1925442 (Migration)

[2020] AATA 1379

1925442 (Migration) [2020] AATA 1379 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925442

MEMBER:Roslyn Smidt

DATE:9 April 2020

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 9 April 2020 at 11:02 am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – incorrect information in visa applications – previous visa and travel under another name not disclosed – visa cancelled and travel bar imposed – applied for second visa while under bar – applied for protection visa, bridging visa A granted – fingerprint and facial image analysis – protection application refused, applied for review – convicted for identity-related offences – discretion to cancel visa – decision under review affirmed for first applicant – no jurisdiction for other applicants

LEGISLATION

Crimes Act 1900 (NSW), s 307A

Migration Act 1958 (Cth), ss 116, 234

Migration Regulations 1994 (Cth), r 2.43

Photo Card Act 2005 (NSW), s 20

Road Transport Act 2013 (NSW), s 49

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 10 September 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The decision related only to the first named applicant. The other applicants’ Bridging Visa A have not been cancelled and they were not included in the delegate’s decision.

3. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of a Commonwealth offence. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 6 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

   Background and Applicant’s submissions

7. The applicant arrived in Australia [in] March 2018 as the holder of a visitor visa issued to [applicant name], date of birth [Date 1]. On 26 April 2018 he submitted an application for a protection visa in which he declared that he had only ever been known as [applicant name]; that he had never travelled to Australia or any other country and that he had never overstayed a visa nor had he been excluded from entry to and country. On 1 May 2018 he was granted a Bridging A (subclass 010) visa in association to his Protection visa application.

8. The applicant applied for a protection visa on 26 April 2018.  In this applicant he claimed that he and his wife would be at risk of harm because they had married for love without his wife’s family’s permission. He claimed they were threatened and pressured to get a divorce. No details of these problems were provided. According to the application they married [in] October 2015 shortly after the applicant returned from Australia. His wife moved to his address at that time.  They returned to Australia together [in] March 2018.

9. On 21 May 2018 the visa holder provided his fingerprints and facial images to the Department of Home Affairs (the Department) for verification. Checks revealed that the fingerprints matched those of provided as part of an unsuccessful student visa application for [Country 1], submitted in New Delhi by an individual in the identity [Alias], date of birth [Date 2]. Departmental records indicate [Alias] travelled to Australia as a [Student] visa holder [in] July 2009, that this visa was cancelled on 23 September 2010 due to a breach of his visa conditions and that [Alias]  departed Australia [in] October 2015 as the holder of a Bridging E (subclass 050) visa and was subject to a three year exclusion period, having resided in Australia as an Unlawful Non-Citizen (i.e. without a valid visa) for a period of approximately three years prior to his departure.  Further investigations revealed that the applicant’s facial images matched facial images of [Alias] held by the New South Wales (NSW) Roads and Maritime Services (RMS).

10. [In] December 2018 the applicant was charged by NSW Police for two counts of offences against a law of the Commonwealth under section 234(1)(c) of the Migration Act 1958 for furnishing documents containing false or misleading information relating to his Protection visa application. [In] February 2019 he pleaded guilty to these charges at [Court 1] and he was convicted and sentenced on both counts to an eighteen-month good behaviour bond.

11. Information provided to the Department also indicated that the applicant had pleaded guilty and was convicted and sentenced for the following offences against NSW law at [Court 1] on [the same day in] February 2019:

    · Obtain/attempt to obtain Photo Card by false means contrary to section 20(1)(a) Photo Card Act 2005 - sentenced to Conditional Release Order for a period of 18 months

    · Make false/misleading statement for authority/benefit contrary to section 307A Crimes Act 1900 - sentenced to a Conditional Release Order for a period of 18 months and to be disqualified from driving for a period of 12 months

    · Attempt to obtain driver license by false statement contrary to section 49(1)(a) Road Transport Act 2013 - sentenced to Conditional Release Order for a period of 18 months

    · Make false/misleading statement for authority/benefit contrary to section 307A Crimes Act 1900 - sentenced to a Conditional Release Order for a period of 18 months and to be disqualified from driving for a period of 12 months.

