1935626 (Refugee) - [2020] AATA 502

1935626 (Refugee) [2020] AATA 502 (31 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1935626
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Michael Hawkins
DATE AND TIME OF
ORAL DECISION AND REASONS:         31 January 2020 at 3:10 pm (QLD time)
DATE OF WRITTEN RECORD:                6 February 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Temporary Protection (Subclass 790) visa.

Statement made on 06 February 2020 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Sri Lanka – criminal conviction and imprisonment – discretion to cancel visa – factors for and against cancellation – nature and seriousness of criminal conduct – assault within peer group, after argument affected by alcohol – not principal offender, did not strike victim – remorse and plea of guilty – treatment for mental health and alcohol consumption – good work record with offer of ongoing employment – close ties to community – statements of support from brother, friend and victim of assault – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)
CASE
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 December 2019 to cancel the applicant’s protection visa under the Migration Act 1958 (the Act).
At the hearing on 31 January 2020 the Tribunal made an oral decision and gave an undertaking to provide a statement of decision and reasons within 14 days of the hearing date. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
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, the regulations stipulate the circumstances that enliven s116(1)(g). The relevant regulation provides:
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:
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))
Background
The applicant was born in Sri Lanka on [Date]. He is [age] years…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1935626 (Refugee)

Details

AGLC: 1935626 (Refugee) [2020] AATA 502
Case: [2020] AATA 502
Decision Date: 6 February 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Temporary Protection visa. The applicant, a Sri Lankan national who had resided in Australia since 2012, was convicted in October 2019 of entering a dwelling with intent at night in company and assaulting another person occasioning bodily harm whilst armed and in company. These convictions arose from a single incident in December 2017, for which the applicant received suspended sentences of imprisonment. The Minister's delegate subsequently cancelled the applicant's visa under s.116(1)(g) of the Migration Act 1958 (Cth) and Regulation 2.43(1)(oa), which permit cancellation upon conviction for an offence.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, notwithstanding that the ground for cancellation had been established. The Tribunal was required to consider various factors relevant to this discretionary power, including the nature and seriousness of the criminal conduct, the applicant's personal circumstances, and any evidence of remorse or rehabilitation. The Tribunal also considered the applicant's explanation for not responding to the Notice of Intent to Consider Cancellation, which he attributed to a lack of understanding and interpreter assistance while in detention.

In its reasoning, the Tribunal acknowledged the applicant's criminal convictions but carefully weighed these against numerous mitigating factors. These included the applicant's remorse, his guilty plea, his treatment for mental health and alcohol issues, his good work record with an offer of ongoing employment, his strong community ties, and supportive statements from his brother, a friend, and even the victim of the assault. The victim stated he did not believe the applicant intended to harm him, attributing the incident to alcohol, and did not consider the applicant a risk to the community. The Tribunal applied the principle that decision-makers have the discretion to attribute weight to relevant information, drawing on established case law.

Ultimately, the Tribunal found that the cumulative weight of the mitigating factors favoured setting aside the cancellation decision. The Tribunal concluded that the applicant's circumstances, including his efforts at rehabilitation and the victim's statement, demonstrated that cancellation was not warranted in this instance. The decision under review was therefore set aside.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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, the regulations stipulate the circumstances that enliven s116(1)(g). The relevant regulation provides: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:(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))Background The applicant was born in Sri Lanka on [Date]. He is [age] years old. He has lived in Australia since [August] 2012. [In] September 2015, the Applicant received a grant of a Temporary Protection (Subclass 785) visa. Criminal Charges and Visa Cancellation [In] December 2017, the Applicant was charged with the following:·One (1) count of Enter Dwelling With Intent At Night In Company,[1] and;·One (1) count of Assaults Occasioning Bodily Harm Whilst Armed/In Company.[2][1] Criminal Code 419 (1) & (3) (A) & (3) (B).[2] Criminal Code 339 (1) & (3). The charges were in relation to a single incident [in] December 2017. [In] December 2017, the Applicant was taken into police custody. On or around May 2018, the Applicant was released on bail.Outcome of Charges [In] October 2019, the Applicant was convicted of the following charges:· One (1) count of Enter Dwelling With Intent At Night In Company, and· One (1) count of Assault Occasioning Bodily Harm Whilst Armed/In Company. In regards to the charge of ‘Enter Dwelling With Intent At Night In Company’, [a District Court judge] sentenced the Applicant to imprisonment for 11 months, suspended after serving 67 days. In regards to the charge of ‘Assaults Occasioning Bodily Harm Whilst Armed/In Company’, [the District Court judge] sentenced the Applicant to imprisonment for 9 months, suspended after serving 67 days. [In] November 2019 the Applicant received a Notice of Intent to Consider Cancellation further to Section 116 of the Migration Act 1958 (Cth) (‘the Act’) [In] December 2019, the Applicant received by hand a Notice of Cancellation further to Section 116. On this date he was taken into Brisbane Immigration Transit Accommodation. Criminal History The applicant has no outstanding criminal charges. The applicant has no criminal history.Cancellation In the absence of a response by the applicant to the NOICC in the specified 14 day window, the Delegate of the Minister (‘the Delegate’) proceeded to cancel the applicant’s visa.Does the ground for cancellation exist?s.116(1)(g) and Regulation 2.43(1)(oa) – conviction for an offence

