2101699 (Migration) - [2021] AATA 1233

2101699 (Migration) [2021] AATA 1233 (24 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2101699
MEMBER:Kate Millar
DATE:24 February 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 24 February 2021 at 2:05pm
CATCHWORDS
MIGRATION – Cancellation – Bridging E (Subclass 050) visa – tribunal has jurisdiction in this matter – criminal charges and conviction – long period of unlawfulness – being escape from lawful custody – risk of offending – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 127, 347, 360
Migration Regulations 1994, r 4.10, Schedule 2
CASES
DQO20 v Minister [2020] FCCA 3260
Parata v Minister for Home Affairs [2020] FCCA 1582
Swan v Minister for Home Affairs [2019] FCCA 702
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

Mr [A] is a citizen of India. He came to Australia in 2009 as a student, and held student or bridging visas until 28 September 2018, after which he was unlawfully in Australia.
On 23 January 2020 he was granted a Bridging E (Subclass 050) visa pending the outcome of his application for a protection visa. His Bridging E visa was cancelled on 28 February 2020 under s.116 of Migration Act 1958 (the Act) the because he had been charged with offences in Western Australia.
Mr [A] has applied for a review of the decision to cancel his bridging visa. The issues in this matter are whether a ground to cancel Mr [A]’s visa exists, and if so whether his visa should be cancelled.
JURISDICTION
There are two issues affecting the Tribunal’s jurisdiction in this matter. The first is the time in which the application was lodged and the second is a previous decision of the Tribunal.
In looking first at the time that the application to the Tribunal must be made, Mr [A]’s visa was cancelled on 28 February 2020.
Under s.347(1)(b) of the Act an application for review of this type of decision must be made within the prescribed period. The prescribed period is set out in r.4.10 of the Migration Regulations 1994 (the Regulations). At the time of the cancellation of his visa, Mr [A] was in [Prison], and was not in immigration detention, and the prescribed period is seven working days after the day on which the notice was received.
The application currently before the Tribunal was lodged on 15 February 2021, nearly a year after the decision was made. It was accompanied by a submission that the notice to cancel Mr [A]’s visa was defective, and because this notice was defective, he had not yet been validly notified of the decision, therefore the time in which he was required to lodge an application for review had not commenced. The representative had sought a…

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 2101699 (Migration)

Details

AGLC: 2101699 (Migration) [2021] AATA 1233
Case: [2021] AATA 1233
Decision Date: 24 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr [A] against a decision to cancel his Bridging E (Subclass 050) visa. The dispute arose from Mr [A]'s criminal charges and conviction, his escape from lawful custody, and a long period of unlawful status in Australia. The court was required to determine whether the tribunal had jurisdiction in the matter and to review the decision to cancel the visa.

The legal issues before the court included the interpretation and application of Clause 5.1 of the relevant Direction, which outlines the considerations for cancelling a Bridging E visa. Specifically, the court had to consider the weight to be given to primary considerations, such as the government's view on rigorous application of cancellation grounds for non-citizens with a low tolerance for criminal behaviour, and the best interests of any children affected by cancellation. The court also had to assess the relevance and weight of secondary considerations, including the impact on the family unit, the hardship experienced by the visa holder, the circumstances of the cancellation ground, and the possible consequences of cancellation.

The court reasoned that the tribunal did have jurisdiction in the matter. It applied the principles set out in the Direction, noting that primary considerations should generally be given greater weight than secondary considerations, and that one primary consideration could outweigh another. The court considered the government's view that non-citizens in the community on a temporary basis without a substantive visa and exhibiting criminal behaviour should be subject to rigorous cancellation consideration. It also examined the secondary considerations, finding that the impact on Mr [A]'s family in India was of little weight as the cancellation would not prevent him from seeking further visa options. The court noted that cancellation would prevent Mr [A] from applying for a further Bridging E visa unless he sought ministerial intervention or appealed to the Federal Court, and that his attempts to appeal were out of time.

