1930171 (MIGRATION)

[2019] AATA 6445

1930171 (MIGRATION) [2019] AATA 6445 (25 NOVEMBER 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930171

MEMBER:Denis Dragovic

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2019 at 8:18am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – validity of s 375A certificate – public interest – electronic signature – ground for cancellation – adverse security assessment by ASIO – prescribed circumstances – mandatory cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
El Jejieh v MHA (No.2) [2019] FCCA 840

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

2. The delegate cancelled the visa under s.116(g) Regulation 2.43(1)(b) on the basis that there was an adverse security assessment by ASIO.

3. The issue in the present case is whether that ground for cancellation is made out.

4. The applicant appeared before the Tribunal on 1 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant's Son. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The applicant was represented in relation to the review by his then registered migration agent. Following the hearing, the applicant retained a new migration agent. The then representative attended the Tribunal hearing.

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(g) which states:

   Migration Act 1958 (Cth) Section 116 Power to Cancel

   (1)(g) a prescribed ground for cancelling a visa applies to the holder.

   The relevant regulation being:

   Migration Regulations 1994 (Cth) Regulation 2.43(1)

   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;

   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).

9. The applicant’s visa cancellation was triggered when the Department was notified by ASIO that it had assessed the applicant to be ‘directly or indirectly a risk to security within the meaning of Section 4 of the ASIO Act 1979’ (Reg. 2.43(1)(b)).

10. The applicant was provided the grounds for cancellation by the Department. He responded to the Department that he had been living in Australia for 10 years and had not ‘done anything wrong’. He was surprised by the circumstances and frustrated by the suddenness. He suggested that it was a ‘misunderstanding or error’. The applicant stated that he has serious medical conditions. He explained that he pays his taxes on time, reports to the government every month, that Pakistan is not a safe country to be returned to especially considering his vulnerable state.

11. Submissions were made to the Tribunal including a letter from the Secretary of [Association 1], the applicant’s tax accountants and a statutory declaration by the applicant’s son.

12. Noting the basis upon which the visa was cancelled the Tribunal requested from the Department evidence of an adverse security assessment being made by ASIO as none was present on the Departmental file other than a note referencing the negative assessment but lacking clarity on the authorship and therefore providence.

13. Upon the request of the Tribunal an adverse security assessment certificate for the applicant was provided to the Tribunal along with a s.375A certificate limiting the disclosure of the document and information. The security assessment certificate states in limited but no uncertain terms that the applicant has been assessed to be a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979. As this is the case, I am satisfied that Reg. 2.43(1)(b) is met.

14. It is not in dispute that the Tribunal as it is constituted for the purposes of the review of the applicant’s bridging visa is not empowered to go behind the adverse security assessment.

15. Nevertheless, the validity of the s.375A certificate covering the adverse security assessment certificate is within the remit of this Tribunal. The representative in a post-hearing submission questioned the validity of the certificate.

16. Section 375A of the Act states,

    375A Certain information only to be disclosed to Tribunal

    (1) This section applies to a document or information if the Minister:

    (a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

    (b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

    (2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

    (a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

    (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

17. The argument being made was two-fold. Firstly, that the certificate provides insufficient particulars for why preventing the disclosure would be in the public interest and secondly, the document bears an electronic signature which is insufficient to certify the certificate.

18. Regarding the first issue of public interest. It is known to the applicant that the document is from ASIO. The document itself has no other information that is unknown to the applicant other than the signature of the authorised officer. I find that withholding the name and signature of the signatory is in the public interest for reasons as noted on the certificate of being provided in confidence.

19. Regarding the second ground the representative claimed that an ‘electronic signature’ may not be sufficient to certify the certificate. The case of El Jejieh v MHA (No.2) [2019] FCCA 840 was referenced as authority for this proposition. I note that Judge Street’s reference to an electronic signature in [23] refers to the ‘printed name’ as opposed to an electronic rendering of a hand drawn signature. I find that the electronic rendering of the authorised delegate’s signature alongside other elements is sufficient to certify the certificate as valid.

20. The representative further requested that failing their submissions on the validity that broad particulars be provided of the information covered by the s.375A certificate. As noted above, other than the signature of the authorising official there is no information on the certificate which is unknown to the applicant and as such I find that broad particulars have been provided.

21. As the Tribunal is limited in its scope to consider this case based upon Regulation 2.43(1)(b) being met I am satisfied that the ground for cancellation in s.116(g) exists.

22. I note that s.116(3) states, ‘If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’

23. The prescribed circumstances are outlined in Migration Regulations 1994:

    Reg. 2.43(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

    (a)  in the case of a visa other than a relevant visa — each of the circumstances comprising the grounds set out in:

    (i)  sub-subparagraphs (1)(a)(i)(A) and (B); and 

    (ii)  paragraph (1)(aa); and

    (iii)  paragraph (1)(b); and

    (aa)  in the case of a relevant visa — the circumstance comprising the grounds set out in subparagraph (1)(a)(ii). 

24. Regulation 2.43(3) lists the ‘relevant visas’. The applicant’s subclass 010 visa does not appear on this list as such Reg.2.43(2)(a) applies.

25. In considering Reg.2.43(2)(a) the wording can be taken to mean that all three subparagraphs must be met cumulatively or that the three subparagraphs are each listed as the circumstances under which the Minister must cancel the visa.

26. While the conjunction ‘and’ adds to the confusion, when reading Reg.2.43 as a whole, taking into consideration the context of the subparagraph, I am satisfied that the correct interpretation is that if any of the three, (i),(ii) or (iii) are met then the Minister must cancel the visa.

27. As such the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Denis Dragovic
    Senior Member