2114224 (Refugee) - [2022] AATA 1311

2114224 (Refugee) [2022] AATA 1311 (21 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2114224
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Antoinette Younes
DATE:21 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 785 (Temporary Protection) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 21 March 2022 at 9:26 AM
CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – criminal conviction and community correction order – discretion to cancel visa – guilty plea and participation in rehabilitation courses – trial for further charges pending – work and financial support for estranged wife and children living in crisis accommodation – hardship if visa cancelled and harm if returned to home county – application for Safe Haven Enterprise Visa in progress – possibility of indefinite immigration detention – mental health – legal consequences of cancellation – non-refoulement – member of family unit – consequential cancellation of child’s visa and no jurisdiction to review – child now holds bridging visa as dependant on mother’s protection application – rights of the child and family unity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 140(1), 197C(3), 197D(2), 348
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
CASES
Ibrahim v MHA [2019] FCAFC 89
MIMA v SRT (1999) 91 FCR 234
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133

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 first named applicant’s (the applicant) Subclass 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) because the applicant has been convicted of an offence 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.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no…

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 2114224 (Refugee)

Details

AGLC: 2114224 (Refugee) [2022] AATA 1311
Case: [2022] AATA 1311
Decision Date: 21 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who had been granted a Temporary Protection visa. The dispute arose from the applicant's criminal conviction for common assault (domestic violence), for which he received a community correction order and was subsequently on remand for further charges. The applicant sought review of the cancellation decision, arguing that he continued to fear harm if returned to Sri Lanka and that cancellation would cause him significant hardship.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth) was correct, and if so, whether the discretion to cancel the visa should be exercised in the applicant's circumstances. The Tribunal was required to determine if the prescribed ground for cancellation existed and, if so, to weigh all relevant circumstances, including government policy, in deciding whether to affirm the cancellation. This involved considering the applicant's protection claims, his criminal conduct, his rehabilitation efforts, his family circumstances in Australia, and the potential consequences of cancellation, including the impact on his family and Australia's international obligations.

The Tribunal found that the ground for cancellation, namely a prescribed ground applying to the visa holder, was made out due to the applicant's conviction for common assault. As this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. The Tribunal acknowledged the applicant's arrival in Australia seeking protection and his pending application for a Safe Haven Enterprise visa. It also noted the applicant's claims of ongoing fear of harm in Sri Lanka and his plea of not guilty to subsequent charges, stating it would not draw adverse conclusions from the pending matter. However, the Tribunal considered the applicant's criminal conviction and the fact that he had a family in Australia, including two minor children, to whom he provided financial support. Despite the applicant's arguments regarding hardship and potential harm if returned, the Tribunal concluded that, having regard to all the relevant circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 785 (Temporary Protection) visa. The Tribunal also noted that it had no jurisdiction with respect to a second applicant, identified as the applicant's biological son, whose visa had been consequentially cancelled.

Orders

Orders of the court

Full text does not contain this section.

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 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 – Power to cancel(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.…(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the following ground for cancelling a visa. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. During the hearing, the Tribunal discussed with the applicant information which became available to the Department that [in] August 2020, the [Local] Court convicted the applicant of Common Assault (DV) for which the Court imposed a Community Correction Order for 12 months commencing [in] August 2020 and concluding [in] August 2021. The Court also ordered the applicant to comply with any current ADVO Supervision: 12 months commencing [08]/2020 concluding [08]/2021 Supervised by Community Corrections Service Treatment Programs: 12 months commencing [08]/2020 concluding [08]/2021 Anger Management. Moreover, the decision record refers to the applicant being on remand due to an alleged subsequent family violence perpetrated against his wife (Mrs X) and his stepchild. The applicant confirmed that he entered a plea of not guilty in relation to the charges and that the matter is listed for hearing in June 2022. The Tribunal indicated to the applicant that given that the charges have not been finalised, the Tribunal will not draw any adverse conclusions based on the NSW Police Facts Sheet which sets out the alleged circumstances that led to the charges. The Tribunal advised the applicant of his right against self-incrimination.NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/NOTICE) & RESPONSE On 4 March 2021, the Department sent to the applicant an NOICC to which he responded. In submissions dated 18 March 2021, the representative outlined the applicant’s background. The submissions focussed on the following matters:A. The applicant came to Australia to seek protection and he continues to fear harm. He has a compelling need to remain in Australia.B. The applicant pleaded guilty to the charge (first) and he is remorseful. Stress due to the COVID-19 pandemic and trauma due to ill-treatment contributed to the applicant’s offending conduct. The applicant is committed to rehabilitation and has undertaken relevant courses. The applicant has complied with visa conditions and he has engaged with the Department. In case of visa cancellation, the applicant would suffer significant financial and psychological hardship. If returned to Sri Lanka, he would suffer serious harm. C. Although the applicant is not currently in contact with the family, Mrs X, the applicant’s newborn, and stepchild would be adversely impacted. The applicant continues to support the family financially.D. The applicant’s biological son would be subject to the s 140 cancellation, although the son has been included in his mother’s protection visa application. There are also adverse legal consequences associated with cancellation. In case of cancellation, Australia would be in breach of its international obligations.

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 first named applicant’s Subclass 785 (Temporary Protection) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

On the evidence, the Tribunal is satisfied that the applicant has been convicted of the offence of common assault (DV) and 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] July 2012 and on 20 November 2012, he applied for a protection visa. The applicant sought protection on the grounds of, among other things, his Tamil race and imputed political opinion, claimed to have led to serious harm. He was found to be a person in respect of whom Australia has protection obligations. On 18 January 2016, he was granted a Temporary Protection visa (class XD Subclass 785). He applied for a Safe Haven Enterprise visa (SHEV) on 6 December 2018 and that application is pending. The applicant has claimed that he continues to fear serious harm and that he is fearful that if he were to return to Sri Lanka, he would be seriously harmed due to, among other things, his Tamil ethnicity and imputed pro-LTTE sentiments. He claimed that he would be treated with a high level of suspicion and be subjected to serious harm on those grounds as well as his involvement in the Tamil diaspora in Australia. As discussed during the hearing, the Tribunal has noted those claims but as there is a pending application for the SHEV, the Tribunal will not determine those claims. The Tribunal is satisfied that the SHEV application would be considered by a delegate in accordance with established legal principles and guidelines. The applicant has advised the Tribunal that there is a pending criminal matter relating to another alleged incident. He gave evidence that he has pleaded not guilty and that the matter is set for a hearing in June 2022. The applicant is entitled to the presumption of innocence and it is inappropriate for the Tribunal to make any comments about the charges or take them into account. The applicant has a family in Australia, including a spouse and two minor children. The applicant gave evidence and provided corroborative material (transfers) that he makes a financial contribution to his family. The applicant is employed, and his employer has provided a favourable reference letter. The Tribunal is satisfied on the evidence that the applicant’s purpose to travel to Australia is consistent with him seeking protection. He was granted a temporary protection visa based on the claims he had made. Having a pending protection visa application, a pending criminal matter, a family including two minors, and a job all mean that the applicant has a compelling need to remain in Australia.