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

1. 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’).

2. 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.

3. 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.

4. 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.     

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian language.

6. 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

7. 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

8. 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.

9. 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.

10. 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].

11. 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

12. 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.

13. The applicant provided Sentencing Remarks to the previous Tribunal, showing that on [date] 2020, Her Honour [Judge B] of the District Court of South Australia convicted and sentenced the applicant to 11 months and 1 week commencing 8 August 2019. The applicant was released from [named] Prison [in] July 2020 and detained at immigration detention. 

14. In support, the applicant provided:

    ·    An undated written statement made by the applicant.

    ·   A notice of filing relating to an application at the Federal Circuit Court of Australia set down for hearing on 12 July 2023.  This Court date is no longer scheduled as the proceedings in relation to the IAA decision have concluded[3].

    ·   Letters of support from [Mr C] and [Mr D] referring to the applicant’s good character.

    ·   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’.

    [3] [Case citation]. 

15. In the course of the hearing, the applicant agreed that he has been convicted of the above offence. The applicant stated that he pleaded guilty on legal advice. He stated that his lawyer “insisted that I mustn’t say that but I’d like to say that I pleaded guilty to get out prison/jail”. He said he was told if he were to plead guilty, the matter would end otherwise he would be waiting for years at a cost. The Tribunal indicated to the applicant that the Court had accepted his plea and sentenced the applicant. The Tribunal noted that the Tribunal does not go behind the Court’s sentencing. The Tribunal advised the applicant about the privilege against self-incrimination.  The Tribunal advised the applicant of its concerns about the applicant’s evidence that the guilty plea was due to legal advice rather than acceptance of guilt or a demonstration of remorse. The applicant reiterated that the lawyer advised him to plead guilty.

16. The Tribunal advised the applicant that the Tribunal must accept the Court’s verdict and that it is not the role of the Tribunal to reach different conclusions to those reached by the Court. The Tribunal noted that the offence is a serious offence and that it is likely that the Tribunal would find that the ground for cancellation exists.

    FINDINGS & REASONS

17. The applicant’s visa was cancelled pursuant to s 116(1)(g), reg 2.43(1)(p)(ii) which 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. On the evidence, the Tribunal finds that the applicant was charged with (and now convicted of) the offence of “making a child amenable to sexual activity”. For these reasons, the Tribunal is satisfied that the ground for cancellation under s 116(1)(g) reg 2.43(1)(p)(ii) exists.

18. 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

19. 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.

20. 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.

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.

22. 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.

23. 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.

24. The Tribunal considers the offence to be serious. The Tribunal acknowledges and respects the Court’s observations that offences involving children are serious and sexualisation of children causes significant damage to society and to the victims of those offences.

25. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

26. The applicant does not have any biological children. He has however claimed that he is in a relationship and that his partner (Ms X) has [number] children aged between [age] years to [age] years of age.

27. In his undated statement, the applicant referred to Ms X, stating that they are “great friends and she is very supportive of me”.

28. The Tribunal asked the applicant about Ms X. The applicant gave evidence that he last saw Ms X during his incarceration but that they speak daily over the telephone.  The applicant stated that he has been in a relationship with Ms X for a number of years and that they had a business together. The Tribunal noted the fact that the applicant had not provided to the Tribunal corroborative evidence about the relationship. The Tribunal referred to the applicant’s request at the hearing listed on 6 July 2022 and reminded the applicant that the hearing was adjourned for about a month at his request, particularly as he wanted to provide the Tribunal with corroborative evidence about his relationship with Ms X as well as arrange for Ms X to give evidence. The applicant stated that Ms X has declined to be involved in the applicant’s case due to a pending custody matter involving her children. The applicant stated that Ms X was concerned that her involvement in his case might have an adverse impact on the outcome of the custody matter.   He said they have been in a relationship for 5 years which has not ceased.  He said whilst in prison, she visited him every 3-4 weeks.  He said prior to his incarceration, they lived together in both Adelaide and Melbourne and that she knows about the nature of his offending. He said they had a joint [business] in Melbourne which ceased operating due to his incarceration.  He said Ms X tried to keep the business going but it was not possible, and the business was sold.  He said Ms X moved to Adelaide to be closer to him.  

