1830737 (Migration)

[2019] AATA 3950

1830737 (Migration) [2019] AATA 3950 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1830737

MEMBER:Antoinette Younes

DATE:3 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2019 at 10:06am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – charged with offences – criminal charge – detained in immigration – cannot work – financial impact on family – future depends on visa – conviction is not pre-requsite to enliven cancellation – low tolerance for criminal behaviour – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 189, 499
Migration Regulations 1994 (Cth), Schedule 1 Item 1305(2)(g), Schedule 2 r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 11 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).

2. The delegate cancelled the visa under s.116(1)(g) and r.2.43(1)(p) on the basis that the applicant has been charged with 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 29 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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.

8. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided in support of the application for review. Relevantly, the delegate’s decision record indicates that the applicant has been charged with offences, as evidenced in a prosecution notice dated [October] 2018. In the Notice of Intention to Consider Cancellation (NOITCC - Notice), also provided by the applicant, it is noted that the applicant has been charged with “5 X [charges under relevant section] at [a] Court [[State 1]]”. In response to the Notice, the applicant denied involvement and he did not agree that the grounds for cancellation exist.

9. In the course of the hearing, he agreed that he has been charged.  He said the allegations are baseless.  The Tribunal explained to the applicant that the Tribunal is not determining his guilt or innocence in relation to the charges but whether the ground for cancellation is made out, and if so whether the visa should be cancelled.  He understood.

10. On the basis of the available information, the Tribunal finds that the applicant has been charged with offences under [State 1] laws. Accordingly, 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 power to cancel the visa should be exercised

    Consideration of discretion

11. 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.

12. 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.

13. 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 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

14. This consideration reflects the Australian government’s expectation that non-citizens residing in Australia are to abide by the law and that the Australian authorities have low tolerance for criminal behaviour by non-citizens in the Australian community. Underlying this consideration is that in order to effectively protect the Australian community and to maintain integrity and confidence in the migration system, the government has introduced measures that support the education of bridging visa holders about community expectations and acceptable behaviour.

15. In the course of the hearing, the Tribunal discussed with the applicant the Australian Government’s expectations in relation to bridging visa holders. The applicant has pleaded not guilty and he maintains that he has not committed any offences.  The Tribunal acknowledges that the applicant has not been convicted. The Tribunal is satisfied that there does not have to be a conviction to enliven the cancellation of a bridging visa such as this case and that a charge or suspicion of engagement in criminal conduct is sufficient to warrant consideration to cancel the visa.

16. The applicant has been granted conditional bail.  Although the Tribunal gives some weight in the applicant’s favour in relation to the grant of bail, the Tribunal is satisfied that the grant of bail or the imposition of any conditions is a different legal process to that of the visa cancellation.  The Tribunal appreciates that cancellation of the visa is not intended to be punitive and Direction No. 63 requires the Tribunal to give regard to the relevant considerations. The Tribunal is satisfied that the grant of conditional bail does not necessarily weigh in favour of an applicant in relation to the cancellation of the visa.

17. The Tribunal acknowledges and respects the fact that in our legal system a person is presumed innocent unless proven otherwise subsequent to established criminal procedures. Those procedures are matters for the Courts and not the Tribunal. The Tribunal however must make findings relating to the cancellation of the visa. The Tribunal considers the offences with which the applicant has been charged are serious and involve a minor. By saying so, the Tribunal is suggesting that the applicant is guilty as charged, however the Tribunal is satisfied that the offences of “5 X [charges under relevant section] …”  with which the applicant has been charged are serious and weigh heavily in favour of cancellation.

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

18. The applicant confirmed that he has no children and there is no evidence before the Tribunal to suggest otherwise.

19. The Tribunal gives this consideration neutral weight.

    The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

20. The applicant gave evidence that his parents and older brother live in India and that he has been working in Australia supporting them financially.  He said his fiancée of 7 years is also in India.  He confirmed that although he has friends in Australia, he has no family.

