2102362 (Migration)

2102362 (Migration) [2021] AATA 2760 (2 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2102362
MEMBER:Antoinette Younes
DATE:2 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 2 June 2021 at 2:25 pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 010 (Bridging A) visa – applicant has been convicted of an offence against a law in NSW – applicant’s behaviour was not beyond her control – no compelling need to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994, r 2.43
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

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

This is an application for review of a decision dated 23 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of an offence. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
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
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?
Section 116(1)(g) - prescribed ground
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)(oa) is relevant.
Section 116 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g) a prescribed ground for cancelling a visa applies to the holder.
The prescribed grounds for cancellation under s. 116(1)(g) are found in regulation 2.43(1)(oa) of the Regulations which provides:

(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 the following:

(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));

During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.
The information indicates that on 21 January 2021, the NSW Police provided a ‘Facts Sheet’ to the Department noting that:
·The applicant had been working for an international fraud syndicate purporting to sell [products] online.
·The applicant operated a [social media] account to attract potential victims who believed they were purchasing a [product] and consequently, they deposited payments into the applicant’s bank account. She then transferred the funds to the syndicate, keeping a commission for herself. The buyers did not receive any products.
·The applicant was cautioned that her actions were fraudulent. The original [social media] and bank accounts she had used to commit the fraud were shut down. However, she created new accounts and resumed the same activities for a syndicate operating under a different trading name.
·The NSW Police charged the applicant but two of the more serious charges of ‘knowingly and recklessly deal with proceeds of crime’ were withdrawn on the basis that the applicant agreed to plead guilty to the lesser offence for which she was convicted.
·On [date] December 2020, [a] Local Court found the applicant guilty of ‘Deal with property proceeds of crime < $100,000 T2’. The Court sentenced her to Community Correction order: 18 months commencing 02/12/2020, concluding 01/06/2022, Report to [a] Community Corrections by 9/12/2020 Supervision: 18 months commencing 02/12/2020, concluding 01/06/2022 Supervised by Community Corrections, Service Compensation: $2,550.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE
On 27 January 2021, the Department sent to the applicant a NOITCC on the basis of the above conviction which means that s.116(1)(g) is enlivened. On 3 February 2021, the applicant responded to the NOITCC, as follows:
· She struggled when she came to Australia and due to COVID-19, she could not find work. She found work selling [products] on [social media]. She has a “certain position of working as an [occupation] but I don’t know that they are making fool I am also a victim in this whole scenario.” This is the first time she has ever done anything wrong. She is also a victim.
· If her visa were to be cancelled, she would face many difficulties. She is a teenager and requests another chance. She has paid the penalty and has promised the Court to be on good behaviour. She will not commit any further offences.
The applicant provided a reference from a friend as well as tax invoices.
During the hearing, the applicant agreed that she has been convicted of ‘Deal with property proceeds of crime < $100,000 T2’, although she stated that she did not know about the fraud. She said she was offered [a] position by the syndicate and she was told she would be trained. The Tribunal asked the applicant about her [skills] and/or qualifications. She said she had none but was told she would be trained. The applicant said she was contacted by the bank prior to being contacted by the police.
The Tribunal has noted the applicant’s evidence and explanations. It is not the role of this Tribunal to question the processes of the criminal Courts and the Tribunal must accept that the applicant has been convicted and sentenced, as outlined above.
There is no dispute that the applicant has been convicted of an offence against a law in NSW. Therefore s.116 (1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by r. 2.43(1)(oa).
For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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
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
The applicant arrived in Australia in October 2019 as the holder of a Visitor visa (subclass 600). On 4 November 2019, she applied for a protection visa. She was granted the Bridging Visa (subclass 010), in association with that application.
The applicant gave evidence that she wanted to come to Australia on a student visa to study but this was not possible due to limited finances. She stated that her dreams were to study [but] because of limited finances, she could not afford to study in Australia. She said she came to Australia to follow her dreams and to get away from problems in India.
The Tribunal asked the applicant about those problems. She stated that her father belongs to [a political party] and they have friends with connections to that party. She said when she was in college, she found out about her father’s connections with the party.
The Tribunal asked the applicant about her father’s connections and she stated that she did not know their exact nature but knew that her father had lost money. She said she and her sister were threatened. She subsequently retracted that claim by saying that it was the father who was threatened but she and her sister were harassed. The Tribunal asked how they were harassed and she said she felt that people were chasing her. When asked to explain further, she stated that she felt she was being watched all the time – she saw the same person. The Tribunal noted that her claims are vague and general.
