2100458 (Migration)

[2021] AATA 384

2100458 (Migration) [2021] AATA 384 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100458

MEMBER:Jason Pennell

DATE:10 February 2021

PLACE OF DECISION:  Melbourne

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 on 10 February 2021 at 9.35am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Federal Court remittal – application for protection visa in progress – associated bridging visa cancelled after criminal charge – contravention of domestic violence order – guilty plea, no penalty or conviction recorded – discretion to cancel visa – self-harm in presence of partner, no harm or threat to partner – mental state at time of offence – involuntary hospitalisation and ongoing condition and treatment – lengthy immigration detention – relocation and no further contact with ex-partner – offer of assistance from relative – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 189, 198, 375A

Migration Regulation 1994 (Cth), rr 2.12, 2.43; Schedule 4, PIC 4013

Penalties and Sentences Act 1992 (Qld), s 12

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 17 October 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) based on the existence of a ground prescribed in Reg 2.43(1)(p)(ii), namely that the applicant has been charged with an offence under the law of Queensland. 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.On 20 October 2019, the applicant validly applied to the Tribunal to review the cancellation decision. The applicant appeared before the first Tribunal to give evidence and present arguments on 28 October 2019 (‘the first Tribunal hearing’). By a decision dated 29 October 2019, the first Tribunal, differently constituted, affirmed the decision of the delegate to cancel the applicant’s visa.[1]

[1] Decision record, Tribunal file 1929724, Doc ID [Number 1].

4.The applicant applied to the Federal Circuit Court for judicial review of the first Tribunal’s decision [in] December 2019. By a judgment [on a date in] 2020, the FCC upheld the Tribunal’s decision. The applicant appealed the FCC’s judgement to the [Federal Court] and by a judgment [on a date in] December 2020, the Federal Court ordered the matter be remitted to the Tribunal for reconsideration, on the basis that the first Tribunal fell into jurisdictional error as it failed to comply with Direction 63 of the Department of Home Affairs (‘the Department’), insofar as it did not properly take into account the circumstances in which the ground for cancellation arose by failing to properly consider whether the applicant’s mental health issues operated as a mitigating factor by reason of the role those issues played in the circumstances leading to the charge.

5.The applicant appeared before the current Tribunal on 9 February 2021 give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

6.The applicant was represented in relation to the review and at the Tribunal hearing by his registered migration agent and the Tribunal received submissions made on behalf of the applicant by the applicant’s representative 

7.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

S.375A NON-DISCLOSURE NOTICE

8.On the Department file in connection with this visa cancellation are two s.375A certificates, dated 22 October 2019 and 3 February 2021, both relating to the same set of electronic documents on said file and certifying that this material must not be disclosed to anyone other than the Tribunal, on the basis that such disclosure would be contrary to the public interest because it would endanger the life or physical safety of a person.

9.The applicant’s representative sought the first Tribunal to release this material; the first Tribunal was of the view that this material was not germane to the application and refused access. The applicant made no application to the tribunal to have the documentation released. 

CONSIDERATION OF CLAIMS AND EVIDENCE

10.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.

Background

11.The applicant is an Afghan citizen, born [date], who first arrived in Australia [in] October 2018 on a provisional Partner visa. His application for a Permanent Spouse (subclass 100) visa was refused on 18 July 2019. The applicant made an application for a Protection visa and an associated Bridging Visa E on 14 October 2019. The applicant’s bridging Visa is the subject of this review application and was cancelled by a delegate of the Minister on 17 October 2019.

12.The Notice of Intention to Consider Cancellation (‘NOICC’)[2] provided to the applicant and dated 17 October 2019 states that on [Date 1] 2019, the Australian Border Force received information that the applicant had been charged by Queensland Police with the offence of Contravention of a Domestic Violence Order. The NOICC states that it was alleged that the applicant had contravened the Temporary Protection order made [in] July 2019 at the [Location 1] Magistrates Court, Queensland. The applicant was arrested that day ([Date 1] 2019) and charged by Queensland Police with contravention of a domestic violence order.

[2]    Dept File No CLF [Number], CLD [Number], Doc No [Number]

13.The NOICC noted that the applicant was charged with an offence against the State of Queensland, a ground for consideration of cancellation of his visa under s.116(1)(g), Reg 2.43(1)(p)(ii). On the same date as the NOICC was issued, 17 October 2019, the delegate issued a record of decision of whether to cancel the visa, finding that the grounds for cancellation under s.116(1)(g) were made out. Having regard to the information before them, the delegate considered the prescribed circumstances and other relevant matters and concluded that the applicant’s visa should be cancelled.

14.On [a date in] December 2019 the applicant pleaded guilty at the Magistrates Court of Queensland at [Location 2] to the charge of Contravention of a Domestic Violence Order. No penalty was imposed on the applicant with a ‘no conviction’ being recorded.[3] 

[3]    Applicant’s submissions dated 9 February 2019 @p.65, Verdict and Judgement Magistrates Court of Queensland dated [December] 2019.

