2105615 (Migration)

[2021] AATA 3366

2105615 (Migration) [2021] AATA 3366 (26 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105615

MEMBER:Antoinette Younes

DATE:26 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 26 August 2021 at 10:27 AM

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – criminal convictions and intensive correction order – discretion to cancel visa – application for protection visa refused and application for review in progress – arrived on tourist visa intending to apply for protection – claim of wrongful conviction despite pleading guilty – not open to tribunal to go beyond court’s findings – assistance to police with further investigations – international obligations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), (3), 197C, 197D

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

CASE

MIMA 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

1. This is an application for review of a decision dated 23 April 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).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of several offences in New South Wales. 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. The applicant appeared before the Tribunal on 27 July 2021 to give evidence and present arguments.  The Tribunal also received oral evidence from a witness, [Ms A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The Tribunal exercised its discretion to hold the hearing by video through MS Teams’ facilities. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted in that manner.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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

8. 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.

9. 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.

10. The prescribed grounds for cancellation under s.116(1)(g) are found in r.2.43(1)(oa) of the Regulations which provides:

    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));

11. 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. 

12. Relevantly, the decision record indicates that at the [District] Court:

    ·[In] March 2021, the applicant was convicted of the offence of “Cultivate prohibited plant>= commercial quantity-cannabis-SI” for which he was sentenced to “Intensive Correction Order: 11 months and 1 week commencing [date]/02/2021 concluding [date]/01/2022 Form 1 matters taken into account: X1 Seq 1 – Actual Offence – Use/Consume/Waste etc electricity without authority – Must submit to supervision by a Community Corrections Officer, at the [Suburb 1] Community Corrections Office, and to attend this office by Monday the [date] of February 2021 by 12pm to facilitate this condition. Supervision: 11 months and 1 week commencing [date]/02/2021 concluding [date]/01/2022 supervised by Community Corrections Service Community Service work: 100 hours.”

    ·[In] March 2021, the applicant was convicted of the offence of “Use/consume/waste etc electricity without authority – T1”, which was “Taken into account on Form 1”.

    ·[In] February 2021, the applicant was convicted of the offence of “Use/consume/waste etc electricity without authority – T1”, which was “Taken into account on Form 1”.

    ·[In] February 2021, the applicant was convicted of the offence of “Cultivate prohibited plant>= commercial quantity-cannabis-SI” for which he was sentenced to “Intensive Correction Order: 11 months and 1 week commencing [date]/02/2021 concluding [date]/01/2022 Form 1 matters taken into account: X1 Seq 1 – Actual Offence – Use/Consume/Waste etc electricity without authority – Must submit to supervision by a Community Corrections Officer, at the [Suburb 1] Community Corrections Office, and to attend this office by Monday the [date] of February 2021 by 12pm to facilitate this condition. Supervision: 11 months and 1 week commencing [date]/02/2021 concluding [date]/01/2022 supervised by Community Corrections Service Community Service work: 150 hours”.

13. The applicant advised the Tribunal that he received 100 hours, not 150 hours, and that he goes to [Suburb 2] Community Corrections Office, not [Suburb 1].  Subsequent to the hearing, he provided evidence which the Tribunal accepts, indicating that he received 100 hours rather than 150. 

14. Post-hearing, the applicant provided multiple documents including copies of the Intensive Correction Order and agreed statement of facts.  The Tribunal also received a letter from the NSW Police, dated [date] August 2021, noting that the applicant has assisted “in the prevention and detection of crime”.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) AND RESPONSE

15. The Department sent to the applicant a NOICC, to which he responded.  He expressed his regrets for his action and noted that he is assisting the NSW Police with “further investigation”.

