2218838 (Migration) - [2023] AATA 112

2218838 (Migration) [2023] AATA 112 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Sam Issa
CASE NUMBER: 2218838

MEMBER:David James
DATE:3 January 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 03 January 2023 at 10:02am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of several offences – prior application for a permanent visa – periods of unlawful residence – best interests of an Australian child – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 359, 499, 501; Ministerial Direction 63
Migration Regulations 1994, Schedule 8 Condition 8564; r 2.43
CASES
ACH15 v MIBP [2015] FCCA 1250
COT15 v MIBP (No 1) (2015) 236 FCR 148
WKMZ v MICMSMA [2021] FCAFC 55
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 20 December 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 originally cancelled the visa under s 116(1)(g) on 17 March 2017 on the basis that the applicant breached one of the prescribed conditions pursuant to Reg 2.43 (1)(p)(i) of the Act, namely that the applicant had been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country. On 20 December 2022 the applicant was notified of the cancellation and informed in that correspondence that the Department had sent him a Notification of Cancellation letter dated 17 March 2017 by registered post but had since assessed his case and found that he was not correctly notified of this cancellation and was being re-notified by way of a Notification of Cancellation letter dated 20 December 2022 that his Bridging E (Subclass 050) visa had been cancelled. 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 provided a copy of the Department of Home Affairs Notification of Cancellation (under s 116 of the Act) letter dated 20 December 2022, and the Department of Immigration and Border Protection’s Record of Decision (of whether to cancel under s 116 of the Act) dated 17 March 2017 to the Tribunal with his application for review.
The applicant appeared via video-link from the [named] Detention Centre before the Tribunal on 29 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was not represented at the hearing in relation to the review.
consideration of Claims…

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 2218838 (Migration)

Details

AGLC: 2218838 (Migration) [2023] AATA 112
Case: [2023] AATA 112
Decision Date: 3 January 2023

CaseChat Overview and Summary

This matter concerned a review of the cancellation of the applicant's Bridging E (Class WE) visa, Subclass 050. The applicant, an Iraqi national, had arrived in Australia as an irregular maritime arrival in March 2013. He had previously applied for a protection visa, which was refused, and his subsequent appeal to the Federal Court was dismissed. The applicant had been issued a series of bridging visas since his arrival and had been at large without a visa on several occasions, leading to his return to detention. The review was heard by Senior Member David James.

The primary legal issues before the Tribunal were whether the grounds for cancellation of the applicant's visa were made out under section 116 of the Migration Act 1958 (Cth) and Regulation 2.43(1)(p)(i), and if so, whether the visa should be cancelled having regard to all relevant circumstances, including Ministerial Direction No. 63. The Tribunal was required to consider the applicant's criminal convictions, his periods of unlawful residence, and the best interests of an Australian child.

