2210577 (Migration)

[2023] AATA 3933

2210577 (Migration) [2023] AATA 3933 (31 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Shamsher Kainth, Bajwa Immigration

CASE NUMBER:  2210577

MEMBER:Michael Ison

DATE:31 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 31 October 2023 at 5:52pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030– applicant was convicted of eight criminal charges for family violence – applicant failed to attend the hearing – lack of information provided by the applicant to the Department and to the Tribunal – Family Violence Intervention Order – unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

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 4 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr [A], who is a [age]-year-old Indian national. Mr [A] is referred to as the applicant in these reasons for decision. The applicant’s immigration history in Australia is summarised as follows.

3. The applicant first arrived in Australia on [date] November 2008 as the holder of a Student (Class TU) (Subclass 573) visa, as the dependent visa applicant of his ex-partner [Ms B], which was valid to 8 December 2010.

4. On 22 December 2010 the applicant was granted a second Student (Subclass 572) visa, as the dependent visa applicant of [Ms B], which was valid to 15 March 2012.

5. On 21 March 2012 the applicant was granted a third Student (Subclass 572) visa as the primary visa applicant, which was valid to 28 February 2013.

6. On 28 February 2013 the applicant was granted an onshore Temporary Work (Skilled) (Class UC) (Subclass 457) visa that was valid to 28 February 2017.

7. On 28 February 2017 Ms [C] applied for an onshore Student (Subclass 500) visa application. The applicant and Master [D] were also include in that Student visa application as members of the family unit of Ms [C].

8. On 30 May 2017 the Department refused those applications for Student visas.

9. On 20 June 2017 [Ms C], the applicant and Master [D] applied to the Tribunal to review the decision to refuse their applications for Student visa. That review was conducted by the Tribunal differently constituted in Tribunal review number 1713037.

10. On 15 February 2019 the Tribunal, differently constituted, affirmed the decision of the delegate not to grant the applicants the Student visas.

11. On 25 February 2020 the applicant applied for an onshore Permanent Protection (Class XA) (Subclass 866) visa.

12. The applicant subsequently separated from [Ms C] who maintains custody of their son Master [D] and on 20 May 2022 [Ms C] and Master [D] applied for their own Protection visas.

13. On 19 July 2022 the applicant’s application for a Protection visa application was refused by a delegate of the Minister.

14. On 25 July 2022 the applicant applied to the Tribunal to review the decision to refuse the applicant’s application for a Protection visa.  That review is being conducted by the Tribunal differently constituted in Tribunal review number 2210732. That review application has not been finally determined by the Tribunal yet.

15. When the applicant applied for his onshore Protection visa application, he was subsequently granted on 2 March 2020 a Bridging C (Subclass 030) visa associated with that Protection visa application. The applicant’s Bridging C visa was granted subject to condition 8101 (not work in Australia) from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).

16. However, on 4 July 2022 the applicant’s Bridging C visa was cancelled under s 116(1)(g) and reg 2.43(1)(oa). It is the cancellation of the applicant’s Bridging C visa that is the subject of this review.

17. The applicant has not held a visa since his Bridging C visa was cancelled on 4 July 2022. 

    The primary decision of a delegate of the Minister

18. The applicant provided the Tribunal with a copy of the primary decision.

19. The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) on the basis that there was ground for cancellation because the applicant was convicted of eight criminal charges for family violence related offending on 17 May 2022 in Victoria. In considering the discretion whether to cancel the applicant’s bridging C visa or not, the delegate found the considerations that weighed in favour of cancellation outweighed the considerations that weighed against cancellation.

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

    Applicant failed to attend the Tribunal hearing

21. On 6 September 2023 the Tribunal invited the applicant to appear before it to give evidence and present arguments on 31 October 2023.

22. The applicant did not appear before the Tribunal on 31 October 2023 to give evidence and present arguments.

23. The applicant was represented in relation to the review by the applicant’s registered migration agent, Mr Shamsher Kainth of Bajwa Immigration. Mr Kainth is referred to in these reasons as the applicant’s representative or the representative. The representative also did not attend the Tribunal hearing.

24. On 18 September 2023 the Tribunal received an email from the representative requesting an extension of time to respond to the Tribunal’s invitation to attend a hearing, which the Tribunal granted, because at that time the representative had not heard back from the applicant.

25. The applicant was sent two short message service (SMS) messages five business days and one day before the Tribunal hearing reminding him of the date of the hearing. The Tribunal did not receive any error message in relation to the delivery of the SMS messages.

26. At the time the hearing was due to commence and shortly after that time a Tribunal officer telephoned both the representative and the applicant. The two telephone calls to the applicant went to voice mail and at the time of this decision the applicant has not responded to a message the officer left for the applicant to call the Tribunal.

27. The representative did not answer the Tribunal officer’s first call at 1.30pm Australian Eastern Daylight Time (AEDT). At 1.39pm AEDT the representative answered the Tribunal officer’s second telephone call and advised the officer that he had still not heard back from his client, the applicant.

28. It is regrettable that the representative did not inform the Tribunal that he was yet to hear back from the applicant prior to the hearing. The Tribunal had booked a three and a half hour hearing for the applicant’s review and incurred the out-of-pocket expense of paying for an accredited interpreter for this period. These costs and inconvenience could have been avoided if the representative had kept the Tribunal informed of the situation with his client, the applicant.

    Tribunal decision

29. The Tribunal has had regard to the information in the Tribunal’s file and the Department’s file provided to the Tribunal.  The Department file provided to the Tribunal included a copy of the Notice of Intention to Consider Cancellation of a visa (NOICC) dated 10 June 2022.

30. 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

31. 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) and reg 2.43(1)(oa). 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?

    s 116(1)(g) - prescribed ground

32. 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 Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant.

33. Regulation 2.43(1)(oa) provides:

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

34. The applicant does not contest that on [date] May 2022 in the Magistrates’ Court of [Victoria] he was convicted of the following criminal charges:

    ·Persistent Contravention of a Family Violence Intervention Order – offence dates 22/07/21 – 10/08/21 (Indictable Offence)

    ·Contravention of a Family Violence Intervention Order – offence date 26/03/22 (Summary Offence)

    ·Contravene Conduct Condition of Bail – offence date 23/04/22 (Summary Offence)

    ·2 x Contravene Family Violence Intervention Order – offence date 23/04/22 (Summary Offence)

    ·Unlawful Assault – offence date 23/04/22 (Summary Offence)

    ·Contravene a Family Violence Intervention Order - offence date 27/04/22 (Summary Offence)

    ·Contravene Conduct Condition of Bail – offence date 27/04/22 (Summary Offence)

35. The applicant was sentenced to 18 days imprisonment, which was time he had already been held on remand and was deemed time served.

36. The Tribunal finds that the applicant has been convicted of multiple criminal offences in Victoria for offending in 2021 and 2022.

37. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) 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

38. 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 Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

39. The applicant’s initial purpose in travelling to and staying in Australia was to accompany his then wife, [Ms B], while she pursued study in Australia. The applicant’s relationship with [Ms B] has ended. The applicant then appears to have entered into another relationship with [Ms C] which has produced a child, the applicant’s son.

40. The applicant has now applied for a Protection visa, the outcome of which has not been finally resolved.

41. The Tribunal accepts that it is lawful for the applicant to pursue protection from the Australian government, and this means the applicant has an ongoing reason to stay in Australia and this ongoing reason gives rise to the applicant having a compelling need at present to remain in Australia. This finding reflects the applicant’s present circumstances and should not be read as support for, or a comment on, the merit or otherwise of his Protection visa application.

42. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

    The extent of the applicant’s compliance with their visa conditions

43. Since arriving in Australia in November 2008 the applicant has held three Student visas, four Bridging A visas, a Subclass 457 visa and a Bridging C visa. Each of these visas has had one or more and different conditions from Schedule 8 to the Regulations attached.

44. There is no evidence before the Tribunal that the applicant has ever been found to have been in breach of a condition of a visa that he has held while in Australia.

45. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

46. As the applicant did not respond to the NOICC, has not provided any information to the Tribunal responding to the discretionary considerations and did not appear before the Tribunal to give evidence, there is no information before the Tribunal as to what hardship the applicant or any of his family members may suffer if his visa is cancelled. There is no information before the Tribunal as to the applicant’s current circumstances including his living arrangements, family arrangements, financial circumstances and health circumstances.

47. The Tribunal acknowledges the applicant has now been living in Australia for 15 years and his [Ms C] and his son continue to reside in Australia. The Tribunal accepts this is a sufficient period of time for the applicant to have become established in the community and to have social and other ties to Australia. If the applicant’s visa is cancelled and he has to depart Australia, noting his application for a Protection visa has not been finally resolved, then the Tribunal accepts that could cause the applicant some emotional hardship.

48. The Tribunal does not find cancellation of the applicant’s visa would cause him or anyone else financial hardship as the last visa held by the applicant between 2 March 2020 and 4 July 2022 was the Bridging C visa which had condition 8101 (not work in Australia) from Schedule 8 to the Regulations attached.