29. The Tribunal reiterated the lack of corroborative evidence concerning the existence or the continuation of the relationship.  The applicant responded by stating “that’s fine”.

30. In relation to Ms X’s children, the applicant stated that cancellation of his visa would have an adverse impact.  He said he was their father figure and had a very supportive relationship, particularly with the “younger one”.  He said the family had financial difficulties, but the relationship improved their position. He said they lived together as a family. He stated that the children do not have their own biological father. He stated that prior to his incarceration and detention, they lived together as a family and he assisted the family financially.

31. The Tribunal noted that the applicant has been convicted of an offence involving a child and as such it is difficult to see how it is in their best interest for him to be around. He stated that his partner would be in the best position to judge the best interest of her children. He stated that had his partner been convinced that his conduct is of concern, she would have left him, but she had concluded that he was worthy of the relationship. He explained to the Tribunal that his partner had attended a number of the Court’s hearings, but she was not called to give evidence. He stated that she had provided a letter of support to both the Court and to the Tribunal. The Tribunal noted that there is no copy of such letter before the Tribunal.

32. Viewed in isolation, the Tribunal sees merit in the applicant’s explanations that Ms X does not wish to be involved in his case due to concerns about potential impacts on the custody matter. However, the Tribunal is of the view that given the potential consequences for the applicant, which could include removal from Australia, it is difficult to accept that Ms X has decided to limit her involvement in the applicant’s case due to impacts on the custody matter. The difficulty is that there is limited evidence before the Tribunal to substantiate the applicant’s claim that he has remained in a relationship with Ms X. The Tribunal appreciates that the applicant has been incarcerated and detained for a number of years and, naturally, the separation would have adversely impacted on the relationship. However, without further corroborative evidence, the Tribunal is not satisfied that the applicant is in a relationship that could objectively be considered to be a continuing relationship. The Tribunal is mindful that this is not a partner visa application and the Tribunal is not using the definition of a partner in the Act, but there is limited evidence of a continuing relationship. On the evidence, the Tribunal is not satisfied that the applicant’s relationship with Ms X is more than a friendship.

33. The Tribunal has considered the Court’s remarks[6] where Her Honour [Judge B] makes the following observations:

    … You have been in an off-and-on relationship with her[7] for around four years. You view that relationship as supportive and you are eager to maintain it in the long-term, including supporting your partner’s [number] children. You told [the psychologist] that being away from the children and your partner since your arrest has been very difficult. You report that it was during one of the periods that you were separated from your partner that the offending occurred due to you being lonely.

    [6] Sentencing Remarks, [date] 2020.

    [7] Referring to Ms X.

34. The Tribunal is mindful that the Court noted that Ms X (and three others) had provided a reference where Ms X described the applicant as being a great father figure to her [number] children and to the support that he had provided her and her family through her major surgery. The Court further noted that Ms X had said that the applicant loved the children as his own and that the children have struggled since the applicant’s incarceration. The Court further noted that Ms X regards the applicant as being trustworthy, reliable and decent.[8]

    [8] Sentencing Remarks, [date] 2020, p 3.

35. The Tribunal has carefully considered the Court’s remarks about the applicant’s relationship. Those remarks were made in June 2020, over two years ago. 

36. For the reasons stated above, and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant is in an ongoing ‘relationship’ with Ms X. However, even if the Tribunal were wrong about this finding, the Tribunal is not satisfied that it is in the best interest of Ms X’s children for the visa not to be cancelled. The Tribunal is mindful that Ms X had provided to the Court a letter of support and she expressed her positive opinions of the applicant and referred to his positive contribution to her family including her children. However, the Tribunal has not had the opportunity to speak with Ms X and to further explore her opinions of the applicant, in the context of his conviction of an offence relating to children. The applicant’s offending is serious and involves a child so from an objective point of view, the Tribunal is not persuaded that it is in the best interest of Ms X’s children to be around the applicant.

37. As Her Honour [Judge B] observed:

    … [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.[9]

    [9] Sentencing Remarks, [date] 2020, pp 3-4.

