2200800 (Migration)

[2024] AATA 984

2200800 (MIGRATION) [2024] AATA 984 (13 MARCH 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2200800

MEMBER:Bridget Cullen

DATE:13 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 13 March 2024 at 10.34am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for protection visa – criminal conviction recorded as spent, fine and restraining order – discretion to cancel visa – ground conceded – circumstances of offences – protection visa refused, remitted on review, and reconsideration in progress – financial, personal and social hardship – no work rights and mental health – educational and career pathway – length of residence and ties to community – mandatory legal consequences – eligible to apply for Bridging E visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

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 20 January 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) on the basis that the Applicant had been convicted in Western Australia of the offence of Unlawful and Indecent Assault. 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 16 January 2024 via Microsoft Teams Video-link to give evidence and present arguments.

4. 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

5. 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?

   s 116(1)(g) - prescribed ground

6. 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.

7. Regulation 2.43(1)(oa) 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));

8. The delegate’s decision records that the Applicant was convicted of the offence of “Unlawful and Indecent Assault” [in] March 2021 at the [Magistrates Court]. He was fined $6,000.00, which was ordered to be paid to the victim.

9. The Court ordered that the Applicant’s conviction be recorded as a Spent Conviction, and also issued a Violence Restraining Order protecting the victim from the Applicant.

10. The Applicant responded to the Department’s Notice of Intention to Consider Cancellation on 3 June 2021, through his representative, indicating that he agreed that there was a ground for cancellation. The Tribunal confirmed at the hearing that the Applicant still agreed that there was a ground for cancellation, and he responded that he did agree that there was a ground, but wanted to make submissions about the reasons his visa should not be cancelled.

11. The Tribunal finds that the Applicant was convicted of the offence of “Unlawful and Indecent Assault” which is an offence against the laws of Western Australia. For these 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

12. 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 Applicant’s travel to and stay in Australia, including whether the Applicant has a compelling need to or remain in Australia

13. The Applicant first arrived in Australia on a Student visa [in] November 2008. The Applicant did study, and then subsequently applied for a Protection visa on 21 August 2013.

14. In a decision dated 28 October 2020, the Tribunal (differently comprised) found the Applicant to be a refugee, meaning he is a person to whom Australia has protection obligations under the Refugees Convention, on the basis that he:

    “faced a real chance of persecution if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his current and future, actual or imputed anti-radical/anti-TTP political opinion as a person with the status of traditional clan or tribal Malik.”

15. The Applicant’s Bridging A visa, the subject of this cancellation decision, was granted to him on 30 January 2017, to allow him to lawfully remain in Australia until his Protection visa application was finally determined. The Tribunal understands that the Department has not yet made a decision in relation to the Applicant’s Protection visa application following remittal by the Tribunal. Accordingly, the Tribunal finds that the Applicant’s purpose to remain in Australia until the Department makes a decision aligns with the purpose for which the Bridging A visa was granted.

16. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight against cancellation.

    The extent of the Applicant’s compliance with their visa conditions

17. The Tribunal observes that there were no specific visa conditions attached to either of the Bridging A (subclass 010) visas held by the Applicant. The Applicant’s previous Student (subclass 573) visas did have a range of visa conditions imposed, but there is no information before the Tribunal to indicate that the Applicant has breached a condition of any of the visas he has held. Whilst there are visa conditions that can be imposed requiring that a visa holder not be charged/convicted of any offences, the Applicant was not subject to any such visa condition.

18. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight against cancellation.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the Applicant and any family members

19. The Applicant is a single man, who has resided in Australia [since] November 2008, with the exception of one month in November-December of 2012.

20. The Applicant has provided considerable evidence to the Department, in writing to the Tribunal, and in his oral evidence before the Tribunal about the difficulties that cancellation will cause him. In his statement dated 26 April 2023, the Applicant explains:

    “Be it my visa, protection visa, unemployment, or my mental health, I am facing a lot of difficulties, most importantly being unemployed for such a long time with no working rights has caused an enormous effect on my mental health.”

