2203795 (Migration) - [2022] AATA 667

2203795 (Migration) [2022] AATA 667 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2203795
MEMBER:Jason Pennell
DATE:24 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 24 March 2022 at 4.13pm
CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal convictions and imprisonment – discretion to cancel visa – extensive criminal record – visa history – current visa issued in conjunction with application for Safe Haven Enterprise Visa – application refused and affirmed on review, with no application for judicial review made – legal consequences of cancellation – potential hardship – limited family and community ties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 46A, 48A, 116(1)(g), 189, 198, 499
Migration Regulations 1994 (Cth), r 2.43(1)(p)(ii); Schedule 1, Reg 1305(3)(f), (g); Schedule 4, Public Interest Criterion 4013; Schedule 8, Conditions 8564, 8566
CASE
BYE15 v MIBP [2015] FCCA 3023; [2016] FCA 263

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

This is an application for review of a decision dated 22 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) 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 a prescribed ground for cancelling the applicants visa applied pursuant to Reg 2.43(1)(p)(ii). 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 appeared before the Tribunal on 21 March 2022 to give evidence and present arguments. The hearing was conducted by video via MS Teams. The Tribunal determined it was reasonable to hold a hearing electronically, having regard to the nature of this matter and the individual circumstances of the applicant, particularly since he was being held in detention. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted electronically. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review.
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 116(1)(g) and Reg 2.43(1)(p)(ii) of the Act. 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
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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in Reg 2.43(1)(p)(ii) is relevant.

