2218403 (Migration)

[2022] AATA 4852

2218403 (Migration) [2022] AATA 4852 (22 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2218403

MEMBER:SM Michael Cooke

DATE:22 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2022 at 4:11pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of serious offences – Unauthorised Maritime Arrival – applicant re-notified after defective cancellation notice – claimed innocence – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 47, 116, 140, 359; Ministerial Direction 63
Migration Regulations 1994, Schedule 8 Condition 8564; r 2.43

CASES

Parata v Minister for Home Affairs (VID461 of 2020)
Wan v MIMA (2001) 107 FCR 133

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 19 February 2018 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 BVE initially on 7 July 2017 under s.116(1)(g) on the basis that the applicant was charged with a variety of serious offences.

3. The NOICC was given to the applicant on 19 February 2018 and the decision to cancel his visa was made on the same day.

4. The initial Departmental decision was later Parata effected. The Department previously notified the applicant that his visa had been cancelled, however, this notification was considered defective following the Full Federal Court judgment in the matter of Parata v Minister for Home Affairs (VID461 of 2020). Therefore, the applicant was re-notified of the cancellation of his Bridging visa E (BVE) (the subject of this review) and informed of his relevant review rights on 13 December 2022. He was also informed that the re-notification did not affect the validity of the initial cancellation.

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

6. The applicant appeared before the Tribunal on 20 December 2022 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.

7. 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

   The Hearing

8. In the hearing the Tribunal outlined the applicant’s criminal history from the delegate’s decision record which indicated that he agreed with the Department that the ground for the cancellation was correct.

9. The Tribunal then alerted the applicant to a s.375A Certificate which was on the Department file and found that it was a valid Certificate. The Tribunal had emailed the Certificate to the applicant’s mobile phone prior to the hearing. The Tribunal, (with the assistance of the Tamil language interpreter), interpreted the text of the s.375A Certificate into Tamil.

10. The Tribunal explained its relevance to the review and under s.359AA that information in it could form a reason or part of a reason for affirming the review. The Tribunal also gave the applicant (as required by the Courts) the “gist” of the information on the Certificate in Tamil via the interpreter. The Tribunal opined that he could see that most of the information on the Certificate was correspondence between the prison authorities, police and the Department regarding the applicant. It was, however, confidential and could not be disclosed to the applicant. The Tribunal then went through the Certificate details expansively giving the applicant the “gist” from disclosable information on the face of the Certificate.  The information was principally paperwork such as communications between the Department and the other authorities informing each other of matters to do with the applicant. He was an unlawful non-citizen and in jail and thus of interest to the authorities.

11. It asked the applicant whether he understood what the Tribunal had explained. The applicant indicated he understood.

12. The Tribunal said in summary that the s.375A Certificate matters were of little interest because the fact was (as he indicated) he had gone to jail for [term] and that was of most import to the authorities and the Tribunal.

13. Following the explanation, the Tribunal asked him if he wanted further time to respond following the hearing. The applicant indicated at first that he did need to take additional time to comment further on the matter but later chose not to request additional time.

14. The Tribunal referred to the criminal convictions and asked the applicant why after such a hazardous trip to Australia to seek refugee status he then committed crimes and compromised his wish to be granted refugee status.

15. The applicant, in response, insisted that the police had got it all wrong. He was the victim of a ‘home invasion’ by other persons and was merely protecting himself from their illicit activity. He had a knife (which he used at work) and with which he tried to protect himself in self-defence. He was asked who these people were. He responded that they were individuals who approached him seeking help and he refused to help them. They broke open his door when he was sleeping and entered without permission. They tortured him. He was asked whether that was why he used a knife. He said he used a knife from work that he had ‘in his back’ at home. The Tribunal asked who they were and if they were terrorists. The applicant did not know their background and they asked for help - which he was unwilling to give.

