2212473 (Migration) - [2022] AATA 3343

2212473 (Migration) [2022] AATA 3343 (19 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Bethany Rose
CASE NUMBER:  2212473
MEMBER:James Lambie
DATE:19 September 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 19 September 2022 at 4:21pm
CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – granted in conjunction with application for protection visa – criminal charges and convictions – breach of intervention order and other offences – imprisonment and other penalties – discretion to cancel visa – ground for cancellation conceded – long period of immigration detention, assault, mental health and treatment, alcohol and drug use – grounds for protection, non-refoulement and possibility of indefinite detention – finely balanced factors and considerable hesitation – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 198, 359A
Migration Regulations 1994 (Cth), r 2.43(1)(p)(ii)

CASES
ACH15 v MIBP [2015] FCCA 1250
MICMSMA v Parata [2021] FCAFC 46
Swan v MHA [2019] FCCA 702
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 25 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground existed, namely that the applicant had been charged with an offence under the law of [State 1], being a ground prescribed in reg 2.43 (1)(p)(ii). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. There were extensive post-hearing submissions, discussed further below. To allow for consideration of these submissions, the time for the Tribunal to make its decision was extended to 19 September 2022.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2212473 (Migration)

Details

AGLC: 2212473 (Migration) [2022] AATA 3343
Case: [2022] AATA 3343
Decision Date: 19 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging E (Class WE) visa granted to the applicant, who had applied for a protection visa. The dispute arose from criminal charges and convictions, including a breach of an intervention order and other offences, which led to imprisonment and other penalties. The applicant's visa was subject to cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, which relate to criminal convictions.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to consider if the applicant had been charged with assault as stated in the notice of intention to consider cancellation, and if the breach of the intervention order was a sufficient ground for cancellation. If the ground was established, the Tribunal then had to consider the relevant circumstances and government policy, as guided by Direction No. 63, in deciding whether to cancel the visa.

The Tribunal found that while there was insufficient evidence to confirm a charge of assault, the applicant was charged with and convicted of breaching an intervention order, which was a sufficient ground for cancellation under the Regulations. However, in exercising its discretion, the Tribunal weighed various factors, including the applicant's long period of immigration detention, documented mental health issues and treatment, alcohol and drug use, and the potential consequences of cancellation, such as non-refoulement obligations and the possibility of indefinite detention. The Tribunal concluded that these finely balanced factors, coupled with considerable hesitation, led it to set aside the cancellation decision.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 050 (Bridging (General)) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.consideration of Claims and evidence Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? 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)(ii) is relevant. The delegate’s Notice of intention to consider cancellation (‘NOICC’), dated February 2018[1], stated:Information has been received by the Department from [State 1] Police that, on 7 February 2018, you were charged with the criminal offences of breach intervention order and assault. Based upon this, it appears that ground may exist for cancelling your WE-050 Bridging Visa under s 116(1)(g), Reg 2.43(1)(p)(ii).[1] It would seem that the original notification of the decision was defective for failing to conform with all of the requirements of s 127 (see MICMSMA v Parata [2021] FCAFC 46). By summons dated 26 August 2022 to [State 1] Police, the Tribunal sought the applicant’s criminal history, summaries of charges, charge sheets and court outcomes. A response to the summons was supplied on 29 August 2022 and provided to the applicant and his representatives under cover of a letter pursuant to s 359A on the same date. The criminal history supplied by [State 1] Police disclosed the following charges and convictions: [The applicant]’s representatives submitted that there wasan error of significance in the … NOICC and the cancellation decision which is currently the subject of this review, being that the delegate erroneously asserts that [the applicant] was charged with assault in relation to the 7 February 2018 offending. While allegations were made to the police, no assault charge was ever made or proven. The assault was improperly relied upon, and it is difficult to ascertain whether, had the delegate not made this error, [the applicant] would have been exposed to the cancellation and detention that followed. The criminal history material does not disclose whether [the applicant] was originally charged with assault in respect of the events of 7 February 2018, although it appears from the police report that that charge, among others, may have been considered. It is also not clear from the Department file upon what basis the assault charge was mentioned in the NOICC. However, [the applicant]’s representative very properly conceded at the hearing that the offence of breaching the intervention order, with which [the applicant] was charged, was sufficient to enliven the prescribed ground. I consider that there is insufficient evidence before me to be satisfied that [the applicant] was charged with assault in respect of the events of 7 February 2018, but I am satisfied that the charge of the breach of the intervention order was made and that it subsequently proceeded to the imposition of a term of imprisonment. That charge, being an offence under the law of [State 1], is sufficient basis for the ground for cancellation to arise. I do not consider that there is any basis upon which to vitiate the NOICC by reason of the nonexistence or withdrawal of an alternative or additional charge.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelleddecision The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.James LambieSenior Member

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) by reference to Reg 2.43(1)(p)(ii) 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 In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled. The primary considerations are:·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation. The secondary considerations are:·the impact of a decision to cancel the visa on the family unit;·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;·the circumstances in which the ground for cancellation arose;·the possible consequences of cancellation; and·any other matter considered relevant. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The 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’. In addition to the police material mentioned above, the Tribunal had before it the following material submitted by [the applicant]’s representatives:·their written submissions dated 1 September 2022;·[the applicant]’s statement dated 1 September 2022;·a report from [Ms A], Senior Trauma Counsellor, [Organisation 1], dated 29 August 2022;·a letter of support from [Ms B], Casework Coordinator, Detention Rights Advocacy program, [Organisation 2], dated 31 August 2022;·a letter from [Mr C], solicitor, [Organisation 2], to Detention Operations, [Immigration Detention Centre], dated 17 December 2021;·Department of Immigration and Border Protection file note of NOICC interview with [the applicant], dated 31 October 2017;·psychologist’s progress notes, International Health and Medical Services (IHMS), dated 15 November 20121 and 19 November 2021;·a medical report from [Dr E], [Medical Centre], dated 8 November 2021;·a medical report from [Dr E], [Medical Centre], dated 31 October 2017;·a medico-legal report from [Dr F], consultant psychiatrist, dated 5 September 2017;·an anxiety checklist dated 31 October 2017;·a letter from [Mr G], Men’s Behavioural Change Facilitator, [Organisation 3], dated 8 November 2017;·Psychological Support Program SME Management Plans, IHMS, dated 19 December 2021 and 12 August 2022;·a medical referral, IHMS, dated 15 November 2021;·a radiology request, IHMS, dated 15 November 2021;·a letter from the WA Department of Health dated 15 November 2021;·an incident report, IHMS, dated 10 November 2021;·a letter to [the applicant] from Eastern Health, dated 11 September 2018;·a risk assessment report, IHMS, dated 16 November 2021;·a psychologist’s clinical report, IHMS, dated 5 August 2022;·clinical records of [Dr H], psychiatrist, IHMS, dated 18 August 2022;·decision of the Immigration Assessment Authority of 8 May 2018;·“Stigma Barriers of Mental Health in Iran: a Qualitative Study by Stakeholders of Mental Health”, Iranian Journal of Psychiatry, 12(3): 163-171, July 2017·Iran 2021 Human Rights Report, United States Department of State; ·DFAT Country Information Report: Iran, Department of Foreign Affairs and Trade, 14 April 2020 (‘the DFAT Report’); ·“Only a matter of time before someone is killed in immigration detention”, The Guardian, 4 September 2022I have read and taken into account all of this material, as well as the material on Department file [Number], a copy of which is also in the possession of [the applicant]’s representatives.