2115494 (Migration)

[2022] AATA 3708

2115494 (Migration) [2022] AATA 3708 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr HANG WU (MARN: 1466255)

CASE NUMBER:  2115494

MEMBER:Kate Millar

DATE:8 September 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa

Statement made on 08 September 2022 at 4:56pm

CATCHWORDS
MIGRATION – Cancellation –Bridging C (Class WC) visa – Subclass 030– applicant was convicted of dealing with the proceeds of crime –knowingly breached condition 8101 – applicant  is no longer in a relationship with her sponsor – applicant is no longer in Australia for the purpose for which the visa was granted – no compelling reason to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359, 375
Migration Regulations 1994, r 2.43, Schedule 2

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. The applicant is a citizen of the People’s Republic of China. She held a Subclass 030 (Bridging C) visa (“BVC”) until it was cancelled by a delegate of the Minister on 27 October 2021 under s 116 of the Migration Act 1958 (Cth) (the Act) because she had been convicted of an offence. The offence for which the applicant was convicted was dealing with the proceeds of crime.

2. The applicant held the BVC visa on the basis that she had applied to this Tribunal for a review of a decision to refuse her application for a spouse visa.  After her BVC was cancelled, she was granted a Bridging E visa (“BVE”) on 2 November 2021.

3. The applicant appeared before the Tribunal on 5 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Background

5. The applicant first arrived in Australia on [date] June 2015 on a tourist visa, and applied for a protection visa on 27 October 2015.  Her application was refused, and this decision was affirmed by the Tribunal (differently constituted).  An appeal to the then Federal Circuit Court was discontinued.

6. The applicant applied for a spouse visa on 9 April 2019.  Her application was refused, and on 11 August 2022 this decision was affirmed by this Tribunal (differently constituted). 

7. The applicant was granted the BVC on 10 April 2019 in connection with her application for a spouse visa, and it was cancelled on 27 October 2021.  On 2 November 2021 she was granted a BE, also in connection with the spouse visa application.  The grant of the BVE and its expiry on 15 September 2022 was information contained in the movement records of the Department and was provided to the applicant under s 359AA of the Act. 

8. The Department file contained a certificate issued under s 375A of the Act.  This certificate covers material relating to police investigations.  As the ground for the cancellation of the visa was established on the conviction of the applicant for an offence, the Tribunal did not have regard to information covered by the certificate.  In addition, any relevant information was provided in the decision record of the delegate, a copy of which was provided to the Tribunal. 

   consideration of Claims and evidence

9. 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.

10. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Does the ground for cancellation exist?

11. 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(oa) is relevant.

12. This ground exists if a person has been convicted of an offence against the Commonwealth, a State or Territory whether or not the person held the visa at the time and regardless of the penalty imposed. 

13. On 23 June 2020 the applicant was convicted in [a] Court of dealing in the proceeds of crime.  She was fined $1,600 and a forfeiture order was made for $65,920.

14. As a result, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As this 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

15. 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’.

16. In her response to the notice of intention to cancel her visa, the applicant states she lives alone with her dog [who] she treats like a son, and she refers to her dog as her son in her written statement.  She stated she provides a professional massage service from her home and makes approximately $25,000 per year.  She was told if she earns less than $25,000 a year, she does not have to lodge a tax return.

17. She states she sometimes sub-lets rooms to help pay for the rent.  When the police came to her home, a search warrant was issued because it was alleged she was holding a particular woman.  When they found she was not holding this person, most of the police left.  At that time she was renting two rooms to two women, and she claims most of the money they found in her drawer belonged to these women.  The money they found in a safe was her savings from the last 4 years along with $20,000 from her ex-husband.  The police took her money, the other women’s money, her camera, some of her phones and the girls’ phones.  Because she provides massage, she had 4 phones and each of the girls had 4 phones.  She said she answers phones for the other two girls who pay her 5%, which was enough for food for her and her dog.  The police attended another house she subleased.  She said the police talked to her about running a brothel, but they did not listen to her and at the Court hearing which went for 4 days no-one listened to her.  She states she had a free lawyer, but no-one listened to her lawyer.  She states she cannot return to China without her dog, which would take approximately 2 months to arrange.  She states she has not been vaccinated, and could not get a flight to China, and that she calls Australia home.  She is not paying tax and not earning much money but lives a simple life. She states she feels safe in Australia and does not feel safe in China as she is [age] years old and there are so many viruses in China and the world.  She is frightened she will die like many others and there will be no-one to look after her son (her dog).  

