2002034 (Migration)

[2020] AATA 3506

2002034 (Migration) [2020] AATA 3506 (3 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2002034

MEMBER:Kate Millar

DATE:3 July 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 03 July 2020 at 9:45am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – risk to the safety of the Australian community – applicant charged with offenses – psychological and mental illness – awaiting application for protection – applicant remains in prison – eligibility for a further bridging visa – decision under review set aside         

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359, 359C, 360, 363A, 375A, 501
Migration Regulations 1994 (Cth), r 2.25; Schedule 4, Public Interest Criterion 4001

CASES

El Jejieh v MHA (No 2) [2019] FCCA 840
Gong v Minister for Immigration & Anor [2016] FCCA 561
Hasran v MIAC [2010] FCAFC 40     

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. [The applicant] came to Australia from Libya with his family aged [age] [in] February 2011 on a student visa.  He and his family have since applied for protection visas, and their applications were refused by a delegate of the Minister.  The family applied to the Tribunal for a review of the decision to refuse the protection visa.  As a result of the application to the Tribunal, and as their applications for protection visas have yet to be finally determined, [the applicant] was granted a Subclass 010 (Bridging Visa A). 

2. On [a day in] June 2019, he was charged with aggravated robbery, aggravated indecent assault and aggravated burglary with the intention to commit an offence. As a result, his Subclass 010 (Bridging Visa A) was cancelled on 24 January 2020 by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs under s.116 of the Migration Act 1958 (the Act).    This is an application for review of that decision.

3. The delegate cancelled the visa under s.116(1)(e) on the basis that [the applicant] is or may be, or would or might be a risk the health, safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   CERTIFICATE ISSUED UNDER S.375A OF THE ACT

4. The Department file contains a certificate purportedly issued under s.375A of the Act.  This certificate is not signed and is invalid.[1]

   [1] El Jejieh v MHA (No 2) [2019] FCCA 840 at [23]–[25]

   REQUEST FOR INFORMATION UNDER S.359(2) OF THE ACT

5. On 12 March 2020, the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information in writing about the outcome of the charges against him, and any future court dates. 

6. The invitation was sent to the last address provided in connection with the review.  This is the email address of his registered migration agent, [named], and advised that, if the information was not provided in writing by 26 March 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information [the applicant] would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. [The applicant] did not provide a response within the prescribed period and no extension was granted. In those circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. This is unfortunate in this case as [the applicant] is only [age] years of age.  As a result, the Tribunal again wrote to [the applicant], through his representative, on 7 May 2020 inviting him again to provide information on the charges against him and any future court dates as well as to provide further submissions. 

9. His representative sought an extension to provide this information, as he advised [the applicant] was now incarcerated, and he had to wait for [the applicant] to contact him.  The representative was contacted as follows:

   I refer to your request for an extension as you advise your client's father is unable to visit him in prison in person due to COVID-19.

   Please provide any reasons your client cannot provide instructions to you by telephone about any further submission he would like to make about the cancellation of his Bridging A visa.  Please provide any reasons he cannot instruct his criminal lawyer by telephone to provide information on the criminal charges against him and the progress of these charges.  

10. An extension was provided until 28 May 2020, and the representative advised on 22 May 2020 that [the applicant] had pleaded guilty and was in custody pending sentencing.  On 2 June 2020, the Tribunal requested further submissions on any reason(s) [the applicant] considered his visa should not be cancelled.  Submissions were ultimately provided on 10 June 2020. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. As it applies to [the applicant] these include the ground set out in s.116(1)(e). 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?

12. 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.

13. The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 states the purpose of 116(1)(e) is:

    … firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might on their arrival in Australia) be a risk to the safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.   

14. In Gong v Minister for Immigration & Anor [2016] FCCA 561 Judge Smith states at paragraph 41 that:

    … there does not have to be … any direct, solid or certain foundation before the power to cancel a visa can arise.  In other words, it can arise on the possibility that some event occurred in the past.  In this case, the possibility was supported by the laying of charges. 

15. It follows that this ground can be established by the possibility that the person is or might be a risk to the safety of the community, and this can arise on a possibility established by the laying of charges. 

16. As recorded by the decision of the delegate, a copy of which was provided to the Tribunal by [the applicant], he was charged with aggravated robbery, aggravated indecent assault and aggravated burglary and commit.  He has since pleaded guilty to these offences and is in custody awaiting sentencing.   

