2017330 (Migration) - [2021] AATA 302

2017330 (Migration) [2021] AATA 302 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2017330
MEMBER:Louise Nicholls
DATE:15 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made at 4.35pm 15 January 2021
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal convictions – appeals in progress – other charges withdrawn, or applicant found not guilty – previous temporary working visa cancelled and cancellation affirmed – immigration detention – best interests of child – no contact with child for some time – court-appointed counselling – offences took place during acrimonious separation – compliance with conditions of bail and bridging visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359AA
Migration Regulations 1994 (Cth), r 2.43(1)(p)(i)
CASE
ACH15 v MIBP [2015] FCCA 1250
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

The applicant is a citizen of the United Kingdom and is [Age 1] years of age. He arrived in Australia [in] January 2013 as the holder of a [temporary work] visa. He was granted a Subclass 050 (Bridging (General)) in April 2020.
While holding this Subclass 050 (Bridging (General)) visa he was convicted of two offences in the District Court at [Location] [in] December 2020.
[In] December 2020 the delegate of the Minister for Home Affairs cancelled the applicant’s Subclass 050 (Bridging (General)) visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been convicted with two offences against the law of [a State of Australia] as set out in the “Notice of intention to consider cancellation” attached to the delegate’s decision record and further described in the Verdict and Judgment Record in the Departmental documents. The delegate considered the matters put forward by the applicant as to why his visa should not be cancelled but found after weighing all the information available the grounds for cancelling outweigh the grounds for not cancelling the visa.
The offences set out in the notice and Verdict and Judgment Record are:
· Unlawful stalking/Contravenes /Threatens to contravene an order/injunction-domestic violence offence – [specified section 1 of State criminal legislation]. The offence was found to have taken place between 2015 and 2016.
· Attempting to pervert the course of justice – [specified section 2 of State criminal legislation]. The offence was found to have to have taken place in 2016.
The applicant had been held in pre-sentence custody and the court declared that the 1143 days (over 3 years) spent in custody be imprisonment already served under the sentence. The applicant has been released from criminal custody and is now being held in immigration detention.
The applicant is also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2017330 (Migration)

Details

AGLC: 2017330 (Migration) [2021] AATA 302
Case: [2021] AATA 302
Decision Date: 15 January 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The applicant, a citizen of the United Kingdom, had arrived in Australia in January 2013 on a temporary work visa. His relationship with his former partner broke down in March 2015, and he was subsequently charged with several offences. While many of these charges were later withdrawn or resulted in acquittals, the applicant was convicted of two offences in December 2020. His original temporary visa had been cancelled in November 2016, a decision that was affirmed on merits review and subsequently by the Federal Circuit Court. The applicant's appeal against that affirmation to the Federal Court was adjourned pending the final determination of the criminal proceedings. The applicant was held in immigration detention following his convictions.

The primary legal issue before the Tribunal was whether the applicant's Bridging E visa should be cancelled, given his criminal convictions. This involved considering the grounds for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(1)(p)(i) of the *Migration Regulations 1994* (Cth), which prescribe conviction of an offence as a ground for cancellation. The applicant contended that his convictions were not final as he was appealing them and believed he had good prospects of success, arguing that he should not be regarded as convicted until his appeal was determined.

The Tribunal considered the evidence, including the Verdict and Judgment Record and the Reasons for Judgment from the District Court of [State 1], which clearly indicated the applicant had been convicted of unlawful stalking and attempting to pervert the course of justice. The Tribunal found that the applicant's submission that he had not been convicted was not accepted, as there was no documentation to suggest the convictions had been set aside. Despite the existence of a ground for cancellation, the Tribunal, after considering all the circumstances, concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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. 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’.Background and Migration History The applicant was born in the United Kingdom. He was granted a temporary work visa [in] January 2013 and was sponsored by [Employer] and worked and lived in [State 1] after he first arrived. His temporary visa was due to cease on 2 January 2017 but he had taken steps to apply for a permanent skilled visa. However, his temporary visa was cancelled on 10 November 2016. He was taken into custody and held on remand until he was convicted of two offences [in] December 2020 and he is now held in immigration detention. Up until March 2015 the applicant was in a de facto relationship with his former partner and the couple had one [child] together, [the child] who was born on [Date]. When the applicant arrived in Australia he was accompanied by his former partner, her [child] from a previous relationship and their [child]. The relationship between his former partner and the applicant broke down in March 2015 and the applicant was later charged with several offences which took place after the breakdown of the relationship. In 2018 and 2019, a number of the charges originally laid against the applicant were either withdrawn, or the applicant was found to be not guilty. The remaining charges were dealt with by the District Court of [State 1] in 2020 and the applicant was convicted of two offences [in] December 2020. The applicant’s temporary working visa was previously cancelled [in] November 2016 and the applicant sought merits review of that cancellation and [in] September 2018 the Tribunal, differently constituted, affirmed the cancellation decision. The applicant appealed the Tribunal’s decision, the Federal Circuit Court affirmed the Tribunal’s cancellation decision and [in] 2020 the Federal Court adjourned the applicant’s appeal against that decision to a date to be fixed after the final determination of the criminal proceedings in the District Court of [State 1].Primary considerations One of the prescribed primary considerations in cl.6 of the Direction is the Government’s view that the prescribed grounds in r.2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3][1] cl.6(1)(a) of Direction No.63.[2] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [28]-[31]. [3] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [33].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Louise NichollsSenior Member

Ratio Decidendi

Legal Principle Established

The delegate provided a·Copy of the Verdict and Judgment Record in Q v [The applicant] (date of judgment 2020) showing the indictments and verdicts against the two charges.·Copy of the Reasons for Judgment of [Judge H] delivered [in] 2020. The trial hearing dates were [in] 2020.CONSIDERATION 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? 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(1)(p)(i) is relevant. Regulation 2.43(1)(p)(i) provides a prescribed ground for cancellation is:….(p) in the case of the holder of a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa — that the Minister is satisfied that the holder: (i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or… The applicant discussed the grounds for cancellation at the Tribunal hearing and put it to him that the evidence indicated that he had been convicted of two offences against the law of [State 1]. The applicant disagreed and stated that he was appealing the criminal convictions and that he had good prospects of success. He claimed that it followed that, until his appeal had been considered, he should not be regarded as having been convicted of an offence against the laws of [State 1]. In the applicant’s submissions he referred to his right to appeal the convictions. He stated that the fact that he was convicted was due to Legal Aid [State 1] believing that the Crown case did not constitute an offence. On this view, Legal Aid set its budget and scope for the defence which proved to be an error according to the Court. He claimed that he offered other robust defences, but the Legal Aid provided legal team did not look beyond its initial assessment based on the prosecution brief. He claimed that this will lead to a non-final conviction or a conviction likely to be set aside. He states that if it is set aside other defences can be put forward. The Tribunal does not accept the applicant’s submission that he has not been convicted of an offence against the law of [State 1]. The evidence before the Tribunal indicates quite clearly that the applicant has been convicted in the District Court of [State 1] of two offences; unlawful stalking and attempting to pervert the course of justice. The Notice of Appeal provided by the applicant confirms the details of the offences for which the applicant has been convicted. There is no document indicating that the convictions have been set aside.