21. In submissions to the Tribunal dated 24 May 2019, the representative provided a summary of the applicant’s background as follows:

    ·The applicant is a [age]-year-old male from India. In December 2013, he was granted a subclass 573 student visa, valid until 6 February 2017. The applicant entered Australia [in] December 2013 on the student visa. In January 2017, he applied for a subclass 500 student visa and on lodgement of that application, and by operation of the law, he was granted a subclass 050 BVE which continued to be valid on the basis of the pending review lodged with the AAT (later withdrawn).

    ·The subclass 573 visa was cancelled on 6 February 2017 and as a consequence of that cancellation, the associated BVE was cancelled. On 7 April 2017, the application for a subclass 500 was refused. The associated BVE was cancelled on 11 October 2018.  

22. In the course of the hearing, the applicant confirmed that he came to Australia in December 2013 as the holder of a subclass 573 student visa which was later cancelled for breach of condition and that his subsequent application for the subclass 500 visa was refused on the basis of not meeting the genuine student[1] requirement.  He stated that he lodged an application for review of the refusal decision with the AAT but later withdrew the application.  The Tribunal indicated to the applicant that the Tribunal is not specifically dealing with student visa issues but working in Australia on a student visa is not the main objective of the visa.  The Tribunal reminded the applicant that although work of prescribed hours is generally allowed, the main objective of the student visa is to study not to work.  He agreed with the Tribunal but said he has studied in Australia and completed [a qualification].

    [1] The genuine temporary entrant (GTE) requirement is an integrity measure to ensure that the student visa programme is used as intended – to study.

23. The applicant confirmed that members of his family are aware of the charges.

24. The applicant’s central point is that the visa cancellation means that he cannot work which has a financial impact on the family.  The applicant came to Australia on a student visa with a main objective to study and although he has studied, his visa was cancelled and a subsequent application was, on his evidence refused.  The applicant has never held a visa with a main objective to work in Australia.  The Tribunal is of the view that in those circumstances to contend that his visa should not be cancelled so that he can work is not convincing.  

25. The Tribunal has carefully considered those circumstances but has decided to give them limited weight in the applicant’s favour.

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

26. In submissions, the applicant indicated that there are reasons for not cancelling his visa, including the consequential hardship for not being able to work in Australia. As noted earlier, the Tribunal and for the stated reasons has not found those submissions to be persuasive. The applicant also raised concerns about his family and fiancée who are in India, particularly the ill health of his mother. He also argued that his future depends on his visa and that it is difficult to survive in India.

27. The Tribunal accepts that there is a degree of hardship to the applicant. The Tribunal accepts that being in detention in the applicant’s circumstances has challenges such as difficulties in preparing for the criminal case, not being able to work, and that it is plausible that his family has been impacted financially and emotionally. The Tribunal appreciates that being charged with such significant offences and being in detention would be very upsetting for the family and the Tribunal has given this aspect some weight in the applicant’s favour. In terms of the applicant’s submissions that he would not be able to work, given that the applicant has never held a visa with a primary objective to work in Australia, the Tribunal does not place much weight on those contentions in his favour.

28. The representative submitted that the cancellation of the BVE leads to the applicant being unlawful and prevented from applying for another BVE pursuant to item 1305(3)(g) of Schedule 1 to the Regulations.  She argued that as a consequence, the applicant would remain detained in immigration detention indefinitely and should the charges be later dropped or a verdict of not guilty, the applicant’s migration position is irreversible. The Tribunal accepts that the applicant in those circumstances is subject to the mandatory detention provisions in s.189 of the Act.

29. The Tribunal is of the view that detention in the case of a visa cancellation, as well as being prevented from applying for another BVE are intended legislative consequences. Although the Tribunal gives the applicant’s circumstances such as the fact that he has not been convicted weight in his favour, when considering the evidence cumulatively including the fact that under s.116(1)(g) reg. 2.43(p)(ii) there does not have to be a conviction, the Tribunal is not satisfied that there is a degree of hardship that weighs heavily against cancellation of the visa in the applicant’s circumstances.