Does the ground for cancellation exist?

15.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)(ii) is relevant and applies where ‘the Minister is satisfied that the holder has been charged with an offence against the law of the Commonwealth, a State, a territory or another country..’.

16.The applicant conceded to the Tribunal that he had been charged with the offence as detailed in the NOICC. In addition, the applicant conceded that he had pleaded guilty to the charge at the Magistrates Court of Queensland [in] December 2019. As such he conceded to the Tribunal that he was in breach of s.116(g) and r.2.43(1)(p)(ii) of the Act.

17.For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) and r.2.43(1)(p)(ii) 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

18.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.

19.The primary considerations are:

·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

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

20.The secondary considerations are:

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

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

·the circumstances in which the ground for cancellation arose;

·the possible consequences of cancellation; and

·any other matter considered relevant.

21.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.’

22.The Tribunal has carefully considered the evidence provided during the hearing and the written material provided. It has found the applicant to be creditable. In making its decision the Tribunal has considered the applicant’s submissions, his response to the department, the relevant legalisation and the guidelines set out in the Procedural Instruction, General visa cancellation on visa cancellation.

Primary considerations

23.The Government’s view is 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.

24.In this case the applicant has conceded that he breached s.116(g) of the Act and accepts that the Australian authorities have a low tolerance for criminal behaviour by non-citizens in the Australian community. However, the applicant presented several reasons why the Tribunal should exercise its discretion not to cancel the applicants visa.

25.Firstly, the contravention of the DVO was from a self-harm incident in which the applicant stabbed himself in the presence of his now ex-partner on 19 September 2019.[4] Its claimed that the applicant’s partner was not threatened or harmed during the incident.[5] The applicant’s ex-partner confirms in her Statutory Declaration to the court that she was not harmed during the incident.[6] On 29 September 2019 the applicant was admitted to [a named Mental Health Services unit] pursuant to the Mental Health Act 2016 (Qld), which provides for treatment of involuntary patients with mental illness. The applicant was an involuntary patient for 19 September 2019 until 2 October 2019. The Involuntary Patient Authority report[7] provided by the applicant notes that the reason the relevant medical practitioner made the involuntary treatment authority was that the applicant was ‘experiencing possible psychotic phenomena at the time of the incident.’[8]  The applicants independent psychologists report by [Dr A] confirms that at the time of the incident the applicant was afflicted with mental issue. [Dr A] states in her report that the applicant appeared to have ‘experienced intense irritability, negative emotional state and self-destructive behaviour.’[9]  The Tribunal places some weight in the fact that the applicant’s partner was not harmed, and that the applicant was suffering from a mental condition at the time of the incident.   

[4]    Applicant’s submissions dated 9 February 2019 Attachments 1 & 2, Applicant’s statement dated 8 February 20121 and Statutory Declaration dated 25 October 2019; Doc ID [Number 2]

[5]    ibid

[6]    Applicant’s submissions dated 9 February 2019 Attachments 11 @ p.101 Statutory Declaration dated 25 October 2019.

[7]    Applicant’s submissions dated 9 February 2019 Attachments 1 The Involuntary Patient Authority [named hospital] Queensland, Doc ID [Number 2]

[8]    ibid

[9]    Applicant’s submissions dated 9 February 2019 Attachments 4 Report of [Dr A] @ p.11, Doc ID [Number 2]

26.Secondly, the charge that gave rise to the applicant’s visa cancellation has been disposed of by the court without entering a conviction or any other penalty pursuant to ss.12 of the Penalties and Sentences Act 1992 (Qld). The applicant contends that paragraph 5.1(5) of Direction 63 provides that where the applicant has been found to be not guilty or the charge is otherwise dismissed, cancelation is also not appropriate. Accordingly, he states that by reason of his non conviction the Tribunal should exercise its discretion not to cancel the applicant’s visa would be appropriate.

27.The Tribunal notes that the applicant pleaded guilty to the charge and the order records that was that the applicant was convicted of the charge. As such, the Tribunal does not accept that the applicant was found ‘not guilty’ for the purposes of Direction 63. Nevertheless, the Tribunal does accept that the order records that the applicant did not receive any penalty, and that no conviction was recorded. The Tribunal places considerable weight in the applicant’s favour that the charges have been dealt with and that the court imposed no penalty on the applicant and that no conviction was recorded against the applicant.

28.The second of the primary considerations is that of the best interests of any children in Australia who would be affected by the cancellation. The applicant has no children of his own. However, it is submitted that the applicant has several cousins and second cousins who may be affected by the fact that the applicant’s visa is cancelled and as a result he remains in detention. Statements were provided by the children in support of the applicant’s applications. It was not suggested that these children are dependants of the applicant. Therefore, while the Tribunal accepts that children related to the applicant may be affected by the cancellation of his visa, it notes that they are not dependant on the applicant. As such the Tribunal places no weight on this factor in the applicant’s favour. 