12. On 1 August 2019 the applicant was issued with a notice of intention to consider cancellation of the applicant Bridging A Visa under section 116(1)(g) of the Migration Act 1958 relying on the prescribed ground at Regulation 2.43(1)(oa).

13. The applicant responded on 15 August 2019. He confirmed that his identity was [Alias], born [Date 2] and conceded that he “wrongly obtained a passport with a different name” and used it to travel to Australia.  He also confirmed that he had pleaded guilty to the offences under state and Commonwealth law set out above and that he previously resided in Australia unlawfully.

14. The applicant claimed that he resorted to these measures because his life was in danger in India following his marriage and conversion to Christianity. He claimed that he, his wife and their daughter would be harmed if they are required to return to India. He claimed that he had “always complied” with his visa conditions and had always cooperated with the Department. He claimed that his family would suffer if his Bridging A visa was cancelled as his family would be unable to support themselves if he could no longer work and that his wife has a medical condition which impacted her ability to care for herself and their daughter.  He said that he and his wife have strong ties to the community through their involvement with [a named church] where they have attended services each Sunday since January 2019. He provided a reference from [Pastor A] in support of these claims.  Finally, he claimed that he was actively involved in serving the community by assisting families in need.

15. The applicant’s Bridging A Visa was cancelled on 10 September 2019. At the hearing he confirmed that he had not been detained when this visa was cancelled. According to Department records he was granted a Bridging E Visa which did not restrict his right to work on 25 September 2019. This visa remains current.

16. On 26 February 2020 the applicant provided a written submission prepared by his representative to the Tribunal. He confirmed that his name was [Alias], born on [Date 2] and that he had overstayed a student visa in Australia in 2009. He said that he had remained in Australia unlawfully because his life was at risk in India and that he had obtained passport under a different name and returned to Australia because the community was against him because of his marriage.

17. The submission states that the applicant’s Bridging A Visa should not be cancelled because he has always complied with the conditions on his visa; because he is the sole wage earner in the family and his wife, who is currently pregnant, and his children would not be able to survive if he was unable to continue to provide for them; because if his appeal fails that the Bridging Visas held by his wife and child would be cancelled and they would all be detained which would place their health at risk as a result of the current pandemic and because the safety of his family would be compromised if they were sent back to their home country without the opportunity for a review of their Protection Visa application. Finally, it states that the applicant is suffering from anxiety and depression due to the uncertainty of his family’s future.

18. In support of these submissions the applicant provided character references from the church he attends and his employer and a patient assessment and referral for assistance under the Enhanced Primary Care Program for the applicant dated [March] 2020. The documents indicate that the applicant had been assessed as suffering from mixed anxiety and depression. They also state that he had not previously received any specialist health care.

19. At the hearing I observed as he had been convicted of a number of offences it appeared that a prescribed ground for cancellation applied in his case. He said that this was correct. I advised him that I was also required to take account of a number of other considerations before deciding whether to uphold the delegate’s decision to cancel his visa and that I would ask him a number of questions relating to these matters.  

20. I asked the applicant why he had decided to return to Australia using documents containing false information in [March] 2018. He said that he and his wife were having problems because of their marriage and people had suggested that returning to Australia was the only way to escape this situation. I observed that research I had conducted when considering similar claims made by other applicants seeking protection suggested that it was often possible for people in India to avoid problems relating to their marriage by relocating to another area. He said that he had not considered that option. He said that he had sought help from friends and relatives without success and believed he had no other options.

21. I asked the applicant why he had not told the truth about is identity and his circumstances when he applied for protection after returning to Australia in 2018. He said that he had spoken to a lawyer who told him that he would be detained if he was honest about his situation and he was concerned about what would happen to his wife.

22. I noted that the applicant had stated in his written submissions that he had complied with the conditions on his visa and observed that this had not been the case in relation to the visa he held in 2009 and that he had provided false information to the Department in order to obtain his visitor visa and when applying for protection, which indicated he had not always complied with the conditions on his visa and had not been honest in his dealing with the Department. He said that he had complied with the conditions on his visa since 2018.