The Tribunal found that the grounds for cancellation were established, noting the applicant's convictions for offences involving the removal of personal property, which arose from his illicit drug use. In considering the relevant circumstances, the Tribunal acknowledged that the applicant was the father of an Australian citizen child, aged [age] years, and that the child and his mother visited the applicant daily. This consideration weighed in favour of the applicant. However, the Tribunal also found that the applicant had not financially contributed to his children in Australia or Iraq, and that his continued detention was likely to exacerbate his depression, despite treatment being available. The Tribunal also noted that the applicant had exhausted his appeal rights for a protection visa and had no active applications for a substantive visa, meaning cancellation would likely result in indefinite detention.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa. The Tribunal concluded that, after careful consideration of all relevant circumstances, the visa should be cancelled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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(g) and Reg 2.43(1)(p)(i). 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.Applicant’s evidence – Review hearing of 29 December 2022 The Tribunal explained the relevant legislative framework as to the review of a Bridging E (Subclass 050) visa cancellation and the relevant considerations as prescribed in Ministerial Direction No. 63. The applicant in reply to the Tribunal indicated that he understood the issues to be considered by the Tribunal as to whether his Bridging visa should be cancelled and that these matters had been explained to him by his lawyer. The applicant’s evidence in reply to the Tribunal’s questions was (in summary) and as relevant that:·He was born on [date] in Iraq and is an Iraqi national. He had been [an occupation 1] in Iraq and had started working when he was [age] years old assisting his father [in his business]. He took over the [duties] when he was [age] years old.·He had married his former wife in Iraq in 2005 when she was [age range] years of age. They have [number] children, [names and years of birth]. He stated that he had left for Australia before his [youngest child’s] birth, and he has not met [this child] who still resides with his older sister and mother in Iraq.·He arrived in Australia at Christmas Island as an Irregular Maritime Arrival [in] March 2013. He claims to have left Iraq after being threatened with harm by members of a religious militia group who he said were known as the Assaeeb Alhaq. He states that he had been working for the Americans [at his occupation] and that was the reason he had been threatened with harm.·He indicated he had applied for a protection visa in Australia which had been refused by the Australian government and he had appealed that decision to the Federal Court where recently his appeal was dismissed. ·He stated that he had divorced his Iraqi wife and since married an Australian resident, [named] [in] August 2014. He explained that he and his new wife have a child, [Son A] who was born in Australia and is an Australian citizen aged [age] years. He said that his wife has [other] children from an earlier marriage and those children are aged between [age range] years. He stated that his wife and son ([Son A]) visit him at the [Detention Centre] every day. He explained that his son, [Son A] suffers from asthma and attends the local hospital daily. His wife supports their son and her other children via government payments through Centrelink. He indicated that he intended to make a Partner visa application in the future but understood he would have to do so offshore. He indicated that he would not agree to voluntarily leave Australia until he underwent a scheduled nasal surgery he had requested, and only if he was allowed to be re-located to a third country of his choice such as Lebanon or Jordan.·He indicated that when he had not been in Immigration detention, he had assisted his wife by taking his son to school and to parks near his wife’s home. Also, whilst in the community, he obtained a Heavy Vehicle license but had not worked in Australia as his visas had not permitted him to do so.·He explained he had been issued with a series of bridging visas since his arrival in Australia and that he had been at large without a visa on several occasions and had been returned to detention on two occasions as a result of him breaching the conditions of his visas.·In response to the Tribunal discussing the grounds for cancellation subject to this review the applicant initially rejected having been convicted of the offences identified in the Record of Decision and instead claimed that he had been convicted of driving under the influence of a drug and that such offence was why he was presently in detention. The Tribunal drew the applicant’s attention to the notification of cancellation letter dated 20 December 2022 and the record of decision dated 17 March 2017 which he had provided to the Tribunal with his review application. The Tribunal with reference to the department’s file also queried the applicant as to his recollection of his earlier review application for medical treatment (case number 2110508) and his responses to the Tribunal’s letter under the provisions of s 359A of the Act. It was highlighted to the applicant that he had previously acknowledged his convictions for the offences identified in the record of decision. The Tribunal identified that the information was relevant insofar as his earlier rejection of his convictions may indicate that he had not been truthful to the Tribunal. After offering the applicant further time to consider this information the Tribunal further explained that he had provided a response to the Tribunal in the earlier matter to the effect that he had thought he was being asked about his visa cancellation arising from the offence of driving under the influence of drugs and not his earlier offending (as outlined below at paragraph 11). It was noted that in his earlier response he had explained that he had at the time of that offending been in a deep depression due to the loss of his [family member] in Iraq and the death of his father (who had allegedly been killed by ISIS) which resulted in him engaging in self destructive behaviour, namely the consumption of amphetamines which he used for self-medication.·The applicant upon being reminded of his earlier responses as outlined in the department’s file was given an opportunity to consider this information but indicated immediately that he had again been confused about which cancellation was being discussed. He then explained to the Tribunal that he had been convicted of the offences subject to the cancellation of 17 March 2017 before [Court 1] and that the [offences] had been committed by him when he was suffering from the loss of his [family members] in Iraq and when he had become depressed and was using ICE (methylamphetamine). ·In response to the Tribunal’s query as to the record of decision also identifying that he had failed to attend 4 scheduled interviews with the department on 14/11/16, 13/01/17, 18/01/17 and 16/03/17. He initially rejected that he had so failed to attend such interviews indicating that he had been sick for one interview and had later obtained a medical certificate. Again, after drawing the applicant’s attention to the record of decision he had provided to the Tribunal and his earlier review application as to a Medical Treatment visa and after being offered time to consider that information he immediately agreed that he had so failed to attend such scheduled interviews but explained (consistent with his earlier explanation to the Tribunal’s s 359A letter arising from the earlier review of his application for a Medical Treatment visa – case no. 2110508) that he had been sick on 14 November 2016 and had later obtained a medical certificate and had thought that such a certificate covered him also for any further ailments. He had, he stated, also been sick on the other scheduled interview days as he is prone to sickness. He explained his non-attendance and failure to provide reasons for his non-attendance as being that he had thought his past medical certificate was sufficient explanation for all further ailments that resulted in his inability to attend interviews.·In response to the Tribunal discussing the relevant considerations (Ministerial Direction 63) the applicant explained that:oAs to the primary considerations, he explained he had made a lot of mistakes and as to future compliance he was now awake to himself. As to the best interests of any children, he explained that as his son [Son A] attends the hospital daily for asthma treatment, he if released from detention could assist his wife with taking their son to hospital and that his son and wife are very keen for him to return home and live with them. He further explained that his son ([Son A]) thinks that the applicant works at the detention centre and often asks his father when he will finish work and return home.oIn response to the secondary considerations being identified to the applicant, he indicated that his continued detention would likely increase his depression, however he conceded medical, psychological and psychiatric treatment was available in detention, but he had not sought any such assessment and/or treatment.FINDINGS AND REASONSDoes the ground for cancellation exist?s 116(1)(g) - prescribed ground

