2013223 (Migration)

[2021] AATA 1402

2013223 (Migration) [2021] AATA 1402 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013223

MEMBER:Linda Holub

DATE:2 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 2 March 2021 at 4:32 pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – convicted of an offence – assault occasioning actual bodily harm – consideration of discretion – seriousness of charges – prison sentence – expression of remorse – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA, 375A

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 378 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 25 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the visa holder has been convicted of an offence against the law of the Commonwealth, a State or Territory. 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 17 November 2020 and 1 March 2021 to give evidence and present arguments.

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

1. 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)). 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?

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 relevant ground is r.2.43(1)(oa).

2. A Notice of Intention to Consider Cancellation Under Section 116 of the Migration Act, dated 10 August 2020 was sent by the Department to the applicant.

3. The Notice states that the applicant was granted a Working Holiday (Extension) (subclass 417) visa which was valid until 8 November 2020. Information before the Department indicated that [in] May 2020 the applicant was convicted in the New South Wales (NSW) Local Court for ‘ASSAULT OCCASIONING ABH IN COMPANY OF OTHER(S)’ and sentenced to a term of imprisonment of nine months with a non-parole period of six months. The Notice states that as he has been convicted of an offence against a law of a State, in this instance NSW, there appears to be a ground for cancellation of your Working Holiday visa under section 116(1)(g) of the Migration Act 1958 relying on the prescribed ground at Regulation 2.43(1)(oa) of the Migration Regulations 1994.

4. The applicant was invited to comment on the above information and show why the ground or grounds for cancellation do not exist or give reasons why his visa should not be cancelled and provide any supporting evidence. He was invited to respond in writing within five working days.

10) The applicant responded by email on 13 August 2020.

11) At hearing the Tribunal explained to the applicant that it had read his two-and-a-half-page response to the Department and noted he had made the following points:

a.He applicant stated that he is an only child and lived with his mom since his birth. After graduating he went to [Country 1] for one year when he was 17 years old and learned [Language 1] and worked selling [a product]. He decided to come in Australia when he was 19 years old. Initially he arrived in Melbourne and worked in [Industry 1] and [Industry 2] at the same time. He lived in an apartment with people from all around the world and his English improved. The statement goes on to say that after doing some [jobs] on a [specified] site which was very tough and long, he returned to France to see his mother for few months.

b.He submitted that two weeks after returning to Australia, he and some friends went to jail because of the stupid behaviour on a Friday night after visiting a night club. He refers to the conditions and treatment he received from other inmates while in jail. He refers to being moved to a different block after one month and being given the opportunity to work in the hygiene team. He spent the rest of his jail time cleaning and thinking about the same things - the behaviour which cost him so much and could have the victim as well.

c.He referred to the letter of apology he wrote to the victim which was read by the judge at his sentencing and was taken into consideration. He stated that he was very relieved after his release and was prepared to take his life even more seriously.

d.He stated that he had a parole period of three months which was difficult and referred to attempts to find a job because of the Covid-19 pandemic. He stated that he had only one friend who was able to help him find an apartment. He stated that he is now living in a very good apartment in the city and working regularly. He stated that he is ready to do good things with his future here and catch-up on his time he lost in jail.

e.He believes he is not a bad person and provided his opinion of the purpose of jail. He stated he wants to remain in Australia and study. He stated that he can see his mistake as a child but now sees himself as an adult who knows what he wants.

f.He stated that he does not want to go back to France as his life in Australia. He states that he lost all contact with friends who forgot him while he was in jail and his mother prefers that he remain in Australia because of the proliferation of Corona virus cases in France and the lack of lack of opportunities there.

g.He stated that his parole officer, if contacted, would vouch for him. He states that the reason he went to jail and that his visa was cancelled because of his stupidity. He asks that he be given a second chance.