18. At hearing, the applicant said she applied to the Tribunal for a review of the decision to delay her departure.  She said her dog has been declared a dangerous dog, and she now has two specialists who can say her dog is not dangerous.  The applicant has been charged with various offences relating to failing to adequately restrain her dog in April 2022, and showed the Tribunal Court documents requiring her to appear before the [Court] on 7 December 2022 on charges that relate to alleged offences on 2 and 6 April 2022 for failing to restrain her dog. 

19. The applicant said that because the last incident with her dog occurred on 6 April 2002, she must wait a year before she can apply to have the dangerous dog declaration overturned.  She would like to delay her departure until after she can have the declaration overturned after 6 April 2023 as her dog cannot go through customs while it is declared a dangerous dog. 

20. She also said that because relations between China and Australia had deteriorated at the time she was convicted of dealing with the proceeds of crime, the Magistrate would not listen to her.  She does not agree with the conviction and considers her money should be returned.  Because her money was confiscated, she was unable to appeal the decision. She acknowledged that she was legally represented at the hearing of this matter.   

    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

21. The applicant arrived in Australia on a tourist visa and applied for a protection visa which was refused.     

22. The applicant then applied for a spouse visa which was also refused. The refusal of her spouse visa was affirmed by the Tribunal on 11 August 2022.

23. According to the decision of the delegate, the bridging visa that was cancelled was granted until the hearing associated with the partner visa is finalised.  This hearing has now been finalised and the decision affirmed.  The applicant said she is no longer in a relationship with her sponsor because the charge and conviction against her made her partner worry that this would cause him trouble, but they are still friends. 

24. The applicant said her current purpose in being in Australia was to delay leaving until she could appeal a decision to declare her dog a dangerous dog.  She said she intended to plead guilty to the offences before the [Court].  She would then be fined $25,000 and would have to remain in Australia until the fine was paid.

25. She said she would also apply for the intervention of the Minister, which would give her additional time while this was considered.   

26. The applicant is no longer in Australia for the purpose for which the visa was granted, which is to await the outcome of her application for review of a spouse visa.  In the ordinary course of events, her visa will expire 35 days after the decision of the Tribunal, or by 17 September 2022.

27. The applicant is currently on a BVE. The BVE was also granted in relation to her application for a spouse visa. According to cl.050.511(1)(b)(iv) of Schedule 2 of the Migration regulations 1994 her BVC allows her to remain in Australia until the grant of another bridging visa in respect of the same application for a substantive visa.

28. The Tribunal finds that the applicant is no longer in Australia for the purpose for which the visa was granted, which was the hearing and determination of her spouse visa application.  She acknowledges she is no longer in a relationship with her sponsor and has applied to the Tribunal to delay her departure.

29. The Tribunal does not consider delaying her departure to allow her to challenge the declaration that her dog is a dangerous dog, or to allow her dog to travel with her, is a compelling need to remain in Australia.  It does not finds he previous explanations for wanting to remain in Australia due to her unvaccinated status, her age, the difficulty in obtaining a flight or her feeling of being safe in Australia due to viruses in China are compelling reasons to remain in Australia. 

    The extent of compliance with visa conditions

30. The delegate found that the applicant had breached the condition of her BVC that required that she did not work. 

31. The applicant gave evidence she had worked since August 2015, as she said she had no other way to support herself.  She said this was part-time work.

32. The BVC that was granted on 10 April 2019 contained condition 8101.  At the time the visa was granted this was “The holder must not engage in work in Australia”.

