1904956 (Migration)

[2019] AATA 5634

1904956 (Migration) [2019] AATA 5634 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904956

MEMBER:John Cipolla

DATE:11 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 11 December 2019 at 9:58am

CATCHWORDS

MIGRATION – cancellation – Subclass 010 (Bridging A) – previous temporary and student visas – application for protection visa refused and affirmed on review – criminal convictions and imprisonment, including drug and traffic offences – outstanding criminal matters – previous involvement as driver in fatal vehicle accident in home country – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

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 21 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) 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 had been charged with and indeed convicted of a number of criminal offences in the state of New South Wales. 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 5 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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) is relevant.

7. The evidence before the Tribunal indicates that the Department was informed by New South Wales Police of the applicant’s criminal history in New South Wales. The applicant had been charged with a range of driving offences including driving a motor vehicle while license suspended; driving a motor vehicle with an illicit drug present in the bloodstream; possession of a prohibited drug; and a further charge of drive motor vehicle during licence disqualification. The applicant was sentenced to a period of imprisonment of nine months commencing [in] September 2018 and ending [in] June 2019 with a non-parole period of six months commencing [in] September 2018 and concluding [in] March 2019.

8. At hearing on 5 November 2019 the Tribunal discussed with the applicant his criminal history and the conviction leading to a term of imprisonment. The applicant confirmed this history. The Tribunal finds on the basis of the evidence before it that the prescribed grounds for cancelling the applicant’s visa as set out in r.2.43(1)(oa) are made out.

   REVIEW HEARING

9. The Tribunal conducted a review hearing on 5 November 2019. The applicant attended the hearing and both the applicant and the Tribunal were assisted by an accredited Mandarin interpreter.

10. At the outset of the hearing the Tribunal went into detail about the relevant issues in review. The Tribunal noted that the Department had been advised by New South Wales Police that the applicant had been charged and indeed convicted of a number of offences in that state. As a consequence of this advice the applicant was served with a Notice of Intention to Consider Cancellation (NOICC) dated 9 January 2019. The NOICC made reference to the information that had been provided by New South Wales police to the Department which indicated that the applicant had convictions for criminal offences. The applicant was invited to respond to the NOICC advising whether he believed the grounds for cancellation existed and, having regard to the relevant discretionary considerations, whether, his visa should be cancelled.

11. The Tribunal noted that the applicant was represented by a migration agent at that time, Mr [A] from [Law Firm] in Sydney.  The Tribunal noted that Mr [A] provided a comprehensive response to the NOICC in a submission dated 4 February 2019. The Tribunal noted that the Departmental delegate considered the response to the NOICC and determined that the grounds for cancellation of the applicant’s visa existed and that the grounds for cancelling the applicant’s visa outweighed the grounds for not cancelling the visa.

12. The Tribunal enquired of the applicant whether he continued to be represented for the purpose of merits review and the applicant advised that he did not have current representation.

13. The Tribunal explained to the applicant in detail the issues in the review and the prospective outcomes of the review and the evidence that the Tribunal would be having regards to before proceeding to decision.

14. The applicant provided his personal details. The applicant advised that he was born in Malaysia.

15. The Tribunal asked the applicant about his travel history prior to coming to Australia and the applicant stated that he had no travel history before coming to Australia. The Tribunal asked the applicant when he came to Australia for the first time and he advised [in] March 2015. The Tribunal asked the applicant what type of visa he travelled on and he advised it was a [temporary] visa.

16. The Tribunal asked the applicant how he was able to apply for [temporary] visa in Malaysia. The applicant advised that he obtained a passport and then he went to a travel agency who assisted him to obtain the visa. The Tribunal asked the applicant what the travel agency needed to do in order to obtain the visa and the applicant advised that he did not know. The Tribunal asked the applicant whether he had to pay money for the visa and the applicant stated that he paid money for his airfare along with money for the visa. The Tribunal asked the applicant whether he could remember what he paid and he advised that he could not.

17. The Tribunal asked the applicant whether he travelled to Australia with his family and he advised that he did namely his mother, his father and his [sibling] and the applicant advised that they were still in Australia.

18. The Tribunal asked the applicant about his ethnic background and he advised that he was Malay Chinese.

19. The Tribunal asked the applicant whether his parents had returned to Malaysia since 2015 and he advised that they had not.

