2014155 (Migration)

[2020] AATA 5278

2014155 (Migration) [2020] AATA 5278 (29 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2014155

MEMBER:Jason Pennell

DATE:29 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 September 2020 at 1.48pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant charged with criminal offense – applicant’s business closed – financial hardship – decision under review affirmed          

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198, 499
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 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 13 August 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)(g) on the basis that a prescribed ground for cancelling the applicants visa applied pursuant to Reg 2.43(1)(p)(ii). 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 28 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4.The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. \

5.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

6.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 116(1)(g) and Reg 2.43(1)(p)(ii) of the Act. 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)(g) - prescribed ground

7.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 ground in Reg 2.43(1)(p)(ii) is relevant.

1. The applicant arrived in Australia via boat [in] July 2013 and has not departed since. The applicant was granted a bridging visa E on 15 August 2013. On 16 August 2013 he applied for a Humanitarian Stay (Temporary)(UJ 449) which was granted on 22 August 2013. The applicant has been granted bridging E visas as follows:

   -Granted 22 August 2013, ceased 22 August 2014

   -Granted 4 November 2014, ceased 4 November 2015

   -Granted 15 August 2015, ceased 15 August 2016

   -Granted 10 June 2016, ceased 10 January 2017

   -Granted 14 December 2016, ceased 14 April 2017

   -Granted 24 February 2017, cancelled 13 August 2019 (under review)

   -Granted on 13 August 2019, ceased on 14 August 2019

2. The applicant applied for a Safe Haven Enterprise (XE 790) visa on 20 January 2017. This was refused by the department on 16 August 2019 and reviewed by the Immigration Assessment Authority (IAA). The IAA affirmed the decision to refuse the visa on 26 September 2019 and the applicant applied for judicial review to the Federal Circuit Court of Australia (FCCA) [in] September 2020. The FCCA is yet to hand down a decision in this matter.

3. On [a day in] August 2019, the applicant was arrested by South Australian Police and charged with making a child amenable to sexual activity. On the same day ([specified]) the applicant was refused bail and remanded in criminal custody to appear at a later date. The applicant was detained at [Prison 1].

4. On 13 August 2019, the department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his bridging visa whilst he was prison.

5. On 13 August 2020, the applicant was interviewed and provided a response to the NOICC.  The delegate’s record of decision stated:

   Client circumstances in which the ground for cancellation arose:

   ‘Police said it happened in early 2018. Police said it was a police operation and they had a police officer pretending to be a child. I don’t remember all that happened’

   Visa holder’s behaviour in relation to the department, now and on a previous occasion:

   ‘Evidence of non-compliance with conditions imposed on bridging visas imposed – Under Ministerial Direction No. 63 4.3 Principles (2) All non-citizens residing in the community are expected to abide by the law. This is particularly relevant where the Minister has used his personal non-delegable power to grant a non-citizen in immigration detention a visa in the public interest. (3) The Australian government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temp basis and do not hold a substantive visa. In the case of a non-citizen who, but for the Minister’s granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege while their immigration status is being resolved’

   Other relevant reasons:

   ‘Ministerial Direction No. 63 – primary consideration part 6(1)(a); the government’s view that the prescribed grounds for cancellation of Reg 2.43(1)(p) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary framework. Additionally, regard should be given to the principle that the Australian government has a low tolerance for criminal behaviour of any nature. I add significant weight in favour of cancellation the visa’ 

6. On 13 August 2019, the delegate cancelled the applicant’s bridging visa.  The delegate’s record of decision noted the applicant’s reasons as to why his visa should not be cancelled as follows:

   ‘I have been living away 1 or 1 ½ years. Opening [a business] in Melbourne with partner. Pressure of business downturn stress of the business. I’m not that person I’m not that sick. I will do anything I can to prove I am good. I have helped people and what to continue to do good. Planning for the future with my girlfriend’

7. In addition, the delegate noted the degree of hardship the applicant claimed that he would suffer if his visa was cancelled as follows: 

   ‘My business would suffer. I have borrowed money from friends to start business. My relationship has built over last 4 years. It would impact my relationship. She has [number] children, [total number] but [number] live with her – [highest age] and youngest is [age] years. I don’t have any of my own children’

