2204989 (Migration)

[2022] AATA 1462

2204989 (Migration) [2022] AATA 1462 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204989

MEMBER:R. Skaros

DATE:13 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 13 April 2022 at 9:45am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of an offence – financial hardship – protection obligations – conversion to Christianity – indefinite detention – recommended guilty plea – community support – decision under review set aside     

LEGISLATION
Migration Act 1958, ss 116, 189, 499
Migration Regulations 1994, r 2.43

CASES
ACH15 v MIBP [2015 FCCA 1250

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 8 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging E) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that reg 2.43(1)(p) on the basis that the applicant had been convicted of an offence against a law of the State.

3. The applicant attempted to lodge a review of that decision on 16 January 2019, however, the Tribunal (differently constituted) found that the application for review was not validly made and, consequently, it did not have jurisdiction in the matter.

4. On 4 April 2022 the Department renotified the applicant of the decision to cancel his Bridging E visa after finding that the applicant had not been correctly notified of the decision. The Tribunal received this application for review on 5 April 2022. The Tribunal is satisfied on the evidence before it, that it now has jurisdiction to conduct a review in this matter.

5. The Tribunal has before it a copy of the Department’s file which includes a certificate issued under s.376 of the Act. Prior to the hearing, the Tribunal sent a copy of the certificate to the applicant’s representative. At the hearing, the Tribunal informed the applicant of the existence of the certificate and explained that it covered the record of his interview with a departmental officer on 12 January 2019 at [a named] Prison. It explained that the certificate was issued because the Department wanted to maintain the identity of the officer confidential, and that the officer’s surname had been redacted from the document. The Tribunal does not consider the identity of the officer who conducted the interview to be relevant to the issues in this review. The representative indicated that he did not have any comments to make on the validity of the certificate.

6. The information contained in the record of interview includes the applicant’s immigration history, general background information about the applicant’s health, past employment, and friends in Australia. It also indicated that the applicant had a pending application for a temporary protection visa and that his Bridging E visa had been cancelled and that he had been detained under s.189 of the Act. The Tribunal notes that this information is known to the applicant.

7. The only information that the Department wished to withhold from the applicant (as indicated by the s.376 certificate) is the identity of departmental officer who conducted the interview. The certificate provided a valid reason for the withholding of that information, and as such the Tribunal is satisfied that the certificate is valid. As noted above, the officer’s identity is not relevant to the issue in the review and as such there is no need to disclose the information to the applicant.

8. Prior to the hearing, the Tribunal received from the applicant’s representative a copy of the Notice of Intention to Consider Cancellation (NOICC), the delegate’s decision record, a statutory declaration from [Officer A] (a retired [police officer]), a statement from the applicant, a copy of an email from [Ms B] (the applicant’s former fiancé) and copies of certificates for courses completed by the applicant, regarding domestic violence, life skills and anger management

9. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

10. The applicant appeared before the Tribunal by video conference from [a named] Detention Centre on 11 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Officer A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

11. The applicant was represented in relation to the review. The representative attended the hearing

12. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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?

14. 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)(p)(i) is relevant.

15. The NOICC, dated 8 January 2019, states that [in] October 2018 the applicant was convicted of various offences, including threat to kill, false imprisonment, contravene family intervention order and unlawful assault, for which he was sentenced to [a term] of imprisonment.

16. The applicant did not dispute that he had been convicted of these offences, however, he stated that in relation to the charges of threat to kill and false imprisonment he was encouraged by his lawyer to plead guilty. When queried why he chose to plead guilty rather than defend the charges if he did not believe he was guilty, the applicant stated that, at the time, he had been in prison for [a period] and his lawyer told him that it would be a very long process and, if he pleaded guilty, he could be released from prison straight away. The applicant stated that he wanted to get out of prison, so decided to plead guilty and with [this period] already served he could get released in a few months.

17. The Tribunal has had regard to the circumstances of the non-compliance further below, however, given the evidence before it (which is not in dispute) that he has been convicted of the above-mentioned offences, the Tribunal finds that the applicant has been convicted of offences against the laws of Victoria.

18. The Tribunal is satisfied on the evidence before it that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(p)(i) 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.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(p)(i) 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

20. In considering whether a Bridging E visa should be cancelled on the basis of 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 take into account 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.

21. 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.

22. 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; and

    ·any other matter considered relevant.

23. 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.

24. 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’.

    Primary considerations

    The Government’s view

25. As one of the primary considerations, the Government’s view is that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in cl 6 is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The Tribunal is mindful that it must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3]

    [1] Cl 6(1)(a) of Direction No 63.

