2016932 (Migration)

[2021] AATA 835

2016932 (Migration) [2021] AATA 835 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2016932

MEMBER:Shahyar Roushan

DATE:12 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 12 February 2021 at 11:54am

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of multiple criminal offences – applicant undertaking behaviour management training –Family Violence Interim Intervention Order – money owed in Malaysia – best interests of the applicant’s child – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 2, cl 050.212; 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 11 November 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant is [an age]-year-old national of Malaysia. He arrived in Australia [in] April 2017 as the holder of an Electronic Travel Authority (subclass 601). On 11 March 2018 he made an application for a Protection visa (subclass 866). He was granted a Bridging visa C (subclass 030) (BVC) on the basis of that application.

3. On 8 October 2018, the applicant’s protection visa application was refused by a delegate of the Minister. The applicant has applied for a review of the decision in relation to his protection visa. 

4. On 11 November 2020, the applicant’s BVC was cancelled under s.116(1)(g) of the Act, after he was convicted of multiple criminal offences in Victoria.

5. On 29 December 2020, the applicant applied for a Bridging E (Class WE) visa (BVE). On 4 January 2021, a delegate of the Minister refused to grant the visa. The applicant applied to this Tribunal for a review of that decision. He appeared before a differently constituted Tribunal on 11 January 2021 and the Tribunal affirmed the decision under review on the same day. The applicant is currently being held at the Melbourne Immigration Transit Accommodation.

6. The application before the presently constituted Tribunal is the application for the review of the decision of the delegate dated 11 November 2020 in relation to the cancellation of the applicant’s BVC.

   Notice of Intention to Consider Cancellation

7. On 21 October 2020, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his BVC under s 116(1)(g) and r.2.43(1)(oa) on the basis that he had been found guilty of offences against a law of the Commonwealth, a State, or Territory and handed a sentence.

8. The NOICC stated that, [in] September 2020, the applicant was convicted of the following offences in the State of Victoria: false imprisonment (Common Law), Common Law Assault (Three Counts) and Unlawful Assault and given a [term] prison sentence. The NOICC stated that the offences were committed against the applicant’s wife and child in the context of domestic violence. 

9. In a letter dated 22 October 2020, the applicant provided a response to the NOICC. He stated that he is ‘deeply sorry’ and regrets his violent behaviour towards his wife. He stated that he misses his son and wife, and ‘wants to change’ and ‘become a good father and husband’. He also stated that he is registering for a course in order to manage his violent behaviour. In addition, the applicant provided the results of a urine test, conducted [in] October 2020, which indicates that he had returned negative results for a range of illicit drugs, at [a named] Prison.

10. On 11 November 2020, the delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of the offences referred to. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Review application

11. The applicant appeared before the Tribunal on 10 February 2021 via video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

13. 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(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?

14. 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 r.2.43(oa) is relevant.

    Reg 2.43 Grounds for cancellation of visa (Act, s116)

    (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:  

    (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))

15. As already noted, the applicant was convicted of offences against the laws of Victoria. At the hearing, the applicant confirmed that he has been convicted of the offences referred to above.

16. The Tribunal, therefore, finds that the applicant has been convicted of offences against laws of the State of Victoria. The Tribunal is satisfied that the ground for cancellation under s.116(1)(g) and r.2.43(1)(oa) 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

17. 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’.

    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

18. The applicant told the Tribunal at the hearing that he travelled to Australia in April 2017 on an Electronic Travel Authority (ETA) valid for three months. He stated that he came to Australia for tourism and because he owed money to a friend in Malaysia. He confirmed that, following the expiration of his ETA in July 2017, he resided in Australia unlawfully until he was granted a BVC in March 2018 when he applied for a protection visa.

19. The applicant’s BVC was granted in conjunction with his application for a protection visa in order for him to await the determination of the application lawfully in the community. The Tribunal understands that his protection visa application was refused by the Department and is currently awaiting determination by the AAT. The Tribunal appreciates that the applicant has a need to remain in Australia to learn the outcome of that application. The cancellation of the applicant’s BVC does not necessarily mean that he would be unable to remain in Australia as he awaits the determination of his protection visa application. 

