1903821 (Migration)

1903821 (Migration) [2019] AATA 782 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1903821
MEMBER:Antoinette Younes
DATE:28 February 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 28 February 2019 at 2:14pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with a criminal offence – consideration of discretion – serious nature of offence being charged – best interests of children – degree of hardship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 116, 375A
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 February 2019 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).
The delegate cancelled the visa under s.116(g) on the basis that a prescribed ground for cancelling the visa applies to the applicant. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PROCEDURAL MATTERS
Section 375A Certificate
At the beginning of the hearing, the Tribunal explained to the applicant that he has the right to decline answering questions on the ground of self-incrimination. The Tribunal explained to the applicant that it is not the Tribunal’s task to determine whether the applicant is guilty or innocent of the offences with which he has been charged. The Tribunal explained that its task is to deal with the cancellation of his visa and the applicant understood.
The Departmental file contains documents referring to allegations made to the Department. Those documents are subject to a s.375A certificate.
Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest or for any other reason specified in the certificate. If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.
In accordance with s.359AA, the Tribunal discussed with the applicant that the documents subject to the s.375A Certificate refer to allegations that:
·[Information deleted].
·[Information deleted].
·[Information deleted].
·[Information deleted].
The applicant denied all those allegations. The applicant provided the Tribunal with two copies of photographs. The Tribunal notes that in one of those photographs, the applicant is wearing [clothing] with the logo relating to [a specified organisation].
The Tribunal has not tested those allegations and accordingly the Tribunal has decided not to give them any weight.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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 had provided to the Tribunal, that the Department received advice that on 1 December 2018, the applicant was charged by the NSW Police with [an offence], that he was granted bail and is scheduled to return to Court [in] April 2019. The applicant gave an account, discussed below, of what had happened and acknowledged that he has been charged.
On 17 December 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) which had to be reissued on 4 January 2019 because that NOITCC contained an error. The Tribunal is satisfied that the NOITCC issued on 4 January 2019 is valid.
In the course of the hearing, the applicant accepted that the ground for cancellation exists.
On the basis of the available information, the Tribunal finds that the applicant has been charged with an offence under a NSW law. 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
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.
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’.
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
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.
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 gave evidence that he has pleaded not guilty to the charges. He stated 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.
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 63 requires the Tribunal to give regard to the relevant considerations. The Tribunal is satisfied that the grant of conditional bail does not necessarily way in favour of an applicant in relation to the cancellation of the visa.
The Tribunal 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 violence of any kind but particularly towards one’s family to be serious. That is not to say that the Tribunal is suggesting that the applicant is guilty as charged, however the Tribunal is satisfied that the [offence] with which the applicant has been charged is [serious].
The Tribunal has given this consideration significant weight in favour of cancellation.
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The Tribunal appreciates that this consideration is not specifically related to international obligations, they are nevertheless relevant in this case.
As well as our national laws relating to the interests of children, Australia is a signatory to the Convention on the Rights of the Child (CROC). The CROC applies to children under 18 years of age.
By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life.
The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights. Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The applicant indicated that the family needs the spiritual and emotional support he provides. His son is at an age requiring his father’s support. His two daughters need a male role model. The applicant gave evidence that it would be in the best interest of his children for him to be around. The applicant expressed tremendous love for his children and the Tribunal does not doubt the authenticity of his sentiments. He indicated that he is hopeful to return home and live with the family.
The Tribunal asked the applicant about the bail conditions and he explained that those conditions include that he “must not go 100m” of his spouse, the children, and other relevant persons. [Mr A] who gave evidence told the Tribunal that prior to his detention, the applicant was living with him and that if released, he could return to stay with him.
In submissions, the applicant stated that:
·The cancellation of his visa would have devastating emotional and developmental consequences on his three children [some of whom have] special needs. His contribution to the children is essential.
·Cancellation of his visa would not be in their best interest. He has been in Australia for approximately 11 years and since his arrival, he got married and now they have three Australian born children aged [age], [age] and [age] years.