    [2] ACH15 v MIBP [2015 FCCA 1250 at [28]–[31].

    [3] ACH15 v MIBP [2015 FCCA 1250 at [33].

26. In this case, the applicant has been convicted of various offences, including the threat to kill, false imprisonment, contravene family intervention order and unlawful assault. The Tribunal has considered the circumstances which led to the instances of non-compliance further below, however, in relation to the government’s view, the Tribunal considers that the applicant’s convictions (in respect of each instance of non-compliance) weighs strongly in favour of cancelling the Bridging E visa.

    The best interests of any children

27. The applicant does not have children and he has not made any claims about the interest of any children under 18 years of age who would be affected by the cancellation of the visa.

    Secondary considerations

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

28. The applicant is not currently in a relationship. He gave evidence that his parents in Iran have been impacted by the visa cancellation as he has not been able to financially support them since being detained. The Tribunal gives some weight to this circumstance in favour of not cancelling the visa.

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

29. The applicant (who entered Australia as an unauthorised maritime arrival) gave evidence that after his release into the community (in May 2013) he worked hard and set up his own [service] business in Australia. He said that since being detained his life has been on hold. He would like to have a family of his own. His mother in Iran is ill and is worried about him. He gave evidence that he had been financially supporting his family in Iran, including paying for his father’s medical expenses after his father suffered [an accident].

30. The applicant said that his worst nightmare, and the worst torture for him, would be to remain in detention forever. When asked why he could not return to Iran, the applicant said his life would be in danger as he had converted from Islam to Christianity. He said that he has been practising Christianity in Australia and is supported by his church in [Suburb 1], Victoria. He said that he was interviewed by the Department about his claims (with the most recent interview being about eight months ago) and they have concluded that if he returns to Iran his life will be at risk.

31. The Tribunal has considered the applicant’s evidence and has also had regard to departmental records which confirm that the applicant has been found, by a delegate of the Minister, to be a person in respect of whom Australia has protection obligations. On this basis, the Tribunal accepts that the applicant would not be able to return to Iran.

32. If the applicant’s Bridging E visa remains cancelled, he will be kept in detention, which could be for an indefinite period unless he is granted the protection visa. The Tribunal accepts that, in the circumstances, the continued detention of the applicant will likely exacerbate the financial, emotional, and psychological hardship experienced by him to date.  The Tribunal accordingly gives weight to this circumstance in favour of not cancelling the visa.

    The circumstances in which the ground for cancellation arose

33. The ground of cancellation arose when the applicant was convicted of offences against the laws of Victoria. The circumstances which led to the applicant being charged, convicted, and sentenced were described by the applicant at the hearing, but also referred to in detail by [Officer A], who gave highly compelling evidence in support of the applicant at the hearing. 

34. The applicant gave evidence that the charges which led to his conviction arose out of a single incident which took place in a matter of minutes. He had returned from work quite late and wanted to go to another job, but his fiancé ([Ms B]) got very angry with him and was suspicious that he was seeing another person. The applicant said that he loved his fiancé so much that he had even put his business under her name. He said that he suggested to her to go with him to the job site, which she agreed to do. On the way to the job site, an argument arose over [an expense] and his fiancé wanted to jump out of the car. He held her arm and told her not to leave, but after a short struggle she insisted on getting out of the car and she went straight to the police. He said that this occurred within about 30 seconds. He said that he did not at any time physically assault her and had just pulled her arm towards him so she would not leave after their argument.

35. In his oral evidence to the Tribunal, [Officer A], gave evidence that as an experienced police officer who has dealt with hundreds of family violence incidents during his career, he was surprised that the incident led to the applicant being charged and convicted. He said the evidence on which the applicant was charged was insufficient: the threat to kill charge should never have been authorised and only warranted a summary charge, whilst the false imprisonment charge also had no basis because the applicant’s fiancé (whom [Officer A] referred to as [Ms B name]) could have exited the [vehicle] at any time as it was not locked. [Officer A] stated that in all his years as a police officer he considers the incident which occurred between the applicant and his former fiancé, which was an argument between two people who were in a relationship with each other and navigating relationship issues, to be at the very low level of seriousness. [Officer A] said that he has known the applicant for a very long time, he (the applicant) is a good person and would not in any way be a threat to the community. He said that he would trust the applicant to look after his [children] and that the applicant would make an excellent contribution to the Australian community.

36. [Officer A] said that he was shocked to learn that the applicant had been advised to plead guilty to these serious charges, but he could understand why the applicant (on advice from his lawyer) would have thought it was the best decision to make at the time, given his belief that he would be released from prison.

