1905508 (Migration)

[2019] AATA 1879

1905508 (Migration) [2019] AATA 1879 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905508

MEMBER:Justin Owen

DATE:20 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 20 March 2019 at 4:51pm

CATCHWORDS
MIGRATION – Cancellation – Bridging C (Class WC) visa – Subclass 030– applicant failed to respond to the s.359A invitation – applicant had been assessed by ASIO to be directly or indirectly a risk to security – Tribunal has no discretion –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 4, 116, 359A, 363A
Migration Regulations 1994, r 2.43,
Australian Security Intelligence Organisation Act 1979, s 4

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

1. This is an application for review of a decision dated 6 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) and r.243(1)(b) of the Migration Regulations on the basis that the applicant had been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security, within the meaning of s.4 of the Australian Security Intelligence Organisation Act 1979. The issue in the present case is whether that ground for cancellation exists. If that ground for cancellation exists the visa must be cancelled: see s.116(3) of the Migration Act and r.2.43(2)(a) of the Migration Regulations.  

3. On 8 March 2019 the Tribunal received a valid application from the applicant seeking review of the delegate’s decision to cancel his visa. 

4. On 13 March 2019 the Tribunal requested a copy of the delegate’s decision cancelling the applicant’s visa from the applicant’s representative.  The applicant’s representative declined the request.  Later on 13 March 2019 the applicant’s representative wrote to the Tribunal stating he no longer had instructions to act for the applicant. 

5. On 14 March 2019 the Tribunal wrote to the applicant under s.359A (T1, Folio.41). The Tribunal wrote to the applicant stating that in conducting the review, it was required by the Migration Act 1958 to invite him to comment on or respond to certain information which we consider would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.

6. The Tribunal wrote to the applicant that the Department’s file contains the delegate’s decision record that he declined to provide to the Tribunal. The Tribunal informed the applicant that the particulars of the information from the delegate’s decision record of 6 March 2019 were that:

   · On 5 March 2019 the Department of Home Affairs received notification from the Australian Security Intelligence Organisation (ASIO) that ASIO had assessed him to be directly or indirectly a risk to security within the meaning of Section 4 of the Australian Security Intelligence Organisation Act 1979.

   · The delegate decided to cancel his visa under s.116(1)(g) of the Migration Act. The Tribunal pointed out that the delegate cancelled his visa under s.116(1)(g) and r.2.43(1)(b) of the Migration Regulations on the basis that he had been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the Australian Security Intelligence Organisation Act 1979.

   ·     The applicant had received the Notice of Intention from the delegate to consider cancelling his visa at 10.55am on 6 March 2019.

   ·     The applicant was invited by the delegate to show why the grounds for cancellation did not exist.

   ·     The applicant was invited by the delegate to provide reasons why the visa should not be cancelled. 

7. The Tribunal wrote to the applicant that the information was relevant because the information indicated that there was a ground for cancelling his visa under s116(1)(g) and r.2.43(1)(b).

8. The Tribunal wrote to the applicant that the consequence of this information being relied upon is that if the Tribunal was satisfied that the applicant has been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the Australian Security Intelligence Organisation Act, the Tribunal may find the ground for the cancellation of his visa exists as set out in s.116(1)(g) of the Migration Act and r.2.43(1)(b) of the Migration Regulations. The applicant was informed that if the Tribunal found that it was satisfied that the ground for cancelling his visa exists, the Tribunal would affirm the decision to cancel his Subclass 030 (Bridging C) visa. The Tribunal pointed out that if the ground exists, s.116(3) and r.2.43(2) provide that the Minister must cancel the visa.

9. The applicant was invited to give comments on or respond to the above information in writing.  The applicant was informed that his comments or response should be received by 18 March 2019.  The applicant was informed that if he could not provide his written comments or response by 18 March 2019 then he could request an extension of time in which to provide the comments or response.  The Tribunal pointed out that if he was making such a request then it must be received by the Tribunal before 18 March 2019 and he must state the reason why the extension of time is required.  The Tribunal wrote that if it did not receive his comments or response within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain his views on the information.  The Tribunal pointed out to the applicant that he would also lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

10. The Tribunal notes that it may make a decision without inviting the applicant to appear before it if the applicant fails to comply within the prescribed time with a request to provide additional information or to comment on, or respond to, adverse information. The Tribunal furthermore notes that in reviewing a general migration decision under Part 5 of the Migration Act – as in the current review - the Tribunal does not in such circumstances retain any discretion to enable an applicant to appear before it: s.363A.

11. The applicant failed to respond to the s.359A invitation of 14 March 2019 by 18 March 2019. The applicant did not request an extension of time to provide any comments or response. At the time of decision the applicant has not made any contact with the Tribunal. In light of the absence of any indication that the applicant seeks to put forward submissions about the information or otherwise engage in the review process, and pursuant to s.359C of the Migration Act, the Tribunal has decided to make its decision on the review. 

12. On 5 March 2019 the Department of Home Affairs received notification from the Australian Security Intelligence Organisation (ASIO) that ASIO had assessed the applicant to be directly or indirectly a risk to security within the meaning of Section 4 of the Australian Security Intelligence Organisation Act 1979. On 6 March 2019 the applicant received the ‘Notice of Intention to Consider Cancellation’ under s.116 of the Migration Act and he was invited to show why the ground for cancellation did not exist.  In response the applicant stated that ASIO interviewed him in relation to people smuggling but decided he was innocent.  He stated they shouldn’t be doing this now; they were only allegations he was facing and he was innocent (T1, Folio.29).  The Tribunal is satisfied that the applicant is aware that he had been assessed by ASIO to be directly or indirectly a risk to security. 

13. The decision record states that the applicant provided a range of reasons as to why his visa should not be cancelled.  These included the death of his father; a claim his wife was having mental health issues; his family depends on him and he has five children; he has been in Australia for ten years and have never caused any problems and if he returns to Lebanon he life will be miserable (T1, Folio.25).

14. The Tribunal notes that the applicant has signed the decision record to verify that he had received the record of decision whether to cancel his visa and the notification of decision to cancel his visa under s116.

15. The Tribunal notes that it is unable to go behind the ASIO assessment in a review of a visa cancellation under this specific ground of s116(1)(g) and r.2.43(1)(b). The Tribunal notes that the Department of Home Affairs have not provided the ASIO assessment on the grounds it is not for release to either the applicant or any third parties such as the Tribunal (T1, Folio.31). The Tribunal notes however that if it finds that the applicant has been assessed by ASIO to be directly or indirectly a risk to security then it has no discretion because the law states that the visa must be cancelled in those circumstances.

16. The Tribunal is satisfied on the evidence before it that the applicant has been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the ASIO Act. The Tribunal is therefore satisfied that the ground for cancellation set out in s.116(1)(g) of the Migration Act and r.2.43(1)(b) of the Migration Regulations exists.  As referred to above, the Tribunal has no discretion in these circumstances and the applicant’s visa must be cancelled.       

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Justin Owen
    Senior Member