·He has lived with his children since their births and the family has lived in a modest two-bedroom [home]. He owns the property and has sole responsibility for the mortgage.
·He and his wife have attended [an] early childhood intervention program offering support to families with children who have developmental difficulties.
·Cancellation of his visa would result in the separation of his family unit and would have devastating emotional and financial consequences for the family.
The Tribunal acknowledges that these are tough times for all members of the applicant’s family. No doubt the children, [some] of whom have special needs as well as the wife would be distressed, anxious and upset about what has happened to the family.
The Tribunal appreciates that it is accepted that generally, it is in the best interest of children to be with their parents as part of a family unit but it is reasonable to suggest that there are instances when it is not in the best interest of the children to be with their parents. [The] applicant has been charged with a serious [offence] and the Tribunal is of the view that under such circumstances it is not in their best interest to be with the applicant who is the alleged perpetrator. By saying so, the Tribunal does not intend to be harsh towards the applicant who came across as being a kind person who obviously loves his children but objectively, the fact that he has been charged with that offence and there are bail conditions that he “must not go 100m” from his spouse and the children, mean that it is not in their best interest to be with the applicant currently. In those circumstances, the Tribunal is also not satisfied that there would be breach of any international obligations in case of cancellation.
A decision to cancel the visa in circumstances where there are children weighs heavily on the Tribunal personally. The evidence before the Tribunal considered objectively and independently means that the Tribunal gives this consideration limited weight in the applicant’s favour.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
In submissions, the applicant indicated that the cancellation of his visa and subsequent detention may be for months or years and this would almost certainly have a detrimental long-term impact on the possible reconciliation with his family. He noted that his sole income comes from compensation payments which allow him to continue paying the mortgage on the family home where his wife and children reside and that he is likely to default in mortgage repayments which would result in the family home being subject to a mortgagee sale so the family would be homeless.
The applicant provided documents that show compensation regular payments of approximately $1170 a week. The Tribunal asked him what is happening to the mortgage repayments and he indicated that he has not paid for about two months. The Tribunal asked him why he has not paid in light of the fact that he gets the regular compensation payments and he stated that he had other expenses such as paying rent since he left home subsequent to the charges. The Tribunal accepts that if repayments are not made on the mortgage, there is potential of a mortgagee sale. The applicant advised the Tribunal that the mortgage repayments are about $1850 a month and that his wife does not work. The Tribunal is satisfied that the evidence supports a finding that the applicant does have money to pay the mortgage and the Tribunal is not persuaded by his explanations that because he has left home, he is unable to pay. It appears to the Tribunal that the applicant is choosing not to pay rather than not being able to pay. The Tribunal gives those submissions limited weight.
The applicant has expressed an intention to reconcile with his family and the Tribunal accepts that the applicant has those good intentions. However, those intentions must be considered in the current context. The Tribunal notes the observations of [Ms B] in her report of 6 June 2017 that the applicant and his wife are a strong and committed family who would very much like to continue raising their children in Australia together as a family unit. However that report was prepared prior to the charges and the Tribunal therefore gives it limited weight.
The applicant has been charged with an [offence] and there are bail conditions restricting him from approaching the family. Consequently, currently he is not in a position to reconcile with his family and the Tribunal can only speculate as to whether he would be able to do that in the future.
The Tribunal has carefully considered the impact of cancellation on the family unit but in the circumstances, the Tribunal does not consider the impact of a decision to cancel the applicant’s visa on the family unit to weigh in his favour.
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
In submissions, the applicant indicated that there are reasons for not cancelling his visa, including:
·He has been in Australia for approximately 11 years and has been married to an Australian spouse and they have three Australian born children. The cancellation of his visa would result in the separation from his family which would have devastating emotional and financial consequences to the family. He has been diagnosed with depression, anxiety, panic attacks and he is experiencing suicidal ideations.
