1835389 (Migration)

[2018] AATA 5287

1835389 (Migration) [2018] AATA 5287 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835389

MEMBER:Ann Duffield

DATE:7 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 07 December 2018 at 11:58am

CATCHWORDS

MIGRATION – Subclass 050 (Bridging (General) – cancellation – convicted of domestic violence and drug offences – breached visa conditions – lack of self-awareness or situational awareness – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 116(1)(g), 499
Migration Regulations 1994, Schedule 2, r 2.43(1)(p)(i)

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 29 November 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 has been convicted of a number of serious domestic violence and drug 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 7 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. It became apparent during the proceedings that the woman who joined the applicant at the hearing was the subject of the domestic violence orders that had been taken out against the applicant. The applicant told the Tribunal that she was not there as a witness but merely for moral support. However, as those orders remain in place until April 2023 and there has been no variation or withdrawal of those orders, and for abundant precaution, the Tribunal suggested that the applicant’s wife remove herself from the proceedings and from the building. The Tribunal told the applicant that even if she volunteered to come and attend the hearing, he was technically in breach of the order and the conditions which prevented him from being within 500 metres of her or any building she was in. The applicant’s wife departed the hearing room and the building after being informed of the situation.

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

   BACKGROUND

6. The applicant is a citizen of Vietnam born on [date] ([age] years old). He arrived in Australia as an unauthorised maritime arrival in 2013 and has resided in Australia on a Bridging Visa since his arrival. His application for a substantive visa, lodged in June 2017, remains undecided.

7. The Tribunal sought the applicant’s criminal history from the [State 1] Police Service by summons [in] December 2018. On 5 December 2018 the Tribunal forwarded that information to the applicant for his comment and response informing him that depending upon his response, the information in relation to his criminal history and charges would form the reason or part of the reason for affirming the decision under review.

8. The applicant has been charged and convicted of the following offences:

   a.[August] 2018 – contravention of police protection notice and possessing dangerous drugs - $900 fine – conviction recorded

   b.[September] 2018 – contravention of domestic violence order x 2 - $900 fine – conviction recorded

   c.[November] 2018 – contravention of domestic violence order (aggravated offence); possess utensils or pipes etc for use; common assault domestic violence offence x 3 – 12 months’ probation – conviction recorded

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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)(i) is relevant.

11. The Tribunal put to him that it appeared that there were grounds to cancel his visa on the basis of the convictions recorded against him and sought his response. The applicant admitted that the grounds for cancellation existed but that he was deeply remorseful.  The applicant told the Tribunal that he never really assaulted his wife but on one occasion grabbed her by the hand.

12. The Tribunal put to the applicant that the courts had decided to agree to a 5 year domestic violence order which prohibited him from approaching within 500 metres his wife or any building she was in. The Tribunal suggested that this indicated the seriousness of the offences for which he was convicted.  The applicant indicated that he really did not understand the conditions.

13. There was a lengthy discussion with the applicant about his current visa application and the conditions of the visa he was on and it became apparent that he was uniformed about what visa or visas he was applying for and the conditions he was required to abide by. He said that there had been three or four visa applications and he didn’t know what was happening. The Tribunal put to the applicant that it found his evidence concerning in that it indicated an unwillingness to avail himself of the law in relation to his visa conditions or the conditions of his DVO. The Tribunal put to the applicant that this suggested that he may well continue to breach the conditions of his visa if he were released from detention. The Tribunal put to him that depending upon his response to that comment that information would form the reason or part of the reason for affirming the decision. The applicant continued to say that he really didn’t understand but wanted a chance to be a good citizen.

14. The Tribunal notes that the applicant has been convicted of six separate domestic violence offences as in on a 12 month good behaviour bond as a result. The applicant has confirmed these convictions.

15. 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

16. 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.

17. 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.

18. 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.

19. 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’.

20. The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia.

21. In this regard the Tribunal notes that the applicant is awaiting an outcome of one or more visa applications that he has made in the past. He seemed unaware of what they were or upon which application he was waiting for an outcome. He said that he and his brothers came to Australia for a better life and that the government in Vietnam had taken his house. He said that he had borrowed a significant amount of money in Vietnam that he could not pay back. He said that the people from whom he borrowed that money in Vietnam would kill him if he returned. The Tribunal asked if he had made a protection visa application based on his claims that he feared harm or death if he returned to Vietnam and he said that he believed that he had but that he didn’t know the outcome.

