2108412 (Migration)

[2021] AATA 4976

2108412 (Migration) [2021] AATA 4976 (23 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108412

MEMBER:Antoinette Younes

DATE:23 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2021 at 10:26 AM

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for review of refusal of protection visa – criminal conviction – breach of apprehended violence order – discretion to cancel visa – met Australian citizen partner complainant at her invitation – ongoing relationship and intention to marry – value of work to employer – another criminal charge pending – possible migration detention, removal and application bar – prevalence of COVID-19 in home country – possible eligibility for bridging E visa – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 116(1)(g), (3)

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 June 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 an offence in NSW. 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 30 September 2021 and 18 November 2021 to give evidence and present arguments. The Tribunal conducted the second hearing as there were interpreter issues in the first hearing.

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

5. 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

6. 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

7. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

8. 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.

9. The prescribed grounds for cancellation under s 116(1)(g) are found in reg 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));…

10. During the hearings, 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 delegate’s decision record indicates that the Department has information that [in] March 2021 the applicant was convicted at [a] Local Court of the offence of Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to a Community Correction Order for 12 months commencing [in] March 2021 and concluding [in] March 2022.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/Notice) AND RESPONSE

11. The Department sent to the applicant a NOICC based on the above conviction which suggested that s 116(1)(g) is enlivened and he responded. The applicant provided explanations in his response to the NOICC and he accepted that he has been convicted of the above offence.

12. In the submissions in response to the NOICC, also provided to the Tribunal, the applicant indicated that:

    ·     The breach of the AVO was not a violent offence. The applicant and the victim (Ms X) had dinner together in a restaurant at about [time] pm on [date] February 2021. They were travelling together in a car when they were stopped by the police who discovered that the applicant was in breach of the AVO.

    ·     Ms X invited the applicant to have dinner with her because she was missing being with him. They started living separately after the imposition of the AVO conditions. The applicant is [Age 1] years old. He is remorseful and accepts his actions as well as the events surrounding his conviction.

    ·     Ms X wrote a letter of support to the applicant’s lawyer. It is clear from the letter that she wanted the applicant to stay with her and that she did not fear him. The couple intend to be together and they have discussed marriage. The absence of ongoing concern held by Ms X suggests that the applicant meets the standard of the Australian community for remediation and contrition.

    ·     The applicant’s Protection visa application was refused on 18 September 2017 and there is a pending application for review with the AAT. The applicant claims to fear persecution if he is returned to Malaysia. The COVID-19 pandemic situation is worse in Malaysia compared to that in Australia. The applicant feels much safer in Australia.  

    ·     The cancellation of the visa would mean that the applicant would become an unlawful non-citizen in Australia. He could be detained and removed. He would not have any work rights. The Bridging visa has work rights. The applicant is currently employed as a [worker] by [Employer]. His role is vital for the business. He has the necessary and critical skills needed in the [work] sector to support Australia’s economic recovery from the COVID-19 pandemic. The applicant would face financial hardship if he were to lose his employment as a result of the cancellation of his visa. He earns about $1,200 a week.

    ·     The applicant has not breached any visa conditions and he has been cooperative. Created on 27/09/2021 08:35:

13. In support of the response to the NOICC, the applicant provided the following relevant documents:

    ·A letter addressed to ‘[Mr A]’ from Ms X dated 22 February 2021. Ms X requested variation of bail conditions because she is ‘lonely’ and wants to stay with her partner, the applicant, ‘for everyday support and assistance’. She also stated that she does not fear the applicant.

    ·A letter from [Mr A], representing the applicant in relation to the criminal matter. [Mr A] noted that the applicant has pleaded not guilty to the charge of common assault and that ‘the circumstances of this case is entirely controversial as the complaint was made by a thwarted driver who contacted the Police and suggested a presumed possibility of common assault’. [Mr A] noted that Ms X did not make a complaint to the police and the applicant ‘did not engage in any violent conduct that is conducive to breach of the Law’.

    ·A report from the World Health Organization on Malaysia’s COVID-19 situation titled ‘Coronavirus Disease 2019 (COVID-19) Situation Report Weekly report for the week ending 6 June 2021’.