·He has an established and ongoing mental health program particularly with the psychologist, [Ms C]. He has an ongoing workers compensation claim and his ability to continue treatment would be impacted by his detention. He has enrolled in [a program] due to commence on [February] 2019. This is a program to facilitate the taking of responsibility in relation to family violence.
·He has complied with the bail conditions. There is no history of violence and he needs to be free to prepare for his court appearance and in order to obtain legal advice. [Mr A] (gave evidence in the course of the hearing) has known him for five years and he would be staying at his known address in order to comply with the bail conditions. He can personally support himself financially through workers compensation payments of approximately $1170 week. He is prepared to report to the police station on a daily basis and he is prepared to comply with any conditions imposed by the Tribunal.
·He is a good person. He is well respected amongst his peers and community. He has contributed to the Australian community. He has been a volunteer at [a charitable organisation]. He has expressed interest in joining the [emergency service].
·He has a brother in [Australian City 1] and he has an extensive circle of friends. He has been involved in a program with his local [school] engaging with troubled adolescents and teaches them [various] life skills. He has a new business concept that he has been researching and he is 75% of the way in establishing that the business. He is a qualified [Occupation 1], [Occupation 2] and [Occupation 3].
·He has been under increased pressure and stress and he believes that impacted on his emotional well-being. On two occasions he became angry during arguments and he accepts that his behaviour is unacceptable. He has been working with a psychologist and he believes he has made significant progress. He sympathisers and understands his partner’s point of view.

In the course of the hearing, three witnesses gave evidence in support of the applicant.
The applicant provided documents in support, including:
·    Report of [Dr D] (GP), dated 12 September 2018, referring to medical treatment plan of the applicant, namely seeing [Ms C] (psychologist), taking antidepressant medications, ongoing counselling and support. Letter of [Dr D] dated 26 November 2018 being a referral to [a specialised clinic] in [Suburb 1] regarding injury to the applicant’s [Body Part 1] in April 2018.
·    Letter of support from [Ms E] (Branch Manager), dated 22 December 2018 referring to rehabilitation work due to the applicant’s workplace injury. [Ms E] commented on the applicant being honest, cooperative, open in his communication and willing to participate.
·    Letter dated 17 August 2018 from [Ms C] (psychologist) referring to the applicant’s attendance in relation to depression, anxiety, panic attacks and experience of suicidal ideation.
·Letter dated 22 February 2019 from [Ms C] referring to the applicant’s difficulties with frustration, anger and low self-worth. [Ms C] commented that the applicant has demonstrated insight and empathy and that he is highly motivated to maintain attendance at future sessions in order to assist with his rehabilitation and return to work. She referred to [a] program which is a rehabilitation program for six months including due to commence [in] February 2019.
·Letter of support from [Ms F] of [a support organisation], dated 29 May 2018 to the Hon Peter Dutton in relation to the unsuccessful request of the applicant for Ministerial Intervention.
·Letter from [Ms B], dated 6 June 2017, referring to the support available to the family concerning the [children] who may have developmental concerns. [Ms B] commented on the applicant and his spouse being eager to parent their children using positive strategies and that they are strong and committed individuals.
·Insurance payments, bank statement, marriage certificate, birth certificates for the children, [rehabilitation program] participant agreement signed by the applicant, two photographs of the applicant with his children and family, K10 questionnaire measuring psychological distress.
·Letter of support from [Mr G] (principal solicitor) dated 23 September 2018 referring to the many good qualities of the applicant.
·Reason for Bail Decision by Police Officer, dated 4 December 2018 noting that there is concern about the applicant in case of release from custody, namely “commit a serious offence, endanger the safety of victims, individuals or the community, interfere with witnesses or evidence”.
The Tribunal accepts the evidence that the applicant has suffered from a work-related injury which has led to physical limitations, current inability to work in his skilled occupation, stress, frustration and that his mental health is currently compromised.
In the course of the hearing, the Tribunal asked the applicant if he is receiving any mental health support while in detention and he confirmed that he is aware there are mental health facilities at the detention centre providing services to detainees. He gave evidence that he has been permitted to receive telephone counselling from his regular counsellor while in detention.