23. I noted that the applicant had provided submissions regarding the hardship which he and his family would suffer if his appeal failed and asked if he would like to add anything to these submissions. He repeated that essence of his earlier submissions. I noted that he had been granted a Bridging Visa E with work rights which was still valid. I observed that it appeared he would be able to continue to work and provide for his family. The applicant said that he was concerned about his family.

24. I noted that the applicant had spoken about the possible cancellation of the Bridging Visas held by his wife and his child and the possibility that he and they would be detained. I noted that both his wife and child continue to hold Bridging A Visas and it was not my understanding that their visas would be cancelled or that they would be detained if his application for review failed.

25. I noted that the applicant claimed that he could not return to India because he would be at risk of serious or significant harm. I also noted that he had lodged an application for review of his protection visa application and this application was yet to considered by the Tribunal and observed that in these circumstances he was not currently at risk of being returned to India. The applicant did not dispute this.

26. I asked the applicant and his representative if they wished to make any further comments or submissions in relation to his application. They repeated some of the matters raised earlier, but made no new claims and provided no new evidence.

    Does the ground for cancellation exist?

27. 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)(oa) is relevant. It states that, with some exceptions which are not relevant to this application, prescribed grounds include cases where the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory, whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed, if any.

28. In the applicant’s case he has been convicted of a number of offences in Australia. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(g) exists.

    Consideration of discretion

29. 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'.

    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

30. The applicant travelled to Australia in order to apply for protection and remain permanently in Australia. His Bridging Visa A was granted in connection with that application. His application was refused by a delegate of the Minister and he is currently awaiting the outcome of an appeal to this Tribunal. It is not for me to assess whether the applicant is genuine in his claims for protection and the applicant. However, it is clear that he lodged the application under a false name and failed to provide an entirely honest account of his past circumstances. While it is not uncommon for asylum seekers to resort to dishonesty or fraud to escape a dangerous situation, the applicant’s failure to provide honest account of his identity and background to the Department in Australia raises some questions in relation to his reasons for travelling to Australia and lodging this application. Nevertheless, the applicant clearly needs to remain in Australia until the Tribunal has the opportunity to consider and assess the applicant claim for protection. I give this matter some weight in favour of not cancelling the Bridging A visa.

    The extent of the applicant's compliance with visa conditions

31. No conditions were attached to the Bridging A visa which the applicant held prior to 10 September 2019 and there is no evidence before me which suggests that he has not completed with the conditions on the Bridging Visa E which he currently holds. However, as noted above the applicant’s student (subclass 572) visa was cancelled on 23 September 2010 due to a breach visa conditions. In these circumstances I do not accept the submission that the applicant has always complied with the conditions on visas which he has been granted.  Furthermore, in my view his earlier disregard for the conditions on his visa is not overcome by the fact that he has complied with the conditions on the visas he has held since returning to Australia. I have given this matter some weight in favour of cancelling the Bridging A visa.  

    The degree of hardship to the applicant or any family members

32. It has been submitted that if the cancellation of the applicant’s Bridging A visa is upheld he will be at risk of detention and will be unable to support his wife and children who will be unable to support themselves. It has also been submitted his wife and children would be at risk of detention and that they would face hardship and health risks, particularly as a result of the current pandemic.

33. The applicant’s wife made protection claims in the application lodged by the applicant. She and their existing child hold Bridging A visas and will continue to hold these visas until the Protection visa application is finalised regardless of the outcome of the applicant’s appeal. There is nothing in the evidence which suggests that they would be at risk of detention if the applicant’s Bridging A visa is cancelled.

34. Cancellation of a Bridging A visa can result in the holder becoming liable to immigration detention as an unlawful non-citizen. However, I note that the applicant was not detained when his visa was cancelled in September 2019. He obtained a Bridging E Visa which allowed him to continue working. That visa remains current and the applicant has the right to apply for another Bridging E visa if his current visa expires.  Given that there is no evidence of any change in the applicant’s circumstances it appears highly likely any future application for a Bridging E visa with similar conditions would be successful.