    ·A letter from [Mr B] – Director of [Employer] dated 17 June 2021 confirming that the applicant has been contracted as their [worker] for over two years. [Mr B] noted that ‘[The applicant]’s role is vital for our business, and he has the critical skills needed in the [work] sector to support Australia’s economic recovery from the COVID-19 Pandemic’.

    ·A payslip of the applicant for the pay period from 11 June 2021 to 17 June 2021, from [Employer].

14. In submissions to the Tribunal dated 24 September 2021, the representative reiterated the submissions made to the Department, and contended that the delegate had failed to ‘engage in an intelligent and rational way to analyse the submissions…and consequently there is a failure to properly balance the various factors to be considered and make a decision reflecting that there has indeed been a proper balance struck by the delegate in such an exercise…It is not insignificant that the delegate took less than 47 hours to make the decision’. The representative referred to extensive judicial guidance in relation to the proper exercise of discretion.

15. During the hearings, the applicant agreed that he has been convicted of the offence of Contravene prohibition/restriction in AVO (Domestic) and sentenced as outlined above. The Tribunal advised the applicant that the Tribunal considered the offence to be serious. The Tribunal indicated that the Tribunal must accept the findings of the Court and that the conviction indicates that the ground for cancellation exists. The applicant provided explanations as discussed below.

16. There is no dispute that the applicant has been convicted of an offence against laws 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 reg 2.43(1)(oa).

17. 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

18. 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

19. The applicant came to Australia in January 2017 on an Electronic Travel Authority (ETA) (Subclass 601) visa for tourism purposes. On 11 April 2017, he lodged a Permanent Protection (Subclass 866) visa application which was refused. The applicant applied for review of that application and the matter is still pending with the AAT. He was granted the Bridging A visa on 13 April 2017 in association with the pending AAT review.

20. The applicant advised the Tribunal that there is a pending criminal matter relating to the charge of common assault due to be heard on 24 May 2022. In his response to the NOICC and during the hearing, the applicant stated he and his partner (Ms X) intend to marry and that he wants to work with [Employer]. The Tribunal gives regard to the letter from [Mr B] who noted that ‘[The applicant]’s role is vital for our business, and he has the critical skills needed in the [work] sector to support Australia’s economic recovery from the COVID-19 Pandemic’.

21. The applicant travelled to Australia on an ETA which is designed for tourism purposes but he applied for a protection visa, inconsistent with his purpose for travelling to Australia. The Tribunal accepts that the applicant’s stated purposes in staying in Australia are compelling reasons.

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

    The extent of compliance with visa conditions

23. There is no evidence of breach of visa conditions.

24. The Tribunal views compliance with visa conditions to be 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)

25. The applicant has claimed that he would suffer significant hardship in case of the visa cancellation. The applicant is now [Age 2] years old and he claims that he intends to marry Ms X who is an Australian citizen. His parents live in Malaysia and he has no close relatives in Australia. He has no children. The applicant stated that he stopped regular work due to the COVID-19 lockdown in Sydney but does occasional casual work. He stated that he has borrowed money to fund his legal costs.

26. The Tribunal gives regard to the fact that the applicant has been in Australia since 2017 and he is likely to have established community connections. In case of cancellation, he could face difficulties in maintaining those connections. Moreover in case of cancellation, he would cease to have permission to reside or work in Australia which is likely to cause a degree of emotional, psychological and financial hardship to the applicant and potentially Ms X, although they are currently restricted by the AVO.

27. The Tribunal acknowledges that on balance the cancellation of the applicant’s visa could result in hardships including psychological, financial, employment and emotional to both the applicant and Ms X who would also be disappointed. The applicant may also experience a degree of hardship due to the COVID-19 situation in Malaysia where the pandemic appears to be more prevalent than in Australia. However, the applicant may be eligible to apply for a Bridging E (Subclass 050) visa (BVE) to enable him to remain in Australia temporarily whilst awaiting the outcome of the AAT review. The Tribunal gives some weight to the submissions that although the applicant could be granted a BVE to remain, there would be hardship because as a holder of a BVE, he would not be able to travel and would require a BVA.

28. The Tribunal gives 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

29. The circumstances in which the cancellation arose were as a result of the applicant being convicted of an offence. As outlined above, the Tribunal takes the view that the offence is serious.