20. The Tribunal asked the applicant whether he had returned to Malaysia since his arrival in Australia in 2015 and he advised that he returned to Malaysia [in] December 2017 to visit his cousin resident in Kuala Lumpur. The applicant stated that he returned to Australia [in] January 2018. The Tribunal asked the applicant whether he had any problems or incidents when he returned to Malaysia in 2017 and he advised that he did not. The applicant added that he was from Sarawak in Malaysia and the applicant advised that he had no problems whilst visiting his cousin in Kuala Lumpur for the two weeks that he was in Malaysia.

21. The Tribunal advised the applicant that when a person from overseas is issued with a [temporary] visa to visit Australia for a finite period of time there is an expectation that they will visit and return to their home country prior to the expiration of the visa. The Tribunal noted that the applicant had been in Australia since 2015 apart from visiting Malaysia in December 2017 through to January 2018. The Tribunal asked the applicant why he failed to return to Malaysia after the expiration of his [temporary] visa. The applicant stated that the initial reason that his family came to Australia was to experience life in Australia. The applicant stated that after he arrived he started to think about ways that he could remain permanently in Australia. The applicant stated that [in] April 2014 he was involved in a big motor vehicle accident in which [a number of] people were killed. The applicant stated that he was driving a [vehicle] and that the car that he was driving collided with [another vehicle] and [a number of] passengers in the applicant’s vehicle died. The applicant stated that he broke his [body part] and spent three months in hospital in traction. The applicant stated that the [other vehicle’s] driver was injured. The Tribunal asked the applicant who the [number of] people in his motor-vehicle were and he advised [specified people].

22. The Tribunal noted that the applicant travelled to Australia as the holder of [temporary] visa that was valid for three months and asked the applicant why he remained in Australia beyond that time. The applicant stated that he applied for a Student visa in Australia.

23. The Tribunal asked the applicant what he did in order to obtain a Student visa. The applicant stated that he applied through an agent. The Tribunal asked the applicant how long the Student visa was valid for and the applicant advised two and a half years.

24. The Tribunal noted that there are conditions attached to a Student visa and asked the applicant what conditions were attached to his Student visa. The applicant advised that he could only work for 20 hours per week, another condition was for unlimited study, another condition was to make satisfactory academic progress and another condition pertained to attendance requirements.

25. The Tribunal asked the applicant what courses he studied. The applicant advised that he had studied an English language course that commenced [in] July 2015 and that he ended up completing 18 months of English language courses each one of approximately three months duration. The applicant stated that he studied these courses at [a] College in Melbourne. The Tribunal asked the applicant whether he studied beyond the 18 months and the applicant advised that he then applied for Protection visa.

26. The Tribunal asked the applicant when he lodged his Protection visa application and he advised in March 2018.

27. The Tribunal asked the applicant whether he understood the basis in which a person would make an application for Protection visa. The applicant stated that if he was to return to Malaysia he would be threatened. The Tribunal noted however that the applicant had returned to Malaysia of his own volition in late 2017, for two weeks, to visit his cousin. The Tribunal asked the applicant whether he experienced threats during this visit. The applicant stated that he did not because he was residing in Kuala Lumpur during that visit. The applicant stated that the motor vehicle accident that he was involved in took place in Sarawak. 

28. The Tribunal noted that it was not reviewing the applicant’s Protection visa claims. The Tribunal asked the applicant whether the Department had made a decision on his Protection application. The applicant advised that the Department had refused his Protection visa application and that he had an application currently with the Tribunal for merits review and that a hearing had been scheduled for 12 November 2019.

29. The Tribunal noted that a person applying for protection needed to satisfy a decision maker that they had a well-founded fear of persecution in their home country for one of the five Convention reasons. The Tribunal noted that the fact that the applicant had voluntarily returned to Malaysia appeared to diminish the well-foundedness of that fear. The Tribunal noted that he had experienced problems in Sarawak that the fact that he did not experience any problems in Kuala Lumpur suggested that he could effectively relocate within Malaysia. The Tribunal noted that based on the applicant’s responses to its questions that the threats appeared to emanate as a result of the traffic accident that he was involved with in Sarawak.  The Tribunal advised the applicant that this also raised the questions of whether he could avail himself of effective state protection in Malaysia.  The Tribunal noted however that this would be dealt with before the Refugee Division of the Tribunal at merits review.