21. The Applicant says that his GP and Psychologist agree that the hardship of being unemployed for such a lengthy period of time has “triggered [his] mental health, anxiety and depression.”

22. At the time of hearing, the Applicant described the impact that being reliant upon his supportive friends for financial assistance to be able to live had on him. The Tribunal accepts that the Applicant has suffered, and is continuing to suffer, following his conviction, and that cancellation of his visa would magnify his distress. The Applicant is well educated, and has lost employment that would have provided him with a sense of fulfillment and purpose, as well as a means of supporting himself.

23. The Applicant was interested in pursuing a career with [specified agencies], which may be practically difficult in view of his conviction. The Applicant will be unable to pursue studies in this area, if his visa is cancelled. The Tribunal accepts that the Applicant is genuinely interested in such studies, and that the loss of an educational and career pathway will have a significant impact on him.  

24. The Tribunal also accepts that the Applicant has suffered from depression and stress, and faced mental health challenges, following his conviction, and that he has had to take prescription medication to assist with management of these conditions. The Tribunal further accepts that the Applicant has suffered financial hardship, and associated personal and social hardship that have been consequential to the Applicant’s conviction, but which the Tribunal takes the view will be felt more profoundly by the Applicant in the event that his visa is cancelled.

25. The Tribunal accepts that having lived in Australia for approximately 15-years, and as evidenced by the letters of support the Applicant has provided to both the Department and the Tribunal, the Applicant has ties to the Australian community.

26. In all of these circumstances the Tribunal finds that cancellation of the Applicant’s visa would cause him some personal, financial and social hardship.

27. The Tribunal gives this consideration some weight as a factor against cancellation of the Applicant’s visa.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the Applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the Applicant’s control.

28. The circumstances in which the ground for cancellation arose are that the Applicant was convicted of “Unlawful and Indecent Assault” [in] March 2021 at the [Magistrates Court].

29. The delegate’s decision record, provided by the Applicant to the Tribunal in conjunction with the review, sets out the following information from the Statement of Facts corresponding to the criminal conviction:

    ·At about 11:47 pm [in] July 2020 the female victim was at her friend’s home, and ordered a car service through [a ride-share app] to take her home. The visa holder arrived to collect her, as the driver.

    ·The victim went to get in the rear seat of the visa holder’s vehicle, but the visa holder asked her to sit in the front seat. The victim did so. The visa holder introduced himself and he and the victim began talking during the drive. At some point on the journey, the visa holder told the victim that she is beautiful, commented on his own muscles, suggested the victim should feel his “guns” and said words like “show me that booty”. The victim was uncomfortable but didn’t want to cause any trouble, and wanted the visa holder to take her home, so she showed him some fully clothed photos of herself from Snapchat.

    ·The visa holder turned into [a] Shopping Complex and pulled into a car bay. The victim had not asked him to do so and didn’t know what was happening. The visa holder started touching the victim’s right arm and said “so, what are we gonna do?” The visa holder started rubbing the victim’s chest before putting his hand inside the victim’s shirt and bra and initiating sexual actions. The victim was shocked and didn’t know how to react. The visa holder then pulled the victim’s shirt and bra down and proceeded with further sexual actions. He then placed his hand on the victim’s leg and began rubbing it, moving his hands towards the victim’s vagina. The victim pushed the visa holder’s hand away but the visa holder kept trying to touch her vagina. The victim urinated in her own pants and told the visa holder that her ex-partner was waiting for her at her house. The visa holder stopped and told the victim to ring his phone so he would have her phone number, which she did. The visa holder said he would message the victim the next day, then dropped the victim home and left.

    ·[The ride-share app] were contacted, who confirmed the visa holder’s details and provided a map of the trip he had completed with the victim, showing his vehicle pulling into the incident location and remaining there for approximately a minute and a half before taking the victim home.

    ·About 09:30 am [in] July 2020 police attended the visa holder’s home address where he was located and arrested. He was conveyed to [a] police station where he participated in an electronic record of interview, answering “no comment” to all questions.