49. Apart from information indicating that there was a Family Violence Intervention Order naming the applicant as the respondent, the Tribunal has not been provided with any information as to what involvement, if any, the applicant has either with [Ms C] or in his son’s life or even whether they are indeed still a family unit. Therefore, the Tribunal is unable to make any finding as to what, if any, hardship members of the applicant’s family would suffer if his visa is cancelled.

50. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight. When an applicant or their family members will suffer significant or great hardship arising from the cancellation of an applicant’s visa the Tribunal as presently constituted usually gives this consideration significant or great weight against the cancellation of the visa. The lack of information provided by the applicant to the Department or to the Tribunal is the primary reason the weight the Tribunal has attributed to this consideration has been considerably reduced in this instance.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

51. The circumstances in which the ground for cancellation arose are that the applicant pleaded guilty to and was convicted of eight family violence related criminal offences in May 2022. Those offences include an offence of personal violence, persistent and multiple breaches of a court order and two breaches of bail conditions.

52. There is no information before the Tribunal to indicate there were any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing.

53. The fact the circumstances in which the ground for cancellation arose include offences of family violence, including an assault, which are offences involving an abuse of power, supports the Tribunal’s view that there were no extenuating circumstances beyond the applicant’s control in relation to those offences.

54. The fact the circumstances in which the ground for cancellation arose include offences of repeat and persistent breaches of a court order and also two breaches of bail conditions indicate to the Tribunal that the applicant does not respect the authority of the courts or the rule of law in Australia which also supports the Tribunal’s view that there were no extenuating circumstances beyond the applicant’s control in relation to those offences.

55. The Tribunal finds that this consideration supports the cancellation of the applicant’s visa, and the Tribunal gives this consideration great weight.

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

56. There is no evidence before the Tribunal that the applicant has been untruthful toward the Department.

57. However, the Tribunal notes that the applicant did not participate in the process leading to the cancellation of his visa, including that the applicant did not respond to the NOICC, which is not mandatory.

58. The Tribunal also notes that since the applicant’s Bridging C visa was cancelled on 4 July 2022 he has not applied for another Bridging visa, such as a Bridging E (Subclass 050) visa, to regularise his immigration status in Australia and therefore has been an unlawful non-citizen for over 15 months now.

59. The applicant’s failure to engage in the cancellation process and his failure to regularise his immigration status in Australia pending the final resolution of his application for a Protection visa causes the Tribunal to find that the applicant has not been cooperative with the Department.

60. The Tribunal finds that this consideration supports the cancellation of the applicant’s visa, and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

61. The information before the Tribunal indicates that there will be no consequential cancellation of any other visa under s 140 of the Act if the applicant’s visa is cancelled.

62. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

63. The mandatory legal consequences of the cancellation of the applicant’s visa are that he would become an unlawful non-citizen and may be detained in immigration detention under s 189 of the Act and may be deported from Australia under s 198 of the Act if he does not voluntarily depart.

64. Cancellation of the applicant’s visa will also mean that he is precluded from applying for some visas under s 48 of the Act while he remains in Australia. This consequence has little practical relevance for the applicant because he already has a Protection visa application that has not been finally determined.

1. In addition, cancellation of the applicant’s visa means he will be affected by Public Interest Criterion 4013 which will limit the applicant’s ability to apply for a temporary visa to return to Australia for a specified period of time.

2. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

   Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

3. Australia owes visa applicants a range of obligations under several international agreements that Australia is a signatory to and has ratified including:

   ·The 1951 Convention relating to the Status of Refugees (the Refugees Convention);

   ·The 1967 Protocol to the Refugees Convention (the Protocol);

   ·The 1966 International Covenant on Civil and Political Rights (the ICCPR);

   ·The 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and

   ·The 1989 Convention of the Rights of the Child (the CRC).

4. The Tribunal has considered whether the cancellation of the applicant’s visa would breach any obligation Australia owes under these international agreements.

   The Refugees Convention, the Protocol, the ICCPR and the CAT

5. At their broadest these international agreements collectively establish:

   ·The rights of refugees who are defined as persons who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside their country of nationality and are unable or, owing to such fear, are unwilling to avail themselves of the protection of that country; or who, not having a nationality and being outside the country of their former habitual residence as a result of such events, are unable or, owing to such fear, are unwilling to return to it;

   ·Create an obligation not to expel or return (known as ‘refouler’) a refugee if their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion or they would be in danger of being subjected to torture;

   ·Enshrine the protection of people’s civic and political rights including the right to:

   o   freedom from discrimination;

   o   equality between men and women;

   o   life;

   o   freedom from torture or cruel, inhumane or degrading treatment or punishment;

   o   freedom from slavery;

   o   liberty and security of person;

   o   freedom of movement;

   o   equality before courts and tribunals;

   o   freedom of conscience, thought and religion;

   o   protection of the family unit; and

   oprotection of children.