The applicant stated that he needs time to be able to prepare for the criminal matter and being in detention makes that difficult. He gave evidence and provided documents in support that he was due to commence the [course] [in] February 2019 as suggested by [Ms C].
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 and attending medical appointments, not being able to attend the course, and that the applicant feels that detention is like a prison.
As the Tribunal explained to the applicant in the course of the hearing, the cancellation of the visa is not intended to be punitive. The Tribunal is of the view that detention in the case of a visa cancellation is an intended legislative consequence and although the Tribunal gives the applicant’s circumstances weight in his favour, the Tribunal when considering the evidence cumulatively, 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;
On 1 December 2018, the applicant was charged with [a criminal offence]. The applicant has denied those allegations and he has entered a plea of not guilty with the matter listed for Court [in] April 2019.
The applicant argued that he does not have a history of violence and that “this is the first time that I have been charged with an offence of this nature”. The Tribunal has noted the applicant’s submissions and particularly his plea of not guilty. 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.
The applicant has been charged with an offence against a state law and consequently the grounds for cancellation exist.
The Tribunal is of the view that the [charge] is serious. The charge formed the basis of the cancellation of the applicant’s visa.
The Tribunal considers this aspect to weigh heavily against the applicant.
·the possible consequences of cancellation;
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. If the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation.
The Tribunal gives neutral weight to this consideration.
·any other matter considered relevant.
In submissions of 24 December 2018, the applicant stated that since coming to Australia 11 years ago, he has made multiple efforts to become an Australian citizen but unfortunately he has a history with the Department relating to “misplaced and delayed documents”. He has made Australia home. The Tribunal is satisfied that the applicant has not been granted a permanent visa and he can only be granted Australian Citizenship if and when he meets all the relevant criteria.
The applicant claimed that he has made contribution to the Australian community such as volunteering with [a charitable organisation] and the Tribunal gives this some weight in his favour.
The applicant has never held a permanent visa in Australia and he cannot have an expectation to remain in Australia without a valid visa. The decision record provided by the applicant to the Tribunal indicates that the applicant arrived in Australia as a visitor [in] November 2007 as the holder of a [temporary] visa. That visa ceased on 15 August 2008 and subsequently the applicant was granted a number of visas but has had a period of unlawfulness. He lodged a Partner visa application and he was granted the [visa] on 7 May 2010. The [permanent] (partner) visa was subsequently refused on 21 June 2013 which on review by the Tribunal was remitted to the Department but the visa was refused on other grounds. The applicant sought Ministerial intervention on three occasions in 2018 all of which the Minister declined to consider. The applicant lodged an application for [a] medical treatment (visitor) visa on 2 August 2018. The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia was to stay permanently, rather than visit Australia, inconsistent with the [temporary] visa. The Tribunal gives this aspect weight in favour of cancellation.
In relation to compliance with visa conditions, the Tribunal discussed with the applicant the information that it would appear that he did not comply with condition 8506 which requires the visa holder to notify the Department at least two working days in advance of any change in the holder’s address. The applicant advised that he had informed his representative of the change of address. On the evidence before it, the Tribunal is not satisfied that the applicant complied with condition 8506 and the Tribunal gives this aspect some weight in favour of cancellation.
CONCLUSIONS
The Tribunal has carefully considered the applicant’s case and circumstances individually and cumulatively. The applicant has been charged with a serious offence 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.
In the present case, the applicant has maintained that he is not guilty of the offence with which he has been charged. Three witnesses gave evidence in support of the applicant. The Tribunal is satisfied that the witnesses genuinely believe that the applicant is a good person. The Tribunal is not deciding whether the applicant is a good or a bad person. The Tribunal is not deciding the guilt or innocence of the applicant but is deciding questions relating to the cancellation of his visa.
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.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Antoinette Younes

Senior Member

[2019] AATA 782

28 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Charge

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies