2218493 (Migration) - [2022] AATA 5109

2218493 (Migration) [2022] AATA 5109 (27 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Alison Mary Battisson
CASE NUMBER:  2218493
MEMBER:Wayne Pennell
DATE:27 December 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 27 December 2022 at 9:51am
CATCHWORDS
MIGRATION – Cancellation – Bridging E (Subclass 050) visa – applicant had been charged with multiple criminal offences – applicant had a long history of mental health symptoms - risk of self-harm – best interests of children under the age of 18 in Australia would be affected by the cancellation –– decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 359, 499
Migration Regulations 1994, r 2.43
CASES
CKL21 v Minister for Home Affairs [2021] FCA 1019
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
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 22 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under section 116 of the Migration Act 1958 (‘the Act’).
The delegate cancelled the visa under section 116(1)(g) of the Act on the basis that the applicant had been charged with multiple criminal offences. The details of those charges are discussed later in these reasons. 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 21 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, and the applicant’s associate. For the purpose of these reasons, and to protect the identity of the applicant’s wife and associate, the applicant’s wife is referred to as the pseudonym AMR and the applicant’s associate is referred to as MD.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages and the applicant was represented in relation to the review.
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 section 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 section 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…

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 2218493 (Migration)

Details

AGLC: 2218493 (Migration) [2022] AATA 5109
Case: [2022] AATA 5109
Decision Date: 27 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Bridging E (Subclass 050) visa. The dispute arose after the applicant was charged with multiple criminal offences, including aggravated burglary, unlawful assault, and various contraventions of family violence orders, stemming from an incident involving his former partner. The applicant also had a history of mental health issues, including a risk of self-harm.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 were made out. If so, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including the Minister's Direction No. 63.

In its reasoning, the Tribunal accepted the applicant's evidence and considered the primary and secondary considerations outlined in Minister's Direction No. 63. While acknowledging the government's view that prescribed grounds for cancellation should be applied rigorously, the Tribunal also gave significant weight to the best interests of children under 18 in Australia who would be affected by the cancellation. The Tribunal also took into account the impact on the family unit, the hardship to the visa holder, the circumstances of the ground for cancellation, and the possible consequences of cancellation. After weighing all these factors, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Bridging E visa and substituted a decision not to cancel it.

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 section 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 section 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 section 116(1)(g) of the Act 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 regulation 2.43 of the Migration Regulations 1994 (‘the Regulations’). In the present case, the ground in regulation 2.43(1)(p)(ii) is relevant. The delegate’s notice of intention to consider cancellation dated 22 May 2019 provided that information received from the Victoria Police showed that the applicant had been charged with fifteen criminal offences.[1] Those offences were:[1]The original notification was defective for failing to conform with the requirements of Migration Act 1958, s 127: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FACFC 46.(1)Aggravated burglary – person present; (2)Unlawful assault; (3)A threat to commit a sexual offence; (4)Contravening a family violence safety notice; (5)Contravening a family violence safety notice; (6)Contravening a family violence interim intervention order; (7)Contravening a family violence interim intervention order; (8)Contravening a family violence interim intervention order; (9)Contravening a family violence interim intervention order; (10)Persistent contravention of a family violence notice or order; (11)Contravening a family violence interim intervention order; (12)Contravening a family violence interim intervention order; (13)Unauthorised access to or modification of restricted data; (14)Stalking; and (15)Fail to comply with a lawful direction by a Magistrate. The recipient of the applicant’s behaviour in respect to the charges preferred against him was his former partner. For the purpose of protecting her identity, she is hereinafter referred to by the pseudonym EAM. EAM was [a] worker at the detention centre where the applicant was housed. The facts in regard to the events and circumstances which led to those charges being preferred against the applicant suggest that after being released into the community, the applicant began a relationship with EAM. He subsequently moved into her house for a few months until he found his own place to live. It is suggested that he became obsessed with EAM, and he started to control her. In the first week of January 2018, EAM told the applicant to move out of her house and find his own place to live. He became upset and accused her of sleeping with other men and called her a prostitute. He then took a knife and self-harmed by cutting his wrist.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

In respect to the oral testimony of the applicant, MD and AMR, the Tribunal finds that their evidence was delivered in a spontaneous, consistent and forthright manner. The Tribunal does not consider that there is anything within their evidence that could cast a doubt on the veracity of their testimony. Overall, the Tribunal accepts their evidence. Consideration of discretion In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in regulation 2.43(1)(p) of the Regulations, 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 section 499 of the Act (‘the Minister’s Direction No. 63’). 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 regulation 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 Minister’s Direction No. 63 provides that the 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 given 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 had before it the following material provided by the applicant’s representative: §Representative’s written submissions dated 20 December 2022;§Health Assessment Summary Report dated 10 August 2022 from NC, Senior Practitioner and Counsellor, [name deleted];§Certificate from the Office of the Minister, Papua New Guinea Ministry of Foreign Affairs & Immigration; §Screenshot of the applicant and AMR engaging in [Country 4] resettlement process;§Marriage certificate dated [date] April 2022 for the applicant’s marriage to the AMR;§Copy of a passport issued to AMR;§Documents confirming that AMR is a permanent resident of Australia;§Document from [a] Hospital, Melbourne confirming that AMR is pregnant;§Statements from AMR;§Numerous reports outlining the applicant’s current medical diagnosis;§Medico-legal reports dated 21 May 2019 and 15 July 2019 from MN, [Psychologist].§Statement from MD, Managing Director, [Company 1], Melbourne.§Applicant’s Victoria Police criminal history;§Applicant’s undertaking of Bail dated 19 August 2018;§Letter from SA;§Letter from AB; and§Report by the Acting Commonwealth Ombudsman dated 18 February 2022.