    ·the circumstances in which the ground for cancellation arose;

30. The applicant has been charged with “5 X [charges under relevant section]”.

31. The applicant has entered a plea of not guilty and the matter is awaiting trial. The Tribunal notes the applicant’s evidence in the course of the hearing that he is not guilty and the Tribunal makes no comments about those charges as that is a matter purely for the Courts.

32. In submissions to the Tribunal dated 24 May 2019, the representative indicated that:

    a)    The Tribunal should find that the applicant’s visa should not have been cancelled, or the matter should be adjourned until the finalisation of the criminal charges.

    b)    [In] October 2018, the applicant was charged with five counts of “[charges under relevant section]. In more familiar terms statutory rape.” The Statement of Material Facts prepared by the [State 1] police (attached) confirms that the alleged victim is a [age]-year-old female with whom the applicant worked at a [business]. The applicant would have been aware of her age due to her employment.  The Statement of Material Facts indicates that the applicant and the alleged victim had consensual sexual intercourse and in October 2018, the company responsible for the [business] reported the matter to the police when other staff raised their concerns. The applicant was arrested [in] October 2018 and he cooperated with the police and participated in a video record interview during which the applicant denied having any sexual relationship with the alleged victim. He was charged on that day and he was released on bail but his BVE was cancelled and consequently he was detained.

    c)    The applicant was granted bail with a $25,000 personal undertaking and $25,000 surety (paid, and passport surrendered). The applicant entered a plea of not guilty. The matter was before the Magistrates Court [in] January 2019 for a Committal Disclosure date and the trial is likely to be [next] year in the District Court. Following the Committal Disclosure [in] January 2019, the applicant attended a trial listing hearing [in] April 2019 and the matter has been listed for a three day trial [in] August 2019 as a priority 3 matter but if the trial does not proceed on that date, it is further listed as a priority 2 matter [in] November 2019. In case the trial does not proceed [in] November 2019, it is listed for a further trial listing [in] November 2019.

    d)    The review before the Tribunal is not a platform to consider the charges against the applicant as that is a matter for the criminal justice system. The cancellation power is discretionary and although in light of the criminal charges, the power to cancel under s.116 is enlivened, the power to cancel is not mandatory. Ministerial Direction No. 63 provides guidance, the discretion is broad and unconstrained.

    e) The Australian government’s view that there is a low tolerance for criminal behaviour is accepted and any individual who travels and remains in Australia must abide by our laws. The writer however disagrees that the presumption of innocence, an inherent democratic right can be undermined if cancellation is pursuant to s.116(1)(g) occurs on the basis of ‘charges’ only in consideration of the irreversible damage caused by a cancellation under Regulation 2.43(p). If the Tribunal is unable to make a favourable decision, the Tribunal ought to adjourn the matter until the finalisation of the criminal proceedings

33. In the course of the hearing, the Tribunal discussed with the applicant the request to adjourn the matter until the finalisation of the criminal proceedings.

34. The Tribunal has considered the request to adjourn the matter and the Tribunal accepts that the matter is listed for trial on those dates. However as discussed in the course of the hearing, being listed for trial does not mean that the matter would be finalised on those dates. This was accepted by the representative. The Tribunal aims to finalise reviews in, amongst other things, a timely manner. The Tribunal is of the view that intentional delay in finalising a matter is unacceptable particularly when an applicant is in detention and there is lack of clarity and uncertainty about timeframes.  The Tribunal is of view that it could take months after the trial for the criminal charges to be finalised.

35. Moreover, cancellation pursuant s.116(1)(g) and r.2.43(p) does not require a conviction as a threshold to be met. Under s.116 of the Act, a visa may be cancelled if the decision-maker is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in r. 2.43(1) which stipulates that:

    For the purposes of paragraph116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    (p) in the case of the holder of the Subclass 050 Bridging (General) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa – that the Minister is satisfied that the holder:

    (ii) has been charged with an offence against a law of the Commonwealth, State, Territory or another country.