12) At hearing the applicant elaborated on some aspects of his response to the Department’s Notice of Intention to Cancel. The Tribunal explained to him that the relevant provision of the Migration Act a visa may be cancelled if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The Tribunal explained that one of the grounds for cancellation is whether the visa holder has been convicted of an offence. The Tribunal explained that on the basis of the information before the Tribunal and his oral evidence that the ground for cancellation has been made out. The applicant agreed that this is the case.

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

14) 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’.

15) The Tribunal outlined to the applicant that it has discretion to consider cancellation and as he had not made any submissions in this regard it would work through the matters referred to in the PAM3 and provide him with an opportunity to respond and then to raise any further matters should he wish to do so.

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

16) The applicant stated that it was important for him to stay in Australia during the Covid-19 pandemic in France. He stated that France is in total lockdown except for essential services and therefore it will be very hard for him to find a job. He stated that the numbers of cases are still increasing so it could even dangerous for him to return.

17) The applicant stated that despite what happened, his family is still proud of him because he is still working. He has a schedule and meets all his commitments. The applicant explained that he works in [Industry 1] but is only allowed to work 20 hours per week. He is looking forward to getting more hours. He stated that if he hadn’t done this thing, he would be able to apply for a Student visa. The applicant stated his goal was to learn English and help his family. He stated that he ‘screwed up’ but he sees his future in Australia.

18) The applicant stated he does not want to have the cancellation on his migration record. He explained that he wishes to travel to other countries. He stated he would like to keep travelling. He stated that having had a prison sentence he feels he has been punished sufficiently and having his visa cancelled would be yet another impact.

19) The Tribunal has considered that the applicant was in Australia on a Working Holiday visa so as to enable him to work and experience Australia. The Tribunal gives this minimal weight against cancelling the visa.

20) The Tribunal accepts that the applicant wishes to remain in Australia and that the restriction resulting from the Covid-19 pandemic in France makes his return problematic. However, the Tribunal gave this minimal weight against cancelling given that many millions of people reside in France and are dealing with the impact of the pandemic.

21) The Tribunal notes that the applicant’s original purpose of travel was to work in Australia, and he claimed to be currently employed and working 20 hours a week. No evidence was provided in support of this claim. The Tribunal gives this minimal weight against cancelling the visa.

22) The Tribunal accepts that the applicant may have been able to apply for a Student visa if the assault had not occurred. The Tribunal accepts that the applicant’s goal was to learn English and help his family, that he feels he ‘screwed up’. However, the Tribunal does not consider these matters constitute a compelling need for the applicant to remain in Australia and therefore has given them no weight against cancelling the visa.

The Tribunal has considered the applicant’s submission that the prison sentence is punishment enough and that having his visa cancelled would be another impact. The decision to cancel the applicant’s visa is a direct result of him having been convicted of an offence against the law of the state of NSW. The Tribunal does not accept his submission that because he has been in prison his visa should not be cancelled and has given this minimal weight against cancelling the visa.

The extent of compliance with visa conditions

23) The applicant stated that he may have been unlawful for two weeks after his visa was cancelled. He stated that he did not realise he needed to apply for a Bridging visa when he applied for the review of the cancellation decision. He added that it may be possible that he was never unlawful. The Tribunal explained that it would look at his migration record and would take into account any periods of him being lawful in the context of his explanation.

24) The Tribunal has reviewed the applicant’s movement details as recorded by the Department of Home Affairs. The record shows that the applicant’s Subclass 417 (Working Holiday) visa ceased on 25 August 2020 and he was granted a Bridging visa on 21 September 2020.

25) The Tribunal is prepared to accept that the applicant may not have been aware of the requirements for him to obtain a Bridging visa while waiting for the review of the Department’s decision to cancel his visa, but otherwise has generally complied with the conditions of his visa. This is expected of visa applicants.

26) The Tribunal has considered the applicant’s overall compliance with his visa conditions. While there was a short period of non-compliance the Tribunal places nominal weight on this consideration as a reason against cancelling the visa.