1. The Court’s remarks are significant; the psychologist opinion that the applicant does not have full insight into the nature of his offending which is objectively very serious is a concern and suggests that it might not be in the children’s best interest to be around the applicant who has been convicted of a sexual offence involving a child and has limited insight into his offending behaviour.

2. In light of the above findings and reasons, the Tribunal gives this consideration neutral weight.

3. The secondary considerations are:

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

4. 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.

5. 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. 

6. 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.

7. 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.

8. 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.

9. 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.

10. The applicant gave evidence that he cannot return to Iran because he had problems in Iran and that his life for the past 10 years has been in Australia.  The applicant came to Australia in July 2013 without a visa by boat.  The applicant has subsequently been granted several temporary visas.  As noted earlier, 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 IAA affirmed the decision to refuse the visa.  The Court has recently upheld the IAA’s decision.

11. The Tribunal is satisfied that the applicant’s claims have been dealt with by the Department, the IAA, and the Court has upheld the IAA’s decision. The applicant is not suggesting that he intends to appeal the Court’s decision, so it is reasonable to say that he has exhausted the legal avenues in relation to the Safe Haven Enterprise (XE 790) visa application.

12. The Tribunal is satisfied that there would be a degree of financial, emotional, and psychological hardship associated with the visa cancellation.

13. On balance, the Tribunal gives this consideration weight against cancellation.

    ·The circumstances in which the ground for cancellation arose.

14. The circumstances arose when the applicant was charged with the offence of “making a child amenable to sexual activity”. He pleaded guilty to the charge and he was convicted. 

15. The applicant indicated to the Tribunal that he only pleaded guilty on legal advice.  He stated that his lawyer “insisted that I mustn’t say that but I’d like to say that I pleaded guilty to get out prison/jail”. He said he was told if he were to plead guilty, the matter would end otherwise he would be waiting for years at a cost.

16. The applicant told the Tribunal that he was represented by a lawyer.  The Tribunal is of the view that it is reasonable to suggest that the lawyer gave advice in the best interest of the applicant, consistent with the lawyer’s obligations.  The Court had accepted his plea and sentenced the applicant.  The Tribunal has noted the sentencing Court’s remarks about the applicant’s level of insight and a psychologist provided an opinion that the applicant does not have full insight into the nature of his offending which is objectively very serious.   

17. The Tribunal has noted the applicant’s explanations but the Court has found him guilty.  The Tribunal views the applicant’s offending as serious, and the Tribunal gives this consideration significant weight in favour of cancellation. 

    ·The possible consequences of cancellation.

18. In case of cancellation, the applicant could be detained indefinitely and be involuntarily removed from Australia. He would also face difficulties in applying for any further visas in Australia. 

19. Although those potential consequences are lawful, given his mental health, the Tribunal gives this consideration some weight against cancellation.  The fact that unless the applicant departs voluntarily, he could face indefinite detention weighs heavily against cancellation but it does not outweigh other considerations.

    Other considerations

20. 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’.

    ·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.

21. The applicant came to Australia in July 2013 seeking protection. The applicant has subsequently been granted several temporary visas.  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 IAA affirmed the decision to refuse the visa.  The Court has recently upheld the IAA’s decision.

22. Although the Tribunal is satisfied that the applicant’s purpose to travel and stay in Australia is consistent with him seeking protection, given the Court’s outcome and in consideration of the evidence as a whole, the Tribunal is satisfied that he has no compelling need to remain in Australia.    

23. The Tribunal gives this consideration weight in favour of cancellation.

    ·The extent of compliance with visa conditions.

24. The delegate’s decision record refers to non-compliance by the applicant with visa conditions 8506 (notify of new address)[10], 8564 (must not engage in criminal behaviour), and 8566 (must not breach code of behaviour)[11].

    [10] At the time of the offending, the applicant was living and working in Melbourne but his last known address to the Department was in South Australia.

    [11] This includes the requirement not to disobey any Australian laws including Australian road laws,  must not take part in, or get involved in, any kind of criminal behaviour in Australia.

