1929724 (Migration)

[2019] AATA 4792

1929724 (Migration) [2019] AATA 4792 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929724

MEMBER:James Lambie

DATE:29 October 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 October 2019 at 3:21pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence – contravention of protection order – consideration of discretion – nature of the charges – domestic violence – bail conditions – best interest of children – mental health issues – pending Protection visa application – decision under review affirmed

LEGISLATION
Domestic and Family Violence Protection Act 2012 (Qld), s 37
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

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 17 October 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)(g) on the basis of the existence of a ground prescribed in Reg 2.43(1)(p)(ii), namely that the applicant has been charged with an offence under the law of Queensland. 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 on 28 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], [Mr B], [Mr C], [Mr D] and [Ms E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. A quantity of material on the departmental file was covered by a section 375A non-disclosure notice. The applicant’s representative sought access to this material. I took the view that the material was not germane to this application and refused access. I have not had regard to that material in assessing the evidence before me or coming to my conclusions.

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

7. 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.

   Does the ground for cancellation exist?

8. 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)(p)(ii) is relevant.

9. [The applicant] is an Afghan citizen who first arrived in Australia [in] October 2018 on a provisional Partner visa.  His application for a Permanent Spouse (subclass 100) visa was refused on 18 July 2019.  He has since made an application for a Protection visa and an associated Bridging (Subclass 050) visa. The latter was cancelled by the delegate of the Minister on 17 October 2019 as described in paragraph 2.

10. [The applicant] is the respondent to a protection order pursuant to section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) issued on 17 July 2019, naming his wife, [Ms F], as the aggrieved party. On 17 October 2019, [the applicant] was arrested by Queensland Police and charged with contravention of the order. The charge alleges that the contravention occurred [in] September 2019.

11. At the hearing [the applicant]’s representative conceded that, in view of the fact that [the applicant] has been charged with an offence against the law of Queensland, the power of cancellation under section 116(1)(g) and Regulation 2.43(1)(p)(ii) has been enlivened.

12. 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

13. 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 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. This Direction 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.

14. 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.

15. 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.

16. The Direction 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’.

    Primary considerations

17. The first of the two primary considerations which I must apply is the Government’s view that the prescribed grounds for cancellation should be applied rigorously in that every instance of non-compliance should be considered for cancellation. I have given careful consideration to the fact that the charges have been brought, the nature of the charges, the facts and matters alleged in the charge sheet and the conditions attached to the applicant’s bail.  I have given very significant weight to the fact that the offence charged is one of domestic violence, having regard to the policy that, for the purposes of consideration of visa cancellation, domestic violence is not to be tolerated, especially when acts of physical violence are visited upon women or their children. The weight I have given this consideration is moderated by the fact that charge is not proven and the conditions attached to [the applicant]’s bail do not indicate a significant risk of flight.

18. The second of the primary considerations is that of the best interests of any children in Australia who would be affected by the cancellation.  [The applicant] has no dependent children in Australia.  I have had regard to the handwritten letters from his nieces, nephews and cousins (aged between [age] and [age]) as to the bond they have with him, and to the photographs and videos of his interaction with the children.  I also heard oral evidence from his nephew [Mr D]. I give some weight to the evidence that the children may suffer some emotional effect from their physical separation from [the applicant].  However, I have also had regard to the fact that [the applicant] has been in Australia for only some 15 months and that none of the children are materially dependent on him. [the applicant].  The psychological report submitted on [the applicant]’s behalf states that there is insufficient information to suggest that his detention would result in any permanent and significant psychological harm to the children.

19. In these circumstances, I give considerably more weight to the prescribed grounds than to the effect of the cancellation of the visa on the best interests of the children.

    Secondary considerations

20. [The applicant] provided written and oral evidence as to his personal circumstances.  In this, he was assisted by detailed submissions from his representative.  [The applicant] maintains that the subject matter of the criminal charges arose in the context of mental health problems suffered by both himself and his wife.  Professional reports were submitted indicating that he may suffer from an adjustment disorder and PTSD.  No medical reports in respect of the complainant were tendered and I form no view in respect of her.  Whether [the applicant]’s health assessment mitigates or excuses his alleged conduct is not for me to determine.  To the extent this issue is relevant to other secondary considerations, it is addressed below.

21. [The applicant] arrived in Australia on a provisional Partner visa. His application for a permanent visa was refused and he has now applied for a Protection visa.  Accordingly, the purpose for his travel to Australia is different to what he now claims is his compelling need to remain in Australia.  I give some weight in his favour to the fact that his new visa application is yet to be assessed.

22. The visa upon which [the applicant] entered Australia had no conditions attached to it.  The cancellation of the bridging visa did not arise in the context of compliance with conditions.  Accordingly, I give no weight to the factor of visa compliance.

23. I have considered the degree of hardship that may be caused to the applicant, his family members and others if the visa is cancelled. I have addressed the issue of the best interests of any children at paragraph 18 above and, for the reasons stated, can give it only limited weight. I accept that [the applicant] may experience emotional hardship from the cancellation of the visa and his placement in immigration detention. I also accept the assessment that [the applicant] suffers from PTSD and that its management in the community is considered preferable. I give this matter some weight in his favour.

24. As to the hardship said to be suffered by the applicant’s wife, I can only have regard to the very limited nature of the evidence. Her father and brother made some assertions in that regard. She made no such assertions in her own statutory declaration and was not called to give oral evidence in support of the applicant. The supplementary statutory declarations lodged by her brother and sisters indicate that the family is providing financial and emotional support.

25. I have considered the circumstances in which the ground for cancellation arose. The submissions advanced on behalf of [the applicant] claim that (a) it arose from a psychotic episode; and (b) that [Ms F] was not harmed. The first claim is not supported by evidence. I do not accept the second assertion, which ignores the graphic threats alleged to have been made and the situation to which she was subjected. [The applicant] showed very little insight at the hearing as to the distress to which [Ms F] was put. His psychological report indicated that he has no understanding of the nature of the event on her. In any event, it cannot be accepted that the circumstances in which the ground for cancellation arise were beyond his control.  In coming to that view, I distinguish the applicant’s ‘loss of control’ or lack of insight into his own actions, from the situation where the ground for cancellation arises from the actions, or change of immigration status, of others.

26. The delegate gave some weight to [the applicant]’s cooperation with the Department and I see no reason to disturb that finding or the weight to be given to it.

27. I have had regard to the mandatory legal consequences which may flow from the cancellation of the visa, including [the applicant]’s liability to detention and his inability to apply for further visas while in detention. I give some weight to this factor in his favour.

28. I have also considered the international legal obligations that may be invoked. The issue of non-refoulement does not apply as a consequence of the visa cancellation the subject of this application.  The issue of the best interests of children has been dealt with above.

29. I have considered, and given some weight to, the applicant’s claimed ties to the Australian community and the written material submitted by his employer.  I have also had regard to the short duration of his residence in Australia, which tempers any weight I might give this factor.

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

    DECISION

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

    James Lambie
    Senior Member