The applicant arrived in Australia via boat [in] September 2012[1] and has not departed since. The applicant was granted a Humanitarian Stay (Temporary) (UJ 449) on 12 February 2014 which ceased on 19 February 2014. On 12 February 2012 the applicant was granted a Bridging E visa which ceased on 12 February 2015. He was granted the further Bridging E visas:
- Granted 18 March 2015 ceased 18 March 2016.
- Granted 18 February 2016, ceased 18 June 2016
- Granted 27 April 2016, ceased 17 September 2016.
- Granted 12 August 2016, ceased 12 December 2016.
- Granted 15 November 2016, ceased 15 March 2017.
- Granted 27 February 2017, ceased 27 June 2017.
- Granted 18 May 2017, ceased 18 September 2017.
- Granted 24 20 June 2017, cancelled 22 January 2019 (under review)
[1] Department Movement Records; AAT file No 2203795 Doc ID 9547317
On 29 September 2015 the applicant was invited to apply for Safe Haven Enterprise (XE 790) visa (Safe Haven Visa). The applicant applied for a Safe Haven Visa on 14 July 2017. This was refused by the department on 15 April 2020 and reviewed by the Immigration Assessment Authority (IAA). The IAA affirmed the decision to refuse the visa on 1 June 2020 (‘the IAA decision’). The applicant has not applied for judicial review to the Federal Circuit Court of Australia (FCCA).
Condition 8564 (must not engage in criminal behaviour) and condition 8566 (not breach Code of Behaviour) were attached to the applicants Bridging visa. On 7 February 2017 the applicant was charged by the Victorian Police with criminal offences of shoplifting, wilful damage, and drug possession (‘the initial charges’). On 26 June 2017 the department established that the applicant had breached the Code of Behaviour and the applicant was counselled by the department regarding the initial charges including cancellation of his visa. [In] June 2018 the applicant was found guilty at the [Magistrates] Court in Victoria of over 20 charges including obtaining property by deception, fraudulent alter documents and handle stolen goods (‘the second charges’). The applicant was again arrested on 16 June 2018 charged with theft of a motor vehicle, handle stolen goods, drug possession, going equipped to steal and unlicenced driving[2] (‘the third charges’).
[2] Notification of Cancellation under section 116 of the Migration Act dated 22 January 2019; Dept File No [Number] Doc [ID]
On 18 January 2019 the applicant was charged by the Victorian Police with attempted rape, assault with intent to commit sexual offence, sexual assault, driving a motor vehicle while suspended and breach of conditions of bail[3] (‘the fourth charges’). The applicant pleaded guilty to the charges and was sentenced to nine months imprisonment.
[3] Victoria Police Charge Sheet; Dept File No [Number] Doc [ID]
On 22 January 2019, the department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his bridging visa whilst he was prison. The applicant was interviewed and provided a response to the NOICC while he was in prison on 22 January 2019.[4]
[4] Notice of Intention to Consider Cancellation under 116 of the Migration Act 1958; Dept File No [Number] Doc [ID]
On 22 January 2019, the applicant was interviewed and provided a response to the NOICC. The delegate’s record of decision stated:
Include the specific (particulars) of the ground and the information because of which the ground appears to exist.
‘Information has been received from Victoria Police indicating that on 18 January 2019 you were charged with a number of criminal offences including attempted rape, assault with intent to commit a sexual offence, sexual assault and riving offences. Based on this information it would appear that grounds may exist for cancelling your WE-050 Bridging E Visa under s.116(1)(g), Reg 2.43(1)(p)(ii).’ [5]
Provide a summary of why the visa holder considers the GROUNDS for cancellation DO or DO NOT exist.
‘I disagree with the charges; the lady told a lie. I don’t remember touching the women, she was happy in my ear, I never locked her in. I don’t accept the charges.’[6]
[5] Notice of Intention to Consider Cancellation under 116 of the Migration Act 1958 at p.1; Dept File No [Number] Doc [ID]
[6] Notice of Intention to Consider Cancellation under 116 of the Migration Act 1958 at p.4; Dept File No [Number] Doc [ID]
On 22 January 2019, the delegate cancelled the applicant’s bridging visa. The delegate’s record of decision noted the applicant’s reasons as to why his visa should not be cancelled as follows:
Provide summary of reasons the visa holder gave why their visa should not be cancelled.
‘I have no reason. I signed for good behaviour. I made a mistake. I was trying to be good after that.’
In addition, the delegate noted the degree of hardship the applicant would suffer if his visa was cancelled. The delegate accepted that cancellation would result in the applicant being placed in immigration detection once he was released from criminal detention. However, the delegate noted that the applicant had an active on-going application at that time, being his Safe Haven Visa application, and as such still had a valid immigration pathway.[7]
[7] Notice of Intention to Consider Cancellation under 116 of the Migration Act 1958 at p.5; Dept File No [Number] Doc [ID]
A notification of cancellation was given to the applicant by hand on 22 January 2019.[8] However, the department assessed the applicant’s case and assessed that the applicant had been incorrectly notified of the decision to cancel his visa. As a result, on 10 March 2022 the applicant was re-notified of the department’s decision to cancel his bridging visa.
[8] Notice of Intention to Consider Cancellation under 116 of the Migration Act 1958 at p.2; Dept File No [Number] Doc [ID]
On 15 April 2020 the department refused the applicants Safe Haven Visa application. On 1 June 2020 the IAA affirmed the department’s decision to refuse the Safe Haven Visa. The applicant has not applied for judicial review to the FCCA.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act 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

In considering whether a Bridging E visa should be cancelled based on the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to consider specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit.
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled.
·the circumstances in which the ground for cancellation arose.
·the possible consequences of cancellation.
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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 Tribunal considered the primary considerations. It considers that the offence for which the applicant was convicted is serious and notes the view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously. In addition, the Tribunal notes that the applicant is not married and has no children of his own. As a result, the Tribunal places no weight on this consideration in the applicant’s favour.
In accordance with Direction 63 the Tribunal has considered the primary and secondary considerations together with other discretionary considerations as follows.

The impact of a decision to cancel the visa on the family unit.