Evidence

Evidence Before The Court

The Tribunal is satisfied that the ground for cancellation exists. Evidence at the review hearing The applicant had provided an extensive written statement prior to the hearing together with multiple written witness statements. The Tribunal is satisfied that the applicant has been sentenced and that there are no pending criminal charges in relation to the applicant. The applicant appeared at the Tribunal in the company of his Representatives, being a registered migration agent. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The Tribunal noted that the applicant had not responded to the Department’s NOICC. It suggested that the applicant may have given the Delegate no alternative than to cancel the visa in the absence of any submission as to why the visa ought not be cancelled, given that the grounds for cancellation had been made out under s.116(1)(g). The Tribunal inquired of the applicant why he did not respond to the NOICC. The applicant replied that he had received the NOICC as it had been handed to him personally whilst he was in prison. When asked again why he didn’t respond to it, he explained that he couldn’t understand what the document was and that there were no interpreters present at the time he was in prison. The Tribunal asked the applicant about his family. He replied that he had [a] brother in Australia whom he was presently living with. He said he also had [other siblings] in Sri Lanka. His parents were also still in Sri Lanka. He then added that he has a wife and [age] year old [child] living in Sri Lanka who he provides for. The Tribunal asked the applicant about his protection claims. He replied that he sought protection to save his life from the authorities and army in Sri Lanka. He explained that he was helping the freedom fighters in Sri Lanka. His [brother] was a freedom fighter. He was accused of supporting them and was requested by the authorities to “sign in” every three days. Then they wanted to transfer him to Colombo. He feared being interrogated and harmed. He said the trip to Colombo was notorious for torture. He stated that his brother escaped first, but then got caught and was delayed a month. The applicant escaped but was able to secure direct passage to Australia, and hence beat his brother to Australia. The Representative intervened to explain that the applicant was on the pathway to permanency. The Tribunal commented that it was therefore even more extraordinary that the applicant should take the risk he did in being involved in the activities he was and to risk arrest and cancellation of his visa. The Tribunal discussed the events of [December] 2017. It asked the applicant why he should happen to have a knife in his hand. He replied that he really didn’t know as he was intoxicated at the time. He doesn’t deny what happened, just accepts the circumstances as have been explained to him. He accepts that he did wrong, that he was convicted and punished.

Decision

Reasons for decision

At the hearing on 31 January 2020 the Tribunal made an oral decision and gave an undertaking to provide a statement of decision and reasons within 14 days of the hearing date. The following is the written record of those reasons.STATEMENT OF DECISION AND REASONS 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, the regulations stipulate the circumstances that enliven s116(1)(g). The relevant regulation provides: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:(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))Background The applicant was born in Sri Lanka on [Date]. He is [age] years old. He has lived in Australia since [August] 2012. [In] September 2015, the Applicant received a grant of a Temporary Protection (Subclass 785) visa. Criminal Charges and Visa Cancellation [In] December 2017, the Applicant was charged with the following:·One (1) count of Enter Dwelling With Intent At Night In Company,[1] and;·One (1) count of Assaults Occasioning Bodily Harm Whilst Armed/In Company.[2][1] Criminal Code 419 (1) & (3) (A) & (3) (B).[2] Criminal Code 339 (1) & (3). The charges were in relation to a single incident [in] December 2017. [In] December 2017, the Applicant was taken into police custody. On or around May 2018, the Applicant was released on bail.Outcome of Charges [In] October 2019, the Applicant was convicted of the following charges:· One (1) count of Enter Dwelling With Intent At Night In Company, and· One (1) count of Assault Occasioning Bodily Harm Whilst Armed/In Company. In regards to the charge of ‘Enter Dwelling With Intent At Night In Company’, [a District Court judge] sentenced the Applicant to imprisonment for 11 months, suspended after serving 67 days. In regards to the charge of ‘Assaults Occasioning Bodily Harm Whilst Armed/In Company’, [the District Court judge] sentenced the Applicant to imprisonment for 9 months, suspended after serving 67 days. [In] November 2019 the Applicant received a Notice of Intent to Consider Cancellation further to Section 116 of the Migration Act 1958 (Cth) (‘the Act’) [In] December 2019, the Applicant received by hand a Notice of Cancellation further to Section 116. On this date he was taken into Brisbane Immigration Transit Accommodation. Criminal History The applicant has no outstanding criminal charges. The applicant has no criminal history.Cancellation

Ratio Decidendi

Legal Principle Established

[Mr C], the victim of the crime, also proved a statement in support. He stated that he did not believe the applicant had any intent to harm him, believing an argument broke out as a result of too much alcohol. He states that at no time did the applicant strike him. He does not believe the applicant is a risk to anyone in the community. He also states that he remains friends with the applicant.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, is considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]. The Tribunal considered the representative’s submission as follows:Representative’s Submission Neither the Act nor the Regulations specify any mandatory considerations that should be taken into account when exercising the discretion under s.116(1)(g). The Minister has not issued any directions about the factors to be considered but the Department has developed guidelines in ‘PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. These guidelines enumerate the following considerations:(1)the purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;(2)the extent of compliance with visa conditions;(3)the degree of hardship that may be caused (financial, psychological, emotional or other hardship);(4)the circumstances in which the ground of cancellation arose;(5)past and present conduct of the visa holder towards the Department;(6)whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;(7)whether there would be consequential cancellations under s.140 of the Act;(8)whether any international obligations would be breached as a result of the cancellation, and(9)any other relevant matters. Purpose of visa and whether there is a compelling reason to remain in Australia