1934778 (Migration)

[2019] AATA 6209

1934778 (Migration) [2019] AATA 6209 (17 December 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934778

MEMBER:Jason Pennell

DATE OF DECISION:  17 December 2019

DATE CORRIGENDUM

SIGNED:7 February 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The words “The applicant’s wife and child remain in India and as such he would be able to be reunited with them on his returns to Pakistan” in paragraph 36 of page 5 should be removed.

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934778

MEMBER:Jason Pennell

DATE:17 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 17 December 2019 at 9.42am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence  – driving whilst disqualified – dangerous driving – consideration of discretion – serious offences – credibility concerns – mandatory legal consequences – length of detention pending outcome of protection visa – loss of liberty – significant hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189, 198
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 3 December 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) of the Act on the basis that information received by the department indicated that the applicant was convicted of the criminal offences of driving whilst disqualified and dangerous driving for which he was sentenced to a term of imprisonment. 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 16 December 2016 at 12.30pm to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

5.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

6.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) of the Act. 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?

s.116(1)(g) - prescribed ground

1. 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) is relevant.

2. Pursuant to Direction No 63 under section 116(1)(g) of the Act, a decision maker may cancel a visa if they are satisfied that a prescribed ground for cancelling a visa applies to the visa holder. The prescribed grounds are set out in Reg 2.43 of the Migration regulations 1994. In relation to Reg 2.43 (1)(p)(i) and (ii) the grounds for cancellation are enlivened when a visa holder is convicted of, or charged with any office, irrespective of the seriousness of the offence. However, the seriousness of the offence may be considered as a secondary consideration in the exercise of the discretion under section 116(1).

3. [In] October 2019 the Magistrates Court of Victoria at [Suburb 1] found the applicant guilty of the criminal offences of driving whilst disqualified and dangerous driving and sentenced him to a total of three (3) months imprisonment.

4. The applicant claims that he does not believe that the grounds for cancelation exit due to the fact that he committed the offences because he does not speak English and does not understand the law of the country. Nevertheless, the Court found the applicant guilty of the offences. Therefore having been charged and convicted of the offences, there are grounds to cancel the application visa pursuant to Reg 2.4.    

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act 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

1. 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.

2. 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.

3. 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.

4. 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’.

5. In taking into account of the primary and secondary considerations as detailed above, the tribunal has considered the following matters.

Applicants purpose of traveling and staying in Australia

1. The applicant arrived [in] Australia by boat [in] November 2012. The applicant claimed that he came to Australia because his life was not safe in Pakistan due to the fact that he is an ethic Hazara and a Shia Muslim.

2. The applicant’s evidence was that he was from [Village 1] in Pakistan. He stated that his parents and all his [siblings] all continue to reside in Pakistan. The applicant’s evidence was that his father did not work, but later admitted that his father owed a business (a general store) in which two of his brothers worked.  The applicant evidence was that he completed school in [Village 1] after which he worked in his father’s store of approximately two to three years before traveling to Australia. 

3. The applicant was initially granted a 449 Humanitarian Stay Visa and a WE-050 Bridging Visa. In or about September 2017 the applicant made an application for a Safe Haven Enterprise Protection Visa (XE 790) (Safe Haven Visa). A search of the Integrated Client Services Environment (ICSE) indicated that the applicant made application for a Safe Haven Visa on 21 September 2017. The applicant is still awaiting a determination by the department in relation to his Safe Haven Visa.

4. While the Tribunal has some reservations about the applicant’s right to a Safe Haven Visa application, based on the applicant’s evidence, it accepts that the purpose of his travel to Australia was to obtain a protection visa. Accordingly the Tribunal places some weight on this consideration in the applicants favour.  

Compliance with visa conditions

1. The Prisoner Holding Records indicate that the applicant was convicted of the offences [in] October 2019 in breach of his visa conditions and is currently serving his sentence in [a specified] Prison. The applicant admitted to the Tribunal that he was charged and convicted of the offences in breach of the conditions of his visa.

2. The Tribunal considers the applicant’s non-compliance with his visa conditions to be significant. Accordingly, the Tribunal give little weight in relation to this matter in favour of the applicant. 

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s provided a response to the NOICC in which he claimed that his visa should not be cancelled because he wants to stay in Australia so that he can support his family in Pakistan. He claims that his family are not safe in Pakistan and that if he returned to Pakistan he would be harmed. However, the applicant’s evidence was that his father owned a business Pakistan in in which two of his brothers worked and that all his siblings, save for one sister, were married and financially stable. As a result, the Tribunal gives these considerations little weight in favour of the applicant.

