1835744 (Migration)

[2018] AATA 5230

1835744 (Migration) [2018] AATA 5230 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835744

MEMBER:James Lambie

DATE:14 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 14 December 2018 at 10:57am

CATCHWORDS
MIGRATION – cancellation – Subclass 050 (Bridging (General)) visa – charged with offence – seeking judicial review of protection refusal – seriousness of criminal charge with allegations of extreme violence – decision under review affirmed

LEGISLATION
Criminal Code (Qld), s 320
Migration Act 1958, ss 116(1)(g), 499

Migration Regulations 1994, Schedule 2 r 2.43(1)(p)(ii), condition 8564

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501Kof 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 4 December 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 a prescribed ground under r.2.43(1)(p)(ii) exists, namely, that the applicant has been charged with an offence under Queensland law. 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 13 December 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.

7. [The applicant] entered Australia [in] June 2016 as an unauthorised maritime arrival.  He has been in Australia as a holder of a Bridging (subclass 050) visa since 23 July 2013.  He has been refused a protection visa and is seeking judicial review of that decision.

8. Under summons, the Queensland Police Service produced to the Tribunal copies of [the applicant]’s court outcomes and [court] briefs.  These were furnished to him at the hearing pursuant to s. 359A for his comment. 

9. [In] March 2017, [the applicant] was charged with grievous bodily harm under s.320 of the Criminal Code (Qld). The offence was alleged to have been committed in [a location] [in] March 2017. He is on bail and, [in] March 2018, was convicted and fined $200 for a breach of one of his bail conditions (alleged to have occurred [in] February 2018).

10. Although [the applicant] denies the gravamen of the facts alleged against him, he does not dispute that he has been charged with the offence against s.320 of the Criminal Code.

11. 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

12. 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.

13. 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.

14. 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.

15. 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’.

16. Given that there are no children under the age of 18 in Australia who would be affected by the cancellation of [the applicant]’s visa, I am required to give very substantial weight as a primary consideration to the fact that he has been charged with the offence.  The offence is a serious one, to which further reference is made below.

17. I received evidence at the hearing and have had regard to written submissions in support of [the applicant]’s application in respect of the secondary considerations.

18. There are no members of [the applicant]’s family unit present in Australia on whom the decision to cancel his visa would have any impact.  The Tribunal heard from [Ms A], who claims to have been in a relationship with [the applicant] for about a year.  She and [the applicant] claim to be engaged to be married.  Her evidence was that her mental state would become unstable and she would suffer hardship were he to remain in immigration detention or be deported.  She was not available to give oral evidence to the Tribunal.

19. If [the applicant]’s visa is cancelled, he will be an unlawful non-citizen and will remain in immigration detention, and may be required to remain there until determination of his application for judicial review is determined.  Until then, he may be precluded from seeking any further bridging visa.  The Tribunal also received submissions from his general practitioner [and] his treating [psychologist].  [The GP]’s opinion is that [the applicant] suffers from depression, anxiety and PTSD.  In his view, [the applicant]’s remaining in detention would not be in his best interests and may exacerbate his medical conditions.  [The psychologist] has seen [the applicant] twice since he was referred to her in September 2018.  In her opinion, his detention is exacerbating his PTSD, causing flashbacks to his trauma, affecting his ability to relax or to sleep, and resulting in panic attacks at night.  She is also of the view that [the applicant] may be prone to harming himself.  [The applicant]’s evidence to the Tribunal was to a similar effect, although this is not surprising given that the letters are largely based on his own reports.  In my view, the psychological and emotional problems of which he complains stem much more from the stress of the very serious criminal charge he faces than from his placement in immigration detention.   In his evidence before me, it was clear that the criminal matter was his greatest concern and he had little to say about any hardship arising from his detention.

20. The circumstances in which the grounds for cancellation arose are alleged in the police charge sheet.  It is alleged that [the applicant], around midnight [in] March 2017, became involved in a street fight.  [Details deleted].  The complainant was alleged to have suffered, as a result of these assaults, [injuries] and required surgery.

21. [The applicant] denies the allegations.  The matter is proceeding to trial in the District Court in February 2019.   He has pleaded not guilty.  The basis of that plea appears to include self-defence but [the applicant]’s evidence was not entirely clear.  There was no material from his lawyer.   It is, of course, not the function of the Tribunal to make any determination as to guilt or innocence of an applicant in these circumstances, or even to form a view on the plausibility of the allegations.  However, it is relevant as a secondary consideration to observe that the charge in this matter is one of extreme violence and I give weight to that.  This is not an instance, it would seem, where the grounds for cancellation arose from circumstances beyond the applicant’s control.

22. As noted above, [the applicant] travelled to Australia as an unauthorised maritime arrival and has sought a protection visa.  He was granted a Temporary Humanitarian Stay visa on 23 July 2013.  His subsequent applications have been refused and he is seeking judicial review of those decisions.  His evidence is that he was raped in Iran and would be executed on his return as an apostate.  He had no entitlement to work during his first 12 months in Australia and received Centrelink support.  Subsequently he has undertaken English studies with Centrelink support for about 18 months.  Since about 2015 he has worked as [an occupation] making, he says, about [amount] a year.  He says he needs to stay in Australia to avoid returning to Iran, to advance his ambition of owning his own [business] and to marry [Ms A].  The matters he raised concerning persecution in Iran are the subject of his judicial review application and do not fall for consideration in this application.  He has only undertaken one [job] as an independent contractor, and I do not think it can be said that there is a significant business interest that will be affected by his detention.  [Ms A] is in Australia on a temporary [visa] and, in the ordinary course, would be expected to leave Australia herself in the short to medium term.  Accordingly, I can give only limited weight to any suggestion that [the applicant] has a compelling need to stay in Australia for the purposes of this application.

23. [The applicant]’s bridging visa is subject to condition 8564 – must not engage in criminal conduct.  Although his being charged with grievous bodily harm may be taken to indicate a breach of that condition, I am not prepared to make a finding to that effect in the absence of a conviction.  I also note that he has been before the Magistrates Court on charges of being intoxicated in a public place and breach of bail condition.  No conviction having been recorded on those charges, I do not propose to give them any weight against his application.  However, I do not, in these circumstances, think I can accord any weight in his favour on the issue of compliance.

24. The delegate reported in her decision that [the applicant] had been courteous and cooperative in his dealings with her and placed some weight on this in his favour.  I propose to do likewise.

25. There are no consequential cancellations associated with any decision to cancel the applicant’s visa.  Neither are there any international obligations invoked.  The issue of non-refoulement arises in respect of his protection visa application and the question of deportation is not a present consideration in this application.

26. The Tribunal also received submissions from [three named people] as to [the applicant]’s community ties and good character.  These were very general in nature.  None spoke to his background in Iran.  [One named person], who has known the applicant since his arrival in Australia, states that the applicant came to Australia to seek work, contrary to his persecution claims.  I can give very little weight to these statements in favour of the applicant.

27. On balance, I give the greatest weight to the issuing of a very serious criminal charge with allegations of extreme violence.  These weigh towards the cancelling of the bridging visa. There is insufficient material in respect of the secondary considerations to shift the balance the other way.

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

    DECISION

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

    James Lambie
    Senior Member