2213956 (Migration)

[2022] AATA 4189

2213956 (Migration) [2022] AATA 4189 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213956

MEMBER:Ann Duffield

DATE:30 September 2022

PLACE OF DECISION:  Canberra

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

Statement made on 30 September 2022 at 3:25pm

CATCHWORDS
MIGRATION – Cancellation – Bridging E (Subclass 050) visa – criminal conviction – applicant must remain in Australia to finalise his claims for protection – serious violent assaults – decision under review affirmed

LEGISLATION
Crimes Act 1900 (NSW), S.195(1)(A)
Migration Act 1958, ss 116, 499
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 14 September 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).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been charged and convicted of a crime which attracted a 12-month prison sentence. 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 30 September 2022 to give evidence and present arguments. The Tribunal had sought an earlier hearing date to meet prescribed time frames however the applicant refused to agree to a shortened notification period. Two public holidays and a weekend also contributed to the delay in hearing the matter and meant that the decision had to be finalised on the day of the hearing. The applicant was informed of this at the end of the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   background

5. The applicant is a citizen of Kenya born on [date]. He has lived most of his live in [Town 1], in the Western Province of Kenya. He first arrived in Australia on a student visa in 2013. He has family in Australia.

6. The applicant approached the department on 23 August 2013 seeking voluntary removal from Australia as he felt he was no longer able to meet his obligations as a student and wanted to return to Kenya. He subsequently withdrew that request and lodged an application for a Protection visa in September 2013. That application was refused in December 2013 and appealed to a differently constituted Tribunal on 4 April 2014. That Tribunal was not satisfied that the applicant’s claims were truthful and affirmed the decision to refuse the visa. The applicant appealed that decision to the Federal Circuit Court which remitted it back to the Tribunal for further consideration in 2019. It is currently before a differently constituted Tribunal and due to be heard on 6 October 2022.

7. The applicant was a victim of crime in around July 2019 having been assaulted on the street and hospitalised. He received compensation of $25,000 in relation to that attack in February 2021 of which he received $17,500 after costs.

8. The applicant was charged and convicted on two counts of assaulting a public officer and was interviewed on 14 September 2022 at [City 1] Prison. He was relocated to [a] Detention Centre [around] 20 September.

9. The applicant provided the Tribunal with a submission and copies of his relevant medical records prior to the hearing. These have been discussed, where relevant in the consideration of claims and evidence below.

   consideration of Claims and evidence

10. 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

11. 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)(i) is relevant. It states:

    2.43(1)(p) In the case of the holder of a Subclass 050 (Bridging (General)) visa or a subclass 0521 (Bridging (Protection Visa Applicant)) visa – that the Minister s satisfied that the holder:

    (i) has been convicted of an offence against a law of the Commonwealth, a State a Territory or another country (other than if the conviction resulted in the holder’s last substantive visa being cancelled under paragraph (oa);

12. According to the Delegate’s decision the applicant is the holder of a subclass WE050 visa granted on 12 April 2019. The department cancelled the visa on 14 September 2022 because on the 18 February 2022 he was sentenced to a total of 12 months imprisonment for two accounts of assaulting a public officer. He had already served time in remand prior to his sentencing and completed the balance of his sentence in [City 1] prison.

13. In his interview with the department in relation to the cancellation the applicant understood the reason for the cancellation and admits to committing the crimes for which he was convicted and sentenced. He says it was a mistake and he is of no danger to the community. He states that this sister has a $20,000 bond on the visa. He states that he has been compliant with previous visa conditions when released from detention and the visa should not be cancelled. He states that he has completed all prison programs to help his behaviour. He has a case before the AAT on a protection matter which is due to be heard in October 2022 and this review will be negatively impacted if he is not released.

    Consideration of discretion / conclusions

14. 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

15. 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.

16. 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.

17. The applicant has no children.

18. The Tribunal has considered the secondary considerations in turn.

    The Tribunal has considered the impact of a decision to cancel the visa on the family unit;

19. The applicant has two sisters living in Australia and his mother is currently also here on a visitor visa. It is anticipated that she will return to Kenya in December.

20. The Applicant does not have a positive relationship with his elder sister who resides in [Town 2]. He claims that she abandoned him when he arrived here as a student in 2013. He has a positive relationship with his younger sister who is [an occupation] currently working at [a workplace]. They claim to be close and that their relationship is negatively impacted by his incarceration. The applicant also states that his sister put up a $20,000 bond when he was released from his previous period of detention between 2013 and 2016 when he made an application for a protection visa whilst in detention. She claims that she has not received that back and when asked if the applicant’s incarceration in prison would impact upon her capacity to have it returned, she was uncertain. She claimed that the only condition on the bond was that he report to immigration periodically and not leave the country. She inquired in 2017 about having the bond returned to her but received no response. She inquired again more recently in the past several weeks.

21. The applicant’s sister also told the Tribunal at the hearing that their mother is currently in Australia and distressed at not being able to see the applicant.

22. The Tribunal gives this some positive weight towards not cancelling the applicant’s visa.

    The Tribunal has considered the degree of hardship that may be experienced by the visa holder if the visa is cancelled.