Secondary considerations

29.The Tribunal has gone on to consider the relevant secondary considerations, and other relevant factors, including matters raised by the applicant and departmental guidelines, as discussed below.

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

30.The applicant is an Afghan citizen, born [date]. He arrived in Australia [in] October 2018 on a provisional Partner visa. His application for a Permanent Spouse (subclass 100) visa was refused on 18 July 2019. The applicant then made an application for a Protection visa on 14 October 2019 which is yet to be considered and determined by the department.  

31.Since his arrival the applicant has resided continuously in Australia. Prior to his detention the applicant was employed as [an occupation]. The applicant has been moved for Brisbane to Sydney while he has been dentition. He informed that Tribunal that in the event he is released for detention he will remain in Sydney where his uncle and his uncle’s family reside. He has no intention of returning to Brisbane where his ex-partner resides. Rather, he explains that if he is released from detention, he will receive assistance from his uncle until such time as he is able to secure employment and his own accommodation. The Tribunal notes that the applicant is required to remain in Australia pending the determination of his protection visa application. The Tribunal places some weight on this factor in the applicant’s favour.

The extent of compliance with visa conditions

32.There are no conditions attached to the applicant’s Bridging Visa E. As such the Tribunal places no weight on this consideration either for or against a decision to cancel the applicant’s visa.

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

33.The applicant’s visa was cancelled based on a single charge, namely the contravention of an Apprehended Violence order that was laid by the Queensland police within hours of the grant of a Bridging visa on [Date 1] 2019. The criminal charge that caused the cancellation of the applicant’s visa was finalised by the Magistrates Court in Queensland on the basis that ‘no conviction’ be recorded and no penalty imposed. Nevertheless, the applicant has remained in Migration Detention for over 495 days, being one year, four months and six days. In circumstances where the offence to which the applicant pleaded guilty is considered by the court to have been so minor that he received no penalty and no conviction, the degree of hardship the applicant has suffered as a result of his loss of liberty by remaining in Migration Detention is considered by the Tribunal to have been excessive. As such, the Tribunal places considerable weight on this factor in the applicant’s favour.   

34.In addition, the medical Report of [Dr A] states that the applicant suffers from Posttraumatic Stress Disorder (PSD) as a result of his experiences in Afghanistan. The Psychological Assessment report prepared by [Ms B] also confirmed that the applicant is suffering the effect of accumulates stress from the trauma of past events.[10]  The report states that his condition can be treated in the community where he has social support and that his condition is better treated outside immigration detention.[11]  [Dr A] concluded that the applicant is a low risk of reoffending in the community in circumstances where his psychological symptoms are managed. The report notes that mandatory detention has an adverse effect on the health of migrants an that higher psychological symptoms are found in detainees compared to non-refugees. The report states that detention had had a cumulative effect on the applicant’s mental health condition.[12]

[10] [Psychological] Assessment Report by [Ms B] dated 24 January 2021.

[11] Applicant’s submissions dated 9 February 2019 Attachments 4 Report of [Dr A] @ p.12, Doc ID [Number 2]

[12] Op Cit p.14

35.Based on the report provided to the Tribunal it accepts that the applicant’s mental health has suffered and will continue to suffer as a result of him being in Migration Detention. The Tribunal places considerable weight on this factor in the applicant’s favour.   

Circumstances in which ground of cancellation arose.

36.The circumstances in which the grounds for cancellation arose are detailed above. As referred to previously the Tribunal places some weight in the applicant’s favour on the fact that, notwithstanding the applicants plea of guilty, the Magistrates Court of Queensland did not impose any penalty and did not record a conviction against the applicant in relation to the charge.

Past and present behaviour of the visa holder towards the department

37.The applicant has been cooperative in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Whether there would be consequential cancellations under s.140

38.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. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Whether there are mandatory legal consequences

39.If the applicant’s visa is cancelled, he will be subjected to section 48 of the Act which provides that he can only apply for another visa if it is prescribed under regulation 2.12 of the Migration regulations 1994.

40.If the applicant’s visa is cancelled, he will become an unlawful non-citizen and detained under section 189 of the Act and removed for Australia pursuant to section 198 of the Act. The applicant may also be affected by public interest criterion 4013 limiting the granting of a temporary visa for a period of three years.

41.The Tribunal gives this consideration a little weight in favour of the applicant.

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

42.The Tribunal has considered article 3.1 of the Convention on the Rights of the Child (CRC) which states that the rights of the children are primary consideration. The applicant is separated from his ex-partner and has no children. As a result, the Tribunal places no weight on this consideration against cancelling the applicant’s visa.

Other relevant factors

43.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal notes that there is no evidence of any other criminal history by the applicant. The tribunal gives this factor a little consideration in the applicant’s favour.

44.The Tribunal is otherwise satisfied that there are no other relevant factors in relation to this case. 

45.Therefore, considering all the circumstances, the Tribunal concludes that the visa should not be cancelled.

DECISION

46.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell

Senior Member