16. The applicant is not disputing that he has been convicted of the above offences. Given the convictions, 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

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 travelled to Australia [in] July 2017 as the holder of a Tourist (Subclass 600) visa.  On 1 August 2017, he lodged an application for a Protection (Subclass 866) visa, which was refused on 26 October 2017.  He lodged an application for review with the AAT and he confirmed during the hearing that the application is pending.  The Bridging A visa was granted on 13 August 2017 in association with the pending AAT application for review.   

19. In his response to the NOICC, he stated he would like to stay in Australia to assist the police with “further investigation”. In the course of the hearing, he advised the Tribunal that he has continued to assist the police.  The letter from the NSW Police confirms that the applicant has assisted.

20. As explained to the applicant, the Tribunal is not determining the review relating to the refusal of the application for a protection visa, as that is the subject of a separate review process.  However, as mentioned, the Tribunal is entitled to assume that the review application for a protection visa would be assessed in accordance with established legal and policy principles.

21. The applicant came to Australia for the claimed purpose of visiting and he was granted the Subclass 600 visa on that basis.  He subsequently applied for a protection visa claiming protection from the Australian authorities.  The applicant’s purpose was not to visit but to seek protection, which is inconsistent with the purpose for which the visitor visa was granted.  The Tribunal gives weight in favour of cancellation as the applicant obtained a visitor visa not for the stated purpose.  The visitor visa is not intended for permanent stay in Australia but to visit. 

22. However, the Tribunal gives weight in the applicant’s favour concerning the pending review of the protection visa application and his assistance to the police, both of which the Tribunal considers to be compelling reasons to remain in Australia.

    The extent of compliance with visa conditions

23. There is no evidence of the applicant not complying with any visa conditions.

24. The Tribunal considers compliance with visa conditions to be a legitimate expectation.

25. In those circumstances, the Tribunal gives this aspect neutral weight.

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

26. The Tribunal appreciates that cancellation of the applicant’s visa has the potential to cause financial and emotional hardship.  The Tribunal appreciates the potential seriousness of cancellation including detention, involuntary removal from Australia, as well as the impact of s.48 of the Act and Public Interest Criterion (PIC) 4013 of Schedule 4 to the Regulations.  The Tribunal is mindful that the applicant has a protection visa review application on foot and if the outcome is in his favour, he could remain in Australia, and if the application is unfavourable to him, he could then be subject to detention and removal. 

27. The Tribunal considers potential detention, removal, as well as the s.48 bar and PIC 4013 to be intended legislative consequences.  However, given the applicant’s pending application for review, the Tribunal is satisfied that those potential consequences would result in a degree of hardship to the applicant.

28. On balance, the Tribunal gives this consideration some weight in favour of the applicant.

    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

29. The ground for cancellation arose as a result of the applicant being convicted of several offences as outlined above.  During the hearing, the applicant contended that he was “wrongly convicted”.  This is despite pleading guilty.  The Tribunal indicated to the applicant that the offences are serious with which he agreed.  He provided an agreed statement of facts, signed by the applicant on 3 December 2020.

30. In his response to the NOICC, the applicant expressed his regrets for his action and noted that he is assisting the NSW Police with “further investigation”.  In a statement to the Tribunal on 20 July 2021, the applicant noted that in 2020, he lost his job and source of livelihood due to the COVID-19 pandemic.  He indicated that a friend from his hometown “took advantage of my ignorance and lured me into working for her. There are actually many flowers and plants in Australia that I have never seen in China. She said they were herbs, and I believed it, so I did this stupid thing...” He noted the Court concluded that he would not be a danger to the community and that he knows that the “stupid things I did are harmful to my family, to my body and to society. I apologize to everyone for my behaviours.”  He indicated that he wants to stay in Australia lawfully and he is “now helping the Australian police to uncover criminals, track down crime locations and find the main perpetrators of crime to make up for it. I will to continue to contribute to the Australian community”.

31. The applicant stated that he has been “wrongly convicted”.  He said he lost his job during the COVID-19 pandemic and a person from his hometown told him to look after plants, which he watered.  He said he never saw drugs before or knew anything about electricity. He said he was duped.  The Tribunal reiterated its earlier remarks that the Tribunal has no power to change the conviction or the sentence, as those are matters for the Courts.