20. The applicant told the Tribunal that he would like to remain in Australia because his wife and child are still here. As already noted, the applicant has been refused a BVE and remains in immigration detention. The Tribunal has been able to access a copy of a Family Violence Interim Intervention Order, dated [in] September 2020, provided to the Department in connection with his application for a BVE. The contents of this document were put to the applicant under s.359AA of the Act and their relevance was explained to him. The applicant acknowledged that, as a consequence of the Order, he is unable to contact, communicate with or approach his wife and son in order to protect the latter against any risk of harm by the applicant. However, the applicant told the Tribunal that his wife had contacted him the day before the hearing. He said his wife has forgiven him and she intended to request for the Order to be withdrawn. However, he has provided no persuasive evidence in support of these claims and he did not request additional time to respond or comment. The Order remains in force to protect the safety of the applicant’s wife and child. In these circumstances, the Tribunal does not consider it unreasonable for the applicant to remain in immigration detention whilst awaiting the determination of his protection visa application. The Tribunal gives this factor little weight. 

    The extent of compliance with visa conditions

21. There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions of his BVC.

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

22. At the hearing, the applicant referred to his desire to see his child and to be with his family. As already noted, the Family Violence Interim Intervention Order currently prevents the applicant from having any contact with or to approach his wife and child. There was no evidence before the Tribunal that the Order has been varied or revoked. Whilst the applicant claimed that his wife, in their only contact since his conviction, has told him that she intended to seek a withdrawal of the Order, he provided no evidence in support of this claim or to show that any relevant action has been taken by his wife or the authorities.

23. In the context of hardship, the applicant also told the Tribunal that he is fearful of returning to Malaysia due to a monetary debt he owes a friend. The applicant’s claims in this regard have been addressed further below. For the reasons outlined below, the Tribunal does not accept that the applicant owes a financial debt to anyone. Nor does the Tribunal accept that there is a real chance or a real risk that the applicant will face serious or significant harm in Malaysia for the reasons he has provided. The Tribunal appreciates that the applicant may face some challenges in his country of nationality as he tries to re-establish himself financially while competing with other Malaysian nationals in challenging economic conditions. However, he is not prevented from finding employments or means of supporting himself. The Tribunal does not consider this factor to weigh against cancellation.

    Circumstances in which ground of cancellation arose

24. The ground for cancellation arises because the applicant has been convicted of offences of false imprisonment (Common Law), Common Law Assault (Three Counts) and Unlawful Assault. These offences were committed against his wife and child and he received a [term] prison sentence following his conviction.

25. In his evidence to the Tribunal, the applicant did not directly address the offences he had been convicted of. However, he told the Tribunal he regretted his actions and that he had changed while serving his prison sentence. Whilst the Tribunal has taken into account the applicant’s expressions of remorse, it is mindful of the serious and violent nature of the offences he has been convicted of and which have given rise to the cancellation of his visa. The Tribunal gives this factor some weight in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

26. The Tribunal accepts that there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal gives this factor some weight in the applicant’s favour. 

    Whether there would be consequential cancellations under s.140

27. There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s.140.

    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

28. The cancellation of the applicant’s BVC visa would result in the applicant being unlawful and liable to detention. In addition, as noted by the delegate, the effect of s.48 of the Act would be to limit the applicant’s options so far as any further visa application is concerned, and Public Interest Criterion 4013 could prevent the grant of a further visa for three years. However, the cancellation would not affect the assessment and consideration of the applicant’s protection visa application. In addition, whilst the applicant has been refused a BVE, he is eligible to apply for the visa again and he is not prevented from doing so. The Tribunal places little weight on this consideration.

    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

29. The Tribunal has considered the best interests of the applicant’s child. The applicant told the Tribunal that he misses his son and his wife has forgiven him. If he were to be released, he would be able to look after his son. The Tribunal appreciates that ordinarily it is in the best interests of a child to have close contact with his father. However, the Tribunal is also cognisant of the fact that Family Violence Interim Intervention Order continues to remain in force to protect his wife and son, indicating that the applicant may continue to be a risk to his son’s safety. The Tribunal is not satisfied that, in this the circumstances of this case, the interests of the applicant’s son to continue to have close contact with his father weigh against cancellation. The Tribunal gives this factor some weight. 