36. The representative argued that the “presumption of innocence is a fundamental pillar of our criminal justice system yet cancellation of [Applicant’s] BVE is circumventing this fundamental inherent right”. The Tribunal is satisfied that the legislature’s intention is unambiguous in that a conviction is not a prerequisite to enliven cancellation in those circumstances. Moreover it is clear that as far as the threshold to enliven cancellation in those circumstances is concerned, whether an applicant pleads guilty or not guilty is irrelevant (any relevance could potentially fall under the discretionary considerations). The Tribunal gives regard and places weight on the fact that the applicant has not been convicted but the Tribunal is of the view that to argue this position would be to elevate the threshold under cancellation pursuant s.116(1)(g) and r.2.43(p) to a level which was not intended by the legislature.

1. The Tribunal accepts that the applicant was granted bail with a $25,000 personal undertaking and $25,000 surety (paid, and passport surrendered).  The representative argued that an application for bail is a “serious matter in itself with the presiding Judge taking into consideration a variety of matters including but not limited to – the ‘risk’ an accused poses to the community, severity of the offence charged, the background of the accused and the prosecutions brief. In this regard, rape is a serious offence…if found guilty although the charges relate to a consensual sexual relationship it is deemed statutory rape as the victim was under the age of [age] at the time of the alleged offence. It is expected the grant of bail has taken into account all of the above and much more…”  The Tribunal does not disagree that in granting bail the Court considered all relevant matters. However, as discussed in the course of the hearing the grant of bail involves a different legal process to the visa cancellation.

2. Although the Tribunal is not suggesting that the considerations mentioned in Ministerial Direction No. 63 are exhaustive, they are however matters guiding decision makers in reaching consistency. The Tribunal has given some weight to the fact that the applicant has entered a plea of not guilty and has been granted bail, however, the Tribunal is not satisfied, when considering the totality of the evidence before it, that this means the visa should not be cancelled. The Tribunal is of the view that to adopt a different position could result in a situation where a visa should not be or cannot be cancelled in the case of a person who has been granted bail. The Tribunal is satisfied that this would again elevate the threshold under cancellation pursuant s.116(1)(g) and r.2.43(p) to a level which was not intended by the legislature.

3. The Tribunal has carefully considered the request to adjourn the matter and has decided not to await the finalisation of the criminal matter in those circumstances.  

4. The applicant has been charged with offences against a state law and consequently the grounds for cancellation exist. 

5. The Tribunal is of the view that the applicant has been charged with serious offences, which could amount to statutory rape.  The charges formed the basis of the cancellation of the applicant’s visa.

6. The Tribunal considers this aspect to weigh heavily in favour of cancellation.

   ·the possible consequences of cancellation;

7. As discussed earlier, there are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including detention and eventual possible removal.  For the reasons explained earlier, the Tribunal is satisfied that those consequences are intended lawful consequences of the legislation.

8. The Tribunal gives neutral weight to this consideration.

   ·any other matter considered relevant.

9. The applicant stated that it is difficult to live in India. The Tribunal does not consider those statements to be protection claims and there is no evidence before the Tribunal that in case of the cancellation of the applicant’s visa, Australia would be in breach of any of its international obligations, including but not limited to those under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

10. On his own evidence, the applicant’s subclass 573 visa was cancelled on the basis of non-compliance with a visa condition and the Tribunal gives this weight in favour of cancellation.

11. There are no other matters that require the consideration of the Tribunal.

    CONCLUSIONS

12. The Tribunal has carefully considered the applicant’s case and circumstances individually and cumulatively. The applicant has been charged with serious offences and the Tribunal has given this considerable weight. The Tribunal has given due weight to the Australian Government’s view in relation to low tolerance for criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis and who do not hold a substantive visa.

13. In the present case, the applicant has maintained that he is not guilty of the offences with which he has been charged.  The Tribunal is not deciding the guilt or innocence of the applicant but is deciding questions relating to the cancellation of his visa.

14. There are factors in favour of cancellation and there are those against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that he would suffer. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation.

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

    DECISION

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

    Antoinette Younes

    
    Senior Member