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

27) In relation to emotional hardship, the applicant stated that he is caught between being unable to stay and unable to depart. He stated that he will not return to France because of the problems there. He stated that Mexico is an option for him but if his visa is cancelled it will have a major impact on him because he will be unable to travel to Mexico. He stated it will be a major disappointment. He stated that he will feel like he will be unable to move forward.

28) The applicant stated that while France is highly regarded as a tourist destination for people like him there are many problems and he does not feel he can flourish there. He stated that many young people do not feel like that in France because doors are closed to them. He stated that although he has his family in France, they are happy for him to be away if his situation overseas is good for him. He feels he could become depressed if the visa is cancelled. The applicant stated that his mother had an ovarian cyst while he was in jail because of the stress she was under.

29) In relation to the psychological hardship that would be experienced if his visa was cancelled, the applicant stated that it would be linked to the emotional hardship. He stated that he would be depressed. He stated that since he was 18 years old, he has been working and has not needed to rely on his mother. He stated he if he is not able to do so, he would feel like he screwed his opportunities. He would feel very bad. 

30) In relation to financial hardship, the applicant stated that earning money in France is not easy, especially at this time. If he returns to France, he would have to work if he wished to study and it is very hard for young people in his class. He referred to wages being very low. He stated that in order to study he would have to live in a big city and the rent is expensive. According to the applicant, the conditions in France will not allow him to flourish.

31) The Tribunal accepts that the decision to cancel the applicant’s visa will make it difficult for him to travel to Mexico. Given current travel restrictions arising out of the worldwide Covid-19 pandemic, the Tribunal gives this minimal weight against cancelling the visa.

32) The applicant made generalised assertions about the difficulties he would face in France indicating his has a strong preference to remain in Australia. No evidence was provided of the applicant suffering from any mental health issues. The Tribunal accepts he wishes to remain in Australia but was not convinced by the evidence provided that the applicant will suffer financial, psychological, emotional hardship if he were to return to France. The Tribunal has had regard to the fact his family lives in France. Having considered the applicant’s evidence, the Tribunal gives this consideration minimal weight against cancelling the visa.

Circumstances in which ground of cancellation arose. Departmental 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.

33) The applicant outlined the circumstances of the incident which resulted in the criminal charges against him and his subsequent imprisonment. He explained that he was coming back from a nightclub early one morning and after eating something at [a restaurant] took can a can of coke as they walked past a shop with the door open. He heard someone behind him call him a thief and was tell him to put it back. He stated the guy was shouting and pushed him several times and insisted he return it immediately. His friends saw this happen and he tried to tell them he was putting the bottle back. The applicant hit the guy once. His friends were very drunk and hit him a lot. He stated that because he started the fight, he was charged even though he only hit the victim once. He stated he had drunk eight beers and four to five other drinks.

34) The Tribunal explained to the applicant that Department’s guidelines (which it is not bound by but provide useful guidance) 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. The Tribunal explained that from the Police fact sheet on the Department’s file and his own description of what occurred, the situation was not beyond his control. The applicant agreed with this assessment.

35) The Tribunal acknowledges the applicant has expressed remorse for his actions and that he believes the experience of having spent time in jail has helped him mature. However, given the seriousness of charges and the applicant’s prison sentence, the Tribunal finds that the circumstances are such that they weigh in favour of the visa being cancelled.

Past and present behaviour of the visa holder towards the department

36) The Tribunal explained there was no evidence before it regarding his behaviour towards the Department aside from the issue regarding the cancellation of his visa. This is expected of visa applicants. The Tribunal places moderate weight on this as a reason against cancelling the visa.

Whether there would be consequential cancellations under s.140

37) The Tribunal explained and the applicant agreed that it appeared there were no consequential cancellations as a result of the cancellation of his visa. The applicant agreed there were no consequential cancellations. This consideration does not apply.

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.