17. [State 1] Police records the offending as follows:

    •At about 4:00 pm on [a day in] May 2019 the visa holder attended an address in [suburb] in company with two co-accused males, to pay for sex from the alleged victim, who is [an age] year old female who works from that address.

    •The alleged victim invited the visa holder inside, while the two co-accused remained outside.

    •A short time later the first co-accused went to the front door and attempted to gain entry. The alleged victim heard this and picked up her mobile phone. The visa holder grabbed her mobile phone and a struggle occurred between the visa holder and the alleged victim.

    •The visa holder physically forced the alleged victim to the front door, unlocking the front door for the first co-accused to gain entry to the house. The visa holder and the first co-accused overpowered the alleged victim, then the visa holder dragged her to the bed and sat on top of her, pinning her arms down.

    •While the visa holder straddled the alleged Victim, pinning her arms down, he continuously thrust his genitals along her stomach.

    •While this was happening, the first co-accused proceeded to ransack the house, searching for items to steal.

    •A short time later, the second co-accused entered the house through the open front door, observing the visa holder restraining the alleged victim on the bed and seeing the first co­ accused searching through drawers and cupboards.

    •The second co-accused told the visa holder and the first co-accused to hurry up, then proceeded to assist with searching the house for items to take.

    •After searching the house, the visa holder and the other two co-accused took the following items, which all belonged to the alleged victim:

    oA wallet containing AUD $[amount] and [another currency] (worth approximately AUD $[amount]).

    oAUD $[amount] cash.

    oA mobile phone.

    •The visa holder then got off the alleged victim and walked out of the bedroom to the hall to meet the two other co-accused, and they all then fled the property through the front door. The first co-accused shoved the alleged victim back into the bedroom as she attempted to prevent them from escaping.

    •The visa holder and the other co-accused fled down the driveway into a waiting vehicle and left the area.

    •The entire incident was captured on closed circuit television cameras outside and inside the address, and the visa holder was subsequently identified by police.

    •On [a day in] June 2019 the visa holder was arrested and conveyed to [a named] Police Station. He declined interview, was charged and police refused him bail.

18. [In] December 2019 [the applicant] was granted bail to appear on [a day in] February 2020 at the [named court].  [The applicant] advised the delegate this was home detention bail for him to live with his parents and brothers. 

19. The submission provided on 6 June 2020 states [the applicant] is currently in prison awaiting sentencing.  It states the offences for which [the applicant] was charged were the first offences recorded after his arrival in Australia when he was nearly [age] years old.  He suffers psychological and mental illness.  The submissions state that the family advise medication has made a difference and he is feeling more stable.  His parents and [siblings] are in Australia.  It is stated he is remorseful and looking for a second chance.

20. The submissions go on to state that his father advised the representative the only reason he went to prison was because he wanted to, as otherwise he would be placed in immigration detention and this would not be considered part of the imprisonment period. 

21. None of these submissions are supported by statutory declarations or statements from [the applicant] or his family members, and as such merely amounts to a statement by the representative. The Tribunal can place little weight on submissions where these are unsupported by any other information or statements, particularly in circumstances where these statements should not be difficult to obtain as [the applicant] and his family members are in Australia.  Reporting what a representative is told by family members does not greatly assist the Tribunal and is not to the benefit of the representative’s client.  This is particularly of concern in this matter as [the applicant] is relatively young and is in prison. 

22. [The applicant] has been charged and has pleaded guilty to the offences.  This is confirmed by the [specified website].[2] He is yet to be sentenced. His actions show that he has been a risk to the health and safety of a person. Insofar as past behaviour predicts future behaviour, it shows he may be a risk to the community in the future. While he is currently in prison, the terms of s.116(1)(e) also look to risk in the future, not just the present. He is presently a lower risk to the community as he is incarcerated but may be a risk in the future.

    [2] [Details deleted.]

23. It follows that the ground to cancel his visa in s.116(1)(e) exists.

24. 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

25. 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’.

26. [The applicant] arrived in Australia with his family on his father’s Subclass TU student visa, which was granted so that his father could complete his [course] at [University 1]. 

27. [The applicant] has since applied for a protection visa on the basis of being a member of his father’s family unit.  This application was refused by a delegate of the Minister, and [the applicant] has applied with his family members for a review of this decision. 

28. The submissions rely on the response to the Department previously provided that:

    ·     [the applicant] suffers paranoid personality disorder

    ·     He sustained a head injury three days before the offences were committed

    ·     At the time of the offending, he was [age] years of age and mentally unstable

    ·     He has been living in Australia since he was approximately [age] years old. 

