful about that.
The Tribunal finds that bail probably was imposed and that there probably were reporting conditions.
There is no evidence that the applicant has failed to answer his bail.
The applicant also gave evidence that he had regularly been reporting to the department by ringing a number and advising of his whereabouts and activities.
He said that he told someone on that number about the charges against him after he was charged. No date was given but the applicant said that he called that number every 3 months and that he was charged in late March or early April of 2017.
The Tribunal accepts the applicant’s evidence in this regard and finds that he had probably advised the department about the charges by early July 2017 at the latest, although there is a distinct possibility that the applicant was confused about the charges and bail arrangements and may not have communicated the situation precisely. There is no suggestion that the applicant did not attempt to communicate the situation to the department.
The applicant gave evidence, which the Tribunal accepts, that he advised the department about the outcome of each court hearing and about the progress of the prosecution.
The Tribunal does not have any information from the department about this.
In any event, the Tribunal does not find that the applicant made an effort to mislead the department and there is no evidence that he has not complied with the terms of his visa save for the fact that these charges have been brought against him.
Secondary Considerations
The Tribunal must take into account the secondary considerations specified in Ministerial Direction No 63.
The first of these is the impact of a decision to cancel a visa on the family unit (such as whether the cancellation will result in the temporary separation of a family unit). In this matter the applicant’s [family] are overseas and have been separated from him since he came to Australia in 2013.
Although the cancellation of the applicant’s visa will not have any effect on the separation of the applicant from his family, the applicant gave evidence that he supports his family through his [work].
It was in pursuit of this type of work that the applicant moved to South Australia from interstate. He gave evidence, which the Tribunal accepts, that he sends $900.00 per month to his family to cover living costs.
He said that he also makes occasional payments to cover school costs which can be as high as $2,500.00. Further, if a family member is ill the family may need more money.
The applicant said that he had been in detention for about 2 weeks at the time of the hearing and that he had about $2,000.00 in savings.
At this stage his criminal matter is listed for trial in March 2019. If his visa is cancelled he will not be able to support his family who will suffer.
The applicant gave evidence which the Tribunal accepts that his wife does not have work available to her and the applicant fears for his family’s ability to sustain itself without his remittances.
The Tribunal finds that cancellation of the applicant’s visa will cause his family hardship and accords this consideration some weight.
The Tribunal must also take into account the hardship that may be experienced by the applicant himself if his visa is cancelled.
The applicant gave evidence, which the Tribunal accepts, that he is unhappy in detention.
Although there is no medical evidence available to the Tribunal, one witness gave evidence that the applicant suffered an injury in a fall. The evidence about the timing of that fall was unclear but the Tribunal understands that it was at about the same time as the events that gave rise to the charges.
Since moving to South Australia the applicant had become concerned about shaking in his arm and hand and had arranged for a friend to take him to the doctor.
The friend told the Tribunal that the doctor had excluded any physical cause for the trembling and had attributed the shaking to some type of stress.
There is no evidence that the shaking or the applicant’s stress condition will be worsened by his detention.
The applicant’s representative submitted that the applicant will be compromised in his ability to instruct his solicitors in respect of his defence to the relevant charges if he has to stay in detention. Given that those charges are being dealt with interstate the Tribunal regards that submission as being of limited force.
The applicant’s representative further submitted that the applicant will be restricted in his ability to pay his lawyers. The Tribunal finds that that submission has force.
The applicant’s representative submitted that it is unlikely that the applicant will be granted his Save Haven Enterprise Visa before a decision is made about the criminal charges. There is no evidence before the Tribunal about that but the submission has some force. That being the case, if the charges are maintained the applicant is likely to remain in detention until after the hearing [in] March, or longer if the trial is adjourned.
The applicant’s representative also submitted that the applicant is likely to be transferred to [another detention centre] which will be more onerous for him. There is no evidence before the Tribunal to substantiate this and the Tribunal affords this submission no weight.
On the basis that the applicant will be unable to work while in detention and that he may suffer some compromise to his capacity to instruct the lawyers dealing with his defence and that he will be compromised in his capacity to pay for his defence, the Tribunal finds that cancellation of the visa will cause the applicant some hardship and ascribes this secondary consideration some weight.
The third secondary consideration that the Tribunal must take into account is the circumstances in which the ground for cancellation arose.
The Tribunal does not have a great deal of information about the circumstances of the charges. The fact that the applicant has not been convicted cannot be a mitigating factor as regulation 243 (p) (ii) clearly provides that charges even without a conviction are a sufficient ground to consider cancellation.
The fact that the applicant maintains a denial of guilt cannot, as a matter of logic, assist him in this application.
It is not inconceivable that in some matters the Tribunal might be in a position to assess the prospects of a successful prosecution as being strong or weak, which could be a mitigating factor, but that is not the case in this matter.
The Tribunal finds that the charges against the applicant are serious and this must weigh in favour of the tribunal exercising its discretion to cancel the applicant’s visa. The Tribunal accords this consideration some weight.

The fourth secondary consideration that the Tribunal must take into account is the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status.
The applicant acknowledges that he does not face an imminent prospect of return to Afghanistan as he has an outstanding visa application which will probably not be dealt with until after the criminal charges are determined.
The Tribunal accords this secondary consideration no weight in considering this application.
The Tribunal must also take into account any other matters that it considers relevant.
The applicant has submitted that the Tribunal should have regard to his compliance with visa conditions and his behaviour towards the department as a factor against cancelling the Bridging E visa.
The Tribunal finds that, although the applicant sent the Department an affidavit in support of his SHEV application and that the affidavit suggested that there were no charges or investigations imminent against him, and he knew that this was not correct, he did not prepare that document himself and it was not translated or explained to him. He signed it at the direction of his lawyer without understanding its import or effect.
The Tribunal finds that the applicant’s behaviour towards the department has been essentially honest and forthright and accords this some weight against the cancellation of the applicant’s visa.
The Tribunal further notes that the applicant has established a history of nearly 18 months on bail without breaching bail terms in any significant way, and affords that some weight in considering the applicant’s likely continued compliance with bail and visa conditions.
The Tribunal notes that there is no evidence that the applicant did anything other than being charged in the first place that precipitated the attention of the department and the decision to cancel his visa some 18 months later.
In balancing the secondary considerations the Tribunal notes that the seriousness of the charges against the applicant weigh in favour of the Tribunal cancelling the visa and that that consideration is ascribed some weight.
The fourth secondary consideration relating in part to the possibility of the applicant being removed from Australia is not immediately relevant to this application and the Tribunal accords it no weight.
The first and second considerations, specifically the impact on the applicant’s family and the degree of hardship from which the applicant will suffer both weigh in favour of the Tribunal not exercising its discretion to cancel the applicant’s visa and the Tribunal accords these considerations some weight.
Other matters that the Tribunal has considered are;
a.The applicant’s behaviour towards the department which has generally been honest and forthright which weighs against the Tribunal cancelling the applicant’s visa and to which the Tribunal accords some weight; and
b.The applicant’s established history of compliance with bail and visa conditions during the 18 months that he has been charged with the relevant offences but been left at liberty by both the courts and the department. The Tribunal finds that this weighs against the Tribunal cancelling the applicant’s visa and accords it some weight;
The considerations in favour of exercising the discretion to cancel the applicant’s visa do not outweigh in number or in weight the considerations in favour of not doing so.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Mark O'Loughlin
Member

[2018] AATA 5786

22 October 2018

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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