2114115 (Refugee) - [2021] AATA 5237

2114115 (Refugee) [2021] AATA 5237 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2114115
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Antoinette Younes
DATE:20 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Statement made on 20 December 2021 at 09:32 AM
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – criminal convictions, imprisonment and release on probation – discretion to cancel visa – previous incidents in immigration detention and criminal offences – warning under character test provisions – non-compliance with conditions of visa – failure to notify department of changes of address – circumstances of offending – hardship if visa cancelled – immigration detention and mental health – continuing fear of harm requiring protection – new legislative provisions ensure non-citizen will not be removed if found to engage protection obligations – temporary visa due to expire in any case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 46A, 48A, 116(1)(g), 189, 195A, 197C(3), 197D, 198, 424AA, 501

Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth),
Migration Regulations 1994 (Cth), r 2.43(1)(oa), Schedule 8, condition 8565
CASE
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 October 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
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.
The applicant, who is in detention, appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic 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
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 reg 2.43 of the Migration Regulations 1994 (the Regulations). 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…

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 2114115 (Refugee)

Details

AGLC: 2114115 (Refugee) [2021] AATA 5237
Case: [2021] AATA 5237
Decision Date: 20 December 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a protection visa held by an applicant from Iraq. The dispute arose from the applicant's criminal convictions, imprisonment, and subsequent release on probation, as well as alleged non-compliance with visa conditions. The Tribunal was tasked with determining whether the grounds for visa cancellation were met and, if so, whether the discretion to cancel the visa should be exercised.

The legal issues before the Tribunal included whether the applicant had been convicted of an offence against a law of the Commonwealth, a State, or Territory, which is a prescribed ground for visa cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994, read with section 116(1)(g) of the Migration Act 1958. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the applicant's protection claims, his compliance with visa conditions, and the potential hardship he might face.

The Tribunal found that the applicant had indeed been convicted of multiple offences, including larceny, assault occasioning actual bodily harm, and possessing a prohibited drug, leading to periods of imprisonment and probation. It was also established that the applicant had failed to notify the Department of changes to his residential address, thereby breaching a condition of his visa. While acknowledging the applicant's continued fear of harm and his compelling need to remain in Australia, the Tribunal considered the non-compliance with visa conditions to be significant. The Tribunal affirmed the decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCESection 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). 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. In the present case, the ground in reg 2.43(1)(oa) is relevant:Section 116 provides:a.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 reg 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)); … 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 delegate’s decision record indicates that the Department has information that [in] January 2018 at the [Location 1] Local Court, the applicant was convicted of larceny, assault occasioning actual bodily harm, contravene prohibition/restriction in AVO (domestic), armed with intent to commit indictable offence, enter vehicle or boat without consent of owner/occupier, shoplifting value < = $2000, and common assault (DV). On that date, the Court imposed s 10a convictions with no other penalty (x 4), imprisonment for 9 months commencing on 27 September 2017 to 26 June 2018 with a non-parole period of 5 months with conditions, commencing on 27 September 2017 to 26 February 2018, and release subject to supervision, (call up) bond s 9 for 12 months, and supervision by the NSW probation service. The delegate’s decision record further indicates that [in] July 2017 at the [Location 1] Local Court, the applicant was convicted of failing to appear in accordance with bail acknowledgement for which he received a s 10a conviction with no other penalty. Moreover, [in] April 2017 at the [Location 1] Local Court, the applicant was convicted of possessing a prohibited drug for which he received a fine of $600.

Decision

Reasons for decision

The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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 [In] November 2012, the applicant arrived in Australia as an irregular maritime arrival (IMA). He lodged an application for a Humanitarian Stay (Subclass 449) visa, which was granted on 13 December 2012. On 22 December 2016, the applicant was granted a Safe Haven Enterprise (Subclass 790) visa on the basis of the protection claims that he made. The applicant maintains that he continues to fear harm and that he requires Australia’s protection. The Tribunal accepts that the applicant was granted the visa as a result of a determination that he engaged Australia’s protection obligations. The Tribunal is satisfied that the applicant’s travel and stay in Australia are consistent with the objectives of the visa which he was granted. The Tribunal gives regard to the applicant’s claimed continued fear of harm and that this means he has a compelling need to remain in Australia. The Tribunal gives this consideration weight in the applicant’s favour.The extent of compliance with visa conditions The Tribunal discussed with the applicant the information in the delegate’s decision record relating to condition 8565 to which his visa is subject. Condition 8565 imposes the requirement that the visa holder notifies the Department within 28 days of any change of address. The Department became aware that after the visa grant on 22 December 2016, the applicant had changed his address without notifying the Department – as required by condition 8565. The NSW Police produced the applicant’s bail report on 12 July 2017 with an address that was previously unknown to the Department. On 26 August 2017, the NSW Police confirmed that the last known address for the applicant was the same as the bail address. On 22 August 2018, the Department received notification from the NSW Police that the applicant is currently residing at a new residential address, previously unknown to the Department. The applicant stated that he was kicked out of his address and he was sleeping in the car. He said he was living with his brother who had [children] and that the children were frightened of him so he left. Although this is plausible, it is not persuasive; the Tribunal considers lack of compliance with visa conditions to be significant. Visa conditions have a legitimate purpose, and their non-compliance could have adverse consequences. In this instance, the applicant’s lack of notification of the change of details meant that the Department sent correspondence to an address where the applicant was not living.