35. That said, I acknowledge that should the applicant be refused a Bridging E visa and detained, this would result in significant hardship for his wife who is pregnant and appears to have limited access to financial or emotional support in Australia and for his young child. I also acknowledge that the current situation in relation to the Corona Virus pandemic would possibly place the applicant at some risk of contracting that illness if he were placed in detention. In these circumstances, while I strongly doubt that the applicant would be detained or denied the right to work while awaiting finalisation of his Protection Visa application, I have given this matter some weight in favour of the Bridging Visa A not being cancelled.

36. In reaching this conclusion I have considered the applicant’s claim that he suffers from anxiety and depression which would perhaps be exacerbated if he was placed in detention. However, the evidence provided was not prepared by a psychiatrist or a psychologist and I have given it little weight.

    The circumstances in which the ground for cancellation arose

37. The applicant’s Bridging A Visa was cancelled because he was charged and pleaded guilty to a number of offences relating to providing false or misleading information relating to his Protection visa application and in other circumstances.  These are not trivial or minor matters and I have given them significant weight in favour of the Bridging A Visa being cancelled.

    The applicant's past and present behaviour towards the Department

38. The applicant has a significant history of poor behaviour towards the Department. His student visa was cancelled in September 2010  due to his failure to comply with the conditions on that visa, following the cancellation of that visa he remained in Australia unlawfully for three years, he returned to Australia in 2019 despite being subject to a three year exclusion period at that time, he used documents containing false information to obtain a visitor visa and apply for protection in Australia in 2018 and he failed to disclose his migration history in either of these applications. His dishonesty was only discovered as a result of checks conducted by the Department. It appears that the applicant has cooperated with the Department since his Bridging A Visa was cancelled. However, overall his record in relation to his dealings with the Department is very poor. This also weighs heavily in favour of the Bridging A Visa being cancelled.

    Any consequential cancellations that may result

1. There is no information before me that there would be consequential cancellations for any other person as a result of the applicant's Bridging A Visa being cancelled. This weighs in favour of the Bridging A visa being cancelled.

   Legal consequences of the decision to cancel the Bridging A visa

2. As discussed above the applicant currently holds a Bridging E visa which permits him to work and it appears likely this will continue to be the case if the decision to cancel his Bridging A visa is upheld. I am not aware of any legal consequences which might flow from a decision to cancel the applicant’s Bridging A visa that would weigh in favour of not cancelling the visa.

   Australia's international obligations

3. Australia is a party to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention). This means that Australia has obligations not to return the applicant to his home country, or a third country where the applicant is able to reside, if he faces a real chance of serious harm because of his race, religion, nationality, membership of a particular social group, or political opinion. The applicant has applied for a protection visa, but at the time of this decision he has not been found to be owed protection obligation. His application was refused by the Department and is currently awaiting review by this Tribunal.

4. The consequence of the Bridging A visa being cancelled does not mean that the applicant would be returned to his home country or a third country where he is able to reside. The law clearly states that a non-citizen who has made a valid application for a protection visa must not be removed from Australia pending determination of that application. In these circumstances there is no suggestion that cancellation of the Bridging Visa A would result in Australia breaching of its international obligations in regard to the applicant. This factor weighs in favour of the Bridging A visa being cancelled.

   CONCLUSION

5. After careful consideration of all the discretionary considerations, I have come to the conclusion that the factors in favour of cancelling the Bridging A visa outweigh the factors in favour of not cancelling the Bridging C visa. The offences of which the applicant was convicted are not insignificant and he has a long history of disregarding Australia migration laws and dealing dishonestly with the Department. He and his family will be able to remain in Australia pending the resolution of his protection visa application. His wife and children are not liable to detention and the evidence does not suggest that he himself would be detained or unable to continue to work while awaiting the outcome of that decision.

6. Considering the circumstances as a whole, I have concluded that the visa should be cancelled.

7. With regard to the applicant’s wife and child, as noted above their Bridging A visas have not been cancelled. They were not included in the delegate’s decision and as a result there is no reviewable decision before me in relation to them.

   DECISION

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

9. The Tribunal has no jurisdiction with respect to the other applicants.

   Roslyn Smidt
   Member