8. The delegate also noted that the ‘visa holder has advised that there has been significant downturn in business and his girlfriend who resides permanently in Melbourne is running the business. He travels frequently and does not reside permanently in Melbourne’

9. On [a day in] June 2020 the [Court 1] convicted and sentenced the applicant to 11 months and 1 week commencing [on a day in] August 2019. The applicant was released from [Prison 1] [in] July 2020 and detained at [a named detention facility].[1]

   [1] Department ICSE records

10. The applicant submitted the following material in support of his application for review:

    a.Sentencing remarks made by [Judge A], [Court 1] on [a day in] June 2020[2]

    b.A written statement made by the applicant[3]

    c.A notice of filing and hearing issued by the FCCA for application (file number [specified]) set down for directions hearing [in] July 2023[4]

    [2] Tribunal file, Doc ID no: 7688716

    [3] Tribunal file, Doc ID no: 7688715

    [4] Tribunal file, Doc ID no: 7688728

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

1. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to consider specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

2. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.

3. The primary considerations are:

   (a)the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

   (b)the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

4. The secondary consideration to be considered by the Tribunal are:

   (a)the impact of a decision to cancel the visa on the family unit;

   (b)the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

   (c)the circumstances in which the ground for cancellation arose;

   (d)the possible consequences of cancellation; and

   (e)any other matter considered relevant.

5. The Tribunal considered the primary considerations. It considers that the offence for which the applicant was convicted is serious and notes the view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously. In this case the applicant is not married and has no children of his own. As a result, the Tribunal places no weight on this consideration in the applicant’s favour.

6. In accordance with Direction 63 the Tribunal has considered the primary and secondary considerations together with other discretionary considerations as follows.

The impact of a decision to cancel the visa on the family unit;

1. The applicant’s evidence to the Tribunal was born in Iran on [date]. His mother and father continue to live in Iran. He claims that he has [specified family members]. His [specified] continue to live in Iran while [one sibling] is married and now lives in [another country].  The applicant’s evidence was that he is in regular contact with his family in Iran.

2. The applicant completed school in Iran after which he completed his military service. He started work with uncle as what he described as a labour hand in the [specified] industry. He claimed that he performed a similar role for a variety of companies in various locations throughout Iran primarily in [two specified] industries for a period of 10 years.  The applicant claimed that in Iran work became difficult as the conditions were poor with workers not being paid for long periods of time. He claimed that any industrial action taken by workers would result in them being blacked banned from the company they worked for. The applicant claimed that as a result of life being difficult in Iran, he travelled to Australian by boat arriving in July 2013.

3. The applicant does not have any family member in Australia. In sentencing the applicant, the [Court 1] noted that he had several relationships in his life including a long terms relationship with a woman in Iran. The applicant confirmed that he has a girlfriend in Melbourne. His evidence was that he met her in Adelaide, and she travelled with him to Melbourne in 2019 where he commenced a [business] with a friend. His evidence was that he sold his house in Iran to finance the purchase of the [business] in Melbourne. His evidence was that his girlfriend continues to live in Melbourne, but that he has been in regular contact with her and that she has been supportive of him while he was in prison. The business has subsequently been closed.

4. While the Tribunal does not accept that the applicant is in regular contact with his girlfriend as claimed. The Tribunal notes that she has [number] children and has remained living in Melbourne while he has been in prison. In addition, the Tribunal notes the sentencing remarks by [Judge A], [Court 1] [in] June 2020 in which he noted that the applicant’s girlfriend had [number] children and that the relationship was intermittent. In light of the charges to which the applicant has been found to be guilty and in any absence of any independent evidence to the contrary, the Tribunal does not accept that applicant’s relationship with his girlfriend is ongoing. As such it finds that the applicant will not suffer any hardship as a result of being separated for his girlfriend. Given that his family (save for [one sibling]) continue to live in Iran any cancellation of his visa will not cause any hardship by separating him from his family members. As a result, the Tribunal places no weight in this consideration on the applicant’s favour.  