30. The Tribunal made reference to the applicant’s criminal history listed in the bail report that had been provided by New South Wales Police to the Department. The Tribunal asked the applicant to describe his criminal history. The applicant stated that he drove without a licence in 2018. The Tribunal asked the applicant how he came to the attention of the police and the applicant advised that he was on bail for other offences and that he reported to the police station driving a motor vehicle without a licence. The applicant advised the Tribunal than in 2018 he was charged with demanding property in company. The applicant stated that as a result of cumulative driving offences he was sent to prison in September 2018.  The applicant further advised the Tribunal that he was also caught driving 140km an hour in a 100km zone whilst his license was disqualified.

31. The Tribunal noting that the applicant had been driving a car in which [a number of] people passed away as a result of a collision with [another vehicle] in Malaysia, how he was able to obtain an international drivers licence in Malaysia. The applicant stated that Malaysia was corrupt.

32. The Tribunal asked the applicant why he reported to police whilst on bail driving a motor vehicle when he was not licensed to do so. The applicant stated that he needed to report to the police station which was located in [Town] and that he was living in [Suburb] a suburb about 10 minutes drive away. The Tribunal asked the applicant whether he would have been able to walk to the police station and the applicant advised that he could have, but to walk, would have taken about 40 minutes.  The applicant stated that as a result of his string of driving offences and driving whilst disqualified he was sentenced to 6 months imprisonment which he served in [specified prisons]. The applicant stated that he was imprisoned from [September] 2018 until [March] 2019.

33. The Tribunal noted that the New South Wales police bail report indicated that the applicant had also been charged with driving whilst under the influence of an illicit drug. The Tribunal asked the applicant what this drug was in the applicant advised [drugs]. The Tribunal also noted that the applicant had been charged with supplying a prohibited drug and asked the applicant what this drug was and he advised [drugs]. The Tribunal also noted that the applicant had been charged with demand property with menace. The applicant stated that this was an ongoing criminal matter that would be dealt with in the future in the District Court of New South Wales. The applicant stated that prior to being taken to immigration detention he was living in the community on bail which included reporting to the [Town] police every day. The applicant stated that he could not remember the other bail conditions that applied.

34. The Tribunal asked the applicant whether he had a problem with [drug] addiction and the applicant stated that he did not. The Tribunal asked why the drug was found in his system and how long he had been using the drug. The applicant stated that he was a recreational user of [this drug]. The Tribunal asked the applicant how many times he had used [this drug] and he advised approximately 50 to 70 times. The Tribunal asked the applicant whether he had sought treatment for addiction for his use of this drug and the applicant advised that he had not.

35. The Tribunal asked the applicant where his parents currently were and he advised they were residing in [Town] and that they had also applied for protection.

36. The Tribunal asked the applicant, given that he had been involved in a fatal car accident in Malaysia that involved multiple fatalities why he would engage in multiple driving offences in Australia. The applicant stated that he had thought about it. The applicant stated that as part of his bail conditions he had to report to police and that he needed a car to drive from [Suburb] to [Town] police station. The applicant stated that he could not ask other people to drive him to report. The applicant added that no one would want to go to prison.

37. The Tribunal asked the applicant whether he believed the driving 140km per hour in a 100km zone was putting the Australian public at risk. The applicant advised that he did.

38. The Tribunal asked the applicant whether he believed driving whilst disqualified was putting the Australian public at risk and the applicant believed that it did.

39. The Tribunal asked the applicant whether driving whilst under the influence of [a drug] was putting the Australian public at risk and the applicant agreed that it did.

40. The Tribunal asked the applicant if it was to check records of the applicant’s study history whether it would show that the applicant had been compliant with his Student visa conditions and the applicant believed that it would.

41. The Tribunal asked the applicant what hardship he would suffer if his visa remained cancelled and he needed to remain in immigration detention until his criminal and refugee matters had been finalised. The applicant stated it would deny him his freedom and that his family lived far away in [Town].

42. The Tribunal made reference to all of the discretionary factors that it needed to consider with regards to the exercise of discretion as to whether the cancellation should be set aside or upheld. The Tribunal noted that it had regard to all of these factors in the questions asked of the applicant. The Tribunal asked the applicant whether there were any other relevant matters that he wished the Tribunal to consider with regard to whether or not his visa should be cancelled. The applicant stated that as his Protection visa review is coming up he will have the representative in those proceedings provide further information to the Tribunal.

