2206412 (Migration) - [2022] AATA 5272

2206412 (Migration) [2022] AATA 5272 (30 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2206412
DEPUTY PRESIDENT:  Antoinette Younes
DATE:30 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 30 August 2022 at 3:34pm
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence – making a child amenable to sexual activity – consideration of discretion – Direction No.63 – government’s view – best interests of any children – does not have full insight into the nature of his offending – Department’s Procedures Advice Manual PAM3 – non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
Ibrahim v MHA [2019] FCAFC 89
WKMZ v MICMSMA [2021] FCAFC 55
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 13 August 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) of the Act on the basis that the applicant had been charged with a criminal offence. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
This matter was before the Tribunal (differently constituted) previously and, by judgement of the Federal Circuit and Family Court of Australia (Division 2), it was remitted to the Tribunal [in] 2022, to be determined according to law.
The applicant appeared before the Tribunal on 6 July 2022 to give evidence and present arguments. He requested an adjournment to prepare his case in full. The Tribunal agreed and adjourned the hearing. The applicant appeared again before the Tribunal on 10 August 2022.
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian language.
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 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(1)(g) - prescribed ground
A visa may be cancelled under s 116(1)(g) if the…

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 2206412 (Migration)

Details

AGLC: 2206412 (Migration) [2022] AATA 5272
Case: [2022] AATA 5272
Decision Date: 30 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Bridging E visa held by an Iranian national. The applicant had been charged with the offence of making a child amenable to sexual activity. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The legal issues before the Tribunal included whether the applicant's charge constituted a prescribed ground for visa cancellation under the Migration Regulations 1994, specifically regulation 2.43(1)(p)(ii), which relates to being charged with an offence. Furthermore, the Tribunal had to consider the exercise of discretion regarding cancellation, guided by Direction No. 63, which mandates consideration of specified primary and secondary factors.

The Tribunal reasoned that the applicant had indeed been charged with a relevant offence, satisfying the ground for cancellation. In exercising its discretion, the Tribunal gave significant weight to the government's view that such grounds should be applied rigorously. It noted the applicant's conviction and the court's observations regarding the seriousness of the offence and the applicant's limited insight into his offending behaviour. While acknowledging potential hardship to the applicant, including impacts on his business and mental health, and considering the impact on his relationships, the Tribunal found these factors did not outweigh the public interest considerations and the seriousness of the offending conduct. The Tribunal also noted that the applicant's claims of fear of harm in returning to Iran had been legally exhausted.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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(1)(g) - prescribed ground 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) is relevant. Regulation 2.43(1)(p)(ii) provides that there is ground for cancellation if the visa holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country. By way of background, the applicant is an Iranian national who arrived in Australia without a visa by boat [in] July 2013. On 16 August 2013, he applied for a Humanitarian Stay (Temporary) (UJ 449) which was granted on 22 August 2013. The applicant has subsequently been granted several Bridging E visas. The visa granted on 24 February 2017 was cancelled on 13 August 2019 and is the one subject to this review. The applicant applied for a Safe Haven Enterprise (XE 790) visa on 20 January 2017 which was refused on 16 August 2019. On review, the Immigration Assessment Authority (IAA) affirmed the decision to refuse the visa. In the course of the hearing, the applicant advised the Tribunal that the Court upheld the IAA’s decision. The Tribunal has confirmed that [in] July 2022, Her Honour [Judge A] did not find any jurisdictional error in the IAA’s reasons for decision or decision-making process and the application was dismissed[1].[1] [Case citation]. The delegate’s decision record, a copy of which the applicant provided to the Tribunal indicates that on 9 August 2019[2], the applicant was arrested by the South Australian Police and he was charged with “making a child amenable to sexual activity”. On the same day, the applicant was refused bail and remanded in criminal custody to appear at a later date.[2] The delegate’s decision record incorrectly refers to 9 August 2019 but the applicant was arrested on 8 August 2019.NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) & RESPONSE On 13 August 2019 and whilst at [named] Prison, the applicant was issued with a NOICC. The applicant’s response to the NOICC is noted in the delegate’s decision as follows: Police said it happened in early 2018. Police said it was a police operation and they had a police officer pretending to be a child. I don’t remember all that happened.… I have been living away 1 or 1 ½ years. Opening café in Melbourne with partner. Pressure of business downturn stress of the business. I’m not that person. I’m not that sick. I will do anything I can to prove I am good. I have helped people and what [sic] to continue to do good. Planning for the future with my girlfriend.… My business would suffer. I have borrowed money from friends to start business. My relationships has built [sic] over last 4 yrs. It would impact my relationship. She has [number] children, but [number] live with her. [Age] and youngest is [age] yrs. I don’t have any of my own children.