The applicant’s evidence to the Tribunal was that he was born in Iran on [date]. His mother and father have passed away. His father passed away from cancer when the applicant was 11 years of age. His mother together with [two other relatives] were killed in a car accident in Iran. The applicant’s evidence was that he had [brothers] and [sisters]. He claimed that his youngest sister recently passed away due to the Covid-19 pandemic. Save for one brother who lives in Melbourne, Australia, the applicant remaining brothers and sister continue to live in Iran. The applicant evidence was that his brother in Melbourne is married with children and operates a small [business]. His evidence was that his brother had a car accident and was injured.
The applicant completed school in Iran after which he commenced [a] course but did not complete the degree. The applicant’s evidence was that he worked in Iran as [an occupation] for approximately six or seven years prior to his departure for Australia. The applicant claimed that because of life being difficult in Iran, he travelled to Australian by boat arriving in September 2012. The applicant’s evidence was that he initially arrived at [Location 1] but was taken initially to [Location 2] by boat. He was then transferred to Darwin where he remained for approximately eight months. The applicant then was transferred to Melbourne where he was initially provided a Humanitarian Stay visa and then a Bridging visa.
In Melbourne the applicant found accommodation in a share house and worked in a restaurant. He later moved to a house in [suburb] where he lived alone. The applicant claims to have a brother living in Australia. Despite this fact, from the applicant’s evidence he appears not to have much contact with his brother since his arrival in Australia. He did not provide any evidence of contact with his brother while in Australia. In addition, the Tribunal did not receive any evidence from his brother in Melbourne in support of the applicant.
Therefore, based on the applicant’s own evidence, the Tribunal finds that the applicant has had only limited contact with his brother in Australia. As such, it finds the applicant will not suffer any hardship because of being separated from his brother. Given that the remainder of his family continue to live in Iran, any cancellation of his visa will not cause any hardship by separating him from his family members. As a result, the Tribunal places no weight in this consideration on the applicant’s favour.
In addition, from the applicant’s own evidence he appears to have only limited involvement in the community. The applicant admitted to having been charged with the initial, second, third and fourth charges as detailed above. As such, the applicant’s criminal activity appears to have been detrimental to the community. As such, the Tribunal finds that the applicant had only a limited tie to the community.
While the Tribunal accepts that the decision to cancel the applicant visa would have an impact on his family unity, based on the applicant’s own evidence it appears that given his lack of involvement with his family and the community generally it would be relatively minor. As such the Tribunal finds that the impact on his family if his visa was cancelled would be minor. Accordingly, the Tribunal places limited weight on this factor in the applicant’s favour.

The circumstances in which the ground for cancellation arose.

The circumstances in which the grounds for cancellation arose are detailed above. On 18 January 2019 the applicant was charged by the Victorian Police with attempted rape, assault with intent to commit a sexual offence, sexual assault, driving a motor vehicle while suspended and breach of conditions of bail.[9] The applicant’s evidence was that he pleaded guilty to the charges and was sentenced to 9 months imprisonment. On or about 25 November 2019 the applicant completed his term of imprisonment and was transferred to immigration detention. The applicant remains in immigration detention.
[9] Victoria Police Charge Sheet; Dept File No [Number] Doc [ID]
The applicant expressed his remorse and regret for his actions. His evidence was that while in criminal detention he has undertaken courses to improve his behaviour. The tribunal accepts that the applicant is remorseful for his criminal actions and gives this consideration some weight.
The Tribunal has also 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 September 2012 by boat and was granted a Humanitarian Stay (Temporary)(UJ 449) on 12 February 2014. The applicant then applied for and was granted several Bridging Visas. The applicant then applied for a Safe Haven Enterprise (XE 790) visa on 29 September 2015. This was refused by the department on 15 April 2020 and affirmed by the IAA on 1 June 2020.
The applicant claims that he travelled to Australia because there were a lot of problems in Iran and life had become very difficult. However, he did not identify any specific reason as to why he fled Iran or why he was not able to return to Iran. The Tribunal notes that the applicant’s claims for protection have been considered by the department and the IAA and found that the applicant is not owed any protection obligations under section 36(2)(a) and s.36(2)(aa) of the Act.
In addition, the applicant did not identify any matter by which he would be seriously or significantly harmed if he was returned to Iran. He merely claimed that he wanted to stay in Australia. As such, the Tribunal places little weight on the applicant’s stated purpose of traveling and staying in Australia.

The extent of compliance with visa conditions.