30. The applicant has contended that the breach of the AVO was ‘unfortunately’ a result of a ‘misunderstanding’ as he did not know that he could not meet Ms X outside her residence. He said there was no physical violence and Ms X does not fear him. The Tribunal asked and the applicant confirmed that the common assault charge relates to an incident involving Ms X and that he has pleaded not guilty.232 He said he was told not to go closer than 200 metres to Ms X. The Tribunal explained to the applicant that the fact that he has been convicted of an offence suggests that the ground for cancellation under s 116(1)(g) arises and that the Tribunal must accept the conviction. The Tribunal expressed concerns that he would see Ms X given the active AVO. He said it was the first time and he did not know the exact conditions; he believed he could not go outside her residence. He said she was missing him and the police stopped him for a breath test and discovered the AVO. He said he is remorseful. The applicant said they are no longer in contact but they intend to marry on expiry of the AVO. The Tribunal advised the applicant that the Tribunal considers the AVO to be a serious matter and that it is odd that they intend to marry in these circumstances. He said there was no assault and that others contacted the police who told him it was a domestic violence matter.

31. In submissions, the representative contended that there was no violence involved and that the applicant has pleaded not guilty to the common assault charge.  The representative asserted that it is not a violent offence and that the AVO is not serious.  The Tribunal notes that Ms X has provided a letter of support. The applicant stated that he has no prior convictions and has never been complained about.

32. The Tribunal has noted the applicant’s explanations but on the evidence, the Tribunal is not satisfied that the offending was beyond the applicant’s control. The Tribunal accepts that the applicant has no prior conviction but the applicant has been convicted of a serious first offence. The Tribunal is concerned about the arguments that the offending was not violent because there was no physical violence. Those arguments appear not appreciate the nature of the AVO and the fact that the applicant breached a Court order, although he claims he did not know the exact nature of that order.

33. The Court’s finding is that the applicant had committed the offence with which he was charged. The Court imposed a sentence which the Court considered to be appropriate. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural AffairsvSRT (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, and are not for review by 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…

34. 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 all relevant matters into account. 

35. Although the Tribunal recognises that the applicant’s conduct might be perceived to be at the lower end of criminality, the Tribunal nevertheless considers the applicant’s offending conduct to be serious, involving a victim.

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

    Past and present behaviour of the visa holder towards the Department

37. The applicant responded to the matters raised in the NOICC.

38. The Tribunal gives this aspect weight in favour of the applicant.

    Whether there would be consequential cancellations under s 140

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

40. 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

1. 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 he could face difficulties in applying for certain visas in Australia. He will also be subject to public interest criterion (PIC) 4013 under Schedule 4 to the Regulations.

2. The Tribunal considers that, in the applicant’s case, potential detention, removal from Australia, the impacts of s 48 and the PIC 4013 bar are intended legislative consequences. Moreover, the applicant may be eligible to apply for a Bridging E (Subclass 050) visa to enable him to remain in Australia temporarily whilst awaiting the outcome of the AAT review, although the Tribunal notes the submissions relating to the stated hardship – as discussed earlier.

3. The Tribunal gives this consideration 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

4. The applicant has lodged an application for a Protection visa which was refused. There is a pending review before the AAT.

5. Making protection claims is not a finding that the applicant is owed protection. The Tribunal is satisfied that the application for review would be determined by the AAT in accordance with established legal and other relevant principles. The applicant has not been found to be owed protection. 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.

6. The Tribunal is satisfied that on the available material, cancellation of the applicant’s visa would not result in breach of any of Australia’s international obligations.

7. 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

8. The Bridging A visa is not a permanent visa.

9. The Tribunal gives this aspect neutral weight.

   Any other relevant matters

10. There are no other relevant matters.

    CONCLUDING REMARKS

11. The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal recognises that the exercise of discretion is not a simple mathematical and/or formulaic process involving the counting of favourable and unfavourable considerations – it is a question of balancing all the relevant matters. The Tribunal is satisfied that on balance, the considerations favourable to cancellation outweigh those in favour of the applicant. The considerations favourable to the applicant relate to his own circumstances, such as a degree of hardship, but those personal consequences do not outweigh those in favour of cancellation; the applicant has committed a serious offence whilst the holder of a temporary visa.

12. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Antoinette Younes
    Senior Member