2203857 (Migration) - [2022] AATA 4656

2203857 (Migration) [2022] AATA 4656 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2203857
DEPUTY PRESIDENT:  Antoinette Younes
DATE:6 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 06 June 2022 at 2:48pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – secondary applicant on former wife’s visa – criminal conviction – applicant no longer meets the requirements of being a member of the family unit of the primary visa holder – no compelling need for the applicant to remain in Australia – applicant gave an incorrect answer in the visa application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 375
Migration Regulations 1994 (Cth) r 2.43
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 3 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 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 appeared before the Tribunal on 25 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Section 375A Certificate
During the hearing, the Tribunal advised the applicant of the existence of a s 375A Certificate.
Under s 375A, the Secretary of the Department of Home Affairs (Department) may certify that certain information is only to be disclosed to the Tribunal. The effect of such a certification is that the Tribunal is prohibited from disclosing the document and/or information in it to the applicant. In Singh v MIBP,[1] the Federal Court found that where the obligations in ss 359A and 375A come into conflict, s 375A is the leading provision but that the aims of both ss 375A and 359A can usually be served without conflict.
[1] Singh v MIBP [2020] FCA 783 at [56].
The grounds identified in the Certificate are that disclosure would:
disclose, or enable a person to ascertain the existence or identity of, a confidential source of information
disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods
The Tribunal advised…

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 2203857 (Migration)

Details

AGLC: 2203857 (Migration) [2022] AATA 4656
Case: [2022] AATA 4656
Decision Date: 6 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 500 (Student) visa held by a secondary applicant. The applicant had been convicted of several offences, including common assault and shoplifting, and was no longer considered a member of the family unit of the primary visa holder, his former wife. The AAT was required to determine whether the grounds for visa cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The primary legal issue was whether the applicant's criminal convictions constituted a prescribed ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43 of the Migration Regulations 1994. The Tribunal also had to consider whether there were any compelling reasons for the applicant to remain in Australia and, if the grounds for cancellation were met, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant's convictions for common assault and shoplifting satisfied the prescribed ground for cancellation under regulation 2.43(1)(oa), as he was the holder of a temporary visa and had been convicted of offences against Commonwealth, State, or Territory law. While this ground did not mandate cancellation under section 116(3) of the Act, the Tribunal was required to consider whether to cancel the visa in the exercise of its discretion. The Tribunal had regard to the applicant's circumstances, including his cessation of studies, his divorce from the primary visa holder, his limited ties to Australia, and his prior unsuccessful attempts to obtain a protection visa. The Tribunal concluded that there was no compelling need for the applicant to remain in Australia and affirmed the decision to cancel his visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal advised the applicant that the information contained in the material subject to the Certificate relates to internal methods of investigation. The Tribunal indicated that the Tribunal considered the Certificate to be valid for the reasons outlined in the Certificate. The applicant did not raise concerns. 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 (‘the Regulations’) prescribes the following ground for cancelling a visa:Reg 2.43 Grounds for cancellation of visa(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). 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, as follows:·On 10 January 2018, the applicant was convicted of Common Assault (DV) and fined $1,100 at the [Local] Court;·On 1 May 2018, the applicant was convicted of Shoplifting value <=$2,000 and received a Bond S9:10 months at [a] Local Court;·On 2 May 2018, the applicant was convicted of Common Assault (DV) and received a Bond S9:12 months at [a] Local Court.NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) & RESPONSE On 21 November 2018, the Department sent to the applicant a NOICC (or Notice), to which the applicant did not respond. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind and that the Notice complied with the statutory requirements.

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 500 (Student) visa.Antoinette YounesDeputy President

Ratio Decidendi

Legal Principle Established

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 gave evidence that he came to Australia in April 2017 as a primary holder of a student visa. He studied for 2 to 3 months and stopped studying because his partner did not want him to attend classes. He stated that he became a secondary applicant on his wife’s (now former) student visa which was granted on 28 March 2018. He stated when his spouse arrived in Australia they lived together and now they are officially divorced. The applicant gave evidence that he has two children aged [age] and [age]years old. He stated that his children live with their mother in Mongolia. He stated that the children have never been to Australia and he maintains telephone contact with them but he perceives their reluctance to talk to him. He stated that he last saw his children at the airport when he left Mongolia. He stated that during the time his wife was in Australia, the children were cared for in Mongolia by his in-laws and his parents. In terms of relatives in Australia, the applicant gave evidence that he has an “auntie”. He gave evidence that prior to his detention in Australia, he was living with his “girlfriend”. He stated he was embarrassed about his conduct in that he started a relationship with Ms [D] whilst he was still married to his now former spouse. The Tribunal asked the applicant about his current relationship with [Ms D] and he stated they are no longer together but that she contacts him to check in. He stated that [Ms D] has two children aged 12 and about eight years old. He confirmed that he does not have a current relationship with either [Ms D] or her children. The applicant gave evidence that he used to work in Australia on construction sites but had suffered an injury. The Tribunal discussed with the applicant the documents that he provided in support and indicated that it would give them as much weight as it considered to be appropriate. Relevantly, in relation to the claim of fear of persecution on the basis of his faith, made by [Mr B], the applicant gave evidence that he lodged an application for a protection visa in 2019 on the basis that he was previously a [Occupation 1] in Mongolia and feared persecution at the hands of criminals. He indicated that the protection visa application was refused and that he sought review of that decision at the AAT which affirmed the delegate’s decision to refuse to grant a protection visa. He stated that he unsuccessfully appealed the Tribunal’s decision.