23. The applicant wants to see mother and continue the counselling he was receiving whilst in prison in [City 1]. He states that he needs to be out of detention in order to be able to properly prepare for his protection visa hearing before a differently constituted Tribunal early next week. He states that his sister has the relevant documents with her in [City 1] and he will need to be able to access them. He states that he will live with his sister and mother in [City 1] if he is released

24. The Tribunal gives this aspect of the applicant’s reasons some positive weight to not cancelling the applicant’s visa.

    The Tribunal has considered the circumstances in which the ground for cancellation arose

25. The applicant claims that he pleaded guilty to the assaults on the [staff] in September 2021 and was sentenced to 12 months imprisonment which he served. He told the Tribunal that as a result of trauma he experienced from a previous assault against him, he was only trying to protect himself and accidentally struck out at the [victims]. He states that he is not a violent guy and has avoided trouble since he came to Australia.

26. In this regard the Tribunal notes that the applicant’s evidence is that he was a member of a violent gang in Kenya that has been accused of murder and attacks on civilians. He has also been involved in another court case where he was accused of assaulting a friend. He was on bail in relation to this assault when he was charged with the second assault. This is the reason why he could not get bail for the second assault and why he was instead remanded ahead of his court date.

27. The applicant states that the first assault allegations were resolved, and he was not guilty. He has also been assaulted twice, both times resulting in hospitalisation. On the first occasion in 2019 he received compensation for $25,000. The second incident he claims left him in a coma for three days. He claims not to have known either of the groups of assailants The Tribunal notes in relation to the latter assault that the applicant was hospitalised for three days but there is no mention of him being in a coma.

28. The Tribunal notes that the court in its sentencing would have taken into account the mitigating circumstances, if any, claimed by the applicant in relation to the assaults for which he was imprisoned.

29. In the Tribunal’s mind the applicant has a history of violence, and this appears to have followed him to Australia, although he claims that he has changed. The Tribunal finds it difficult to accept that the applicant’s involvement in four assaults, over a period of just a few years, causing bodily harm and imprisonment has been entirely random.

30. The Tribunal gives this little weight towards not cancelling the applicant’s visa.

    The Tribunal has considered the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia.

31. The applicant travelled to Australia in 2013 to study however abandoned those studies and sought to be returned to Kenya in mid-2013. He claims that his elder sister (the one who lives in [Town 2]) abandoned him and they have not spoken since.

32. The applicant states that he will be significantly harmed or even killed if he has to return to Kenya due to protection reasons and he has lodged an application to make those claims. He claims to have been involved in a gang and harmed many people. He states that there is an arrest warrant out for him and the police will also try to harm or kill him. The Tribunal notes that the application for protection was refused by the department and affirmed by a differently constituted Tribunal in 2014. It was remitted by the Federal Circuit Court in 2019 and is now before a differently constituted Tribunal and due to be heard on 6 October 2022.

33. The Tribunal notes that the applicant must remain in Australia to finalise his claims for protection, however the Tribunal has formed a view, in the context of all the information available, that he will not be disadvantaged from doing so from with a detention environment.

    The Tribunal has considered the possible consequences of cancellation.

34. The applicant states that he will not be able to properly prepare for his case before a differently constituted Tribunal next week and he worries about his psychological wellbeing after another potentially lengthy period of incarceration in immigration detention.

35. The Tribunal has considered whether the applicant will be disadvantaged to the extent that he will be ill prepared for his appearance before the Tribunal next week. The Tribunal notes that the applicant is in [detention centre] and has stated that he will be going to live with his sister in [City 1] prior to the hearing. Putting aside the logistics of this, the Tribunal is not satisfied that the applicant will be so disadvantaged as to jeopardise his case. The Tribunal is mindful that it would be the applicant’s strong preference to be with his family during the preparation of his appearance before the Tribunal, however he has prepared a number of submissions for the Tribunal and has a previous file of relevant material to rely on.

36. The Tribunal gives this little weight towards not cancelling the applicant’s visa.

37. The Tribunal accepts that the applicant has been largely compliant with his visa conditions. The applicant and his sister both told the Tribunal that he reported regularly and as required to the immigration department. He did however overstay his visa in 2013 and was detained under s.189 of the Migration Act.

38. The Tribunal gives this little weight towards not cancelling the applicant’s visa.

39. The Tribunal is satisfied that there are no consequential cancellations under s.140.

40. The consequence of cancelling the applicant’s visa is that he will remain in detention until all matters currently before the department, the Tribunal or the courts are resolved. The Tribunal notes that the applicant has been in detention for three years prior to his current incarceration and that it may take some time to have the matter before a differently constituted Tribunal heard. The Tribunal is also mindful that the applicant and his sister have told the Tribunal that he will live with her until his matters are resolved. Outweighing those considerations however are the fact that the applicant has been involved in several serious violent assaults; both against himself and in relation to his assault on others. He has not worked since he arrived in Australia and claims that the compensation monies he received were stolen as a result of fraudulent activity on his bank account.  He will be relying on his sister for financial support and housing, along with his mother who is also staying with his sister.

41. The Tribunal gives this little weight towards not cancelling the applicant’s visa.

42. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    decision

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

    Ann Duffield
    Senior Member