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

1. 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).

2. 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.

3. 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.

4. 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.

5. The applicant was not represented at the hearing in relation to the review.

   consideration of Claims and evidence

6. 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

7. 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.

8. 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 REASONS

   Does the ground for cancellation exist?

   s 116(1)(g) - prescribed ground

9. 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) provides; that there is ground for cancellation if the visa holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.

10. In this case as recorded in the record of decision, a copy of which the applicant provided to the Tribunal, the applicant has been convicted of the following offences [in] February 2017 before [Court 1]:

    (i)Possess prohibited drug, case [number];

    (ii)Deal with property proceeds of crime less than $10,000.00, [case number]; and

    (iii)Goods suspected stolen in/on premises, [case number].

    In this regard the Tribunal also notes that the department’s file contains a Certificate of Conviction under the provisions of s 178 of the Evidence Act (NSW) (1995) from [Court 1] and an Advice of Court Result which reports the applicant having been convicted by that Court of the offences listed above [in] February 2017. The certificate also indicates that the drug charge was in relation to the applicant’s possession of [cannabis]. The Advice form also indicates that the applicant plead guilty to these charges and the property subject to the goods and property charges was ordered to be returned to the owner. Both documents indicate that the applicant was sentenced to a 2-year Good Behaviour Bond.

11. The record of decision also indicates, as to the applicant’s compliance with visa conditions, that the applicant’s visa had a condition to report as directed. The record reports that the applicant had failed to attend four scheduled interviews on 14 November 2016, 13 January 2017, 18 January 2017 and 16 March 2017.

12. On 21 February 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) and invited to provide comments at an interview on 16 March 2017. The applicant did not attend this scheduled interview.

13. During the review the applicant agreed that he had been convicted of the offences as listed above at paragraph 10. He stated that he had committed the offences that related to [specified offences] at a time when he was suffering from the loss of his [family members] in Iraq and when he had turned to illicit drug use (ICE – methylamphetamine) as a coping mechanism for his grief.

14. The applicant in reply to the Tribunal during the hearing also accepted that he had failed to attend the 4 scheduled interviews with the department as identified above at paragraph 11. His explanation for his non-attendance was that he had been ill on all those dates. As to his failure to provide an explanation to the department for his non-attendance, his evidence was that as he had, after failing to attend the 14 November 2016 interview, obtained a medical certificate he believed such certificate was sufficient in explaining any later illness and inability to attend the scheduled interviews with the department.

15. The Tribunal after careful consideration of the facts and reasons provided by the applicant, finds that the ground for cancellation in s 116(1)(g) and Reg 2.43(1)(p)(i) of the Act 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

16. 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.

17. 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.

18. 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.

19. 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’.

    Primary considerations

    Government’s view

20. The Tribunal is aware that as part of the Tribunal’s exercise of the discretion it must take into account the Australian government’s view that the grounds for cancellation should be applied rigorously, as part of the matters to be considered, rather than simply follow that view: ACH15 v MIBP [2015] FCCA 1250 at [33].

21. In this case the applicant having been convicted of Possess prohibited drug, Deal with property proceeds of crime less than $10,000.00 and Goods suspected stolen in/on premises, the Tribunal has considered the circumstances of this offending including the penalty imposed, the amount and type of drugs involved, the value of the personal property of another and the issues raised by the applicant. Those issues raised by the applicant are what he has stated as being the genesis or background circumstances to his offending, committing these offences, his use of ICE (methylamphetamine) as a coping mechanism to address his grief arising from the death of his [family members] in Iraq.  After careful consideration of these circumstances and noting that Direction 63 relevantly at ‘4.3 – Principles’ provides at (2) that:

    All non-citizens residing in the community are expected to abide by the law…

    At (3):

    The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa…

    At (5):

    Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold Bridging E visa while they await the resolution of their immigration status…

    And at (6):

    The person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.

    The Tribunal finds that notwithstanding the applicant’s personal situation prior to and/or at the time of his offending, the community-based sentence he received that the offending was serious in nature given it involved the taking and selling of another’s personal property. Therefore, the Tribunal finds that this consideration weighs in favour of cancellation of the applicant’s Bridging E visa.

    The best interests of any children

22. 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 considerations

    The impact of a decision to cancel the visa on the family unit

1. 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

2. 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

3. 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

4. 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.

5. The Tribunal finds that notwithstanding the possible consequences of cancellation, which may result in possible indefinite detention, that this consideration weighs in favour of cancelling the applicant’s Bridging E visa.

   Other considerations

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to ore remain in Australia

6. The applicant arrived in Australia as an Irregular Maritime Arrival [in] March 2013 and sought protection. He has subsequently been granted several temporary visas and exhausted his review and appeal rights as to his application for a protection visa. He is not the holder or presently has an application for any other substantive visa. Notwithstanding his marriage to an Australian resident and being the father of an Australian citizen given the Court’s rejection of his application for protection and when considering all of the applicant’s circumstances the Tribunal finds that this consideration weighs in favour of cancelling the applicant’s Bridging E visa.

   The extent of compliance with visa conditions

7. The delegate’s decision record refers to non-compliance by the applicant with visa conditions 8564 (must not engage in criminal behaviour) and 8401 (report as directed). The Tribunal finds that this consideration weighs in favour of cancelling the applicant’s Bridging E visa.

   Past and present behaviour of the visa holder towards the Department

8. The applicant did not respond to the NOICC by attending the scheduled interview of 14 November 2016 and failed to attend 3 further scheduled interviews as outlined above at paragraphs 11 and 14. The Tribunal finds that this consideration weighs in favour of cancelling the applicant’s Bridging E visa

   Whether there would be consequential cancellations under s 140 of the Act.

9. The circumstances of the applicant’s case are such that no other person’s visa would be consequentially cancelled by way of the operation of s 140 of the Act. The Tribunal places no weight on this consideration.

   Any international obligations

10. The Tribunal has addressed the considerations of the best interest of and children and the family unit above at paragraphs 22 and 23.

11. Non-refoulment obligations are obligations not to forcibly return, deport or expel a person to a place where they would be at risk of harm. The applicant has been found not to be owed protection obligations and he advised the Tribunal during the hearing that his appeal as to application for a protection visa had been dismissed by the Federal Court. The Tribunal notes that there is no evidence before it of the applicant having any other pending visa applications. The Tribunal is of the view that the applicant has exhausted the process of consideration of his protection claims.

12. The Tribunal also notes that the cancellation of a visa is distinct from removal: COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32]. Consistent with the Full Court of the Federal Court of Australia’s decision in WKMZ v MICMSMA [2021] FCAFC 55, at [151] it is reasonable for the Tribunal to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm given the statements of executive policy that Australia would not do so in the absence of any evidence to the contrary. Given those comments the Tribunal finds that Australia would not be in breach of it’s non-refoulment obligations as a result of the cancellation of the applicant’s Bridging E visa. The Tribunal places no weight on this consideration.

13. 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

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

    David James
    Senior Member