25. The Tribunal gives this consideration some weight in favour of cancellation.

    ·Degree of hardship that may be caused (financial, psychological, emotional or other hardship).

26. The Tribunal has previously dealt with hardship.

    ·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. The Tribunal has previously dealt with the consideration relating to the circumstances, which do not relate to a relationship breakdown or family violence.

    ·Past and present behaviour of the visa holder towards the Department

28. The applicant responded to the NOICC and he has participated fully in the cancellation process.

29. The Tribunal gives this aspect some weight in the applicant’s favour.

    ·Whether there would be consequential cancellations under s 140.

30. There is no evidence of consequential cancellation under s 140.

31. The Tribunal gives this aspect neutral weight.

    ·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

32. The Tribunal has previously dealt with the mandatory legal consequences.

    ·Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

33. The Tribunal has previously dealt with family unity and the best interest of children.

34. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.

35. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). “Non-refoulement obligations” is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

36. Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

37. The Tribunal will now consider whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act.

38. The applicant came to Australia seeking protection.  Her Honour [Judge B] referred to the applicant’s protection claims, including organising affirmative action strikes, being ‘black-listed’ as a result, the Iranian police looking for the applicant in relation to his workplace actions, and fear of serious harm at the hands of the Iranian authorities which led to the applicant escaping Iran[12].  There is also reference to the applicant’s claims in the Court’s judgment that remitted the first Tribunal decision[13], namely that the applicant’s protection claims include “…being his actual or imputed political opinion, ethnicity, religious views, his and his family’s experiences in Iran, his time spent in Australia or on account of being a returning asylum seeker from Australia…I am extremely fearful of what could happen to me if returned, or the danger it could bring to me family…I was just scared, I wanted to flee from there [Iran]”[14].

    [12] Sentencing Remarks, p 2.

    [13] [Case citation].

    [14] Ibid.

39. The applicant has been found not to be owed Australia’s protection obligations and he has been refused the SHEV.  He advised the Tribunal that the appeal has been determined, in that it was dismissed.  The Tribunal has confirmed that on 5 July 2022, Her Honour [Judge A] dismissed the application[15].  There is no evidence of any other pending applications relating to the SHEV application. The Tribunal is of the view that the applicant has exhausted the process of consideration of his protection claims.  Both the Department and the IAA found that the applicant is not owed Australia’s protection.  The IAA’s decision has been upheld.  On the basis of the available information, the Tribunal is not satisfied that the applicant is owed Australia’s protection.

    [15] [Case citation].

40. Moreover, the Tribunal is mindful that the cancellation of a visa is legally distinct from removal[16] and that, prior to any removal, the Department might undertake an International Treaties Obligations Assessment which will determine if there are any international obligations for consideration. The Tribunal is of the view that it is reasonable to suggest that Australia would not remove a person in breach of international obligations. Consistent with the Full Federal Court’s authority in WKMZ, it is open to the Tribunal to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary.[17]

    [16] COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32].

    [17] WKMZ v MICMSMA [2021] FCAFC 55, at [151].

41. In light of those comments, the Tribunal is not satisfied that Australia would be in breach of its non-refoulement obligations, in case of the cancellation of the applicant’s visa.

42. The Tribunal gives this aspect neutral weight.

    ·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties

43. The subclass  050 (Bridging General) is a temporary visa. The Tribunal has dealt with ties under other considerations.

44. The Tribunal gives this aspect neutral weight.

    Any other relevant matters

45. The applicant has provided letters from [Mr C] and [Mr D] referring to, among other things, the applicant’s kindness and “high standards of social behaviour”.[18]  The Tribunal accepts that [Mr C] and [Mr D] see the applicant in a positive manner and the Tribunal has given their letters of support some weight.

    [18] Letter from [Mr C]

46. The Tribunal has carefully considered the material before it individually and cumulatively. The cancellation process is not intended to be a simple mathematical or formulaic process but an assessment involving a balanced determination. The applicant has been convicted of a serious offence.  Although the Tribunal acknowledges that there is a degree of personal hardship, for the  reasons outlined above, and on balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.

47. 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

48. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Antoinette Younes
    Deputy President