1935434 (Migration)

[2020] AATA 4018

1935434 (Migration) [2020] AATA 4018 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935434

MEMBER:Ann Duffield

DATE:17 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 July 2020 at 9.35am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – fact or circumstance for visa grant did not exist – judicial review of a decision to refuse the grant a substantive visa – consideration of discretion – non-refoulement obligations – protection claims previously rejected – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48B, 116

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 6 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)(aa) on the basis that the visa was issued on the incorrect grounds. 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 via teleconference on 16 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. 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

5. 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)(aa). 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)(aa) – Fact or Circumstance for visa grant did not exist

6. A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

7. The applicant was granted a Bridging Visa E on 13 May 2019 on the basis that the delegate understood that the applicant had applied for judicial review of a decision to refuse the grant a substantive visa. However, in November 2019 the department identified that this was not the case and wrote to the applicant notifying him of its intention to cancel the visa.

8. The applicant responded and maintained that he had, in fact, a judicial review at the High Court and cited the case Plaintiff [number deleted] which was dismissed on 22 May 2019. The applicant then filed an Application for Leave to Appeal from the whole of the Order and Judgement on 19 June 2019.

9. However, this appeal was against the departments decision not to refer a s.48B request to the Minister. There was, therefore, no appeal for a review of the refusal to grant a visa as required under clause 050.212(3A)(b)(i). The visa was therefore granted incorrectly as the particular fact or circumstances for the grant of the visa did not exist.

10. The applicant currently holds a Bridging Visa E, in relation to this review, [number] granted on 10 January 2020 and still in effect.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa) 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

12. 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’.

    The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia.

13. The applicant travelled to Australia as an irregular maritime arrival [in] October 2012. The applicant applied for a Save Haven Enterprise (XE790) visa which has been finally determined. His protection claims have been assessed and on 23 September 2016, the delegate for the Minister found that Australia did not owe protection to the visa holder. That decision was upheld by the Immigration Assessment Authority on 9 November 2016.

14. In a written submission to the tribunal dated 28 June 2020, the applicant maintains that he is a refugee and will be persecuted if he returns to Sri Lanka. He claims that he will be arrested, interrogated and face prolonged years in jail if he returns to Sri Lanka. He claims that he cannot be protected by the authorities and cannot live in any other part of the country safely.

15. The tribunal put to the applicant that these claims had been tested on several occasions and they were not upheld. He told the Tribunal that because he left illegally, he would be subject to more problems upon his return and even after all this time the problems in Sri Lanka have not gone away. He claims that he and his wife will both be harassed. He told the Tribunal that after the election there will be no justice to the Tamils and the Tamils will be harmed. He said that if he went home, he would not have the freedom that he has in Australia. The applicant also stated that the Medical and mental health services here were very good and he would not be able to access such care, particularly in mental health, that he has been able to in Australia.

16. The Tribunal notes that the applicant’s claims have been dealt with and that he has been found not to be owed Australia’s protection. He therefore has no further reason or need, compelling or otherwise, to travel to or remain in Australia.

    The Tribunal has considered the extent of the applicant’s compliance with visa conditions

17. The Tribunal does not have any information before it to suggest that the applicant has not complied with his visa conditions.

    The Tribunal has considered the degree of hardship that may be caused to the applicant (financial, psychological, emotional or other hardship)

18. In his written submission to the Tribunal, the applicant maintains that he has been living in Australia for more than 7 years and his family in Sri Lanka depend upon him. He claims they will all suffer significant financial, psychological and emotional hardship should he have to depart Australia. The applicant submits that he has significant mental health issues that would not be treated if he returned to Sri Lanka. A report from a mental health social worker, [Mr A], provided to the Tribunal by the applicant, states that the applicant suffers from depression, anxiety and post-traumatic stress. A letter from [Dr B] indicates that the applicant is being treated for a recent [body part 1] injury and his care will be impacted by the loss of his Medicare status.

19. The applicant told the Tribunal that if he returns to Sri Lanka, he would be afraid all the time as he would not know what would happen to him. He said that there would be no one to help him with his mental health issues

20. The applicant claims to have been unemployed since 2018 and has no money in his account. It is difficult to see under these circumstances what support he has been able to offer his family. He claims that his mother has been supporting him since he had no savings. The Tribunal accepts that the applicant will be disappointed and the prospect of no longer living in Australia where the standard of living is higher than Sri Lanka and the provision of health care of a superior kind. However, this is not sufficiently compelling a reason to persuade the Tribunal to not cancel his visa.

    The Tribunal has considered the circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

21. The applicant was granted a bridging visa on 13 May 2019 on the basis that he claimed he had lodged an application at the High Court of Australia. However clause 050.212(3A)(b)(i) states, relevantly, that an applicant meets the requirements if the applicant has made an application for a substantive visa and applied for judicial review of a decision to refuse to grant the visa and the judicial proceeding have not been completed.

22. In the applicant’s case, he had lodged an application in the High Court for the review of a departmental decision not to refer a s.48B request to the Minister.

23. The applicant therefore did not meet the requirements of clause 050.212(3A)(b)(i). The tribunal accepts that this was not a result of deceit on the applicant’s part but a mistake by the department.

    The Tribunal has considered the past and present behaviour of the visa holder towards the department

24. There is no evidence before the Tribunal that the applicant has not been cooperative with the department.

    The Tribunal has considered whether there would be consequential cancellations under s.140

25. The cancellation of the applicant’s bridging visa will not result in any other cancellations.

    The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

26. The Tribunal is mindful that the cancellation of this visa may result in the applicant being detained under s.189 of the Migration Act and removed from Australia under s.198 of the Migration Act as he would no longer hold a valid visa. The applicant may also be barred from applying for any further visa whilst in Australia and be prevented from returning for a period of time.

27. The Tribunal put this to the applicant and asked for his comments. He merely stated that he understood the consequences and had no further comments to add.

28. The Tribunal notes that this is the intention of the Migration Act; those who have exhausted all avenues of appeal and who have been found not to have a right or entitlement to remain in Australia are subject to removal. If the applicant decides to depart voluntarily however, he would not be detained for an extensive period.

    The Tribunal has considered whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. The tribunal explained to the applicant the concept of non-refoulement and asked if he had any comment. The applicant told the Tribunal that he would be persecuted if he returned to Sri Lanka, would not have any medical or mental health assistance and would live in fear. He said that he might even commit suicide if he had to go back to Sri Lanka.

30. The applicant maintains, despite the rejection of his protection claims on multiple occasions, that he has a well-founded fear of persecution by reason of his imputed political opinion, race and status as a person who departed Sri Lanka unlawfully.

31. As he has been found not to engage Australia’s protection obligations the Tribunal is not satisfied that the cancellation of the applicant’s visa would breach Australia’s international obligations, particularly its non-refoulement obligations.

    The Tribunal has taken into considered whether, if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. The applicant told the tribunal that he had strong ties to the community and the church. He said that many Australian citizens and close friends have provided him with financial and emotional support.

33. The applicant has no family members in Australia and does not have any strong business ties.

34. The Tribunal does not find there are any other relevant matters for consideration.

35. Considering the circumstances as a whole and having weighed all the various aspects of his evidence, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Ann Duffield
    Senior Member