1832718 (Migration)

[2018] AATA 5361

1832718 (Migration) [2018] AATA 5361 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832718

MEMBER:Rachel Westaway

DATE:28 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2018 at 1:29am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with criminal offences – consideration of discretion – nature of offence being charged – SHEV application under consideration – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

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 August 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 was charged with a range of criminal 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 14 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4. 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

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)(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?

6. 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. Information was received from Victoria Police on 11 September 2018 indicating the applicant was charged with the criminal offences of using a carriage service to harass, threaten serious injury and possession of drugs of possession.

7. The applicant was provided notice at interview on 12 September 2018 of the intention to consider cancelling his visa and offered the opportunity to comment.

8. He stated that he does not know why the girl has pressed charged against him and that he was not in a scuffle with anyone and hasn’t done anything which would be considered a breach of the law. He stated he has not hit anyone, or murdered anyone and nor has he been in an altercation. He stated he has not sold drugs and he claimed he did not think it was right to cancel his visa.

9. The Australian Border Force received the Charge Sheet from Victoria Police on 11 September 2018. The applicant was charged with five offences.

   1. Use of a Carriage service to harass

   2. Threat to inflict serious injury,

   3. Possess a drug of dependence (tramadol),

   4. Possess a drug of dependence (Meth. Amphetamine),

   5. Stalk another person.

10. The review applicant explained that he came to Australia as an unlawful maritime arrival and has lodged an application for a SHEV (Safe Haven Enterprise Visa) the outcome of which is yet to be decided.

11. In cancelling the decision under review, the delegate noted that there appears no evidence of non-compliance with other visa conditions.

12. The applicant stated that he has no family in Australia however his friend and flat mate depends on him. He explained that they are like brothers. 

13. The applicant was asked about the progress of the charges. He stated that he attended court twice. He was given an intervention order and bail was granted.

14. He attended court on Monday and he said that there was no interpreter and then he said that on the second time he attended although he was promised one, Border Force attended but never sent him a copy of the decision and on the Friday he attended court again and he was told there was an intervention order.

15. He stated he has never received a copy of the decision. The Tribunal asked how he knew how to apply for review of the decision. He stated that he hired a private lawyer and the lawyer stated that that person could not get it and then legal aid provided the process for review at the Tribunal.

16. The Tribunal explained the process of the hearing and that its role was not to determine the outcome of the criminal matter and warmed the applicant against self-incrimination.

17. The applicant was asked to explain how his visa came to be cancelled. He stated that Border Force “came after him” after the court hearings. He stated that he has never stalked anyone and that there was no one to stalk. He stated that he possessed the drug tramadol and that this was prescribed to him. He stated that he did not have methamphetamines on him. He said he had opium for his own person use to manage pain.

18. The applicant agreed that he was charged with the charges outlined on the charge but believed that his visa should not be cancelled.   

    Consideration of discretion / conclusions

19. Given that the applicant has confirmed the charges and the Tribunal has outlined these charges to the applicant and is in receipt of copies of the charges, 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

20. 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.

21. 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.

22. 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.

23. 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’.

24. The applicant stated that the purpose for is travel to Australia was to escape a situation in Iran in 2013. He confirmed he is [age] years of age and he arrived as an unlawful maritime arrival. He confirmed that he arrived at Christmas Island. The Tribunal asked the applicant why he left Iran. The applicant stated that he had no issues with the State or Government. He said he had a friend in the neighbourhood and he had sexual intercourse with another man. He said that the other man’s family learnt of the incident and reported him to the police. He explained that he received three summonses from the court. He said that he does not identify as homosexual and it was only once and he stated that the lawyer who prepared his protection application for Australia sent the wrong file. He stated that it was presented incorrectly, that is he was described as homosexual and he said that it was a one off and he is not a homosexual.

25. The Tribunal suggested that the applicant correct the application for his SHEV before it is assessed. He explained to the Tribunal that he cannot recall if he has signed anything and he told his lawyer that it was wrong and the lawyer explained that until the invitation is issued it can be corrected. The Tribunal explained that he must ensure his application is correct. He stated that he has now gone to legal aid for support with his immigration issues. The applicant stated he would and stated that he has no representative.

26. The applicant explained that he came to Australia by himself. He has no partner in Australia or Iran and no children. He remains in contact with family in Iran and speaks to them regularly. He said that his Mother has cardiovascular disease and he speaks to her daily. He speaks to his father regularly. He has [a number of siblings] and they live in Tehran in Iran. He has had no family visit him in Australia. They are aware that the applicant is in detention. He stated that the stress has contributed to his mother’s hospital stay.

27. The Tribunal asked that applicant about the impact of a cancellation on him or his family. He said that his family rely on him and he said that he has only sent money home once since being in Australia. He said that they rely on him but he cannot assist because he is in detention. When asked what assistance he provides, he stated that they expect him to have a financial contribution towards the family and he said that one of his sisters has cancer and they expect him to assist with the cost of medicine. The Tribunal asked how the cancellation of his visa would impact on his family when he has only been able to provide financial support once.  He said his family are very upset. He explained that it is the stress of the cancellation and he said it will continue to cause them more stress. He said that his mother almost went mad when he was detained for six days and did not contact them.

28. He stated that the whole case damaged his mood and mental wellbeing and he can only sleep 2-3 hours a night.  He said that having the visa cancelled means he is in detention and the detention centre is hard.

29. He said that if the visa is cancelled he does not know what to do. He hopes that he has a second chance as he has no other option. He came to Australia with high hopes and his mother cries constantly.

30. The Tribunal encouraged the applicant to provide any further reasons it could take into consideration and also explained the relevant Direction. The Tribunal discussed with the applicant that even if his visa is not cancelled if the charges go to a conviction then it may impact on his ability to meet the requirements of the SHEV.

31. The applicant stated that he is not a dangerous person to the community and was never involved in a street fight or dangerous things. He stated that it was only once.

32. The Tribunal explained to the applicant that he has provided no evidence from his doctor supporting his claim that tramadol was prescribed to him for pain relief. The Tribunal asked the applicant if he is still taking tramadol and he confirmed that he was. The Tribunal explained to the applicant that whilst he claims to be in possession of opium, it is still unlawful to possess it.

33. In regards to incident it has only occurred once.  The applicant stated that it was a girlfriend. Can’t diminish the seriousness of the issue due to the fact that it only happened once.

34. He stated that his mental well-being, stress and sickness. He is also thinking about his mother.

35. If the applicant was to return to Iran he stated that he will be killed if the man’s brother or father find him. He said that homosexual relations are against Islamic instruction and would attract the death penalty.  He was asked the name of the person involved in the sexual encounter and he said his name was [Mr A]. He lives in [specified location] in Iran. The Tribunal asked the applicant how he manages to live in Iran safely.  He said that his family say he was raped however the applicant denied this to the Tribunal and said that there was consent and he was not raped. He said that in Iran if they have engaged in such activity then they call it rape. He confirmed that the matter has not gone to court yet. He stated that he believes that the file is open and he stated that he has a copy of the final court order. He stated that he left Iran two days after the whole court procedure started. He stated that he was to face three years imprisonment and 110 lashes.  He stated that it is around this. Clarified why he stated that he would face the death penalty. He said this is Islamic instruction and he said that maybe they have considered it and he said that it is a risky game.

36. He said that the father and brother threatened to kill him and he is pretty sure that at the airport he would be arrested and he is not sure what will happen next.

37. He stated that he was on medication and just for pain management and charges not yet finalised and he has been advised and he said that they lived together and the applicant went to the police station and he didn’t know that there was a case against him and he has not done anything like this to anyone before.

38. He explained he went to the [police station] because he was involved in a car accident and it was here that he learnt his ex-girlfriend filed a complaint against him. He said that he had no idea what was happening and he thought she was in school and he was under the impression they were still in a relationship.

39. He said that he was completely unaware of the complaint made against him.  He stated that he had substances on him and if he believed he was going to be charged by the police and was actually guilty of something then he would not be so stupid as to turn up to the police station with prescription drugs on him.

40. The applicant said that he does not want his visa cancelled and he wants a second chance and he believes he is a good person and he is stressed and his mother is unstable.

41. The applicant was asked what he has been doing since being in Australia. He confirmed that between 2013-2016 he was unable to work however when he received work rights he started [specified work] in 2016 until 2017. He said when he lived in Iran he was working in [a specified] shop. He said his highest level of education is year [number].

42. The applicant’s father is retired and he was working in [Occupation 1]. His mother was sick for a long time.

43. The applicant confirmed he came to Australia as an unlawful arrival from Iran to escape the family of his friend and police in Iran. He claims to be concerned about his wellbeing as he had a one off sexual relationship with a man in Iran and it is this man’s family he is fearful of.  The applicant has applied for a Special Humanitarian Visa which will allow him to remain in Australia. The applicant’s visa application is still being assessed. The Tribunal gives some weight in favour of the applicant needing to remain in Australia to have his SHEV assessed. However, there is no evidence before the Tribunal supporting the claims that he makes about facing harm in Iran due to a homosexual encounter. The matter is still before the courts in Iran and no outcome has been determined. Furthermore the applicant has the ability to ensure his migration status is regulated and he is able to remain in Australia for the outcome of the assessment of his SHEV.  In this case the Tribunal’s obligations against non-refoulement are being considered. If the applicant's visa was to remain cancelled he would not face removal from Australia until his SHEV application is finalised. For that reason I find that affirming the cancellation of the applicant's visa will not lead to a situation in which Australia's international obligations will be breached and as such I place no weight on this consideration.

44. There is nothing before the Tribunal to suggest that the applicant has breached other conditions on his bridging visa however the Tribunal does note that the applicant arrived in Australia as an unlawful maritime arrival. There is an expectation that all people in Australia respect the laws which exist and are relevant to them. As such the Tribunal gives minimal weight to the fact that the applicant has not breached any more conditions on his last visa.

45. The Tribunal accepts that the cancellation of his visa would cause some financial, psychological and emotional hardship to the applicant and his family. The applicant has explained that his mother has been extremely worried about him and has suffered from health issues exacerbated by the stress. The applicant has also explained that his family rely upon him for financial support and this would be impacted if his visa was cancelled. However, the applicant also stated that he has made one financial contribution to his family since being in Australia. The Tribunal accepts that his family would be disappointed if his visa was cancelled. It accepts that the applicant may have made a financial contribution towards his family in the past however given that it was one financial contribution, the impact in this regards would be contained. The Tribunal acknowledges that the cancellation of the applicant's bridging visa will be disappointing to the applicant and his family. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

46. I accept that a cancellation of the applicant’s visa would limit his opportunity to be considered for other visas and limit his ability to apply for other visas in the future. The Tribunal gives this some weight.

47. The Tribunal has considered the circumstances in which the charges arose and has considered whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. The applicant, whilst warned about self-incrimination chose to provide some context to the charges. He acknowledged he was charged. He denied that the drugs he was found in possession of were problematic and continued to explain that they were for his personal use for pain relief. Whilst the Tribunal notes this, the applicant has provided no evidence of prescriptions or medical evidence to support these claims. Furthermore, the applicant stated he has not been involved in anything serious and that he was unaware his former girlfriend had made a complaint. There is nothing to suggest that the charges are beyond the applicant’s control and nothing to suggest that the applicant need be aware that his girlfriend made a complaint to the police to add weight to the fact that police have sufficient evidence to charge the applicant with harassing her. The Tribunal notes that the nature of the charges are serious. Given the circumstances surrounding the charges are not beyond the applicant’s control or the result of a family breakdown or violence the Tribunal gives minimal weight to not cancelling the visa.

48. The Tribunal gives some minimal weight in favour of the applicant based on his past and present behaviour towards the Department. However in the context of the seriousness of the charges, the Tribunal does not accept that this is sufficient not to cancel the visa.

1. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and remaining in 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. However the Tribunal notes that the applicant has a SHEV application before the Department and the applicant has the opportunity to have this matter decided before he departs Australia. The Tribunal is conscious of the legal consequences of the cancellation but considers that this is the intention of the Migration Act and therefore gives this consideration little weight in favour of the applicant.

2. The applicant is already in detention and if the visa remains cancelled he will remain in detention and is unable to make another valid visa application. The Tribunal accepts that this is the case and notes that the applicant has significant charges against his name for serious matters and that he is limited in making a valid application for another visa. Even if the visa was not cancelled, the fact that the applicant has serious charges may have a negative impact on his future visa applications. There is nothing preventing the applicant seeking Ministerial Intervention if required.

3. The Tribunal has considered 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 and finds that there are no children associated with the applicant whose rights or interests would be breached.

4. There are no consequential cancellations which would be associated with the cancellation of this visa.

5. The Tribunal does not consider there to be any other relevant matters.

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

   DECISION

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

   Rachel Westaway
   Senior Member