The court affirmed the decision to cancel Mr [A]'s Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Impact of a decision to cancel on the family unit Mr [A] is single and does not have children. He says that the decision will affect his mother and brother in India who are affected by the decision as his mother suffers anxiety and depression and is waiting for him to be granted a visa. The Tribunal accords little weight to this consideration as the decision regarding the cancellation of his visa will not result in Mr [A] holding a visa, as the Bridging E visa under consideration has ceased to be in effect. If the decision is set aside, at best it accords Mr [A] the opportunity to apply for a further visa.The degree of hardship that may be experience if the visa is cancelled The Bridging E visa Mr [A] held has ceased following a decision of the delegate to refuse his protection visa. Setting aside the decision to cancel his visa will not result in him holding a visa, and he will be an unlawful non-citizen. However, if his visa remains cancelled he will no longer be able to make a valid application for a further Bridging E visa, as item 1305(3)(g) of Schedule 1 to the Regulations requires that the applicant has not previously held a visa that has been cancelled on a ground in r.2.43(1)(p) or (q). If a decision is made to set aside the cancellation of his visa, he will be able to apply for a further Bridging E visa. He will not meet the requirements for this visa unless he has applied for the intervention of the Minister or has appealed the decision to refuse his protection visa to the Federal Court. At the date of this decision, he has not sought the intervention of the Minister. The Federal Circuit Court in DQO20 v Minister [2020] FCCA 3260 dismissed his application for review of the decision of this Tribunal (differently constituted). The decision of this Tribunal affirmed the decision to refuse to grant him a protection visa. Mr [A] provided documents to show he has attempted to lodge an appeal to the Federal Court against the decision of the Federal Circuit Court. He is now out of time. He now requires an extension of time to file an application with the Federal Court, as the time to file this application ceased in December 2020. It was submitted that Mr [A] has already experienced extreme hardship by being denied his freedom for the last 12 months. It was submitted he has a lawful appeal on foot. This is not the case, as while the Tribunal accepts he attempted to lodge an appeal [in] December 2020, his application to the Federal Court for an extension of time is dated [in] February 2021. The effective question then is the effect on Mr [A] of losing the opportunity to apply for a further visa if he were to remain in detention until any application to the Federal Court is determined or, if he requests the intervention of the Minister, this is determined.

Ratio Decidendi

Legal Principle Established

Clause 5.1 of the Direction specifies:(1) Informed by the Principles in paragraph 4.3, a decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.(2) Both primary and secondary considerations may weigh in favour of, or against, cancellation of a Bridging E visa.(3) The primary considerations should generally be given greater weight than any secondary considerations.(4) One primary consideration may outweigh the other primary consideration.(5) In applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be generally be given greater weight than information from other sources.The primary considerations The primary considerations are:·The Australian 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 (cl.6(1)(a)); and·The best interests of any children under the age of 18 in Australia who would be affected by the cancellation (cl.6(1)(b)). The prescribed ground in cl.6(1)(a) is further explained in cl.6.1 that in weighing the Government’s view that the prescribed ground for cancellation in r.2.43(1)(p) or (q) should be applied rigorously, decision makers should have regard to the principle that the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the community on a temporary basis and who do not hold a substantive visa. This is particularly the case for non-citizens who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention while their immigration status is being resolved. The rigour referred to in this clause is addressed solely to the question of whether to enter into the process of consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[4] 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.[5] [4] ACH15 v MIBP [2015] FCCA 1250 at [28]–[31] [5] ACH15 v MIBP [2015] FCCA 1250 at [33] This does not mean once the question of whether to consider cancellation is made, that cl.6(1)(a) has no further work to do. In Swan v Minister for Home Affairs [2019] FCCA 702 (Swan) at [77] Mercuri J states that the primary considerations set out at cl.6.1(a) and (b) of the Direction need to be considered and weighed against each other and with the secondary consideration in deciding whether to cancel a visa. Judge Mercuri also states:the proper interpretation of clause 6 is that both factors set out in (a) and (b) is that both factors have work to do in the consideration of whether or not to cancel a visa that is in the exercise of the discretion. Clause 6.1(a) requires the tribunal to have regard of the government’s view of the matters identified.