22. In the Tribunal’s mind whether the applicant remains in detention or is released will have no impact upon the progress of his previous applications for a protection, or any other visa. In any case, he can still make representations on his behalf or consult with others who may be engaged to provide him with legal or other advice whilst he is detained. The Tribunal does not place any weight in the applicant’s favour in this regard.

23. The Tribunal has considered the extent of the applicant’s compliance with visa conditions and notes that he was in breach of condition 8564 which was imposed on his bridging visa. This condition requires that he not engage in criminal activity. The applicant was also subject to condition 8566 (not breach code of behaviour). The applicant has breached condition 8564 on several occasions and during the hearing indicated strongly to the Tribunal that he lacked detailed knowledge of his visa application process. Indeed, the applicant’s wife has taken out a protection order against him for a period of five years which requires that he not be within 500 metres of her or a building that she occupies. Nevertheless, she attended the hearing and put the applicant in breach of that order. The applicant claimed that she was there voluntarily as support for him. He said that if she didn’t come he would not see her for a long time. The Tribunal is not satisfied that the applicant would not continue to remain uniformed about his obligations to conditions placed either on court orders or on his visa and thereby not satisfied that he would not continue to breach visa conditions if he is released from detention.

24. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) upon himself or his family members. The Tribunal notes that the applicant claims his [brothers] would be disadvantaged if he remains in detention. [Details deleted].  He said that they had isolated him there for some time. There is no other evidence to support the applicant’s oral claims.

25. The Tribunal accepts that the applicant may be having a difficult time in detention and is anxious about his visa status however the Tribunal is not satisfied that there is any evidence to support a finding that such anxiety is so compelling such as to persuade the Tribunal not to cancel his visa.

26. The applicant’s evidence in relation he arrived in Australia but has had occasional casual [jobs]. He has no children in Australia although his wife has [children] which he claims lives have with them from time to time. He claims that he is financially responsible for them and that his wife has spent all their money at the casino. He says that the gambling was the basis of their domestic disputes. The applicant claims that he was operating [a] business for around seven months before he had to close it in around January 2018. He says that it was not making money. Since then he told the Tribunal that he has been [working at various jobs] to earn some money.

27. Asked if he provided financially for his brothers the applicant said that they were both working now but that he had in the past.

28. Asked if the business would suffer hardship if he no longer worked there the applicant said that he was a hard worker but that the owner would probably be able to find someone else.

29. The Tribunal is not satisfied that the applicant or any members of his family would suffer such hardship as would constitute a reason for not cancelling the applicant’s visa.

30. The Tribunal has considered the circumstances in which ground of cancellation arose. The applicant claims that the domestic violence convictions arose as a result of his wife’s gambling problems and, whilst unclear, it appears that at least one of the domestic violence incidents occurred as a result of his drug use. He appears to be confused as to why such a comprehensive and extensive domestic violence order was imposed upon him as he claims that he didn’t assault his wife.

31. The Tribunal is not satisfied that the applicant’s circumstances were beyond his control or that they didn’t arise as a result of his own choices and behaviour or that he would not continue to offend if his visa is not cancelled. He demonstrated a significant and worrying lack of self-awareness or situational awareness.

32. The Tribunal has considered the applicant’s past and present behaviour towards the Department and finds no evidence that he has been anything other than cooperative and courteous in his engagement with the department.

33. The Tribunal has considered whether there would be consequential cancellations under s.140 and does not have any evidence before it to suggest that any other visas would be cancelled as a result of the cancellation of the applicant’s visa. The applicant’s brother told the Tribunal that he was on a separate bridging visa to that of the applicant and his visa would not therefore be affected if the applicant’s visa was cancelled.

34. The Tribunal has considered 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.

35. The Tribunal notes that the applicant would become unlawful if his visa is cancelled and he would therefore be subject to continued detention or removal. This would mean that, unless he chose to depart, he would remain detained until his substantive visa was decided. This could be for an extended time. The cancellation would also cause any future bridging visa applications to be invalid, again resulting in a potentially lengthy period of detention. However as these outcomes are the intended consequences of the legislation the Tribunal places little weight on these matters in the applicant’s favour.

36. 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. The applicant claims that he cannot return to Vietnam because his house was confiscated by the government and the police beat him after he refused to relocate to allow construction.

37. The cancellation of the applicant’s visa does not necessarily mean that he will be required to return to Vietnam, particularly as his substantive visa application(s) is still in hand. In any case, a proper evaluation of these claims is made by the department of immigration prior to deportation – if that is indeed the outcome of the applicant’s visa application.

38. The Tribunal does not find any other relevant matters that require consideration.

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

    DECISION

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

    Ann Duffield
    Senior Member