43. The Tribunal advised the applicant that it would await the outcome of the applicant’s merits review proceedings before the Refugee Division of the Administrative Appeals Tribunal where a hearing had been scheduled for 12 November 2019. The Tribunal advised the applicant that any post hearing submissions could be made to the Tribunal by 20 November 2019. The hearing concluded.

44. As at 10 December 2019 the Tribunal has not received any post hearing submissions.

45. On 6 December 2019 the Refugee Division of the Administrative Appeals Tribunal affirmed the decision under review finding that the applicant was not owed protection obligations by Australia.

    RELEVANT LAW

46. 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?

47. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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)(oa) is relevant.

1. The Tribunal is satisfied that the applicant was the holder of a subclass 010 Bridging A visa, which is a temporary visa. The Tribunal is also satisfied that the applicant has been convicted of offences against the law of NSW. 

2. The Tribunal is therefore satisfied that r.2.43(1)(oa) is met and hence there is a prescribed ground for cancelling the applicant’s visa under s.116(1)(g).

   Consideration of discretion

3. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

4. In this particular case, the Tribunal has had regard to the relevant policy considerations as follows.

   The purpose of the visa holder's travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

5. The applicant came to Australia in March 2015 as the holder of a [temporary] visa.  The applicant then applied for a Student visa and undertook English language studies.  In March 2018 he lodged a Protection visa application which was refused by the Department.  The applicant then applied for merits review and on 6 December 2019 the Refugee Division of the Administrative Appeals Tribunal affirmed the Departmental decision finding that the applicant was not owed protection obligations.

   The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

6. The applicant prior to the cancellation of his visa held a Bridging A visa which does not have conditions attached to it.

   The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

7. In response to the NOICC the applicant stated that if his visa is cancelled he would be unable to participate in a drug rehabilitation program. At hearing before the Tribunal the applicant advised that he had elected not to engage in drug rehabilitation.  He also advised that his ongoing detention would deny him his freedom.

8. In response to the NOICC the applicant stated that it would cause him hardship if he was to remain in immigration detention as a result of a visa cancellation. The applicant stated that he has outstanding criminal matters to attend to and he also stated that at that time he had an outstanding merits review pertaining to his protection application.  As noted the review was finalised on 6 December 2019 with the Tribunal finding that Australia did not owe the applicant protection obligations.

9. The applicant has been resident in Australia since March 2015 and the Tribunal notes that his family remain living in Australia whilst awaiting the outcome of immigration applications.  The Tribunal notes that the applicant’s family members in Australia do not hold permanent residence.

10. The girlfriend of the applicant attended the review hearing as a support person and elected not to give evidence to the Tribunal.  The Tribunal has no information about the relationship between the applicant and his girlfriend such as its duration or any information about his girlfriend’s residential status in Australia.  The Tribunal notes that the applicant’s ongoing detention would impact upon this relationship but there is nothing to preclude visitation to the applicant in detention whilst he is awaiting the outcome of any criminal and immigration proceedings.

    The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

11. The evidence before the Tribunal indicates that the circumstances in which the ground for cancellation arose was, as a consequence of, the applicant coming into interaction with the criminal justice system as a result of drug use, drug supply, and a string of serious driving offences. The evidence before the Tribunal indicates that prior to his arrival in Australia the applicant was involved in a fatal car accident in which [a number of] people in the car that the applicant was driving were killed. The applicant survived the accident with a broken [body part] and spent three months in hospital in traction.

12. The evidence before the Tribunal indicates that since the applicant has been in Australia he has been using [drugs] on a regular basis and in his evidence to the Tribunal he described his drug use as recreational and advised the Tribunal that he had used [drugs] on between 50 and 70 occasions.

13. The evidence before the Tribunal indicates that the applicant has been charged with a range of criminal offences pertaining to drug use and supply, demanding property in company, and a string of serious driving offences that led to the applicant’s imprisonment.

