1837947 (Migration)

[2019] AATA 4219

1837947 (Migration) [2019] AATA 4219 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837947

MEMBER:Jason Pennell

DATE:2 August 2019

PLACE OF DECISION:  Melbourne

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 2 August 2019 at 5.00pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence – aggravated burglary – threat to kill – stalking – criminal damage – consideration of discretion – pleaded guilty to criminal damage – other charges withdrawn – released without conviction on own undertaking – not a threat to the community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 499
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 20 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) of the Act on the basis that that the applicant had been charged with criminal offences, including aggravated burglary, threat to kill, stalking and criminal damage. 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 8 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

5. 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

1. 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) of the Act. 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

1. 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) is relevant.

2. On 1 December 2018 the applicant was charged with the following offences that were alleged to have occurred in [Suburb 1], Victoria on [Date 1] and [Date 2] November 2018 :

   (a)Aggravated Burglary.

   (b)Threat to Kill.

   (c)Stalk another person.

   (d)Damage property (namely a rear window) to the value of $250.00.

   (e)Damage property (namely a motor vehicle) to the value of$250.00.

3. A copy of the charge sheet in relation to each charge made against the applicant has been provided by the applicant to the Tribunal. Notwithstanding the fact that the applicant denies the allegations against him in relation to each charge, he does not deny that he was charged with the offences as alleged.

4. 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

1. 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.

2. 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 (this is not a relevant consideration in this case).

3. 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.

4. 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’.

Circumstances in which ground of cancellation arose.

1. The charges against the applicant arise out of the breakdown of a domestic relationship the applicant was in with a person who he knew from his home in Quetta, Pakistan. The circumstances in which the charges were made were as a result of the applicant having discovered another person at home with his partner. The applicant denied the allegations made against him in relation to Aggravated Burglary, Threat to Kill and Stalking, but admitted to damaging to the rear window of the alleged victims property and motor vehicle. He said that his actions were ‘out of character’ and a result of the particular circumstances in which he had found himself. As a result, he said that he did not represent a threat to the rest of the community.

2. A committal hearing was conducted [in] July 2019 at [the] Magistrates Court at which time the charges against the applicant relating to Aggravated Burglary, Threat to Kill and Stalking where withdrawn. The applicant pleaded guilty to the two charges of intentionally damage property for which he was released without conviction on his own undertaking.

3. While the Tribunal accepts that the applicant has been charged with the offences of Aggravated Burglary, Threat to Kill and Stalking, the fact that those charges have been withdrawn and that he was realised by the court without conviction on his own undertaking in relation to each of the property damage charges, the Tribunal finds that the applicant does not represent a threat to the community. As such the Tribunal has placed great weight on this fact in the applicant’s favour.

The purpose of the visa holder’s travel and stay in Australia.

1. The applicant claims that he is from Quette, Pakistan and that he is an ethic Hazara. He claims that he travelled to Australia due to the escape the terrorist organisation Lashkar-e-Jangvi. As a result he claims that he travelled to Australia for protection.  The Tribunal has placed some weight on this fact in the applicants favour.

The extent of compliance with visa conditions

1. Save the applicant being charged with the offences, there is no evidence of him having breached any other conditions of his visa. As to the applicant’s breach of the visa conditions the Tribunal has placed some weight on the fact that the charges relating to Aggravated Burglary, Threat to Kill and Stalking, were withdrawn and that he was realised without conviction on his own undertaking in relation to each of the property damage charges. 

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The applicant submits that if the Tribunal affirms the delegate’s decision he will remain in detention for an extended period of time pending the determination of his protection visa application. He submits that in all the circumstances that he would suffer great financial and emotional hardship by continuing to be detained. He submits that it is unjust to subject him to such an extended period of incarceration in circumstances where the charges have been withdrawn and he has been released without conviction on his own undertaking in relation to the property offices. The Tribunal has placed some weight in the applicant favour in relation to this matter.

Past and present behaviour of the visa holder towards the Department

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell
Senior Member