16. The Tribunal said that he made these statements in the hearing, but the Courts disagreed and said he should go to jail for criminal offences. This indicated his excuse was not valid. He had also not answered the Tribunal’s question regarding who they people were. He said he did not know what they were involved in and their background. They took his wallet, beat him, and took his vehicle and told him to take them somewhere. He was the person who went to the Police to complain. If he were the perpetrator, he would not have contacted the Police.

17. He indicated that there were people from the TMVP (Tamil Makkal Viduthalai Pulikal) who were Tamils but were opposed to the Liberation Tigers of Tamil Eelam (LTTE). They were close to the Government. His biggest fear - and why he could not return to Sri Lanka - was the threat this group posed to his safety, were he forced to return to his homeland.  

18. The Tribunal indicated to the applicant that he might claim that he was innocent and was just behaving in self-defence, but the fact of the matter is that he had spent [term] in jail for the offences he had committed. Thus, having committed criminal offences his case had more onerous considerations attached to it - because of his criminal sentencing. His case now involved the primary considerations found in s.2.43(1)(p)(ii) of the Act. The Tribunal explained that the cancellation under s.116(1)(g) was discretionary. Yet, he had already admitted to the Department that the grounds were true. Thus, the Tribunal would pursue other questions.

19. He informed in answer to the Tribunal that he did not live together with his brother-in-law. Instead, he indicated he shared a house with another individual. He informed that he had some family members in Australia - an aunty and a brother-in-law. The applicant indicated he was not married or partnered. He had lived with his aunt but moved to rent a room in a house with a friend. He lived there for 6 years. He worked at a [company]. His brother-in-law stayed in Melbourne and had a [medical] condition and was in hospital. His sister lived in Sri Lanka looking after their mother.

20. The Tribunal asked him if he was aware what would happen if he lost his case. He replied that if he went back to his [hometown] people from the TMVP group (Tamil Makkal Viduthalai Pulikal) would harm him. They were working in with the Government. The Tribunal asked him what would happen to him if he returned. He said they had taken hold of his and his brother’s [business] and there was a land title dispute presently in the Courts. If he went back, he would be harmed by the TMVP.

21. He explained to the Tribunal that he came to Australia with his brother-in-law. At first, they landed in the Cocos Islands as Unauthorised Maritime Arrivals (UMAs). He was then later removed to Christmas Island, then Darwin and later Queensland followed by Western Australia. He could not understand why he had been detained for 5 years.

22. He informed that the Department refused his application. He did not have any supporting documents. He appealed again and again with the same argument. He could not remember exactly but he thought he appealed again. He was granted a Bridging visa and then when charged in 2018 he had his Bridging visa cancelled. He then went to the Tribunal to seek review (after re-notification).

23. The Tribunal asked him why the cancellation should not be upheld. The applicant responded that he needed to stay in Australia and could not go back. He was living in Australia ‘without mistake’ and then that happened (jail) - which was not his fault. They had taken his property in Sri Lanka and that was why he came to Australia. He needed a visa to stay in Australia so please look favourably on him - he plead with the Tribunal. The authorities had sent him a letter apologising for revealing details of his case.

24. The applicant was asked if he wished to make a personal statement such as why the cancellation should be overturned. He indicated he did and commented forthwith. He said he had told the authorities many times that he could not prove he had problems with the TMVP, but he feared them and would not go back to Sri Lanka. This was why he stayed so long in Australia. They did not accept his explanation and he did not know why the statement that he submitted to the Department was not responded to. The Tribunal asked him what statement was he was referring to. He indicated his fear of the TMVP was why he stayed so long. He did not know why the Department had put him in detention for 5 years and - through no mistake of his - he had been sent to jail. He had informed the Department of this complaint through a lawyer in this statement.

25. 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

26. 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.

27. The delegate’s decision discloses that the applicant was charged initially with the following criminal matters:

    ·3 x counts of ‘intentionally causing injury’

    ·3 x counts of ‘recklessly cause injury’

    ·3 x counts ‘assault with weapon’

    ·1 x count ‘possess weapon’

28. The applicant disclosed that the applicant was eventually convicted and sentenced to a term of [imprisonment] – despite his claimed innocence. This was for two counts of’ intentionally cause injury’ and one count of ‘use controlled weapon without.