38) At the second hearing the Tribunal explained the mandatory legal consequences that could arise, first confirming that the applicant understood what was meant by mandatory legal consequences as he was unrepresented and did not request an interpreter. The applicant stated that he understands that if he does not depart Australia and is not granted another visa, he would become unlawful.  He stated he understands the consequences. He stated he would leave the country if his visa is cancelled. He stated that without a visa he would be unable to obtain work and that without an income he could not remain. He stated that he understands the issues regarding his ability to apply for other visas and that if he stays unlawfully and is later caught it will have even further detrimental impact on his migration history. He referred to his interests in applying for a visa to another country.  He stated the fact of a cancellation is already detrimental and he does not want any further problems that would impede his future prospects. In relation to the possibility of detention the applicant stated that he is aware that he could be detained if he remained in Australia unlawfully and was caught.  He stated that he had already experienced detention once and does not to experience that again. Furthermore, he stated that he does want to that to his mother again. He stated that he knows it was very difficult for her.

39) The Tribunal therefore places minimal weight on this as a reason against cancelling the visa.

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.

40) The Tribunal explained to the applicant that there was no evidence before it that any international obligations would be breached as a result of the cancellation. He agreed with this. The Tribunal places no weight on this as a reason against cancelling the visa.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

41) As the Working Holiday visa is a temporary visa, this is not a relevant consideration.

Any other relevant matters SEEK UPDATE

42) The applicant stated that he has been dating a girl for a bit more than three months now. She speaks French and so it is good for both of them to be together. In December she will have university break. They are thinking of travelling and he wants to show her the life of a back packer.

43) The applicant stated the response he wrote the Department to the Notice of Intention to Cancel was written from the heart. Because he had to do it in writing he could think really think about what he wanted to say. He stated that knows it screwed up and he accepted his time in jail. He stated that by accepting the time in jail, it made it easier to deal with. He stated that he understands the Australian government would seek to cancel the visa of someone who has had criminal charges but for him it’s an additional impact which would have significant impact on his life.

44) The Tribunal acknowledged he would prefer to remain in Australia and travel with his girlfriend and that he wrote his response from the heart. The Tribunal accepts the applicant is remorseful. The Tribunal does not consider that these factors are such that they persuade the Tribunal to exercise its discretion not to cancel the visa.

Findings

45) The Tribunal recognises that the cancellation of a visa is a significant matter The Tribunal is mindful that a cancellation could lead a number of serious consequences for to the applicant including the possibility he could become an unlawful non-citizen and may face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period. The Tribunal acknowledges the difficulty this would cause the applicant and gives these consequences some limited weight in favour of exercising its discretion to not cancel the visa.

46) However, on balance, the Tribunal is of the view that the visa should remain cancelled, given the circumstances of the cancellation, the seriousness of the assault charges and the fact that the applicant came to Australia on a Working Holiday visa, which is a temporary visa. Considering all the factors discussed and the circumstances of the applicant's case, the Tribunal concludes on the whole, that the reasons to cancel the visa holder's visa outweigh the reasons not to cancel. The Tribunal concludes, therefore, that the applicant's visa should be cancelled.

Non-disclosure certificate

47) There is a certificate made by a delegate of the Minister under s.375A of the Migration Act on the Department's file. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed.

48) The certificate relates to TRIM reference numbers [Document 1], [Document 2], [Document 3], [Document 4], [Document 5], [Document 6], [Document 7], [Document 8], [Document 9], [Document 10] of the Department’s file [number]. It states that disclosure of those folios would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

49) At hearing the Tribunal explained to the applicant that:

a.the documents referred to are exchanges of emails between officers within the Department regarding the fact that the applicant was convicted in May 2020 of an “assault occasioning ABH in company of two others” and refers to him being sentenced to nine months imprisonment. The subject of the emails relates to the appropriate next steps in view of that sentence. The final conclusion the emails is that a Notice of Intention to Cancel the applicant’s visa be issued.

b.one of the documents ([Document 9]) is an internal Departmental briefing note about whether the applicant’s visa should be cancelled. It is dated 25 August 2020. It outlines the nature of the charges and is sentence. It refers to the NSW Police Facts Sheet which indicates that the applicant’s offence was of a serious nature in which the victim could have died. The briefing note states that:

“[Details redacted]”.