6. The primary decision records that the applicant fears returning to India because he is the heir to his father’s assets and believes if he returns he will be killed by his uncle who seeks to inherit the assets of the applicant’s father.

7. The Tribunal notes that the applicant has applied for a Protection visa, which has not been finally determined, and the applicant has not raised any concerns about the possibility of being indefinitely detained in immigration detention in Australia.

8. The Tribunal further notes that cancellation of the applicant’s visa does not mean the applicant will be automatically removed from Australia, despite the wording of s 198 of the Act. A decision to deport the applicant from Australia is a separate decision to the decision to cancel the applicant’s visa. It is not clear to the Tribunal, in the absence of information from the applicant to the contrary, that a decision to remove the applicant from Australia would be made prior to his application for a Protection visa being resolved and therefore the Tribunal is satisfied that cancellation of the applicant’s visa would not potentially lead to the applicant being removed from Australia in breach of Australia’s non-refoulement and other obligations under the Refugees Convention, the Protocol, the ICCPR and the CAT.

   The CRC

9. The CRC provides, in broad terms, that all decisions made in relation to children must consider the best interests of those children as a primary consideration. The CRC, like the ICCPR, recognises the family unit as the fundamental group in society, protects the rights of children to know and be cared for by their parents and further recognises the right of children to grown up in a family environment in an atmosphere of happiness, love and understanding for the full and harmonious development of their personality.

10. The CRC further recognises and requires that Government and countries must take all appropriate measures to protect children from all forms of violence, injury, abuse, neglect, maltreatment or exploitation including while in the care of their parents.

11. It is in this context that the Tribunal is required to consider what is in the best interests of the applicant’s son who, on the most recent information available to the Tribunal, continues to reside in Australia.

12. The Tribunal has no information before it about the living arrangements for, or personal circumstances of, the applicant’s son. The Tribunal also does not have any information about to what extent, if any, the applicant has been, or currently is, involved in his son’s life.

13. What is evident to the Tribunal from the primary decision is that there has been a Family Violence Intervention Order in place and the applicant has repeatedly and persistently breached that Order in both 2021 and 2022.

14. The Tribunal has not been provided with a copy of the Family Violence Intervention Order and therefore is not aware of its terms, conditions and duration including who was named as a protected person under the Order.

15. The existence of a Family Violence Intervention Order and the applicant’s criminal record of eight convictions in May 2022 for family violence offences, including a conviction for unlawful assault, raises at least the possibility that it is not in the best interests of the applicant’s son that the applicant remains in Australia. The Tribunal does not make that finding simply because there is insufficient information before the Tribunal about the applicant’s son and his circumstances for the Tribunal to make any positive finding in relation to Australia’s obligations under the CRC in respect of the best interests of the applicant’s son.

16. For the same reasons, the Tribunal is unable to make any positive findings under the CRC and ICCPR about whether cancellation of the applicant’s visa will breach Australia’s obligations under those agreements to protect and preserve the unity of the applicant’s family in Australia.

17. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

18. The applicant’s Bridging C visa is a temporary visa.

19. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    Any other relevant matter

20. The applicant did not bring any other relevant matter to the attention of the Tribunal.

21. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    Conclusion

22. The discretionary considerations that weigh in support of the cancellation of the applicant’s Subclass 030 (Bridging C) visa are:

    ·The circumstances in which the ground for cancellation arose (great weight); and

    ·The applicant’s lack of cooperation toward the Department (some weight).

23. The discretionary considerations that weigh against the cancellation of the applicant’s Subclass 030 (Bridging C) visa are:

    ·The applicant has a compelling reason to remain in Australia (considerable weight);

    ·The applicant’s compliance with his visa conditions (some weight);

    ·The degree of hardship cancellation may cause the applicant or his family (some weight); and

    ·The mandatory legal consequences of cancellation (some weight).

24. The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Subclass 030 (Bridging C) visa are:

    ·Whether there would be any consequential cancellation of another visa under s 140 of the Act if the applicant’s visa is cancelled;

    ·Australia’s obligations under international agreements;

    ·Whether the applicant holds a permanent visa; and

    ·Any other relevant matter.

25. The Tribunal finds that the discretionary considerations that support the cancellation of the applicant’s visa outweigh the discretionary considerations that weigh against the cancellation of the applicant’s visa.

26. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s Subclass 030 (Bridging C) visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Michael Ison
    Senior Member