    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

29. [The applicant] came to Australia as a dependent on his father’s student visa.  His father has since applied for a protection visa.  This application was refused by the Minister, and a review of this decision is pending with this Tribunal.   This is not the visa under consideration in this matter.

30. The visa under consideration is a bridging visa that was granted pending the hearing and determination of his protection visa application.  The purpose of a bridging visa is to provide temporary lawful status while a visa application is being processed, which includes a review of a decision of a delegate of the Minister to refuse to grant the visa. 

31. Cancelling the bridging visa will not determine the outcome of the protection visa application, which will be considered on its own merits.  [The applicant’s] criminal record will be considered at this time.  Cancellation of his bridging visa will not result in his removal from Australia as he is in custody and can apply for or be granted a further bridging visa E.[3]  It follows that he will remain in Australia pending the determination of his application for a protection visa.

    [3] R.2.25 of the Migration Regulations 1994

32. Therefore, cancelling the visa does not undermine the purpose of [the applicant’s] presence in Australia.  [The applicant] is currently in prison and until he is released will not be placed in immigration detention. 

33. Cancelling his visa will not undermine the purpose for which his visa is granted as he will remain in Australia pending determination of his protection visa.  This factor does not weigh for or against cancelling his visa. 

    The extent of compliance with visa conditions

34. The delegate records that the Bridging Visa A granted to [the applicant] did not have any conditions attached.  It follows this consideration does not apply. 

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

35. In his written submission to the Department, [the applicant] states the cancellation of his visa will lead to extreme hardship and stress to him and his family.  He refers to the conditions in Libya and the danger he may face if returned, and that return to Libya will result in a deterioration of his mental health.  He states family will experience psychological and emotional stress as a result of the separation from him. 

36. [The applicant] submits he has lived in Australia for a decade, or [specified portion of] his life, and calls Australia home.  He states he was mentally unwell at the time of the offence and “was unaware of what happened”.  He states he was working and studying at the time and did not have enough sleep which may be partly the reason for his mental illness. 

37. [The applicant] provided articles on the circumstances in Libya, a statement reporting his father’s house was [severely damaged], death certificates which he reported were of the deaths of two of his cousins.

38. The submissions pre-suppose that an outcome of the cancellation of his bridging visa will be that [the applicant] is removed from Australia.  As this is not a determination of his application for a protection visa, this is not the case. 

39. The hardship that may be caused in this case is that [the applicant] will remain in prison.  If he were in the community, he may be liable to be detained under s.189 of the Act.  However, [the applicant] is in prison.  If he is released from prison, he may apply for a further bridging visa at that time.  At this point in time, it is not the cancellation of the visa that causes hardship, it is [the applicant’s] incarceration.  

40. As [the applicant] will not be removed as a result of cancelling his visa, and as he is incarcerated at present, any hardship suffered is not attributable to the cancellation of the visa, but to [the applicant’s] reported choice to be incarcerated so that this can be counted against a sentence of imprisonment.  This factor does not weigh for or against cancelling the visa. 

    The circumstances in which ground of cancellation arose

41. In his response to the notice of intention to cancel his visa, [the applicant] states he came to Australia [in] February 2011.  In [year] he finished high school and in 2019 he was studying a [tertiary] course.  He had to suspend his study due to his mental health after he was diagnosed with paranoid personality disorder.  He states he had a head injury [on a day in] May 2019 which is linked to his mental problems.  He describes his symptoms as including fainting, anxiety, being suspicious of others, angry, hostile and socially isolated.  He was hospitalised [in] May for one month and is still on medical treatment through [Hospital 1].  He says it was not easy to control his attitude and behaviour at the time which led to him committing offences.  He was [age] when he committed the offences.

42. He states he has now taken a step forward and is mentally stable.  He came from an educated and stable family, with his father holding a [degree] from [University 1] and his sister studying [a course] at [University 2].  He wants to complete his study in Australia and contribute to the community.  He says he has been organising events in Ramadan and for Eid as well as organising [sport] tournaments with friends. He states his visa should not be cancelled because he was mentally ill when he committed the offences.  He states he was well behaved and friendly before the offences and is regretful.

43. In support of his submission, [the applicant] provided a confirmation of enrolment from [University 3] for his [tertiary] course and medical information. 