50) At hearing the Tribunal discussed the certificate with the applicant and indicated its finding that it believes the certificate is validity. The Tribunal also indicated that it was of the view that the information was relevant to its decision but the substantive issues regarding the consideration being given to cancellation and the subsequent cancellation and the reasons for it were outlined in the Notice of Intention to Consider Cancellation. The applicant was provided an opportunity to respond. He accepted the Tribunal’s findings on the validity and relevance but wanted it to be recorded that the first Police Fact Sheet was later amended prior to his court hearing when further evidence had come to hand.

51) The Tribunal gave the certificate and related folios little weight in its decision because the NOICC outlined the offense and the fact that the applicant was sentenced to a term of imprisonment of nine months with a non-parole period of six months. The Tribunal is also of the view that the fact of an exchange of emails between department officers about the way in which his case should be handled is unsurprising and not controversial. There is nothing prejudicial to the applicant in those emails aside from [Document 9] provides further details of the assault drawn from a NSW Police Fact Sheet.

52) The Tribunal has considered the applicant’s evidence that a subsequent Fact Sheet was tended to the Court and is prepared to accept this. Nevertheless, the Tribunal notes that the Court heard the matter and decided to give him a custodial sentence of nine months based on the facts and evidence before the Court.

Adverse information

53) At the second hearing the Tribunal put information to the applicant in the terms required under s.359AA of the Migration Act. The Tribunal explained that the information was contained in documents on the Department’s file relating to the offence for which he was charged and imprisoned.

54) The Tribunal explained that one of the documents ([Document 9]) is an internal Departmental briefing note about whether the applicant’s visa should be cancelled. It is dated 25 August 2020. It outlines the nature of the charges and is sentence. It refers to the NSW Police Facts Sheet which indicates that the applicant’s offence was of a serious nature in which the victim could have died.  The applicant was asked if he wished to comment or respond. He stated that he understands it was a serious offence. He stated that a person can die from one punch.  He stated that people get angry really quickly and can react violently. He stated that he understands NSW has the one punch law. He stated that even though it may not be the punch it can be serious because the injured person falls. He stated that no form of violence is good, and he feels for the family of the injured person.

55) The Tribunal also put information contained in the NSW Fact Sheet to the applicant in the terms required under s.359AA of the Migration Act.

“[Details deleted]”.

56) The Tribunal referred to the information contained in the applicant’s response to the NOICC in which he had acknowledged the circumstances of the assault. The Tribunal also referred to the evidence provided at his first hearing that there were changes to the first Police Fact Sheet. He stated that changes were made to the Police Fact Sheet after discussions between his lawyer and the police, but those changes related to the circumstance of the assault and not in relation to the injuries suffered by the victim.  The applicant stated that he only hit him on the left side. He stated that his accomplices   caused the more serious injuries on the right side of the victim’s face. He stated that he agrees it was a serious offence. He stated that no one should receive injuries like that.  He stated that the victim and his family should not have suffered in that way.

57) The Tribunal has considered the applicant’s responses to the adverse information and has regard to the fact that the applicant did not contest the seriousness of the offence with which he was charged and imprisoned; nor did he contest the description of the victim’s injuries.

58) The Tribunal accepts that the applicant is genuinely remorseful for his role in the incident and the consequences for the victim. The Tribunal also accepts that he understands the implications for himself and for his migration history and accepts the reasons for them. Nevertheless, the Tribunal does not find that these are reasons not to affirm the decision to cancel the applicant’s visa.

DECISION

59) The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Linda Holub
Member