1930124 (Migration)

[2020] AATA 1189

1930124 (Migration) [2020] AATA 1189 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930124

MEMBER:Nathan Goetz

DATE:30 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 30 March 2020 at 2:03pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) – Subclass 030 (Bridging C) – risk to Australian community – criminal charges, sentence and imprisonment – guilty plea – appeal against severity of sentence in progress – discretion to cancel visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(e)(i)

CASES

Gong v MIBP [2016] FCCA 561

Tien v MIMA (1998) 89 FCR 80

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 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Nepal. He arrived in Australia [in] Jul 2014 as the holder of a student visa. On 29 August 2017 this visa was cancelled. The applicant made an invalid application for review to the Tribunal on 8 September 2017 concerning this cancellation: [decision number]. He became an unlawful non-citizen.

3. On 1 May 2018 the applicant applied for a protection visa. On 5 May 2018 the applicant was granted the Bridging C visa to regularise his migration status while his protection visa application was being considered by the Department. Records accessed by the Tribunal indicate that no decision has been made by the Department whether to grant this visa.

4. On 19 September 2019 the applicant was given a Notice of Intention to Consider Cancellation (NOICC) of his Bridging C visa. The NOICC provided stated that consideration was being given to cancelling the Bridging C visa on the basis that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health safety or good order of the Australian community or a segment of the Australian community: s.116(1)(e)(i).

5. The NOICC detailed the following:

6. According to information from NSW Police, it was alleged that [in] August 2019 the applicant engaged in violent and threatening behaviour against several individuals who were not previously known to the applicant. [On the same day] the applicant was charged with the following offences:

   · Two counts of intentionally choking another person without their consent, contrary to s.37(1a) of the Crimes Act 1900 (NSW)

   · One count of assault occasioning actual bodily harm, contrary to s.59(2) of the Crimes Act 1900 (NSW)

   · Two counts of common assault, contrary to s.61 of the Crimes Act 1900 (NSW).

7. The NOICC summarised the allegations against the applicant as follows: [In] August 2019 the applicant entered a building in [a Location] and pushed the buildings [worker] and physically assaulted the [worker] for an extended period of time. This lasted until the [worker] was able to escape the scene and call police for assistance. Following this incident, the applicant confronted a woman at a nearby premises and made verbal threats to kill her. The applicant placed both his hands around her neck and began to strangle her. The applicant then made verbal threats to a man who arrived at the location. The applicant then physically assaulted this man and as a result the man fell to the floor and sustained physical injuries. The applicant then approached another man at a nearby location. The applicant punched the man from behind before grabbing him with both hands by the throat. When another man attempted to assist this complainant, the applicant placed his hands around this person’s next and squeezed tightly, causing this man to experience difficulty breathing. Police then arrived and arrested the applicant. The applicant continued to act in an aggressive manner.

8. The Department file contained the NSW police statement of facts. Having reviewed this document, the NOICC provides a fair summary of the offending.

9. Based on this information, the delegate formed a view that there may be grounds to cancel the applicant’s Bridging C visa under s.116(1)(e)(i). The applicant was invited to comment on the information and show why the ground for cancellation did not exist, or to give reasons as to why the visa should not be cancelled. The applicant did not respond to this notice.

10. On 14 October 2019 the delegate cancelled the Bridging C visa under s.116(1)(e)(i) because the delegate was satisfied that the applicant is or may be, or would or might be a risk to the health, safety and good order of the Australian community or a segment of the Australian community. The reasons for not cancelling the Bridging C visa were not sufficient to outweigh the existence of the ground for cancellation. The decision noted that as the applicant’s Bridging C visa had been cancelled, he was now an unlawful-non citizen.

11. On 23 October 2019 the applicant applied to the Tribunal for a review of the cancellation decision. He provided a copy of the cancellation decision to the Tribunal.