Decision

Reasons for decision

The Tribunal after careful consideration has found that the ground for cancellation exists and having considered all other relevant circumstances of the applicant’s case finds that the visa should be cancelled.decision The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.David JamesSenior Member

Ratio Decidendi

Legal Principle Established

The applicant is presently married to an Australian resident and the father to an Australian child [age] years of age, who resides with his mother in suburban Sydney. He has not in the past when in the community held employment and contributed financially to the care and upbringing of his son who is cared for by his mother who also cares for her [other] children through Centrelink payments. Equally since his arrival in Australia he has not provided any financial support to his [children] in Iraq. However, the applicant and his son [Son A] have enjoyed daily contact through his wife’s daily visits to him at the [Detention] Centre The applicant has also maintained contact with his Iraqi children through his telephone contact with his mother. Given the contact with his Iraqi children is via telephone contact through the applicant’s mother and that has been maintained while the applicant is in detention the real issue for the Tribunal is the contact and impact of the applicant’s Australian son [Son A]. The Tribunal finds that this consideration weighs in the applicant’s favour and against cancellation of the Bridging E visa.Secondary considerationsThe impact of a decision to cancel the visa on the family unit The Tribunal for the reasons outlined above at paragraph 22, finds that this consideration weighs in the applicant’s favour and against cancellation of the Bridging E visa.The degree of hardship that may be experienced by the visa holder if the visa is cancelled The applicant (who entered Australia as an unauthorised maritime arrival) gave evidence that he has exhausted his appeal rights as to his denied application for a Protection visa and is intent on making application for a Partner visa offshore in the future. He presently does not hold nor has an application for a substantive visa. He has not while in Australia financially contributed to his children in Australia or Iraq. His evidence was that his continued detention was likely to cause him further depression and/or mental illness yet he stated he had not sought any diagnosis, assessment and medical and/or psychological or psychiatric treatment which he readily admitted was available in detention. The Tribunal finds that this consideration weighs in favour of the cancellation of the Bridging E visa.The circumstances in which the ground for cancellation arose The Tribunal has considered the circumstances of the applicant’s convictions as discussed above at paragraph 21. The Tribunal notes that the offending arose through the applicant’s illicit drug use and that it involved the removal of the personal property of others; finds that this consideration weighs in favour of the cancellation of the Bridging E visa.The possible consequences of cancellation Given the applicant has exhausted his appeal and review rights as to his Protection visa application and that he does not have any active applications for any other substantive visa, he will, if his Bridging visa remains cancelled remain in detention indefinitely.