30. With regard to Australia’s non-refoulment obligation, the Tribunal has already noted that the applicant’s application for a review of a decision to refuse him a protection visa remains under consideration. Nevertheless, the Tribunal has considered the applicant’s claims relating to whether Australia’s non-refoulment obligation would be breached as a result of the cancellation.

31. At the hearing, the applicant told the Tribunal that he was fearful of returning to Malaysia because he had a monetary debt to a ‘friend’. He said whilst he has repaid a small amount towards his debt, the principal debt remains unchanged. The applicant did not offer any other details in relation to what harm may come to him as a consequence of this debt and did not raise any other claims of persecution or harm.

32. The Tribunal has significant concerns in relation to the truthfulness of the applicant’s claims in this regard and the credibility of his evidence.

33. In his protection visa application, the applicant had claimed to fear ‘riot’, ‘terrorism activity’, ‘serious crime’ and ‘lost confidence to the country leader’. In response to a question in relation to what he thought would happen to him if he returned to Malaysia, he responded ‘jobless’, ‘can’t survive’, ‘can’t even support own family’ and ‘economy down’. At no point in the application form, the applicant made any references, even tentatively, to being in debt, owing money or being fearful as a result of an unpaid debt.

34. In the Tribunal’s decision record in relation to the applicant’s BVE application, the Tribunal, differently constituted, noted that the applicant had told the primary decision maker that he had come to Australia because it was hard to make a living in Malaysia. The previous Tribunal also noted that, in response to a question as to why he had applied for a protection visa, the applicant had responded that he had made the application because his wife had told him to do so in order to stay in Australia and also because his wife was pregnant. The applicant had made no mention of any fears or concerns in relation to any debt.

35. The above information was put to the applicant under s.359AA of the Act and its relevance to the Tribunal’s decision was explained to him. The applicant responded by stating that this was not the first time that he had raised the claim in relation to the debt and that he had mentioned this while he was in prison. The applicant stated that there is evidence of this debt in Malaysia, which he would be unable to produce. He did not seek additional time to comment on or respond to the information put to him.

36. The Tribunal finds the applicant’s evidence in relation to the debt and his explanation for not raising the claim in his protection visa application, in response to the previous Tribunal’s questions or at any other point highly unpersuasive and unsatisfactory. The Tribunal does not accept that the applicant owes a monetary debt to anyone in Malaysia or that he holds a fear of harm in connection with or arising from the debt. The Tribunal finds that the applicant’s claims in this regard are a fabrication.

37. The Tribunal has considered the applicant’s general claims in his protection visa application in relation to joblessness, economic downturn or general violence in Malaysia. The applicant did not offer any other details at the Tribunal hearing. The Tribunal appreciates that the applicant, like other Malaysian nationals in similar economic circumstances, may face financial challenges. However, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that he will face serious harm or a real risk he will face significant harm as a result of these general concerns.

38. The Tribunal is not satisfied that that there is a real chance that the applicant will face serious harm or a real risk that he will face significant harm as a consequence of having ‘lost confidence’ in the country’s leader, whom he has not named.

39. There is no persuasive information before the Tribunal to suggest that any rioting or criminal or terrorist activity the applicant is concerned about is faced by him personally. The Tribunal does not accept that the general security situation in Malaysia would expose the applicant to a real chance of persecution. The Tribunal is satisfied that any general violence or criminal activity the applicant may be concerned about is faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Malaysia for these reasons.

40. The Tribunal does not accept on the evidence before it that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act for one of the reasons mentioned in paragraph 5J(1)(a) of the Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act for any reason in the reasonably foreseeable future in Malaysia. The Tribunal finds that there are no obligations under relevant international agreements which will be breached if the applicant’s visa is cancelled.

    Any other relevant matters

1. The Tribunal has considered the applicant’s circumstances. The applicant has been convicted of violent criminal offences and the Tribunal has found there are grounds for cancelling his visa. Having carefully considered the evidence before it, the Tribunal is of the view that the factors mentioned, whether individually or cumulatively, are not of sufficient weight for the Tribunal to exercise its discretion not to cancel the visa. Having regard to the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

   Shahyar Roushan
   Senior Member