37. The Tribunal has also had regard to [Officer A’s] statutory declaration from 2019 in which he provided information regarding his professional background, his past dealings with the applicant and his assessment of the circumstances which led to the non-compliance:

    I am a retired [police officer] with over [number] years of service to the community in [specified duties and locations].

    I have known [the applicant] for the past four and a half years since he came to board at my house at [address], in November 2014.

    In all that time [the applicant] always paid his rent on time and was a cheerful and well liked member of the household.  [The applicant] worked long hard hours [on duties] in his job and took pride in keeping his room clean and tidy. I was aware that [the applicant] had come from Iran and was a Christian and that he would attend church somewhere in [Suburb 1].

    After a couple of years [the applicant] was able to find work as [an occupation] and enthusiastically learnt this trade to the point he was able start his own company.

    At about the same time [the applicant] met [Ms B] and after some months their relationship grew to the point where they became engaged to marry, and eventually [Ms B] moved in with [the applicant]. These were very happy times for [the applicant] and [Ms B] but at the same time I became aware of a fair bit of friction coming from [Ms B’s] family who seemed to oppose the marriage.  I mention this as I believe this opposition was a contributing factor to the family violence that began to surface.

    Whilst any family violence is unacceptable the matters involving [the applicant] and [Ms B] were relatively minor. With them trying to get their business off the ground, the pressure from [Ms B’s] family and with [Ms B’s] somewhat jealous nature, it was easy to see how the incidents arose. Added to this [the applicant] had no immediate family he could access for support and advice.

    In relation to the last incident that saw [the applicant] incarcerated, I firmly believe that the two major charges that make the incident sound very serious should never have been authorised. These two charges being the "Threat to kill" and "false imprisonment" only appear because [the applicant] was poorly advised by his solicitor/barrister who should never have allowed him to submit a guilty plea. I believe the guilty plea arose because they wanted to finalise the case on the day and because [the applicant] had no funds to mount a defence.

    It is important to look at this last incident closely as the seriousness of the charges hugely affect any assessment of [the applicant]'s "character". The first charge being the "threat to kill" arose from a heated argument after [Ms B] accused [the applicant] of going off to see another woman. [The applicant] told [Ms B] he was simply going to do an after hours [job] and she ended up going in the car with him.

    From [Ms B’s] statement [the applicant] in the heat of the moment says words to the effect "I am going to kill you" and this is the total extent of the charge. There was no proof that he intended for her to fear the threat would be carried out, or was reckless that she would hold such fear. It is clear from [Ms B’s] statement that the fear she was feeling was from his erratic driving more so than what he said. A threat to kill said in the heat of an argument and followed up almost immediately with a statement that "I am going to tell your mother that you are a bad person" is hardly a genuine threat to kill. I have checked/authorised literally hundreds of briefs of evidence in my time in the police force and if this brief had come to me for checking I would never have authorised this charge to proceed.

    In relation to the false imprisonment charge as I understand it, [the applicant] only ever wanted [Ms B] to remain in the car so that she could pay for [an expense] as the credit card was in her name. The [vehicle] did not have child locks and even if the doors were locked [Ms B] could always have exited the [vehicle] and she did exactly that at the service station and walked (not ran) from the [vehicle] as shown in the video. It is the feeblest "false imprisonment" charge one could imagine.

    I think it would be very unfair if [the applicant] were to be assessed as having bad character based solely on the difficult breakdown in his relationship with [Ms B]. I still have contact with [Ms B] and she too is deeply saddened by the predicament [the applicant] is now in.

    I would not be writing this submission if I did not truly believe that [the applicant] is actually of good character and would be a valuable contributor to our country. I would for instance have no hesitation in allowing [the applicant] to babysit my [named children] - it is my firm belief that he is inherently a good person that has made a mistake and has genuinely learnt from it.

    I would be happy to sponsor [the applicant] if it was seen to be required - including for instance, to provide him with "fatherly" type guidance going forward.

1. The Tribunal has also considered a statement (which was provided by email) from the applicant’s former fiancé, [Ms B] (also referred to as [Ms B name]), in which she relevantly states that she and the applicant had been through a lot together and were always there for each other. She said they had their moments and things did not go well all the time, but this was on both sides and not just from the applicant’s side. She said the fights and arguments they had were incidents she did not deal with well. She said that she blamed the applicant for their arguments and would go to the police because she could not handle the pressure. In relation to the incident which led to the applicant being charged and convicted, she said that things got out of hand, she went to the police and they got involved. She said that the applicant should be given a second change, she misses him, she feels very sorry for what has happened to him, she cannot imagine what he has been through and she is confident that the applicant will make a difference. She said that the applicant loves and respects Australia and should be given an opportunity to live a simple normal life.