The Tribunal observes that the delegate’s decision record refers to protection claims made by the applicant such as the family receiving politically motivated death threats and that she was the subject of a kidnaping attempt on [date] July 2019.
The Tribunal is mindful that the application for a protection visa has not been finalised. However, on the basis of the available information including her evidence in the course of hearing which the Tribunal considers to be vague and general, the Tribunal is not satisfied that the applicant came to Australia because of the claimed problems but rather to remain in Australia for other reasons. The Tribunal recognises that there could be a variety of reasons for one’s actions but her evidence that she wanted to come to Australia to follow her dreams to study [suggests] that her intention was not to visit but to attempt to remain in Australia for a longer period than permitted under the Visitor visa . In those circumstances, the Tribunal is not satisfied that the applicant’s travel to, and continued stay in Australia are consistent with the purpose of a visit, or that the applicant has a compelling need to remain in Australia.
The Tribunal gives weight to this consideration in favour of cancellation.
·the extent of compliance with visa conditions
There is no evidence of non-compliance with any visa conditions.
The Tribunal is of the view that compliance with visa conditions is a legitimate expectation and as such, the Tribunal gives neutral weight to this consideration.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant indicated that she struggled when she came to Australia and due to COVID-19, she could not find work and that if her visa were to be cancelled, she would face many difficulties. She gave evidence that her parents in India are not working due to COVID-19. She asked to be given another chance.
The applicant has been in Australia since October 2019 and the Tribunal does not consider that period to be significant or indicative of close connections or relationships.
The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant who is now [age] years of age hardship including psychological, financial, and emotional.
The Tribunal has carefully considered the degree of hardship and in the circumstances, the Tribunal gives limited weight to this consideration in the applicant’s favour.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the cancellation arose were as a result of the applicant being convicted of an offence that involves fraud and innocent individuals. The Tribunal acknowledges that the applicant has paid the compensation she was ordered to pay. The Tribunal has given regard to the reference provided by the applicant. However, the applicant has been convicted.
The Tribunal has noted the applicant’s version of the events, including her assertion that she is also a victim. The Court’s finding is that the applicant had committed the offence with which she was charged. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
Although there are explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond her control. In any case, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions. The Tribunal is of the view that it is reasonable to assume that the Court took relevant matters into account.
The Tribunal gives this consideration significant weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant responded to the matters raised in the NOITCC.
The Tribunal gives this aspect weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellation under s.140.
The Tribunal gives this consideration neutral weight.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s.48 of the Act which means that she could face difficulties in applying for any further visas in Australia. She will also be subject to Public Interest Criterion (PIC) 4013.
The Tribunal considers potential detention, removal from Australia, the impacts of s. 48 and PIC 4013 bar to be intended legislative consequences.
The Tribunal gives this aspect neutral weight.
·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
There is no evidence of any child being impacted by the cancellation of the applicant’s visa. The applicant is an adult.
As noted earlier, the applicant has applied for a protection visa which is pending. The Tribunal has decided and for the stated reasons, that on the basis of the available information including her evidence in the course of hearing which the Tribunal considers to be vague and general, the Tribunal is not satisfied that the applicant came to Australia because of the claimed problems but rather to remain in Australia for other reasons. In any event, the Tribunal is of the view that it is reasonable to suggest that the application for a protection visa would be assessed in accordance with established legal principles. If found to be owed protection, the applicant could potentially be granted a protection visa. The decision to cancel the applicant’s visa would not likely cause her to be returned to India, if she engages Australia’s obligations based on her protection claims.
On the evidence, the Tribunal is satisfied that in case of cancellation, there would not be breach of any of Australia’s international obligations, including non-refoulement.
The Tribunal gives this aspect neutral weight.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Bridging Visa (010) is not a permanent visa.
·any other relevant matters
There are no other matters requiring consideration.
CONCLUDING REMARKS
The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal takes the opportunity to express its concerns about the conduct of the applicant that has impacted on innocent individuals.
The Tribunal appreciates that the task of the exercise of discretion is not a numerical and or formulaic process but rather a balancing consideration of all relevant aspects, the balance of which in this case weighs in the favour of cancellation. The Tribunal is satisfied that those considerations favourable to cancellation outweigh those in favour of the applicant.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Antoinette Younes

Senior Member

[2021] AATA 2760

2 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction