2210931 (Refugee)

[2023] AATA 2386

2210931 (Refugee) [2023] AATA 2386 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Vaughan

CASE NUMBER:  2210931

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Katherine Harvey

DATE:9 May 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 09 May 2023 at 2:12pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – holder of a temporary visa has been convicted of an offence – the ground for cancellation in s 116(1)(g) exists – perceived political opinion – perceived ties with the Liberation Tigers of Tamil Eelam – applicant would suffer extreme hardship if his visa remained cancelled – non-refoulement obligation – compelling need to remain as someone owed protection – decision under review set aside

LEGISLATION

Migration Act 1958, ss 46A, 116, 198

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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) 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 holder of a temporary visa has been convicted of an offence under a law of the Commonwealth, a State or Territory and regardless of the penalty imposed (if any) (reg 2.43(1)(oa)). 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. The applicant appeared before the Tribunal on 3 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review and his lawyer attended the hearing.

5. 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

6. 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?

   s 116(1)(g) - prescribed ground

7. 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)(oa) is relevant:

   (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)).

8. As detailed in the notice of intention to consider cancellation (NOICC), [Court 1] provided the Department with a copy of the applicant’s Certificate of Record as at 3 December 2021, which indicates the following:

Source	Court	Date	Offence	Result
SA	[Court 1]	[Date]/12/2021	Interfere With Motor Vehicle Without Consent Section 86a(1) Criminal Law Consolidation Act, 1935. Refuse Name and Address Section 74a(3)(a) Summary Offences Act	Convictions Recorded – good behaviour bond 18 months, supervised by community corrections officer. Driver’s licence disqualified 12 months from 02/12/2021. Pay costs $937.
SA	[Court 1]	[Date]/10/2021	Drive with Excess Blood Alcohol	Conviction Recorded – Driver’s licence disqualified 14 months from 09/07/2021. Fined $1500 + costs $395, total $1895.
SA	[Court 1]	[Date]/06/2016	Drive with Excess Blood Alcohol. Unauthorised Person Drive Motor Vehicle on Road.	Convictions Recorded – Driver’s licence disqualified 7 months from 15/06/2016. Fined $1100 + costs $260 = $1360. Vehicle impounding costs $500 + levy $160 = $660.

1. The delegate considered that, by the Court finding the applicant guilty of the offences detailed above, he was convicted of those offences and a conviction was recorded for the purposes of regulation 2.43(1)(oa) of the Migration Regulations. The delegate further considered that the grounds exist to cancel the applicant’s Safe Haven Enterprise visa under section 116(1)(g) of the Migration Act and that the prescribed ground for cancellation under reg 2.43(1)(oa) of the Migration Regulations applied to the applicant because he holds a temporary visa and has been convicted of an offence against a law of the State of South Australia.

2. The applicant did not respond to the NOICC. In the pre-hearing submission, he claimed the email notification went into his spam folder and he did not discover it until after the time to respond had expired.

3. The delegate found that the applicant had breached condition 8564 (must not engage in criminal conduct) and 8566 (not breach behaviour) on his Bridging visa E and decided to cancel his Safe Haven Enterprise (subclass 790) visa.

4. At the hearing and in his pre-hearing submissions, the applicant admitted to the non-compliance as he was convicted of five offences on three separate occasions (as detailed above).

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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

6. 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 Procedural Instructions ‘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

7. In the pre-hearing submission, the representative advised that the applicant arrived in Australia to seek protection in November 2012. In December 2016, he was granted a Safe Haven Enterprise visa on the basis of him having been found by a delegate of the Minister to engage Australia’s protection obligations. The first Safe Haven Enterprise visa allowed him to remain in Australia for five years and allowed him to work. Before its expiry, he applied for a subsequent Safe Haven Enterprise visa which, if granted, would allow him to remain in Australia for an additional period. Since being granted his first Safe Haven Enterprise visa, the applicant has lived in regional South Australia and worked at [a workplace] as a [occupation]. Policy indicates that decision makers should assess whether the visa holder has a compelling need to travel or remain in Australia. The applicant has been found to engage Australia’s protection obligations. In Sri Lanka, over a period of months, he was subject to interrogation, detention and torture due to his perceived ties with the Liberation Tigers of Tamil Eelam (LTTE). Even after he was released, he continued to be targeted by authorities. Until his departure in 2012, he was continually approached by authorities and compelled to pay bribes to avoid being detained. He continues to engage Australia’s protection obligations on the basis of his perceived political opinion and his status as a returnee should he be returned to Sri Lanka. The fact that the applicant is a refugee and has fled Sri Lanka to escape persecution gives rise to a compelling reason to remain in Australia. This factor should weigh heavily in favour of the visa not being cancelled.

8. In his application for a Safe Haven Enterprise visa, the applicant claimed to fear persecution and harassment in Sri Lanka from the Sri Lankan authorities and other Tamil paramilitary groups as a Tamil:

   ·who lived and worked in the LTTE controlled area

   ·who worked as a humanitarian worker in the LTTE controlled area assisting injured LTTE cadres and transporting them to the medical centre

   ·who worked as the personal driver for a senior LTTE cadre and doctor

   ·who has some [scarring]

   ·whose brother was an LTTE cadre

   ·who has been tortured by the authorities while being held in detention, and

   ·who illegally departed Sri Lanka.

9. The Tribunal accepts that the applicant was granted a Safe Haven Enterprise visa in December 2016 on the basis of him having been found by a delegate of the Minister to engage Australia’s protection obligations because he faced a real chance of serious harm or a real risk of significant harm if removed to Sri Lanka now or in the foreseeable future. The reasons that the applicant was found to engage Australia’s protection obligations have not changed and the Tribunal finds that the applicant continues to engage Australia’s protection obligations and that he has a compelling need to remain in Australia.

10. The Tribunal gives this aspect significant weight against cancellation.

    The extent of compliance with visa conditions

11. The delegate found that the applicant had breached condition 8564 (must not engage in criminal conduct) and 8566 (not breach behaviour) on his Bridging visa E.

12. In the pre-hearing submission, the representative advised that the Department had not raised any other issues of non-compliance in relation to the applicant. At the hearing, the applicant said that he accepted what he had done was wrong and that he would not commit any offences in the future.

13. The Tribunal is not aware of any other issues of non-compliance in the 11 years the applicant has resided in Australia.

14. The Tribunal gives this minimal weight in favour of cancellation.

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

15. In the pre-hearing submission, the representative advised that the applicant lives alone. His wife and daughter live in Sri Lanka and do not hold a visa to enter Australia. The applicant supports himself and his wife and daughter overseas and they are heavily dependent on his financial support. If the applicant’s Safe Haven Enterprise visa remains cancelled, he will be detained or removed from Australia and will not be in a position to financially support his family. The representative posited that, given the recent introduction of the Resolution of Status visa (RoS), should the applicant’s Safe Haven Enterprise visa be reinstated, it would be converted into a RoS, and further that, if the applicant is granted a RoS, he would have the ability to sponsor his wife and daughter on a Partner visa, allowing them to be reunited. However, if his Safe Haven Enterprise visa remains cancelled, the RoS pathway would not be an option. The representative contended that the degree of hardship caused to the visa holder and his family should his visa be cancelled should weigh heavily in favour of the Safe Haven Enterprise visa not being cancelled.

16. The Tribunal notes that the applicant would need to hold a Temporary Protection visa or Safe Haven Enterprise visa to apply for a RoS and he would need to meet the RoS visa requirements, including health, character and security, to be eligible for a RoS visa. Among the conditions of a RoS visa, the holder can live, work and study in Australia permanently and sponsor eligible family members for permanent residence through the family visa scheme.[1]

    [1] Department of Home Affairs, Subclass 851 Resolution of Status (homeaffairs.gov.au).

17. At the hearing, the applicant explained that he has worked [at a workplace] from the time he came here, [doing specified work]. He has seen his wife, daughter and mother once in [Country 1] since leaving Sri Lanka. He said that he was all by himself and asked the Tribunal when he would be able to see his family or bring them here. The Tribunal explained that it was only reviewing the cancellation and advised him to discuss other issues with his representative.

18. The Tribunal accepts that the applicant would suffer extreme hardship if his visa remained cancelled and the Tribunal gives this aspect significant weight against cancellation.

    Circumstances in which ground of cancellation arose

19. In the pre-hearing submission, the representative advised that the applicant is aware of the errors he has made in the past. He acknowledges that driving with excess alcohol is thoughtless and it is something he regrets. He has taken responsibility for his actions, has paid the relevant fines and complied with his driver’s licence suspensions. The circumstances surrounding the drink driving offences were not beyond the applicant’s control, however he has taken responsibility for his behaviour. The applicant remains unaware of his actions that led to his conviction for interfering with a motor vehicle without consent. The applicant has not reoffended, he has been compliant with the penalties imposed, he is aware of the impact his future behaviour could have on him and his family, and he is no risk to the Australian community. This should weigh somewhat in favour of the Safe Haven Enterprise visa not being cancelled.

20. The representative submitted an Immigration/Citizenship – Australia Name Check Only from the Australian Federal Police dated 2 May 2023 that certifies that all of the disclosable court outcomes recorded against the applicant are those detailed above at [8].

21. The representative submitted a letter from Dr [A] dated 27 April 2023. In his letter, [Dr A] advises (in part) that:

    I first consulted the applicant on 30/10/2019 after an attendance at [a] Hospital Emergency Department following alcohol intoxication. A diagnosis was provided of Post Traumatic Stress Disorder and Adjustment Disorder.

    No formal Mental Health Plan was made and [the applicant] was provided with information to allow him to contact [Refugee] Support Services and a list of the free food supply sites in the region. 

22. The representative submitted that, without negating the seriousness of the offence, this diagnosis points to the applicant’s poor mental health, which continued throughout the COVID-19 pandemic. While not providing an excuse for his actions, the diagnosis provides insight into the applicant’s state of mind, which contributed to his poor decision making.

23. At the hearing, the applicant explained that he had been to his friend’s birthday and drank at 6 o’clock and when he left it was 2 o’clock and he did not know that his body has alcohol. He said that after they checked his alcohol, he accepted that there was alcohol in his body. He said that after seeing his daughter in [Country 1], he got his mental health problem. He said he applied for a visa and was told it was the same five-year visa and he was upset that he would have to wait another five years.

24. The Tribunal does not downplay the seriousness of the risk of people driving with excess alcohol to the community and themselves. Nor were the applicant’s actions beyond his control. However, the Tribunal notes that the applicant is remorseful, that he has taken responsibility for his actions, that he has complied with the court orders and that he has not reoffended.

25. The Tribunal also notes [Dr A’s] diagnosis of Post Traumatic Stress Disorder and Adjustment Disorder. At the hearing, the applicant explained that he had been consulting a doctor about his mental health for a month.

26. The Tribunal gives this aspect neutral weight for or against cancellation.

    Past and present behaviour of the visa holder towards the Department

27. In the pre-hearing submission, the representative advised that the applicant was unaware of the NOICC as it went to his spam mail and, by the time he found the NOICC, the deadline for response had passed.

28. At the hearing, the applicant said he knew emails from the Department were important. He explained that he cannot read English and he tried to forward one email to a friend from his phone and it got deleted and he did not know how to recover it. He said somebody partially recovered another email. There was some confusion at the hearing about which email was deleted and which was partially recovered, however there was no indication that the applicant intentionally failed to respond to the notice. There is no evidence before the Tribunal of any untoward behaviour towards the Department.

29. The Tribunal finds that this should weigh minimally against cancellation.

    Whether there would be consequential cancellations under s 140

30. In the pre-hearing submission, the representative advised that no other persons would be cancelled under s 140 of the Act. However, if his Safe Haven Enterprise visa remained cancelled, the applicant would lose the opportunity to obtain permanent residency in Australia, which would in turn remove any opportunity for his wife and child to be sponsored to join him at a later date. The representative claimed that this should weigh against the visa being cancelled.

31. The Tribunal accepts that there would not be any consequential cancellations and gives this aspect neutral weight for or against cancellation.

    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. In the pre-hearing submission, the representative advised that the applicant is a citizen of Sri Lanka. The legal consequence of a decision to cancel his visa is that the applicant would no longer hold a visa authorising him to stay in Australia. He could be subject to detention under s 189 of the Act and subject to removal from Australia as soon as reasonably practicable under s 198. Sections 46A and 48 will apply to the applicant, leaving him limited options to apply for a visa and remain in Australia. Further, he will be subject to Public Interest Criterion 4013, which will result in a three-year exclusion from having new applications for temporary visas approved. If his visa remained cancelled under s 116(1)(g) and he were to apply for another visa to Australia, he would need to demonstrate that compassionate or compelling circumstances that affect the interest of an Australia citizen to justify granting the visa within three years. These consequences are particularly serious given the applicant’s refugee status and the risk of harm he faces if he were returned to Sri Lanka. This factor weighs heavily against cancellation of the applicant’s visa.

33. The Tribunal accepts the information from the representative and gives this aspect significant weight against cancellation.

    Whether any international obligations would be breached as a result of the cancellation

34. In the pre-hearing submission, the representative argued that policy indicates that the decision maker should consider whether the removal of a person would result in a breach of Australia’s non-refoulement obligations. If the applicant’s Safe Haven Enterprise visa remains cancelled and he is removed from Australia to Sri Lanka, there is a real chance that he will face persecution and significant harm on the basis of his imputed political opinion, along with his status as a failed asylum seeker. The representative provided country information to support her contention that the applicant’s claims for protection remain relevant in the current review and argued that, with Australia’s international obligations in mind, this factor should be weighed heavily in favour of not cancelling the applicant’s visa.

1. The Department’s Procedural Instructions advise that special considerations apply for the cancellation of a Protection visa or any other visa held because the visa holder has been assessed as engaging Australia’s protection obligations. The non-refoulement obligation under the Refugees Convention may also be relevant in non-protection visa cases, if the person's life or freedom would be threatened because of a Refugees Convention reason if they are removed from Australia. 

2. The delegate’s decision record indicates that, based on the information provided in the application and having met all other relevant criteria, the applicant was granted a Safe Haven Enterprise visa on 29 December 2016. In his application, the applicant claimed to fear persecution and harassment in Sri Lanka as a Tamil, as detailed at [16].

3. The Tribunal accepts that the applicant was granted a Safe Haven Enterprise visa after being assessed as engaging Australia’s protection obligations, which is a protection finding for the purpose of s 197C(3)(a) of the Act. As a protection finding has been made with respect to the applicant, the applicant cannot be removed from Australia to his home country unless one of the circumstances in s 197C(3)(c) applies, namely the decision in which the protection finding was made has been quashed or set aside, the Minister is satisfied no protection finding would be made in relation to the applicant, or the applicant has asked the Minister in writing to be removed.

4. Unless and until the Minister makes a determination under s 197D(2) or the applicant asks in writing to be removed from Australia, the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on a new assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s Safe Haven Enterprise visa would not, of itself, lead to his removal in breach of Australia’s international obligations on non-refoulement.

5. However, while a decision to cancel a visa is not in itself a decision to remove a person from Australia, and therefore is not a breach of non-refoulement obligations, the Tribunal needs to consider the possibility that a person might be unable to be removed from Australia and therefore may be subject to indefinite detention.

6. If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act, unless he applies for and is granted another visa. As an unauthorised maritime arrival, the applicant is prevented from lodging any visa application under s 46A, unless the Minister exercises his or her power to intervene. The Minister’s power under s 46A and s 48B may only be exercised by the Minister personally and is not compellable or reviewable.

7. If the applicant’s visa remains cancelled and he exhausts any rights to judicial review and he is not granted a further visa, s 196 provides that he must be kept in immigration detention until he is removed from Australia under s 198 or s 199. As the applicant is subject to a protection finding and he cannot currently be removed from Australia, the cancellation of his visa would make him liable for prolonged and indefinite detention unless he decided to voluntarily return to Sri Lanka, which may still constitute a breach of Australia’s non-refoulement obligations.

8. The Tribunal gives this aspect significant weight against cancellation.

   Any other relevant matters

9. In the pre-hearing submission, the representative argued that the applicant not receiving a custodial sentence and the Department not taking steps to cancel his Bridging visa under s 116(1)(e) should support a finding that the applicant has not been deemed such a risk or danger to the Australian community that his convictions warrant the cancellation of his protection visa. Additionally, the consequences of the visa cancellation not being set aside would be extreme as the applicant has and continues to engage Australia’s protection obligations. If the applicant were forcibly returned to Sri Lanka, he would be exposed to a real chance of persecution or significant harm. If his visa remained cancelled, his ongoing Safe Haven Enterprise visa application would not be converted to a permanent visa application, which would also impact his immediate family. Finally, cancellation of a protection visa on the basis of a limited number of offences over an extended period that did not result in custodial sentences would be seen as exercising the discretion in a manner which is in excess of what was necessary for the purpose this cancellation power serves.

10. In addition to the findings above, the Tribunal accepts that the applicant is not a risk or danger to the Australian community and gives this moderate weight against cancellation.

    Conclusion

11. The Tribunal has considered that factors that weigh in favour of cancelling the visa, most significantly that the applicant breached two conditions of his Bridging visa E. However, in balancing all of the relevant factors, the Tribunal considers that the matters to which it has had regard in this matter weigh overwhelmingly against cancelling the applicant’s visa. In particular, the Tribunal gives weight to the reason the applicant is in Australia and his compelling need to remain as someone owed protection, the hardship he would experience if his visa remained cancelled, the mandatory legal consequences of cancellation and Australia’s international obligation against non-refoulement.

12. Accordingly, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

    Katherine Harvey
    Senior Member