1. [The applicant] provided a discharge summary from [Hospital 1] stating he attended the emergency department on [a day in] May 2019 at 11:44am.  His presenting problem was being punched in the head the day before.  His behaviour was problematic, with aggressive episodes requiring restraint and sedation.  The principal diagnosis was “Behavioural Problems, Adult” with additional diagnoses of “Head injury, Closed & ? Loss of Consciousness”.

2. The emergency department management records that he was initially combative but became calm and cooperative.  He reported that he had been punched the night before and was unsure who he had been punched by or why.  He reported no loss of consciousness, and that he was agitated earlier due to headache caused by trauma.  He denied intravenous drug use, depressive symptoms and denied auditory or visual hallucinations.  He denied thoughts of self-harm or harming others.  He was assessed with his parents who felt he was back to normal and were reassured by normal CT scan of the brain and blood tests.  The investigations showed a left frontal subcutaneous haematoma with no visible intercranial haemorrhage or skull fracture.  In the patient history it is recorded he admits to using some marijuana, no alcohol and denies other drugs. 

3. The offences are reported to have been committed [three days later in] May 2019.

4. [The applicant] was admitted to [Hospital 2] on 29 May 2019 and provided a discharge summary from this admission. The principal diagnosis was drug psychosis.  [The applicant] was in hospital for [number] days and was placed on an involuntary hospitalisation order after reported angry outbursts on the ward and a risk to self and of absconding.[4]

   [4] While the record refers to a “risk of abstaining” it is clear from the context and reports of the incident that led to the order that there was concern about [the applicant] leaving as he had attempted to take a staff member’s swipe card, and reported he just wanted to get out of the ward. 

5. A letter dated 24 June 2019 from a Psychiatric Registrar of the [Hospital 2] was provided.  This was addressed to [State 1] Police and stated [the applicant] was treated for a paranoid psychotic episode with ongoing symptoms during admission without evidence of substance use.  This letter states he is not currently mentally well for a police interview.

6. [The applicant] provided medical certificates that he was unfit for work or school at various times.  Of these, a certificate for the period 16 to 19 May 2019 states he is suffering anxiety related issues. Progress notes record obsessive compulsive disorder.

7. [Doctor A] of the [specified] Team at [Health Service 1] provided a letter dated 20 December 2019 which states [the applicant] was referred for acute psychosis in August 2019 and was on a weaning does of anti-psychotic.  This states his diagnoses are first episode psychosis, likely caused by a combination of drugs and acute stress and residual anxiety.  The future management strategy includes psychotherapy focussing on anxiety management and development of positive coping strategies to manage stress.   

8. A further letter from [Doctor A] dated 7 January 2020 states that [the applicant] asked for a letter to be provide clarifying the contribution of drugs toward his first episode psychosis.  It provides the results of his urine drug screen on admission to [Hospital 2] where benzodiazepines were detected, and amphetamine, cannabinoids, cocaine and opiates we not detected.  A later drug screen on 17 June 2020 (towards the end of his admission) show no drugs detected.  It is states [the applicant] has shown the writer a letter from [Hospital 2] clarifying a diagnosis of a paranoid psychotic episode, with ongoing symptoms during admission without evidence of a substance use. The only letter of this nature before the Tribunal was the letter regarding his suitability to be interviewed by Police.

9. [Doctor A] reports he has not seen evidence of ongoing psychosis and, based on the the reviews of the psychiatrists who have seen [the applicant], is of the option he is likely to have experienced an acute and transient psychotic episode.  It is reported he is currently experiencing anxiety contributed to be his fears about sentencing and the review of his immigration status.  He has medication for his anxiety but would prefer psychological input without medication.  He is otherwise reported to be well.  The plan was to reduce then cease his antipsychotic medication and to continue to monitor his mental state. 

10. A letter from [name], a clinical psychologist from [Health Service 1] reports that [the applicant] had attended 4 appointments with him and has been co-operative and engaged well for these sessions. 

11. [The applicant] provided an extract of an article of management of schizophrenia and related disorders, however the relevance of this article is not explained. 

12. The Tribunal accepts [the applicant] suffers from a mental illness but has not discerned in the reports from his treating team how his mental illness, or the head injury he suffered led to his offending.   The Tribunal has not been provided with any sentencing remarks, or reports prepared for sentencing.  However, in circumstances where he has been diagnosed with a mental illness, and does not have any previous record of offending, the Tribunal considers [the applicant] should be given the benefit of the doubt and finds that the offences occurred in circumstances where [the applicant] had the first episode of a mental illness, and that this contributed to his offending.  These circumstances weigh in favour of [the applicant]. 