The Tribunal notes that the applicant was charged with the initial offences in breach of condition 8564 (must not engage in criminal behaviour) and condition 8566 (not breach Code of Behaviour) attached to the applicant’s Bridging visa. During the hearing the applicant confirmed that [in] June 2018 the applicant was found guilty at the [Magistrates] Court in Victoria of over 20 charges including obtaining property by deception, fraudulent alter documents and handle stolen goods. On 16 June 2018 applicant was again arrested and charged with theft of a motor vehicle, handle stolen goods, drug possession, going equipped to steal and unlicenced driving in breach of his visa conditions.[10]
[10] Notification of Cancellation under section 116 of the Migration Act dated 22 January 2019; Dept File No [Number] Doc [ID]
Accordingly, the Tribunal places some weight on this consideration in favour of cancelling the applicant’s visa.

Past and present behaviour of the visa holder towards the Department.

The applicant responded to the NOICC and has broadly complied with the department’s direction. Accordingly, the Tribunal gives some weight in the applicant’s favour regarding this consideration.

Persons in Australia whose visa would be cancelled under s.140.

The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there is no person in Australia whose visa may be cancelled under s.140 of the Act.

The degree of hardship that may be experienced by the visa holder if the visa is cancelled.

The applicant claims that because of him being arrested and imprisoned he continues to suffer the hardship of remaining in detention. He claims that he wants to be released from detention to be able to establish his life in Australia as originally planned. The Tribunal accepts that the applicant has remained in detention for an extended period after having serviced his prison sentence. On the applicant’s evidence he was released from prison on 25 November 2019. As a result, the applicant has remained in immigration detention for a period of approximately two years four months. As a result, the Tribunal places considerable weight in the applicant’s favour because of his extended period of being held in immigration detention.
The applicant’s evidence was he arrived at [Location 1] but was transferred to [Location 2]. Accordingly, the applicant is an unauthorised maritime arrival (UMA) pursuant to s.5AAA of the Act. Section 46A of the Act provides that a UMA who is in Australia and is an unlawful non-citizen or holds a bridging visa, a temporary protection visa, or a prescribed temporary visa cannot make a valid visa application[11] unless invited by the Minister.[12] In this case the applicant was invited to apply for a Safe Haven Visa on 29 May 2015 and did so on 14 July 2017.
[11] Section 46A(1) of the Act
[12] Section 46A(2) of the Act.
Section 48A of the Act prevents a non-citizen who has been refused a protection visa, or held a protection visa that was cancelled, from applying for or having a subsequent protection visa made on their behalf while in the migration zone, irrespective of the grounds or the criteria on which their application would be made.[13] As a result the applicant is not able to make any further application for a protection visa.
[13] BYE15 v MIBP [2015] FCCA 3023 held that the effect of s 48A(1C) was to preclude an applicant from lodging another application for protection in circumstances where the applicant is a non-citizen, in the migration zone who has been refused a protection visa, regardless of the grounds on which the application would be made, irrespective of whether the grounds existed earlier or whether the applicant had claimed earlier to satisfy the criteria: upheld on appeal in BYE15 v MIBP [2016] FCA 263.
The country information[14] reports that Iran has a longstanding policy of not accepting involuntary returnees. Historically it has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. Pursuant to Memorandum of Understanding (MOU) between Australia and Iran, Iran now agrees to accept involuntary Iranian returnees who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. As the applicant arrived in September 2012 he would not fall within the MOU and would not be accepted as an involuntary returnee by Iran. Therefore, in accordance with the Australia’s non refoulment obligations the applicant will not be involuntarily returned to Iran. As such the applicant is likely to remain in detention for an extended period. As such the Tribunal places some weight in the applicant’s favour in relation to his loss of liberty by remaining in detention because of Iran’s refusal to accept him as an involuntary returnee.
[14] Department of Foreign Affairs and Trade Country Information Report -Iran dated 14 April 2020 at p.70
The Tribunal notes that the applicant’s Safe Haven Visa application was refused on 15 April 2020. As such the Tribunal notes that the applicant has been found by the department and the IAA not to be owed protection obligations pursuant to s36(2(a) and s.36(2)(aa) of the Act. During the hearing the applicant did not advance any claims by which he would be seriously or significantly harmed if he was returned to Iran. As such there appears to be no obstacle for the applicant to return voluntarily to Iran. The Tribunal places considerable weight on this matter in favour of cancelling the applicant’s visa.
Despite the extended time since the IAA decision the applicant has not made any appeal to the FCFA. It may be still be open to the applicant to appeal to the Federal Circuit and Family Court of Australia (FCFCA) to review IAA’s decision to affirm the department’s decision to refuse his application for a Safe Haven Visa. However, the applicant is now out of time to appeal the IAA decision to the FCCA. As such, it is not certain that the Court would accept any such application as it would be subject to the Court’s discretion to extend the time for the appeal. The Tribunal gives this consideration some weight in favour of the applicant in relation to this matter.
If the Tribunal was to set aside the departments decision to cancel the applicant’s visa, it appears that the applicant would be required to make application for a further bridging visa since his visa would have expired 35 days after the IAA decision. In the absence of any application for a substantive visa there would be no basis upon which the applicant could be granted a bridging visa. In circumstances where the applicant is barred from making any further application for a protection visa pursuant to s.48A of the Act and in the absence of any application to the Federal Circuit and Family Court of Australia (FCFCA) to appeal the IAA’s decision, the applicant would not be entitled to a further bridging visa. Even if the applicant was to make an application to the FCFCA to appeal the IAA decision, the applicant’s delay in making such an application would make it uncertain as to whether it would be accepted by the Court. As such, to set aside the department’s decision to cancel the visa would in the present circumstances will have no practical effect.
If the Tribunal affirms the department’s decision to cancel the visa, the applicant will be prevented from applying for a further Bridging visa pursuant to Schedule 1 of the Migration Regulations 1994.[15] As a result, the applicant will be required to remain in immigration detention. Nevertheless, it is still open to the applicant to make application to the FCFCA. The Tribunal notes that if the applicant remains in detention it is the practice of the Court is to prioritise the hearing of matters. It is for the applicant to make application to the Court to have the matter prioritised in circumstances where he remains in detention. While the Tribunal holds some concerns that the applicant will remain in detention, in circumstances where the applicant has found not to be owed protection obligations, there is no appeal to the IAA decision and there currently appears to be no practical effect in setting aside the department’s decision, the Tribunal gives this consideration no weight in the applicant’s favour in relation to his loss of liberty by remaining in detention pending the hearing of any FCFCA appeal.