Decision

Reasons for decision

The secondary considerations are:·The impact of a decision to cancel the visa on the family unit In his undated statement provided in response to the NOICC, the applicant noted that he had not seen his family in Iran for over eight years and that he misses them. He stated that he had not been able to have video calls with them due to his incarceration, which has caused him and his family distress. He stated that COVID-19 has also meant that he has not been able to have visitors which also caused him a lot of sadness. He referred to the relationship with Ms X and that they have suffered considerable stress. For the reasons outlined earlier, the Tribunal is not satisfied that the applicant is in an ongoing relationship with Ms X and as a consequence the Tribunal is not satisfied that Ms X and her family would be adversely impacted by a decision to cancel the applicant’s visa. However, even if the Tribunal were wrong about this finding, in that the applicant is in an ongoing relationship with Ms X, given the fact that there has been a significant separation between the couple due to the applicant’s incarceration and detention, and based on the available information, the Tribunal is not satisfied that Ms X and her family would be adversely impacted by the visa cancellation in such a manner to outweigh other considerations. The applicant’s family is in Iran and the visa cancellation might mean that he would reunite with his family, which would be a positive outcome for the applicant and his family. The Tribunal is mindful that the applicant has claimed to fear harm in returning to Iran, but those claims have been exhausted legally; the Court has dismissed the application. From an objective point of view, there does not appear to be any legal impediment for the applicant to be reunited with his family in Iran. On balance, the Tribunal has decided to give this consideration neutral weight. ·The degree of hardship that may be experienced by the visa holder if the visa is cancelled. In response to the NOICC, the applicant indicated that his business would suffer. He noted that he had borrowed money from friends to start his business. He noted that his relationship with Ms X as well as her children would be adversely impacted. The Tribunal has dealt with the consideration concerning the family unit. The Tribunal accepts that the applicant has borrowed money to start a business which has now ceased due to his incarceration and detention. The Tribunal is of the view that there would be a level of financial hardship in case of cancellation; the applicant would not be able to work and as such he would face challenges in paying bills, rent, and any debt. There are two reports of [Mr E], Psychologist, dated 19 August 2021 and 5 October 2021, expressing the opinion that the applicant suffers from anxiety, stress, and ‘severe depression’. In the course of the hearing, the Tribunal discussed [Mr E]’s reports referring to his diagnoses. The Tribunal noted that the reports are brief, dated and do not necessarily comply with the Tribunal’s directions relating to expert evidence. The Tribunal noted that it would consider further the weight to be placed on the reports. The applicant stated that the reason why the reports are dated is because it was difficult for him to access medical and psychological services while he was at the Detention Centre in Adelaide. The applicant gave evidence that he suffers from stress and pressure everyday and that he has difficulty sleeping. He told the Tribunal that he takes medication for stress, anxiety and sleep difficulties, prescribed by doctors (who are not psychiatrists) in the detention centres. Despite the concerns about the reports of [Mr E], the Tribunal accepts that the applicant suffers from anxiety, stress, ‘severe depression’, and sleep difficulties. The Tribunal accepts that the cancellation of the applicant’s visa would have adverse impacts on his mental health status.

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 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. 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 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. The applicant has been charged and now convicted of the offence of “making a child amenable to sexual activity”. There is no evidence before the Tribunal of any other instance of non-compliance. The Tribunal has considered the Court’s remarks[4] where Her Honour [Judge B] makes the following observations:… You told [the psychologist] that you only attracted to women of your age, and that it is your view that any adult/child sexual contact is wrong and that you have no desire to engage in sexual activity with children. You told her that the conversations that you had were part of wider chats in online groups. You told her that when you were arrested you had to look at the arrest information to remember the specific conversations with the complainant.I cannot accept that you did not understand the nature of the conversations you are having with a person that you believe to be 14 years old. You initiated a sexually explicit conversation, and also sent pictures of your penis. That is not general chit chat.[the psychologist] is of the opinion that your engagement in the broader online chat appears to have been motivated by both social activity and sexual drive. I accept that this was the case here. [The psychologist] also opines that you did not have full insight into the nature of your offending.… sexual offending including children is extremely serious. This is reflected in the severity of the penalty imposed by Parliament. The Chief Justice has recently outlined that the purpose of s.63B of the Criminal Law Consolidation Act is to stop sexualisation of children by adults. Of itself, that sexualisation causes considerable damage to society and can, of course, lead to unlawful sexual activity. General deterrence and protection and safety of the community are important considerations in sentencing you. It is for that reason that Parliament has deemed the offence that you have committed to be a serious sexual offence for the purposes of the Sentencing Act 2017.[5][4] Sentencing Remarks, [date] 2020.[5] Sentencing Remarks, [date] 2020, pp 3-4.