2203863 (Migration) - [2022] AATA 1786

2203863 (Migration) [2022] AATA 1786 (29 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2203863
MEMBER:Louise Nicholls
DATE:29 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 29 March 2022 at 3:54pm
CATCHWORDS
MIGRATION – Cancellation – Bridging E (Subclass 050) visa –criminal conviction– applicant sought judicial review –mental health– no medical or psychological evidence showing that he has undergone treatment or rehabilitation for his drug habit – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW), S.195(1)(A)
Migration Act 1958, ss 116, 359, 499
Migration Regulations 1994, r 2.43
CASES
BEG15 v MIBP [2019] HCA 3

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

The applicant is a citizen of Iran and is [age] years old. In August 2012 he arrived in Australia by boat as an unauthorised maritime arrival (UMA).
The applicant was last granted a Subclass 050 (Bridging (General)) on 23 May 2017 and while holding that visa was charged with two offences which took place in February 2020.
On 25 February 2020 the delegate of the Minister for Home Affairs cancelled the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act) on the basis that the applicant had been charged with the following offences on 19 February 2020:
·Destroy or damage property – S.195(1)(A) of the Crimes Act 1900 (NSW).
·Stalk/intimidate intend fear physical etc. harm T2 – S. 13(1) Crimes (Domestic and Personal Violence) Act 2007.
This is an application for review of that decision and it was lodged on 16 March 2022. The application has been made within the statutory timeframes as the original notification of the cancellation was defective and the delegate re-notified the cancellation decision. The applicant was handed the re-notified decision on 16 March 2022.
The applicant provided a copy of the delegate’s decision record and his own written submissions dated 25 March 2020 in support of his application.
The applicant appeared before the Tribunal on 24 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 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 by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and…

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 2203863 (Migration)

Details

AGLC: 2203863 (Migration) [2022] AATA 1786
Case: [2022] AATA 1786
Decision Date: 29 March 2022

CaseChat Overview and Summary

The applicant, who held a Bridging E (Subclass 050) visa, sought judicial review of a decision to cancel that visa. The dispute centred on whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled, considering the applicant's personal circumstances, including his history of drug use and mental health struggles. The matter was before Senior Member Louise Nicholls of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether a ground for visa cancellation under section 116 of the Migration Act 1958 (Cth) was established, and if so, whether the applicant's visa should be cancelled. A preliminary issue also arose concerning the validity of a non-disclosure certificate issued under section 375A of the Act, which restricted the disclosure of certain information relating to the applicant's criminal record provided by the NSW Police to the Department. The Tribunal also had to consider the procedural fairness obligations regarding the disclosure of such restricted material, particularly in light of High Court authority.

The Tribunal considered the restricted material, which comprised correspondence between the NSW Police Liaison Unit and the Department regarding the applicant's criminal record, to have been provided in confidence by the NSW Police, thus validating the non-disclosure certificate. Applying the principles from *MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP* [2019] HCA 3, the Tribunal found that while there was an obligation of procedural fairness to disclose the existence of the non-disclosure certificate, a breach would only result in jurisdictional error if it was material, meaning the applicant was deprived of the possibility of a successful outcome. The Tribunal concluded that the restricted material did not prejudice the applicant's interests or undermine his prospects of a favourable decision, as its substance had been disclosed for comment. Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal considers the restricted material does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal as the substance of the restricted material has been disclosed to the applicant for comment [3]. The Tribunal finds that the applicant has not been deprived of the possibility of a successful outcome by the restriction on disclosure.[4][3] Minister for Immigration and Border Protection v CQZ15 [2017]FCAFC 194 at 72[4] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 (Bell, Gageler, Keane, Gordon and Nettle JJ, 13 February 2019) at [2], [29]-[30] and [45] per Gageler, Keane and Bell JJ.Background The applicant was born in Ahwaz, Iran and moved with his family to Tehran when he was in [primary] school. He is now [age] years old, is not married and has no children. His parents live in Tehran and his married sister lives in [Country 1]. He did not finish high school and when he left, he went to work with his father who was a [occupation]. He also had many other jobs but was unable to give any detail about that work. He has held a series of bridging visas since 5 December 2012. In his written submissions and in oral evidence he stated that he arrived by boat on Christmas Island late in 2012. He was detained on Christmas Island and at Curtin Detention Centre and then granted a bridging visa. He moved to Sydney and spent one year living on Centrelink benefits. When he was given permission to work he found a job in the construction [industry]. He stated he had problems from the moment he first arrived in Australia. He could not speak English and the Department did not give him assistance to learn English or direct him to classes to learn about the basic rules of society and Australian culture. As a consequence, he could not integrate into Australia society and felt very lonely. He did not have any family in Australia. He became depressed and started using marijuana but used it to such an extent that he spent most of his income purchasing marijuana. Even though he was working hard and earning good money he could not save due to his drug habit. Someone he knew introduced him to the drug “ice which he started using. He was able to manage until the beginning of the pandemic when there was a reduction in building work and he became unemployed. He was not entitled to Centrelink or any assistance from the government. His family in Iran sent him money until they could not send him anymore. He could not afford to pay rent or buy food and he became homeless. The applicant has applied for a temporary protection visa. His application was refused by a Departmental delegate and automatically referred to the Immigration Assessment Authority (IAA) which affirmed the decision of the delegate on 28 January 2020. The applicant sought judicial review of the IAA’s decision. On 9 March 2021 the Federal Circuit Court dismissed the application. The applicant appealed to the Federal Court and Justice Lee dismissed his application on 2 July 2021.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Louise NichollsSenior Member

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 (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.Non-disclosure certificate issued pursuant to s.375A. A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 375A of the Act. The Tribunal has received a digital Departmental file [which] contains documents relating to the cancellation of the applicant’s bridging visa. The delegate has placed a non-disclosure certificate on the Department’s file pursuant to s.375A of the Act. The reason given for the restriction of information on the file is because the material was given to the Department in confidence. The certificate purports to restrict information contained in digital file reference [deleted]. The material consists of correspondence between the NSW Police Liaison Unit and the Department regarding the applicant’s criminal record. There are two issues for the Tribunal; one is whether the certificate is a valid certificate and the other is the nature of the restricted information and whether the information should be disclosed to the applicant. Validity In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. Documents or information may be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information not be public or common knowledge.[1] [1] See SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42]. The Tribunal asked the applicant whether he wished to make submissions on the validity of the certificate. He stated he did not have a criminal record. The Tribunal considers the information in the email correspondence has been given in confidence by the NSW Police. The Tribunal has proceeded on the basis that the certificate is valid.Disclosure of information The majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate to the applicant in the review, however, a breach of that obligation will result in jurisdictional error only where the breach is material (that is, the applicant is deprived of the possibility of a successful outcome).[2][2] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 (Bell, Gageler, Keane, Gordon and Nettle JJ, 13 February 2019) at [2], [29]-[30] and [45] per Gageler, Keane and Bell JJ.