2204292 (Migration) - [2022] AATA 1914

2204292 (Migration) [2022] AATA 1914 (1 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2204292
MEMBER:Kira Raif
DATE:1 April 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 070 (Bridging (Removal Pending)) visa.

Statement made on 01 April 2022 at 3:55pm
CATCHWORDS
MIGRATION – cancellation – Bridging R (Class WR) visa – Subclass 070 (Bridging (Removal Pending)) – applicant’s presence in Australia is or maybe a risk to others – criminal conviction – applicant’s ongoing willingness to engage in unlawful conduct and disregard for the law – risk of reoffending remains – cancellation of the visa will not breach Australia’s international obligations – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43
CASES
Gong v MIBP (2016) FCCA 561
Tien v MIMA (1998) 89 FCR 80
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 23 September 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 070 (Bridging (Removal Pending)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a national of Iraq (or a stateless person) born in [year]. He was granted the Class WR Bridging R visa on 8 February 2013, following the cancellation of his substantive visa. On 1 September 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) as the delegate formed the view that the applicant’s presence in Australia is or maybe a risk to others. It appears that the applicant did not respond to the NOICC and his visa was cancelled. The applicant was renotified of the cancellation decision in March 2022 and now seeks review of that decision.
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 April 2022 to give evidence and present arguments. 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.
Relevant law
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)(e). 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.
A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence…

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 2204292 (Migration)

Details

AGLC: 2204292 (Migration) [2022] AATA 1914
Case: [2022] AATA 1914
Decision Date: 1 April 2022

CaseChat Overview and Summary

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) by an applicant seeking review of the cancellation of their Subclass 070 (Bridging (Removal Pending)) visa. The cancellation was based on the ground that the applicant's presence in Australia was or might be a risk to the safety of others, stemming from a criminal conviction and a perceived ongoing willingness to engage in unlawful conduct and disregard for the law, indicating a risk of reoffending.

The Tribunal was required to determine whether the ground for cancellation under section 116 of the Migration Act 1958 (Cth) was satisfied, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal also considered whether cancelling the visa would breach Australia's international obligations.

The Tribunal found that the ground for cancellation under s 116 was satisfied, noting the applicant's criminal conviction and the assessment that the risk of reoffending remained. While acknowledging compelling reasons for the applicant to remain in Australia, including his long-term settlement, family ties, and potential inability to travel to other countries, the Tribunal ultimately gave greater weight to the circumstances that led to the cancellation grounds. The Tribunal concluded that these circumstances, viewed as a whole, warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant's Subclass 070 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal has decided that, in the circumstances of this case, to give greater weight to the circumstances in which the grounds for cancellation arose. 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 070 (Bridging (Removal Pending)) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116 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 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 entered Australia to seek a protection and, as noted in the primary decision, he was initially granted the protection visa but that visa was subsequently cancelled under s. 140 of the Act. The applicant told the Tribunal that he was born in [Country 1] and lived in [Country 1] and [Country 2] and has never lived in Iraq. He has been in Australia for 13 years (5,5 of these in prison). He states that he is used to life in Australia and all his family are in Australia. He wants to be close to his family and get their support. The Tribunal accepts that evidence. The applicant states that he had no contact with his father for many years and now he has electronic contact with him as his father is getting older. The applicant states that his father lives in [Country 2] and has a visa to stay there but he cannot get the visa to any other country. The Tribunal acknowledges that the applicant has been found to be owed protection obligations and cannot be removed to another country. (There is a claim that the applicant may be considered stateless). The applicant claims that he has spent the majority of his life in Australia and has his immediate family here. The Tribunal accepts that the presence of all his family in Australia, as well as the applicant’s settlement in Australia and potential inability to travel to any other country, may constitute compelling reasons for the applicant to remain in Australia. The extent of compliance with visa conditions There is no evidence of any non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant’s immediate family, including mother and siblings, are in Australia. The applicant told the Tribunal that he lost a lot of his time, all of his 20’s incarcerated and he wants to ‘start his life’. Should the cancellation of the visa result in the applicant having to depart Australia, the Tribunal acknowledges that this may cause him to be separated from his family and the Tribunal accepts that this would cause hardship to the applicant. The Tribunal accepts that if the applicant chooses to live Australia and is able to, he would have nowhere to live, is unlikely to have any support overseas (he claims he cannot live in [Country 2] where his father lives) and that it may take him time to obtain gainful employment. All these matters will cause considerable hardship to the applicant and his family.