2014053 (Migration)

[2020] AATA 5893

2014053 (Migration) [2020] AATA 5893 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2014053

MEMBER:Irene O’Connell

DATE:8 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 08 December 2020 at 2:39pm

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of an offence – applicant released from prison after sentence – no identified hardships – ongoing protection visa application – potential ongoing health issues – decision under review set aside         

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 14 September 2020 to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

   RELEVANT LAW

2. 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.

3. The Delegate cancelled the visa under s.116(1)(g) that is that a prescribed ground for cancelling a visa applies to the holder. Prescribed grounds are set out in r.2.43 (1)(ao) of the Migration Regulations 1994 (the Regulations):

   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));

4. 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.

5. There are no matters specified in the Act or Regulations for consideration in the exercise of the discretion to cancel or not to cancel the visa. However the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ provide a list of issues for consideration.

6. These are as follows; 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; the extent of compliance with visa conditions; degree of hardship that may be caused (financial, psychological, emotional or other hardship); past and present behaviour of the visa holder towards the Department; whether there would be consequential cancellations under s.140 and circumstances in which ground of cancellation arose.

7. Additionally consideration should be given to whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention and whether there are any international obligations, including non-refoulement.

   EVIDENCE

8. The Tribunal has before it the Department file [number] which contains a copy of the charge sheet (dated [in] September 2019) relevant to the applicant, the Notice of Intention to Consider Cancellation (dated 4 March 2020) sent to the applicant at a Correction Centre and  the Delegate’s decision record.

9. The applicant provided with his application for review a copy of the Decision record of the Delegate. He also provided to the Tribunal an undated written statement and gave oral evidence before the Tribunal at a hearing held on 3 December 2020. The hearing was conducted by telephone and with the assistance of an interpreter in the Vietnamese and English languages. The applicant was unrepresented at the hearing.

10. In his evidence to the Tribunal the applicant confirmed that he had been convicted of a crime in respect to the cultivation of cannabis and sentenced to [a period of] imprisonment. He indicated that he was released from prison [in] July 2020. He explained that he did not respond to the NOICC because he had not received it even though it was sent to the Correctional Centre. He stated that his conviction was his first and that he had now reformed and would be on his best behaviour from now on and would like a second chance. 

11. In respect to his family circumstances he stated that he has a sister in Australia living in Darwin and that his parents and remaining siblings are currently living in Vietnam. He stated that his family had lived for many years in [a named country].  He reiterated what he had set out in his written statement that his father developed serious health issues as a result of the stress and upset surrounding the applicant’s circumstances. He stated that he had had to rely on his father financially.

12. He stated that he currently has an application for review before the AAT in respect to his protection visa application which was lodged sometime in 2017. He stated that he had come to Australia on a student visa but had not completed any of the studies for which he was granted a student visa. He stated that he has worked instead in various jobs such as a handy man and a farm hand.

    FINDINGS AND REASONS

13. The Tribunal is satisfied that the ground for cancellation in s.116(1) (g) exists. The applicant has been convicted of an offence against the law in the state of Victoria. The applicant openly acknowledged his conviction at the Tribunal hearing.

14. After careful consideration of the applicant’s circumstances in keeping with the criteria identified in the PAM3 as set out above at paragraphs 5–7 the Tribunal has decided to exercise its discretion not to cancel the visa.

15. The Tribunal considers that there are grounds for cancelling the applicant’s Bridging visa.   The applicant arrived in Australia on a student visa but on his own evidence has failed to complete any of his courses of studies. He would appear to have a poor migration history in terms of compliance with previous visa conditions.

16. Additionally there are no particular hardships; emotional, financial or familial that would befall the applicant, or his family should his visa be cancelled. The applicant in his evidence to the Tribunal indicated that his father is in ill health as a result of the stress and shame of the  applicant’s circumstances. As discussed with the applicant at the hearing this appears to be  because of the applicant’s criminal activity and subsequent imprisonment rather than the cancelling of the applicant’s bridging visa.

17. However there are weighty consequences in cancelling the applicant’s visa. The applicant is waiting for a review of his protection visa application and if his bridging visa is cancelled, he would become unlawful and need to be detained in immigration detention until such time as this application is finally determined. Given the uncertainty as to when this would occur and with the ongoing health issues surrounding COVID-19 the Tribunal considers that the placement of the applicant in immigration detention for an unknown period of time weighs against cancelling his Bridging visa and outweighs  considerations for cancelling his visa. The Tribunal concludes that in this case the visa should not be cancelled.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Irene O’Connell
    Deputy Division Head