14. As discussed with the applicant at hearing, the applicant conceded that driving 140km/h in a 100km zone was placing the Australian public at risk. As discussed with the applicant at hearing driving a motor vehicle whilst disqualified and under the influence of [drugs] was placing the Australian public at risk, and the applicant agreed this was the case. As discussed with the applicant at hearing, driving a motor vehicle to meet his bail reporting conditions, a distance that would take approximately 40 minutes to walk, whilst the applicant was disqualified from driving a motor vehicle was putting the Australian public at risk.  The Tribunal finds that the circumstances in which the cancellation of the applicant’s visas arose were serious and repetitive.

    The visa holder's past and present behaviour towards the Department (for example, whether they have been truthful and cooperative in their dealings with the department).

15. There is no information before the Tribunal which indicates that the applicant has not been cooperative during his interaction with the Department.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

16. There are no persons that would be the subject of a consequential visa cancellation as a result of the applicant’s visa being cancelled.

    Whether there are mandatory legal consequences to a cancellation decision

17. The Tribunal notes that a visa cancellation may result in the applicant being detained under section 189 and removed from Australia under section 198 of the Migration Act 1958 as he would no longer hold a valid visa. He may be issued with a criminal justice visa whilst any outstanding criminal matters are dealt with.

18. In addition to this the applicant may be subject to section 48 of the Migration Act that may prevent him from applying for further visas whilst in Australia.

19. The applicant may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period. The applicant may also continue to be held in immigration detention until his removal from Australia. Immigration detention could be mitigated if the applicant chose to depart Australia voluntarily.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

20. The applicant lodged a protection visa application with the Department that resulted in the Department finding that the applicant was not owed protection obligations.  The applicant sought merits review with the Refugee Division of the Administrative Appeals Tribunal and on 6 December 2019 that Tribunal determined that the applicant was not owed protection obligations by Australia.

21. The Tribunal accordingly finds that Australia would not be in breach of any international agreements as a result of the cancellation of the applicant’s visa.

22. Any other relevant matters

23. In response to the NOICC the applicant submitted that upon conclusion of his non-parole period he would reside under the supervision of his parents and be under the supervision of Parole and Community Correction officers. The applicant submitted that the risk of him re-offending was minimal.  The Tribunal notes the pattern of repeat offending, the nature of which was putting the Australian public at risk was serious. The Tribunal further notes that the applicant’s parents hold temporary visas whilst they await the outcome of their own protection visa applications

    Overall consideration

24. The Tribunal has given careful consideration to each of the discretionary factors as to whether or not the applicant’s visa should be cancelled. The Tribunal finds that the applicant has engaged in a wide range of criminal offences predominantly drug-related and serious driving offences during the time that he has been resident in Australia. The seriousness of these offences is illustrated by the fact that the applicant was imprisoned between September 2018 and March 2019. Indeed the evidence before the Tribunal indicates that the applicant has outstanding criminal matters before the District Court of New South Wales.

25. The evidence before the Tribunal indicates that the applicant was involved in a fatal car accident in Malaysia prior to arriving in Australia. Indeed the car accident resulted in the loss of [a number of] lives or passengers in the vehicle driven by the applicant. Despite this adverse driving history, the applicant has engaged in a series of serious driving offences in Australia. These offences led to the disqualification of the applicant’s licence, yet despite this disqualification the applicant continued to drive and at times drive in a manner that was unsafe to the Australian public through speeding or driving whilst under the influence of illicit drugs. The Tribunal finds that this repeated pattern of behaviour has placed the Australian public at significant risk.

26. The Tribunal notes the applicant’s evidence that his ongoing detention will deprive him of his liberty. The Tribunal further notes that the applicant whilst living in the Australian community has engaged in ongoing criminal activity and has been involved in a number of serious driving offences which have put the Australian public at significant risk. The Tribunal notes that if the applicant wished to mitigate the length of time that he spent in detention that he could make a decision to voluntarily depart Australia.

27. The Tribunal notes that the applicant in an attempt to extend the period of his stay in Australia has lodged a number of visa applications including a Student visa application and at a later point in time a Protection visa application. The Tribunal notes that the applicant’s Protection visa application was refused at primary stage by the Department. The Tribunal further notes that the applicant sought merits review with the Administrative Appeals Tribunal and that on 6 December 2019 the Tribunal found that the applicant was not owed protection obligations by Australia.

28. In light of all the circumstances and consideration of the relevant discretionary considerations the Tribunal finds that the visa should be cancelled.

    DECISION

29. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    John Cipolla
    Senior Member