Mandatory legal Consequences.
[15] Reg 1305(3)(f) &(g) Schedule 1 of the Migration Regulations 1994

If the visa is cancelled the applicant will become an unlawful non-citizen and will continue to be held in detention under s.189 of the Act and subject to the determination of any appeal to the FCFA. Pursuant to s.198 of the Act an applicant may be removed if he/she does not voluntarily depart Australia. However, in this case for the reason expressed above the Applicant will not be removed as an involuntary returnee to Iran.
In addition, as referred to above, the applicant will be subject to s.48A of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 because of cancellation.
The Tribunal gives some weight to this consideration in the applicant’s favour.

Any breach of international obligations Australia may have because of the applicant’s visa being cancelled.

The circumstances of this case are such that they would not engage Australia’s international obligations. In particular, the applicant’s evidence was that he does not have any children in Australia whose interests may be affected by the cancellation of his visa. As such, the Tribunal does not give any weight in favour of the applicant in relation to this consideration in making this decision.

Other relevant factors

Having considered the department file, and the applicant’s evidence to the Tribunal, it is satisfied that there are no other relevant factors in relation to this case.
Therefore, based on the applicant’s evidence, the Tribunal finds that he has limited ties to the community and as a result is unlikely to suffer any undue hardship because of the cancelation of his visa. In addition, he failed to identify any well-founded fear of persecution if he is returned to Iran. As such, considering the serious nature of the charges for which he has been found guilty, the Tribunal concludes that the visa should be cancelled.
Considering all the circumstances, the Tribunal concludes that the visa should be cancelled.

DECISION

The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell

Senior Member