33. The Tribunal finds that the applicant has breached the conditions of her BVC from the date it was granted. 

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

34. The applicant did not specify hardship that would result from her visa being cancelled other than as it relates to her dog. She said she cannot take her dog through customs while it is declared to be a dangerous dog, and it will be put down.

35. The Tribunal accepts that being separated from her dog, particularly if her dog is put down, will cause the applicant significant mental distress and emotional hardship.

    The circumstances in which ground of cancellation arose

36. The applicant said that when the police arrived, she did not have an interpreter and her English was not good.  She said there was a search warrant because it was alleged she had forced an Indian woman to be a prostitute, but the police could not locate this woman.  She said they searched her house and asked her to open her safe where she had $50,000 which was her savings from the previous 4 years, and in one drawer found over $6,000 and in another found $10,000 which she said was kept by her for her tenants.  They asked for her car keys to check her car and took away all of the money.  They also took 12 mobile phones.  She said the phones were returned but not the money.  She was asked for information in exchange for the money but she did not know anything. 

37. When she attended court, she said all the evidence was provided by the police and was one-sided.  Her tenants did not give evidence and there was “no-one from my side”.  She did not agree with the decision and the money was taken away.  She was legally represented but did not have any money to appeal the decision and was told it would take years to appeal and cost $70,000 - $80,000, so she did not appeal.  She said the interpreter told her no-one wins on appeal.  She thought she would “leave it alone” and go back to her country, and she intends to go back when she can take her dog. 

38. The Tribunal cannot go behind the essential facts of the conviction [and] the Tribunal finds the conviction was for dealing with the proceeds of crime.  According to the applicant this followed a 4-day hearing in the Court.  The applicant did not accept the essential facts that founded the conviction, and as a result did not offer any other explanation for the circumstances in which the ground for cancellation arose.

    The past and present behaviour of the visa holder towards the department

39. There is no information before the Tribunal to indicate that the applicant has not co-operated with the Department. 

    Whether there would be consequential cancellations under s 140

40. There are no consequential cancellations that would occur as a result of cancelling the applicant’s visa.

    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

41. In this case, if the visa remains cancelled, the applicant will still hold a BVE and she will not be unlawful, liable to detention or removal as a result of this cancellation 

42. If the visa is not cancelled, because of the granted of another visa, it has in any event ceased to allow her to remain in.

43. Under s 48 of the Act, if her visa is cancelled, there are limited other visas for which she can apply. She can apply for another bridging visa.   The applicant will also subject to Public Interest Criterion 4013 for many types of visa, which would prevent her being granted a visa for three years unless there are compelling and compassionate circumstances (cl 4013(3)).   

    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

44. The applicant has previously applied for a protection visa which was refused and she withdrew her application for a review of this decision.  The applicant gave evidence that the only reason she could not return to China was because of her dog, and she intends to return as soon as her dog could accompany her.  The Tribunal finds there are no international obligations which would be breached as a result of the cancellation. 

    Any other relevant matters

45. The applicant raised matters in her written statement that she did not pursue at hearing, such as being unvaccinated, the prevalence of viruses in China and the availability of flights.  She states due to her age of [age] years she is concerned she may die and leave no-one to care for her dog.  The Tribunal is not satisfied that any of these reasons, either of themselves or in combination with any other matter raised, lead it to conclude that her BVC should not be cancelled. 

    CONCLUSION

46. The applicant was convicted of dealing with the proceeds of crime while she was on a BVC.  The BVC was cancelled, and she was granted a BVE.  The applicant states she intends to return to China but wants to remain in Australia until after April 2023 so that she can challenge the declaration that her dog is a dangerous dog and return to China with her dog.  The applicant in regard to her dog cannot be heard before April 2023 as the applicant has been charged with further offences that relate to adequately restraining her dog. 

47. The Tribunal appreciates the applicant is greatly attached to her dog and will suffer considerable anguish if she is unable to travel with her dog.  It has found this is not a compelling reason to remain in Australia.  The applicant acknowledges she is no longer in a relationship with her sponsor and says she applied for review only to delay leaving Australia to allow her to appeal the decision about her dog. 

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

    decision

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Kate Millar
    Senior Member