30. The Applicant was found guilty by the [Magistrates Court]. Although he did appeal the decision to the Supreme Court of Western Australia, he discontinued the appeal following legal advice. As such, the circumstances of the conviction stand.

31. The Applicant says that he has learned from his mistake, and points to his otherwise clean criminal history and positive references, as well as comments made in his favour by the sentencing judge. The Tribunal acknowledges that the Applicant’s conviction was recorded as a spent conviction, but also thinks the payment of the $6,000.00 fine directly to the victim and the Violence Restraining Order are significant.

32. The Tribunal takes the view that the Applicant, in a position of trust as a rideshare driver, was in a position of power vis-à-vis the victim, and his conviction indicates that he grossly abused that position of public trust. The Applicant’s conduct was entirely within his own control.

33. The Tribunal is unable to find that there were any extenuating circumstances beyond the Applicant’s control that led to the ground for cancellation arising. The Tribunal finds that this consideration weighs in support of the cancellation of the Applicant’s visa and the Tribunal gives this consideration great weight.

    The past and present behaviour of the Applicant towards the Department (including whether they have been truthful and cooperative)

34. The Applicant responded to the NOICC, and engaged with the Department in a cooperative fashion. There is no information before the Tribunal indicating that the Applicant has not cooperated with the Department in relation to this cancellation consideration or in relation to any previous interactions.

35. Taking into account the above, the Tribunal gives this consideration a little weight against cancelling the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

36. There is no information before the Tribunal to indicate that the Applicant has any dependent family members whose visas may be cancelled if his visa is cancelled.

37. The Tribunal finds that this consideration is neutral and gives it no weight either in support of or against the cancellation of the Applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the Applicant from making a valid visa application without the Minister’s intervention

38. If the visa is cancelled, the Applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The Applicant would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia and Public Interest Criterion 4013, which may prevent him from being granted particular temporary visas for a specific period.

39. However, the Applicant would be eligible to apply for a Bridging E visa, which may allow him to stay lawfully in Australia whilst the Department considers his Protection visa application. The decision as to whether he is granted a Bridging E visa, or placed in immigration detention whilst awaiting the outcome of his Protection visa application, is a matter that will be considered by the delegate.

40. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

41. On 28 October 2020 the Tribunal (differently comprised) remitted the decision to refuse to grant the Applicant a Protection visa back to the Department, with a direction that the Applicant satisfied section 36(2)a) of the Act, and is a refugee to whom Australia has protection obligations.

42. Ultimately, the assessment of the remaining criteria by the Department to determine whether the Applicant is granted a Protection visa, will not be impacted by any decision to cancel the Applicant’s Bridging A visa. The Applicant’s entitlement to remain in Australia permanently is dependent upon whether or not his Protection visa application is approved.

43. The Tribunal considers that a decision to cancel or not cancel the Applicant’s Bridging A visa will not cause the Applicant to potentially be removed from Australia in breach of Australia’s non-refoulement obligations. The Tribunal has given the unquantifiable prospect of the Applicant being placed in immigration detention some weight in consideration against cancellation, as addressed above.

44. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the Applicant’s visa.

    Any other relevant matter

45. The Applicant has provided character references to the Tribunal, some of which indicate awareness of his offending, and assert that he is nevertheless a person of positive character, and that he should be allowed to contribute to Australia through work, study, and participation in charitable endeavours.

46. The Tribunal accepts that the Applicant has supporters, and further that the Applicant has made some positive contributions to the community. He has done volunteer work, he has paid tax, he has educated himself. However, these are the ordinary things that are expected of community minded people, and in the Tribunal’s view, none either singularly or cumulatively are significant enough to outweigh the circumstances surrounding the Applicant’s conviction.

47. The Tribunal gives the Applicant’s collective positive community contributions a small amount of weight as a factor against cancellation.

    Conclusion

48. The Tribunal finds that the discretionary considerations that weigh in support of the cancellation of the Applicant’s visa outweigh those discretionary considerations that weigh against the cancellation of the Applicant’s visa.

1. Considering the Applicant’s circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Bridget Cullen
   Senior Member