2218914 (Migration) - [2023] AATA 322

2218914 (Migration) [2023] AATA 322 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Abu Siddque
CASE NUMBER: 2218914

MEMBER:Wayne Pennell
DATE:4 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 04 January 2023 at 11:12am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of several offences – best interests of the Australian child – non-refoulement obligations – separation from family – balance of primary considerations – decision under review affirmed
LEGISLATION
Family Law Act 1975 (Cth), s 60CA
Migration Act 1958, ss 36, 116, 127, 140, 499; Ministerial Direction 63
Migration Regulations 1994, r 2.43
CASES
ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FACFC 46

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 a 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 section 116 of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa under section 116(1)(g) of the Act on the basis that the applicant had been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country. 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 was originally notified and provided with a notice of cancellation of his Bridging Visa on 6 October 2015, however the original notification was defective for failing to conform with the requirements of the Act,[1] and the notification was subsequently issued to the applicant on 20 December 2022.
[1]Migration Act 1958 (Cth), s 127; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FACFC 46.
The applicant appeared before the Tribunal on 30 December 2022 by video link to give evidence and present arguments. At the time of the hearing, he was in the [named] Detention Centre. The applicant confirmed that he was comfortable participating in the hearing by video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and Persian and English languages and the applicant was represented in relation to the review, with his representative also appearing by video link.
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
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that…

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 2218914 (Migration)

Details

AGLC: 2218914 (Migration) [2023] AATA 322
Case: [2023] AATA 322
Decision Date: 4 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Bridging E (Class WE) visa. The dispute arose after the applicant was convicted of multiple offences, leading the Minister to consider cancelling his visa under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(p)(i) of the Migration Regulations 1994 (Cth), which permit cancellation where an applicant has been convicted of an offence.

The Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances. This involved assessing the applicant's criminal history, which included offences such as unlicenced driving, driving an unregistered vehicle, producing an altered driver's licence, attempted burglary, and aggravated burglary involving a violent assault. The Tribunal also had to consider the primary considerations outlined in Minister's Direction No. 63, specifically the government's view on rigorous application of cancellation grounds and the best interests of any Australian children affected by the cancellation, as well as secondary considerations such as the impact on the family unit and the hardship to the visa holder.

In its reasoning, the Tribunal acknowledged the applicant's submissions regarding the best interests of his children and the impact on his family, including providing paediatric reports and a medical report concerning his mother-in-law. However, the Tribunal found that the prescribed grounds for cancellation were clearly established due to the applicant's extensive criminal convictions, including serious offences. Applying Minister's Direction No. 63, the Tribunal weighed the primary considerations, giving greater weight to the government's policy of rigorous application of cancellation grounds for such offences. While the best interests of the children were considered, the Tribunal concluded that the factors favouring cancellation outweighed those against it.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa.

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 affirmed.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 (Cth) (‘the Regulations’). In the present case, the ground in regulation 2.43(p)(i) is relevant as the applicant has been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country. The delegate’s notice of intention to consider cancellation dated 20 December 2022 provided that information had been received from the New South Wales Police which showed that the applicant had been charged and convicted of multiple offences. Those offences were:(1)The applicant was apprehended by police [in] March 2015 and charged with unlicenced driving of a motor vehicle. He was convicted of this offence in the [Court 1] [in] April 2015. (2)The applicant was apprehended by police [later in] March 2015 and charged with three offences; namely produce an altered drivers licence, unlicensed driving of a vehicle and drive an unregistered vehicle. He was convicted of those offences in the [Court 1] [in] April 2015.(3)[Later in] March 2015, a witness heard his neighbour’s home security intruder alarm being activated at around 11:45am. The applicant was seen running from the neighbour’s property. The witness and another neighbour got into a vehicle and searched the neighbourhood and located the applicant. They apprehended him and held him until the police arrived. When the police inspected the neighbour’s premises they found the fly screen had been removed from a window and the window had been opened. Police also found that at the rear of the premises the sliding screen door and the sliding glass door had both been lifted off their tracks. When interviewed by the police, the applicant said that he only went to that house to visit a friend. He had met his friend about six months earlier. Before he went to the house he had tried telephoning his friend, but his friend would not answer his phone. Being worried about his friend, he went to his friend’s house. The applicant claimed that he did not try to enter the house, all he did was knock on the front door and the side gate just before hearing the security alarm sounding. He was convicted of this offence in the [Court 1] [in] September 2015 (4)The applicant was apprehended by police [in] June 2015 and charged with unlicenced driving of a motor vehicle. He was convicted of this offence in the [Court 1] [in] September 2015. (5)[In] July 2015, the applicant failed to appear in [Court 1] and warrants were issued for his arrest for failing to appear in court and breaching the conditions of his bail. [Later in] July 2015 he was apprehended and arrested by police on those warrants. (6)In the early hours of [a day in] August 2015, the applicant and another person committed an aggravated break and enter of a dwelling. They had travelled to the home of the victim, with whom the applicant and his accomplice were acquainted. The victim was asleep in his home at the time of the offence. The lock on the back door of the house was broken, so to secure the door, the victim used a chair and [items] to wedge it closed. At about 4:00am, the victim was woken from his sleep by noises from the back door. The applicant and his accomplice entered the victim’s home; and they were both wearing rubber gloves and the applicant’s accomplice was armed with a knife. As disguises, the applicant wore a balaclava, and his accomplice wore a [mask]. The applicant’s accomplice brandished the knife at the victim and stabbed him in the [body], causing a cut, and threatened to cut the victim in pieces. The victim was pushed onto a bed by the applicant’s accomplice and the applicant searched the premises and took possession of anything he considered to be of value. This included [an item] as well as various other items. The victim recognised the applicant’s voice, and he was able to remove the applicant’s balaclava and recognise his face. The applicant and his accomplice were later arrested, charged and convicted with the offence of aggravated burglary.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary and the Tribunal concludes that the applicant’s visa should be cancelled.decision The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Wayne PennellSenior Member

Ratio Decidendi

Legal Principle Established

The applicant’s matter involves a cancellation of his Bridging visa pursuant to the provisions contained within section 116 of the Act; and although the Tribunal recognises and appreciates that there are protection issues claims made by the applicant in respect to his antecedents, those issues relate to an application for a protection visa should the applicant choose to make such an application.Consideration of discretion In considering whether the applicant’s visa should be cancelled on the basis of the prescribed grounds in regulation 2.43(1)(p)(i) 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 applicant’s 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: (a)Representative’s written submissions dated 30 December 2022;(b)Marriage certificate showing that the applicant married NN [in] July 2014;(c)Paediatric reports relating to the applicant’s child, TA. The paediatric reports (10 pages) provide an opinion on TA for the period of 2020 – 2022.(d)Birth certificate for the applicant’s second (and youngest) child, TB; (e)Medical report from the [Health Service 1] relating to the health of the applicant’s mother-in-law. The Tribunal has given careful and lengthy consideration to the contents of all of the documents provided by the applicant as outlined above in paragraph 37(b) – (e) inclusive so far as to his argument that the Tribunal should have regard to the primary consideration as provided for in the Minister’s Direction No. 63. That is, the primary consideration of the best interests of children under the age of 18 in Australia who would be affected by the cancellation of the applicant’s visa. Outlined later in these reasons is the Tribunal’s considerations and determination in respect to those documents and their contents.