12. On 10 March 2020 the Tribunal invited the applicant to attend a hearing at the Sydney Registry at 10am on 27 March 2020. On 19 March 2020 the Tribunal wrote to the applicant and advised him that as a result of the COVID-19 pandemic, the Tribunal would no longer hold face to face hearings from 23 March 2020. The letter advised the applicant that it considered the applicant’s hearing would be appropriate for a telephone hearing.

13. On 26 March 2020 the applicant responded to the hearing invitation. He also sent to the Tribunal a copy of a ‘Bailee receipt’ indicating that his next court appearance was [in] May 2020 at the [Location] District Court of NSW, a copy of his Nepalese passport, and documents related to his failure to appear at a delegate interview on 30 September 2019. In his letter to the Tribunal the applicant wrote that he criminal charges are before the District Court and he requested that the Tribunal await the decision of that Court before it made a decision in this case. Clearly, the Tribunal did not agree to do so. The reason for the Tribunal deciding not to delay making a decision until the District Court hearing in May 2020 is contained in the discussion about whether the grounds for cancellation exist.

14. The applicant appeared before the Tribunal on 27 March 2020 by telephone to give evidence and present arguments. The applicant does not have a registered migration agent assisting him with this review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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)(e)(i). 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?

16. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

17. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

18. The applicant’s oral evidence to the Tribunal was that he pleaded guilty to all the charges at the [Location] Local Court sometime in 2019. His plea hearing was adjourned to January 2020 and he received a sentence of imprisonment for the offending. He lodged an appeal against the severity of the sentence and this is presently listed at the [Location] District Court in May 2020. He was granted bail pending his appeal hearing. The applicant told the Tribunal that he had been drinking and used cocaine at the time of the offending so he does not remember committing the offences. He hopes that the District Court will take this into account and impose a sentence other than imprisonment, such as an order that requires community work. He told the Tribunal, and the Tribunal accepts that the applicant has no other criminal history.

19. Given that the applicant has now pleaded guilty to the charges, the Tribunal’s view was that it would not be appropriate to delay making a decision about the cancellation. The sentencing outcome would not, in the Tribunal’s view, assist the Tribunal in determining whether the grounds for cancellation exist. While the Tribunal acknowledges that the applicant wishes to be able to ‘give back to the community’ through some form of community based sentencing disposition imposed on appeal, and therefore be in a position to put to the Tribunal that he had not received a term of imprisonment for the offending, the fact that the applicant was charged and pleaded guilty to the offences was sufficient to satisfy the Tribunal that the applicant is, may, would or might be a risk to the Australian community or a segment of the Australian community. The offending is violent in nature and directed at multiple random individuals. The Tribunal accepts that the offending is out of character for the applicant, but this does not, in the Tribunal’s view, diminish the seriousness of the offending, nor does it diminish the risk that the applicant poses to the Australian community. He may not be as great of a risk as someone who has a longer criminal history, but that does not equate to the applicant being no risk at all. The applicant has engaged in criminal conduct that is very serious. By engaging in that conduct, he is someone who is, may, would or might be a risk to the Australian community or a segment of the Australian community.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

21. 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’.

22. The applicant’s oral evidence to the Tribunal was that he was previously working at a [workplace] in [Suburb] but had not been working since his student visa was cancelled. He lives in rented accommodation which is paid for by his sister [who] also lives there. His sister travels to and from Nepal and works for [Employer]. She is responsible for paying the rent. At the moment, she is in Nepal. He receives a weekly allowance of $100 from his family which he uses to meet his living expenses. The applicant’s purpose in travelling to Australia was for study but he had family difficulties which gave rise to him filing the protection visa application. His sister returned to Nepal as the family dispute did not relate to her. The applicant told the Tribunal that he planned to return to Nepal at the completion of his Court matters after serving any sentence that may be imposed. When the Tribunal queried why he would do that given that he lodged a protection visa application, he told the Tribunal that he could not ‘technically’ return to Nepal because of this protection concerns.