29. Subsequently, he was sentenced to [period of] imprisonment with a non-parole period fixed at [term]. The sentence expired in 2019. Since then, he has been in detention.

30. The delegate’s decision discloses that the applicant agreed that the grounds for cancellation exist.

31. 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

32. 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.

33. 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.

34. 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.

35. 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’.

    Consideration of relevant primary and secondary considerations, and any other relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

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

36. The applicant arrived as an unauthorised maritime arrival (UMA) at Cocos Islands having fled Sri Lanka. He made an ongoing XE790 Safe Haven Enterprise application to remain in Australia. This application was refused initially by the delegate and the refusal was affirmed on review by the IAA. He claims to have personal security fears if returned. He is insistent he must stay in Australia for his personal safety. He claims the ‘home invasion’ mentioned in the hearing exemplifies this threat to his personal safety from political individuals. The Tribunal found it hard, in the hearing, to get him to name the actual individuals outside of his claim that he knew them, had helped them previously but on this occasion, they broke down his door and entered uninvited, assaulted him and took his wallet and car. His claim of acting in self-defence must be counterbalanced with the fact that his behaviour on that occasion was considered of such criminal severity that he was convicted and jailed for [period]. He insists due to fear of the TMVP political group in Sri Lanka he cannot return to Sri Lanka. The Tribunal finds his whole explanation (in oral evidence) of the ‘home invasion’ incident to be implausible. This is especially so as he spent an actual period of incarceration of [term] following the fracas.

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

    ·the extent of compliance with visa conditions

38. The delegate’s decision discloses that the applicant (though previously compliant) has breached condition 8564 – ‘not engage in criminal conduct’ and 8566 – ‘not breach the code of behaviour’ - by virtue of his criminal conviction.

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

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

40. The applicant has indicated he is not married or partnered. He has a personal emotional and psychological fear that being returned to Sri Lanka will be a security risk for him from the TMVP political group in Sri Lanka who took ownership of his and his brother’s [business] - he claims.

41. He has also previously been found not to be a refugee.

42. The Tribunal gives this consideration some weight against cancellation.

    ·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

43. The applicant was sentenced to jail on two criminal counts. This is despite his claims in the hearing of self-defence against intruders being his motivation for using a weapon. Thus, the Tribunal finds that the circumstances in which the ground for cancellation arose were not ‘beyond the applicant’s control’. His sentencing includes using a weapon in a criminal way. This sequence of events caused his incarceration for [period] with parole after [term].

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

    ·past and present behaviour of the applicant towards the Department

45. There is no evidence of adverse behaviour by the applicant towards the Department before the Tribunal.

46. The Tribunal gives this consideration some positive weight against cancellation.

    ·whether there would be consequential cancellations under s.140

47. Not applicable.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the applicant 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 applicant from making a valid visa application without the Minister’s intervention.

48. The applicant is presently in detention and has been (he claims) for 5 years. He is also an unlawful non-citizen at present. His removal could result from affirmation of this decision. Pursuant to s.47 of the Act there are provisions in the Act which would prevent him from making a valid visa application without the Minister’s intervention.

49. The Tribunal gives this consideration some positive weight against cancellation.

    ·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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

50. The applicant has no children. He has only an aunt and some relatives living in Australia - he disclosed in the hearing. He has been found not to be a refugee.

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

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

52. Not applicable

    ·any other relevant matters

1. The Tribunal finds the applicant’s explanation for his behaviour on the night of the claimed ‘home invasion’ to be implausible. He claimed that he, himself, informed the Police of the break in and could not be the perpetrator or guilty party. Yet, despite this, the Court rejected his explanation as he was sent down on two criminal charges for [period] and incarcerated for [term] after parole. It is plain from his criminal history that the applicant presents a threat to peace and good order. The Tribunal gives this primary consideration maximum weight in favour of cancellation.

2. Having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   decision

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

   Michael Cooke
   Senior Member