13. [The applicant] provided a reference from [Mr A] stating he has known [the applicant] and his family since 2011, and [the applicant] came across as very shy, respectful and well-mannered.  He has been an active member of the [sports] club.  The offences and the seriousness of the offences caused shock and disbelief as they are out of character.  He has shown remorse.  It is stated cancelling his visa would be a big mistake as he would potentially be sent to a detention centre and deported to Libya.  The Tribunal accepts that the offences are not consistent with [the applicant’s] prior behaviour, and that this weighs in his favour. 

    The past and present behaviour of the visa holder towards the department

14. [The applicant] has responded to the Department when it issued a notice of intention to cancel his visa.  He could not be located to respond to the invitation to provide information, however he was subsequently located by his representative in prison and as a result the Tribunal places little weight on his non-response.  

    Whether there would be consequential cancellations under s.140

15. There are no consequential cancellations that result from the cancellation of [the applicant’s] visa. 

    Whether there are mandatory legal consequences of the cancellation

16. The submissions of [the applicant] and contained in the support letter from [Mr A] contain an assumption that the cancellation of his bridging visa will lead to his deportation to Libya. [The applicant] provided articles on the situation in Libya and submissions on how his mental health would deteriorate in Libya.

17. This is a decision that relates to a bridging visa, it is not a decision on his application for a Class XA Subclass 866 (Protection) visa. 

18. A consideration of [the applicant’s] application for a protection visa will include whether he satisfies Public Interest Criterion 4001, which looks to whether he passes the character test. While ‘character test’ is not a defined term, it is generally regarded as being a reference to the character test in s.501(6) of the Act.   Whether or not he has a substantial criminal record will be considered at the time and will be affected by the sentence imposed.  His offending will be considered again at that time.

19. [The applicant] is currently in prison awaiting sentencing.  The cancellation of his bridging visa will not change this situation.  There is nothing before the Tribunal to indicate he intends to seek bail prior to sentencing.  He can apply for, or can be granted, a Bridging Visa E while in prison or on his release.     

    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

20. [The applicant] currently has an application for review of the refusal of a protection visa pending for, and the cancellation of this visa will not result in his removal from Australia.  It follows Australia’s obligations regarding non-refoulment will not be breached as a result of cancelling this visa.

21. [The applicant] is currently in prison and is separated from his family and his brothers.  The delegate states he has three brothers who are minors.  His separation from his brothers is a result of his incarceration, and not as a result of the cancellation of his visa, albeit that he chose to be in prison to reduce his overall time in custody rather than be in immigration detention.  If he is in prison, he may be granted a further bridging visa.  If he is released from prison, he can test his eligibility for a further bridging visa at that time. 

    CONCLUSION

22. [The applicant] has been charged with and has pleaded guilty to serious offences while on a bridging visa; being aggravated robbery, aggravated burglary with intent to commit an offence and aggravated indecent assault.  He reports that at the time the offences were committed he was suffering a mental illness, and reports having suffered a head injury matter of days before these offences.  This is supported by discharge summaries and treatment records.  He had a lengthy admission to hospital for a mental illness shortly after the offences were committed.  He has sought and complied with treatment for a mental illness since this time, and a referee states that prior to his offending he was of good character.   

23. [The applicant] is currently in prison awaiting sentencing for his offences and his representative states he has chosen to go to prison rather than immigration detention as time in immigration detention will not be counted as a part of his sentence.

24. He refers to the family’s claims for protection.  This is the subject of another application to this Tribunal and is not the subject of this decision.  As his claims for protection can be addressed in the determination of his protection visa application, the Tribunal does not consider a consequence of cancelling this visa that [the applicant] will be removed from Australia.

25. [The applicant] relies on being in Australia from a young age, however his ability to remain in Australia in the long term will turn on the outcome of his application for a protection visa and has limited significance regarding the cancellation of his bridging visa.

26. Many of the factors considered by the Tribunal are neutral, or do not weigh for or against [the applicant].  He has been charged with serious offences and the degree of risk to the community weighs in favour of cancelling his visa.  Hover, he was suffering a mental illness at the time and is currently in prison awaiting sentences for these offences.  The degree to which he should be punished or detained is a matter form the criminal courts.

27. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kate Millar
    Senior Member