2. The applicant conceded that he had committed the crimes, but stated that he had learnt his lesson, that he was extremely remorseful for his action that that he would not commit any further crimes in Australia. The applicant stated that he was ashamed of his action and the fact that he had brought great shame to his family as a result of having been sent to prison.  The Tribunal notes that apart for the offences for which he was convicted, there is no allegation that he has committed and other crimes or otherwise been in breach of his visa conditions. In any event, the Tribunal is of the opinion that any shame that the applicant or his family may feel would be a normal and natural consequence of him having been charged and convicted of the offences. As such the Tribunal places little weight on these matters in favour of the applicant.

The circumstances in which the grounds for cancellation arose

1. The applicants evidence was that in or about 2013 sat the written test to obtain his learner’s driving permit. His evidence was that he then obtained his probationary drivers licence after having failed the test on his first attempt.

2. The applicant made no excuses of the fact that he had been charged and convicted of the offences. His evidence was that his licence had been disqualified as a result of an accumulation of points due to speeding and red light offences. The applicant acknowledges to the Tribunal that he had been aware that his license had been cancelled and that he had driven the vehicle despite his knowledge of the fact that he had been disqualified from driving. He explained that he continued to drive because it is often done in Pakistan. He explained that he was now aware that driving while his licence is cancelled is a serious offence. He said that he had been intoxicated at the time the offences occurred which resulted in him driving in a reckless manner. There was no evidence of any person being harmed as a result of the applicant’s actions. The applicant stated that both he and his family were very ashamed of his actions. 

3. The applicant’s evidence was that he was working in [Industry 1]. Depending on the weather he was working 4 to 5 days per week. The applicant’s evidence was that he was not studying. He is not currently married, does not have any children and is not in a relationship. The applicant stated that in the event that he was released for detention he was in a position to resume work as a [Occupation 1] with his brother in law. The applicant was not able to explain to the Tribunal why his brother in law was in Melbourne in circumstances were his evidence was that all his siblings (including his three sisters) were in Pakistan.

Issues of family violence.

1. The applicant is not in a relationship. As such there are no family violence issues relevant in this matter. As such the tribunal places no weight on this consideration in the applicant’s favour.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Mandatory legal Consequences.

1. If the visa is cancelled the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

2. In addition the applicant will be subject to ss.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 as a result of cancellation. The applicant will be required to remain in detention pending the determination of his protection for a Safe Haven Visa.

3. The Tribunal notes that the applicant is currently servicing his three month sentence for the offences. In the event that his visa is cancelled he will be required to remain in detention pending the outcome of his application for a Safe Haven Visa. Given the length of time since the applicant lodged his application for a Safe Haven visa the Tribunal is concerned about the length of time the applicant would have to remain in detention pending the determination of his application for a Safe Haven Visa. The applicant’s evidence was that he not received any correspondence from the department concerning it determination of his application. In addition, his representative stated that the applicant had not received any notice from the department requesting that the applicant be interviewed in relation to his application. Therefore, in the circumstances, were the applicant will have served his sentence in relation to the offences, and in the absence of any indication as to when his application is to be determined, the Tribunal finds that the applicants continued detention constitutes significant hardship. That is, the applicant’s continued loss of liberty pending the outcome of his Safe Haven Visa, in light of the fact that he will have served his sentence and that he appears not to represent a continued risk to the community, represents a significant degree hardship on the applicant.

4. The Tribunal gives significant weight to this consideration in the applicants favour.

   Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

5. The circumstances of this case are such that they would not engage Australia’s international obligations under the Convention of the rights of the Child (CROC). The applicant’s wife and child remain in India and as such he would be able to be reunited with them on his returns to Pakistan.

6. Accordingly, the Tribunal places no weight on this consideration in the applicants favour

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. In arriving at this decision, the applicant should know that the Tribunal has made these findings only marginally in favour of the applicant. The offences for which the applicant has been charged and convicted are serious. The Tribunal has concerns about the applicant’s evidence, in particular the circumstances of his arrival in Australia and his family’s circumstances in Pakistan.  It is clear by the applicant’s actions that he displayed a degree of contempt and recklessness toward the authorities in Australia. However, the loss of liberty pending the determination of his Safe Haven Visa is a matter that represents a degree of hardship that is unreasonable in circumstances where there is no indication of when the matter may be determined by the department.

3. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell

Senior Member