The degree of hardship that may be experienced by the visa holder if the visa is cancelled;

1. The applicant claims that as a result of him being arrested and imprisoned his [business] in Melbourne has been closed and has experienced financial difficulties.  He claims that he needs to work to be able to pay his debts and to ‘get back on his feet.’ While the Tribunal accepts that the applicant would have lost money as a result of the failure of the [business], in circumstances where the business has been closed and the lease terminated there appears to be no ongoing costs associated with the business. As a result, the Tribunal places no weight in the applicant’s favour as a result of the failure and closure of his [business].

2. While the Tribunal accepts that the applicant will suffer a degree of emotional and psychological hardship as a result of his visa being cancelled, there was no evidence presented by the applicant in relation to either emotional or psychological condition. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

3. However, if the applicants visa is cancelled, he will remain in detention pending the outcome of his appeal to the FCCA relation to his application for Safe Haven Enterprise (XE 790). The matter has been listed for hearing in July 2023. However, the Tribunal notes that if the applicant remains in detention then it’s the practice of the Court to prioritise the hearing of matters where the applicant is in detention. It is also open for the applicant to make application to the court to have the matter prioritised in circumstances where he remains in detention. Nevertheless, the Tribunal holds some concerns that he will remain in detention upon cancelation of his visa. Accordingly, the Tribunal places some weight in the applicant’s favour in relation to his loss of liberty by remaining in detention pending the hearing of his FFCA appeal.    

The circumstances in which the ground for cancellation arose;

1. The circumcises in which the grounds for cancellation arose are detailed above. On [a day in] August 2019, the applicant was arrested by South Australian Police and charged with making a child amenable to sexual activity. The applicant pleaded guilty to the charge and was sentenced to 11 months and one-week imprisonment.

2. The Tribunal has also 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 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.

1. The applicant arrived in Australia in July 2013 by boat and was granted a Humanitarian Stay (Temporary)(UJ 449) on 22 August 2013. The applicant then applied for and was granted several Bridging Visas. The applicant then applied for a Safe Haven Enterprise (XE 790) visa on 20 January 2017. The applicant claims that he travelled to Australia because there were a lot of problems in Iran and life had become very difficult. However, he did not identify any specific reason as to why fled Iran. In addition, he did not identify any matter by which would be seriously or significantly harmed if he returned to Iran.   Despite him claiming that he wants to stay in Australia the applicant continued to maintain regular contact with his relatives in Iran and until recently maintained a property in Iran. In addition, the applicant has not applied for any permeant visa rather making application for visas with limited time periods.  As such, the Tribunal places little weight on the applicant’s stated purpose of traveling and staying in Australia. 

The extent of compliance with visa conditions.

1. There is no evidence of the applicant having breached any other conditions of his visa. Accordingly, the Tribunal places some weight on this consideration in the applicant’s favour.

Past and present behaviour of the visa holder towards the Department.

1. The applicant responded to the NOICC and has broadly complied with the department’s direction.  Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this consideration.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations. In particular, the departmental records show that the applicant does not have any children in Australia whose interests may be affected by the cancellation of his visa.  As such, the Tribunal does not give any weight in favour of the applicant in relation to this consideration in making this decision. 

Mandatory legal Consequences.

1. If the visa is cancelled the applicant will become an unlawful non-citizen and will continue to be held in detention under s.189 of the Act and, subject to the determination of his appeal to the FCCA, be removed under s.198 of the Act if he does not voluntarily depart Australia.

2. In addition, the applicant will be subject to ss.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 as a result of cancellation. Nevertheless, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

1. The Tribunal gives some weight to this consideration in the applicant’s favour.

Other relevant factors

1. Having considered the department file, and the applicant’s evidence to the Tribunal, it is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore, based on the applicant’s own evidence, the Tribunal finds that he has limited ties to the community and as a result is unlikely to suffer any undue hardship as a result of the cancelation of his visa. In addition, he failed to identify any well-founded fear of persecution if he is returned to Iran.  As such, considering the serious nature of the charges for which he has been found guilty, the Tribunal concludes that the visa should be cancelled

3. Considering all the circumstances, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jason Pennell

Senior Member