1923490 (Refugee) - [2023] AATA 4751

1923490 (Refugee) [2023] AATA 4751 (20 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Noeline Dilhara Balasanthiran Harendran (MARN: 1680817)
CASE NUMBER:  1923490
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Antoinette Younes
DATE:20 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

Statement made on 20 December 2023 at 2:43pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – risk to safety of individual – criminal offences, charges and convictions – continued claim of innocence, and intention to appeal to High Court – discretion to cancel visa – unauthorised maritime arrival and protection claims – financial hardship and physical and mental health – mandatory legal consequences and international obligations – no real prospect of removal in reasonably foreseeable future – lengthy term of imprisonment – circumstances could give rise to cancellation on character grounds – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 45AA, 116(e)(ii), 189(1), 196(1), 424A
Migration Regulations 1994 (Cth), r 2.08F
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
CASES
Al-Kateb v Godwin (2004) 219 CLR 562
Gong v MIBP [2016] FCCA 561
NZYQ v MICMA [2023] HCATrans 154
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 July 2019 made by a delegate of the Minister to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e)(ii) of the Act on the basis that the applicant has been charged with a number of offences under Queensland laws.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Since January 2021 and on multiple occasions, this matter has been listed for hearings. The applicant requested adjournments essentially on the basis of the criminal matter not being finalised, including an appeal. In those circumstances, the Tribunal considered it fair to postpone the hearings. The applicant has now been convicted. The Criminal Court of Appeal has upheld the convictions.
The applicant appeared before the Tribunal 30 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse in Sri Lanka. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PROTECTION CLAIMS
By way of background, the applicant was born in [Town], Batticaloa District, Eastern Province, Sri Lanka. He was married…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1923490 (Refugee)

Details

AGLC: 1923490 (Refugee) [2023] AATA 4751
Case: [2023] AATA 4751
Decision Date: 20 December 2023

CaseChat Overview and Summary

The applicant, an unauthorised maritime arrival from Sri Lanka, sought review of the cancellation of his Subclass 785 (Temporary Protection) visa. The dispute centred on whether the cancellation decision was correct, particularly in light of the applicant's ongoing claims of innocence regarding criminal offences for which he was convicted and sentenced to a lengthy term of imprisonment, and his intention to appeal these convictions to the High Court. The matter was heard by the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was satisfied, and if so, whether to exercise its discretion to cancel the visa. The Tribunal also had to consider the applicant's compelling need to remain in Australia, his compliance with visa conditions, and the degree of hardship that cancellation might cause, including financial and emotional impacts on his family in Sri Lanka.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied, noting that this ground did not mandate cancellation. In exercising its discretion, the Tribunal acknowledged the applicant's compelling need to remain in Australia to serve his sentence and pursue appeals, and gave this some weight against cancellation. However, the Tribunal also considered the applicant's compliance with visa conditions to be a neutral factor, and found no evidence of significant hardship to family members in Australia. Despite the applicant's claims of financial hardship for his dependants in Sri Lanka, the Tribunal concluded that, when considering all circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 785 (Temporary Protection) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 785 (Temporary Protection) visa.Antoinette YounesDeputy President

Ratio Decidendi

Legal Principle Established

For those reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) 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 There are no matters specified in the Act or the Migration Regulations 1994 (Cth) that must be considered in the exercise of this discretion. The Tribunal has 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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant arrived in Australia [in] June 2012 as a UMA seeking protection. He applied for a protection visa, and on 7 January 2017, he was granted a Temporary Protection (Subclass 785) visa which, had it not been cancelled, would have ceased on 4 January 2020. The applicant is currently serving a term of imprisonment and the earliest date that he is eligible for parole is 2030. The Tribunal is satisfied that the applicant’s travel to Australia is consistent with the purpose of seeking protection, and as such he was granted the Subclass 785 visa. The applicant continues to make protection claims and he has a compelling need to remain in Australia to complete serving his sentence and/or to pursue any further appeal. The Tribunal gives this consideration some weight against cancellation.The extent of compliance with visa conditions The Subclass 785 visa was subject to conditions 8503 (No Further Stay), 8565 (Notify new Address), and 8570 (Restricted Travel). There is no evidence that the applicant has not complied with the conditions of the visa. The Tribunal views compliance with visa conditions to be a lawful expectation and as such, the Tribunal gives this consideration neutral weight.Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant has previously claimed to have been in a relationship with an Australia citizen. However, in response to the NOICC, the applicant referred to her as an ex-partner, indicating that the relationship has ceased, as well as his relationship with the victim who is the child of the ex‑partner. There is no evidence before the Tribunal that the applicant has family in Australia who would be impacted by the visa cancellation. In response to the NOICC, the applicant claimed that he had approximately $60,000 worth of property in his house in Australia which needed to be sorted out. Since responding to the NOICC, the applicant was granted bail and lived in the community and had access to his property and an opportunity to sort things out. The applicant gave evidence that there would be significant financial hardship in the case of cancellation. He stated that he has [dependants], his wife and [children], all of whom live in Sri Lanka. He stated that his family has been suffering, and that prior to being incarcerated, he used to work and send money to his family in Sri Lanka. The applicant stated that his children are going to school without underwear as the family cannot afford to buy the children adequate clothing.