1927672 (Migration) - [2020] AATA 4936

1927672 (Migration) [2020] AATA 4936 (14 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1927672
MEMBER:P. Wood
DATE:14 January 2020
PLACE OF DECISION: Melbourne, Victoria
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 Bridging General visa.

Statement made on 14 January 2020 at 2:21pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – application for Safe Haven Enterprise Visa in progress – two criminal convictions and community corrections order – immigration detention – discretion to cancel visa – best interests of young grand-children – degree of financial and emotional hardship – depression and alcohol dependence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 359A
Migration Regulations 1994 (Cth), r 2.43(p)(i)
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

This is an application for review of a decision dated 30 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).
The delegate cancelled the visa under s.116(1)(g). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
By letter dated 3 October 2019 the Tribunal invited the applicant to a hearing scheduled on 11 October 2019.
On 11 October 2019 the Tribunal was informed that the applicant refused to be transported to the Tribunal for the scheduled hearing. As such, the Tribunal issued an initial dismissal for no appearance.
By letter dated 22 October 2019 the applicant sought reinstatement. Ultimately, having reviewed the statement signed by the applicant on 23 October 2019, the Tribunal was satisfied that a miscommunication in relation to attendance at the first hearing occurred. As such, the Tribunal determined to reinstate the application.
The applicant ultimately appeared in person before the Tribunal on 25 November 2019 to give evidence and present arguments.
The Tribunal also heard oral testimony from the applicant’s adult son and daughter who live in Australia.
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 by his solicitor. The solicitor attended the Tribunal hearing and made various oral and written submissions.
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
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.
Written material before the Tribunal
The Tribunal has read and had regard to the four-page written submission dated 25 November 2019 provided to it by the applicant’s representative and contained within the Tribunal file.
By letter dated 27 November 2019 the Tribunal wrote to the applicant in accordance with section 359A of the Act. The Tribunal provided the applicant with information about a Criminal History Check dated 26 August 2019, a Victoria police brief of evidence (including charge sheets) and a Located Person Interview record dated 30 September 2019.
On 27 November 2019 the Tribunal granted a request from the applicant’s representative for an extension of time to comment or respond to the Tribunal’s section 359A letter, allowing until 13 December 2019.
At the representative’s request, by letter dated 28 November 2019 the Tribunal provided the applicant’s representative with extracts of the before mentioned Victoria Police brief of evidence.
The Tribunal has read and had regard to the response from the applicant’s representative dated 9 December 2019.
The Tribunal has also read and had regard to other supporting documentation provided by the applicant to the Tribunal. This includes:
·     a letter from [Ms A], a Counsellor at [Organisation], dated 10 October 2019, relating to the applicant’s daughter and her circumstances;
·     a letter from [Mr B], Senior Pastor, [Church], dated 10 October 2019, relating to the applicant’s daughter and her circumstances; and
·     a letter from [Dr C], General Practitioner, dated 6 October 2019, confirming, inter alia, the applicant’s depression and alcohol dependence.
Does the ground for cancellation exist?
s.116(1)(g)
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, as the applicant has been convicted, the ground in r.2.43(p)(i) is relevant.
The applicant provided the Tribunal with a copy of the delegate’s decision record confirming that on 2 July 2019 he was convicted of one charge of sexual assault and one charge of an indecent act with a child under 16 years.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Ministerial Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act.
Ministerial Direction No.63 requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
Ministerial Direction No.63 states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
The Tribunal has also 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.
Background
The applicant is a [Age 1]-year-old Sri Lankan male who arrived in Australia as an un-authorised maritime arrival in November 2012. He applied for a Safe Haven Enterprise Visa, which is presently the subject of judicial review before the Federal Circuit Court of Australia.
The applicant has a history of alcohol dependence. He told the Tribunal that he turned to alcohol after learning of the disappearance of one of his sons who, he understood, was attempting to come to Australia by boat.
Primary considerations
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation;
The Tribunal has given proper regard to the first primary consideration. The Tribunal observes that the rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously. That is, the decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.
· the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The other primary consideration in Ministerial Direction No.63 refers to the best interests of children in Australia under the age of 18 years.
Paragraph 6.2 of the Direction states:
6.2      The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
(2)       Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of any children under 18, who would be affected by the decision.
a.    in considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a Bridging E Visa under the prescribed grounds in regulation 2.43(1)(p) or (q) does not necessarily represent final resolution of a person’s immigration status in Australia.
The children under the age of 18 in Australia who would be affected by the cancellation are the three children of the applicant’s daughter (aged [Age 2], [Age 3] and [Age 4]), his grandchildren, to whom he provides occasional care.
Two of these grandchildren have been born in Australia. The applicant’s daughter told the Tribunal, and the Tribunal accepts, that the applicant’s grandchildren are “extremely attached” to the applicant.
The Tribunal accepts that cancellation of the visa before the Tribunal would result in the applicant continuing to be temporarily separated from his grandchildren. The Tribunal considers the best interests of the grandchildren weigh for the applicant.
The Tribunal observes however that cancellation of a Bridging E visa is not a substantive visa cancellation; such a visa is granted to an unlawful non-citizen for a limited period of time and is not a final resolution of the applicant’s immigration status.
Secondary considerations
·the impact of a decision to cancel the visa on the family unit;
The decision by this Tribunal to affirm the cancellation of the applicant’s visa will have a negative impact on the applicant’s family unit.
As indicated above, the evidence before the Tribunal, which the Tribunal accepts, is that the applicant enjoys a close relationship with his children and grandchildren in Australia. The applicant gave evidence, and the applicant’s daughter confirmed, that the applicant lives with her and her family.
The applicant’s daughter gave evidence that her husband works as [an Occupation] and earns approximately $750 AUD per week; this being the primary income used to support their household, including the three children.
The Tribunal accepts the applicant’s daughter’s oral testimony that she would be able to work herself, to some extent, if the applicant’s visa was not cancelled and the applicant was available to care for her children.
The applicant’s wife and other family continue to live in Sri Lanka. There is evidence that the applicant was self-employed prior to his visa being cancelled and the Tribunal acknowledges that his visa being cancelled prohibits the applicant from earning an income and assisting his family financially.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
· the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
In relation to the degree of hardship that may be experienced by the visa holder if the visa is cancelled, the Tribunal refers to its remarks immediately above (to the extent that they relate to hardship).
Additionally, the applicant will experience an uncertain period of detention, which will no doubt result in hardship due to the applicant’s depression and alcohol dependency diagnosis (see letter from [Dr C] above) and the inevitable restrictions placed upon persons held in detention.
Overall, the Tribunal finds that the applicant, and his family, will suffer financial and emotional hardship if his visa is cancelled. The extent of these hardships are difficult for the Tribunal to quantify. The applicant’s evidence is that his detention has so far been unpleasant. In a statement provided to the Tribunal dated 23 October 2019 the applicant outlined how his health is suffering from his continued detention. The Tribunal accepts that the deprivation of the applicant’s liberty is affecting his health.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
· the circumstances in which the ground for cancellation arose;
The ground for cancellation arose upon the applicant being convicted of two offences in the Magistrates’ Court of Victoria [in] July 2019. The circumstances of that offending are summarised in the relevant charge sheets as follows:
· the accused at [Suburb 1] [in] November 2016 did intentionally touch (redacted) in a sexual manner by stroking her thigh and knee with his fingers and grabbing her on the buttocks without her consent and did not reasonably believe that she consented to the touching (Sexual assault)
· the accused at [Suburb 2] [in] February 2017 did wilfully commit an indecent act by touching the leg of a child under the age of 16 years to whom he was not married (Indecent act with a child under 16 years)
The Victoria police brief of evidence indicates that the second offence, Indecent act with a child under 16 years, was against a [Age 4]-year-old schoolgirl who was travelling on a bus on her way home from school.
The applicant told the Tribunal that he was experiencing problems with alcohol at the time of the offences, which the Tribunal accepts. The applicant told the Tribunal that he does not have any memory of the offending, and as such, accepted the allegations against him.
The Tribunal considers that this consideration weighs strongly in favour of the cancellation of the applicant’s visa and the Tribunal attaches to it considerable weight.
· the possible consequences of cancellation; and
As outlined above, the applicant’s application for judicial review of his application for a Safe Haven Enterprise Visa is yet to be determined.
If the applicant’s bridging visa is cancelled, he will remain in detention until his immigration status is finalised. Put simply, he will either be granted a substantive visa and released from detention, or he will depart Australia. There will inevitably be a period of uncertain detention, but the Tribunal is satisfied that there is no prospect of indefinite detention.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
· any other matters considered relevant.
[In] July 2019 the applicant was sentenced by the Magistrates’ Court of Victoria to complete an 18-month Community Corrections Order. The applicant’s evidence was that he was complying with the terms of the Community Corrections Order until he was detained. That order remains ongoing. The applicant’s representative asked the Tribunal to accept, which it does, that the applicant would benefit if he were able to complete the remainder of the Community Corrections Order.
The Tribunal acknowledges the evidence before it of the applicant having reduced his alcohol consumption.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
Conclusion
Overall the Tribunal considers that the applicant’s visa should be cancelled. It has considered the government’s low tolerance of criminal behaviour and the best interests of all relevant children as set out in the primary considerations and the circumstances of the offending. The Tribunal considers that this is not a situation where the applicant has been convicted of a single offence on a single occasion which might, in different circumstances, warrant that his visa should not be cancelled. The circumstances of the offences could be said to constitute to a pattern of behaviour, which is of serious concern, particularly given that the most recent victim was a [Age 4]-year-old girl.
These factors outweigh the impact on his family unit, his inability to work whilst his visa is cancelled, his outstanding Community Corrections Order from which he may benefit, and the uncertain period of detention and its impact on him, which are the main factors which might otherwise indicate that his visa should not be cancelled.
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 050 Bridging General visa.
P. Wood
Senior Member