32. The Tribunal has noted the applicant’s explanations. The Court’s finding is that the applicant had committed the offences with which he was charged.  It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairsv 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…

33. Although the applicant has offered explanations for his conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his 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.   

34. The Tribunal gives this consideration significant weight in favour of cancellation.

    Past and present behaviour of the visa holder towards the Department

35. The applicant responded to the NOICC.

36. The Tribunal gives this consideration weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

37. There is no evidence of consequential cancellation under s.140 of the Act.

38. The Tribunal gives this consideration weight in favour of cancellation.

    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

39. In case of cancellation, the applicant could become an unlawful non-citizen and be liable for detention and removal if he does not voluntarily depart.  Cancellation of the visa would place a limitation under s.48 of the Act, which means that the applicant would have limited options to apply for further visas in Australia. The applicant could also be impacted by PIC 4013, limiting the grant of a further visa for a specified period. However, as the applicant has a pending AAT review application, he could be eligible to apply for a Bridging E visa, to enable his lawful stay in Australia whilst awaiting the outcome of the review application.

40. The Tribunal considers potential detention and removal, as well as the s.48 bar and PIC 4013 to be intended legislative consequences and as such 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[1]

    [1] 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]

41. Australia is a signatory to a number of international instruments, including the 1951 United Nations Refugee Convention (Refugee Convention) and its 1967 Protocol as well as the United Nations Convention on the Rights of the Child (CROC).

42. The applicant told the Tribunal that he has no close family in Australia.  His wife and child, who was born in 1993, live in China.  In relation to Australia’s obligations, the CROC does not apply to the applicant’s child as the child is over the age of 18 years and is not in Australia. 

43. The applicant lodged a protection visa application which was refused.  He has a pending review application with the AAT.  If the AAT remits the matter, and assuming the applicant would meet all the relevant criteria, the applicant would be granted a protection visa.  The Tribunal is of the view that it is reasonable to suggest that the application for review of the protection visa refusal would be determined in accordance with established legal and policy principles which would assess if the applicant is owed Australia’s protection.  The Tribunal is satisfied that having a protection visa review application on foot is not evidence of findings of protection obligations. Moreover, the Tribunal observes that changes to s.197C and the insertion of s.197D by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (No. 35, 2021) make removal of individuals in breach of non-refoulement obligations less likely. 

44. There is no information before the Tribunal indicating that the applicant’s circumstances would enliven Australia’s international obligations or that cancellation of the applicant’s visa would result in breach of any of Australia’s international obligations.

45. The Tribunal gives this consideration neutral weight.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. The bridging visa is not a permanent visa. 

2. The Tribunal gives significant weight in favour of cancellation to the fact that the bridging visa is not a permanent visa.

   Any other relevant matters

3. The witness who gave evidence before the Tribunal, indicated that the applicant is a kind person who was “used” by others.  The applicant advised the Tribunal that he continues to assist police.  The Tribunal accepts that the applicant is perceived by the witness to be a kind person and that he has made a contribution in assisting the police.  However, that contribution is to be balanced by the fact that the applicant has committed serious offences and that his offending is not a positive contribution to the Australian community.

   Concluding remarks

4. The Tribunal has considered the material before it individually and cumulatively.  There are limited aspects in the applicant’s favour, essentially relating to his own circumstances, such as the pending AAT application.  The determination of this review is not a mathematical formula that requires the simple counting of considerations in favour or against.  The question of consideration involves assessment of the totality of the evidence and balancing the considerations.  The applicant committed serious offences.  His own circumstances do not outweigh the seriousness of the offending conduct.  On balance, the Tribunal is satisfied that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.

5. The Tribunal has decided that the ground for cancellation exists and that having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Antoinette Younes

   
   Senior Member