23. The Tribunal considered the applicant’s written submission where he addresses a failure to attend an appointment with the Department on 30 September 2019. He was requested to attend this appointment by email. The submission seemed to suggest that the reason the applicant had his Bridging C visa cancelled was because he failed to attend an appointment where he was required to provide his passport. The Tribunal looked into that matter before the hearing and advised the applicant that the Department records indicate that he failed to attend an interview on 30 September 2019 in connection with his protection visa application, which was separate from his Bridging C visa cancellation. The applicant repeated to the Tribunal the substance of his written submission, namely that he did not attend the appointment with the Department because he was unable to provide the Department with his passport which was being held by NSW police. He told the Tribunal that he did attend the appointment at the Department at 1pm but because he did not have his passport with him, he was refused by building security from entering which is why he could not make his appointment.

24. The applicant was asked whether there were any reasons as to why his Bridging C visa should not be cancelled. The applicant told the Tribunal that he was going through a hard time in his personal life at the time of the offending and he was drinking too much. He reiterated that he had no criminal history and that his life has been destroyed by his criminal conduct.

    Purpose of the applicant’s travel to and from Australia

25. The Tribunal has considered the purpose of the applicant’s travel to Australia. It would be impossible for the Tribunal to assess what the applicant’s genuine intention was travelling to Australia and whether he is genuine in his protection claims. That decision is for another decision-maker when he or she has all the evidence before him or her. What the Tribunal can be satisfied of is that the applicant has travelled to Australia lawfully, and that he has lodged a protection visa application as is his right. He was granted a Bridging C visa in connection with that application. There is no material before the Tribunal to suggest that the applicant’s purpose in travelling to Australia was to engage in criminal behaviour. The Tribunal gives this matter some weight in favour of not cancelling the Bridging C visa.

    The extent of the applicant’s compliance with visa conditions

26. The Tribunal has considered the applicant’s past compliance with visa conditions. The applicant’s Bridging C visa had condition 8101 imposed on it. This condition prohibits the applicant from working. There is nothing persuasive before the Tribunal to suggest that the applicant has not complied with this prohibition. The Tribunal gives this matter some weight in favour of not cancelling the Bridging C visa.

    The degree of hardship to the applicant or any family members

27. The Tribunal notes that the applicant’s circumstances do not appear to have changed since he was granting the Bridging C visa in May 2018. He has not been working since that time, has his living expenses paid by his family overseas, and does not need to pay any money for accommodation. There is nothing before the Tribunal to suggest that any family members will be impacted by the cancellation decision. The degree of hardship that may flow to the applicant will be the fact that if his Bridging C visa is cancelled, he may be liable to immigration detention as an unlawful non-citizen. The Tribunal accepts that the applicant faces the real prospect of this occurring. However, immigration detention is not a punitive measure. It is the part of the lawful administrative process for those non-citizens who are in Australia. The Tribunal finds that the lack of hardship to family members, and the fact that immigration detention is not punitive, are factors that weigh in favour of the Bridging C visa being cancelled.

    The circumstances in which the ground for cancellation arose

28. The offending to which the applicant pleaded guilty is serious. It is wanton violence against a number of victims. The case against the applicant has been proven beyond a reasonable doubt through the applicant’s plea of guilty. The offending is not minor or trivial. The circumstances of the offending weigh in favour of the Bridging C visa being cancelled.

    The applicant’s past and present behaviour towards the Department

29. There was no information before the Tribunal to demonstrate that the applicant had poor past behaviour towards the Department until the applicant provided this evidence himself to the Tribunal. As noted earlier, the applicant failed to attend an appointment with the Department on 30 September 2019. He was directed to attend and failed to do so. The Tribunal does not accept that it is reasonable for the applicant to not attend an appointment because he would not be able to produce his passport which was held by NSW police. It is not a matter for the applicant to determine whether he should attend the appointment or not. He was directed to do so. If he was unable to produce his passport to the Department, then he should have attended the appointment and discussed that with the Department. He did not do so.