2. The applicant in this case has been convicted of very serious offences, some of which carry long term prison sentences. However, the applicant was sentenced to [a specified term] of imprisonment which, in the Tribunal’s view, suggests that the offending is at the lower end of the scale. The Tribunal gives weight to the evidence of [Officer A] (a retired [police officer] of [number] years) who said that the serious charges of threat to kill and false imprisonment should not have been authorised and that lesser summary charges would have been more appropriate given the facts before the police. A further mitigating factor in this case is that the applicant decided to plead guilty (on advice from his lawyer) believing that this would result in him being released from prison sooner.

3. In matters where a person’s visa is cancelled due to a criminal conviction, the circumstances in which led to the non-compliance generally weigh strongly in favour of cancelling the visa, however, having considered the evidence in its totality, including the highly persuasive evidence of [Officer A] and the applicant’s former fiancé, the Tribunal considers that limited weight should be given to this circumstance in favour of cancelling the visa.

   The possible consequences of cancellation

4. If the applicant’s visa remains cancelled and he is not granted the protection visa, then he will remain in detention indefinitely. There is evidence before the Tribunal which indicates that the applicant has been found (by the Department) to be a person in respect of whom Australia has protection obligations. In the circumstances, the applicant will not be removed from Australia to Iran and, unless the cancellation of this visa is set aside or he is granted another visa, he will remain in immigration detention.

5. The applicant’s representative said that he had received correspondence from the Department in mid-2019 that the applicant’s case was being referred to the character unit. He stated that they have followed up with the Department on numerous occasions but have not received any timeframe within which the Department intended to make its decision on the protection visa application.

6. The Tribunal accepts that the applicant’s matter was referred to the Department’s character unit for consideration of the requirements relating to character almost three years ago, and it is unclear when the Department will make a decision on the applicant’s pending protection visa application.

7. The Tribunal considers that the possible consequences of cancellation, which may include a protracted (and possibly indefinite) period of immigration detention, weighs in favour of not cancelling the applicant’s bridging E visa.

   Any other matter considered relevant

8. At the hearing, [Officer A] gave evidence which was highly supportive of the applicant’s character. He stated that the applicant is a person of good character, that he and his wife (who is also a police [officer]) would be willing to provide the applicant with accommodation until he could re-establish himself in the community. [Officer A] stated that his brother-in-law would be willing to employ the applicant upon release from detention and that the applicant would, in his view, make a great contribution to the Australian community. [Officer A] stated that the applicant also has a lot of support from members of the church that he used to attend in [Suburb 1], Victoria.

9. The applicant gave evidence that he continues to have the support of members of his church, who have been calling him every week since he has been in detention, and that just before attending the hearing they had been praying with him. The applicant said he admits his mistakes and has learnt from them, he is not the same person he used to be and he is ready to be released into the community and make a positive contribution.

10. The Tribunal has also had regard to the statement from the applicant’s former fiancé ([Ms B]) in which she states that the applicant is a kind and caring person and that she is sorry for what the applicant has had to go through following the police’s involvement.

11. The applicant’s representative also submitted that the applicant has been compliant and co-operative with the Department, there have been no other incidents of non-compliance and that he has a support network in the community.

12. The Tribunal considers that the favourable evidence given by [Officer A] and [Ms B] regarding the applicant’s character, the applicant’s good conduct since being detained and the support he has from members of the community, which is likely to continue after his release from detention, weigh in favour of not cancelling the applicant’s Bridging E visa.

    Conclusion

13. The Tribunal has carefully considered all the evidence before it and has weighed up all the relevant considerations. In favour of cancelling the visa is the government’s view (which is a primary consideration) that every instance of non-compliance (being the offences for which the applicant has been convicted) should be considered for cancellation.

14. Against the above, however, are the secondary considerations which, in combination, outweigh the primary considerations. The Tribunal considers that the instances of non-compliance are somewhat mitigated by the circumstances (as discussed above) which led to the applicant being charged and convicted. The hardship that the applicant (and his family in Iran) would experience if the applicant remained in detention, the possibility that the applicant may be detained indefinitely and the support the applicant will likely receive from respected members of the community (including [Officer A] and his spouse) and from members of the church upon his release from detention, are all factors which weigh in favour of not cancelling the visa. The Tribunal has also given weight to [Officer A’s] assessment that the applicant is not a threat to the community and that he would make an excellent contribution to Australia. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    R. Skaros
    Senior Member