1924999 (Migration)

[2020] AATA 3911

1924999 (Migration) [2020] AATA 3911 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1924999

MEMBER:Ann Duffield

DATE:29 June 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 29 June 2020 at 1.25pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – fact or circumstance that no longer exists – visa granted in error – judicial review matter in relation to a substantive visa application – judicial review matter of a request for ministerial intervention – applicant holds another Bridging Visa – correction of an administrative error – no penalty or adverse consequences to this cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 501K
Migration Regulations 1994

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 3 September 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).

2. The delegate cancelled the visa under s.116(1)(aa) on the basis that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; namely, at the time of the grant of the visa, the applicant did not have a judicial review matter in relation to a substantive visa application, other than a decision to refuse to grant a visa. 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 via teleconference on 2 June 2020 to give evidence and present arguments. The applicant had sought a postponement of his hearing on the basis that he had medical advice that he could not work during the date he was required to appear. The medical certificate provided to the Tribunal by the applicant indicates that the applicant suffered a workplace fall on 23 April 2020 resulting in musculoskeletal injuries and he was unable to tolerate sitting for prolonged periods and was therefore unable to complete a 90-minute interview.

4. However, the Tribunal formed a view that the according to evidence from Comcare, provided by the applicant to the Tribunal, he was able to work 5-8 hours a day, 3 days a week (as a truck driver) and that his injury related to his wrist and neck; he was not required to attend the Tribunal physically, but only make himself available for a short telephone hearing (less than an hour); he would not be required to sit down but could adopt any position which was comfortable and as such, the Tribunal refused the request.

5. 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

6. 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)(aa). 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)(aa) – Fact or Circumstance for visa grant did not exist

7. A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

8. The applicant was granted a WE-050 visa on 15 December 2017 on the basis that he had applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa. However, the judicial review matter launched by the applicant was in relation to a request for ministerial intervention, rather than a decision in relation to a substantive visa.

9. It appears to the Tribunal that this visa was incorrectly issued by the department rather than being a deliberate attempt by the applicant to obtain a visa to which he was not eligible as he was subsequently granted another WE-050 visa on the basis of his Ministerial Intervention request. [The applicant] was aware that he holds a valid bridging visa as he indicated during his interview with the delegate at the time the visa subject to this review was cancelled that “I don’t mind if you cancel this visa. I have another visa’.

10. As this class of visa has no cease date or cessation clause, and the grant was in error, the only action that the department could take in order to correct the error was to cancel this visa and issue the correct one in its stead.

11. During the hearing the Tribunal discussed this with the applicant and confirmed his understanding that the cancellation of the visa was merely the correction of an administrative error and the impact of that decision had no material bearing now or in the future on his current and future immigration status. The applicant claimed he understood but wanted confirmation that he still had a valid visa. The Tribunal advised him that from the departmental information before it that the visa [number] granted to him on 19 September 2019 was still in effect. The Tribunal advised him that he should confirm this with the department to inform his next steps.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa) 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

13. There are no matters specified in the Act or Regulations 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’.

14. Given the particular circumstances of this case the Tribunal has not gone on to consider whether there are any reasons not to cancel the visa.

15. The visa subject to this review was an administrative error by the department which it can only correct by cancelling the visa. The cancellation of the visa has had, and will not have, any adverse effect now or in the future on the applicant’s immigration status. He will suffer no penalty and there are no adverse consequences to this cancellation. He will not be subject to any exclusion period or bar to prevent him applying for any other visa to which he might be eligible.

16. The applicant now holds the correct visa which will be valid until his matters in relation to his request for ministerial intervention are finalised.

17. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Ann Duffield
    Senior Member