30. The Tribunal does not accept that if the applicant attended the Department as directed he would have been turned away by security staff. The Tribunal notes that the applicant did not claim in his written submission that he had done so. This explanation was offered in the applicant’s oral evidence and in the Tribunal’s view, this response was crafted as a means to justify why the Department records indicated that the applicant failed to attend the appointment.

31. In the Tribunal’s view, the failure of the applicant to attend an appointment as directed indicates that he has an indifferent approach to his obligations towards the Department. The Tribunal makes this finding while acknowledging that a search of the Department records indicates that the applicant had previously attended an appointment with the Department on 25 May 2018 in connection with his protection visa application.

32. That is the only other record which indicates that the applicant was required to attend upon the Department. However, the Tribunal is concerned that the applicant’s most recent interaction with the Department was a failure to attend the interview on 30 September 2019. This means that the applicant has only attended half of the time when he has been required to do so by the Department. In the Tribunal’s view, his most recent interaction best demonstrates his current attitude towards his obligations. This weighs in favour of the Bridging C visa being cancelled.

    Any consequential cancellations that may result

33. There is no information before the Tribunal that as a result of the applicant’s Bridging C visa being cancelled, there will be consequential cancellations for any other person. This is a factor that weighs in favour of the Bridging C visa being cancelled.

    Legal consequences of the decision to cancel the Bridging C visa

34. As a result of the decision to cancel the applicant’s Bridging C visa, he will be an unlawful non-citizen and liable to immigration detention. He will be prevented from applying for further visa while in Australia. However, as his student visa was cancelled in 2017, he is already preventing from applying for a number of visas due to s.48 of the Act. This means that that, apart from being liable to immigration detention, the applicant finds himself in the same migration position as he was when his student visa was cancelled. The Tribunal has already addressed the issue of immigration detention previously. Insofar as the other remaining legal consequence of a decision to cancel the Bridging C visa, the Tribunal is not persuaded that anything new arises from such a decision given the cancellation decision of 2017. These factors weigh in favour of the Bridging C visa being cancelled.

    Australia’s international obligations

1. 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. However, at this stage, the applicant has not been found by the Department to be owed protection obligations as his protection visa application is still being assessed. The consequence of the Bridging C 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.

2. Section 198(5) stipulates that an unlawful non-citizen that is a detainee and did not apply for a substantive visa within the stipulated time given by s 195(1) (being two or seven working days depending on the circumstances) nor applied for revocation of the cancellation of a substantive visa, then they must be removed ‘as soon as reasonably practicable’. However s 198(5A) provides an exception to s 198(5).

   (5A)  Despite subsection (5), an officer must not remove an unlawful non-citizen if:

   (a)  the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and

   (b)  either:

   (i)  the grant of the visa has not been refused; or

   (ii)  the application has not been finally determined.

3. In the circumstances of the applicant, the cancellation of the Bridging C visa means that he will be an unlawful non-citizen who is liable to immigration detention, but not removal. As noted earlier, whether the applicant is a person who is owed Australia’s protection obligations is a matter yet to be determined. Given that the applicant will not be removed from Australia pending the determination of his protection visa application, Australia will not be in breach of its international obligations in regard to the applicant. This factor weighs in favour of the Bridging C visa being cancelled.

   CONCLUSION

4. When the Tribunal puts all the discretionary considerations together, it comes to the conclusion that the factors in favour of cancelling the Bridging C visa are not outweighed by the factors in favour of not cancelling the Bridging C visa. The offending to which the applicant pleaded guilty is serious, the impact on the applicant’s Bridging C visa being cancelled is minimal on the applicant (as immigration detention is not punitive) and non-existent to any family member. The applicant will be able to remain in Australia pending the resolution of his protection visa application and there is nothing persuasive to suggest that the applicant will not continue to receive financial support from his family to meet his living expenses while he awaits the decision regarding his protection visa.

5. Considering the circumstances as a whole, the Tribunal concludes that the Bridging C visa should be cancelled.

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

   Nathan Goetz
   Member