2218941 (Migration)

[2022] AATA 5077

2218941 (Migration) [2022] AATA 5077 (28 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms ANDREA MAIN

CASE NUMBER:  2218941

MEMBER:Ann Duffield

DATE:28 December 2022

PLACE OF DECISION:  Canberra

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 28 December 2022 at 3:58pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant charged with serious offences – charges were dismissed and the applicant acquitted – basis for the cancellation no longer exists – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, s 116; Ministerial Direction 63
Migration Regulations 1994, r 2.43

CASES

Parata v Minister for Immigration (2020) FCCA 1582

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 applicant was notified of the delegate’s decision to cancel his visa on 12 April 2017. He was subsequently re-notified of that decision on 20 December 2022 because the original notification was found to be invalid. He lodged an application to appeal that decision to the AAT on 22 December 2022.

3. On 17 June 2020, the Federal Circuit Court handed down a judgment (Parata v Minister for Immigration (2020) FCCA 1582) which found that a particular Department of Home Affairs decision notification letter used to notify the cancellation of a visa under s 116 was invalid because it did not convey which Part of the Act (Part 5 or Part 7) provided for the review of the decision. If this information is not included in the notification, it will not be a valid notification under the Act and the prescribed period for applying for review will not have started to run and other jurisdiction issues may be rectified that ordinarily could not be. The notification of April 2017 was found to be one of those invalid notifications.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been charged with a number of serious offences. The applicant appealed that decision to the AAT on 20 April 2017 however the AAT found that it had no jurisdiction to review the matter on the basis that the application was lodged outside statutory time limits.

5. As a result of the Perata judgment, and the fact that the applicant lodged an appeal with the AAT within the statutory timeframes, the Tribunal is able to review that initial decision made on 12 April 2017.

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

7. The applicant was represented in relation to the review.

8. 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

9. 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

10. 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.

    Regulation 2.43 Ground(s) for cancellation of visa

    1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    (p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa – that the Minister is satisfied that the holder:

    (ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.

11. On 19 March 2017 the applicant was charged with the following offences:

    a.Aggravated indecent assault

    b.Deprivation of liberty – Criminal Code

    c.Unlawful and indecent assault – Criminal Code

    d.Threat with Intent to Compel the doing of an Act – Criminal Code

12. The applicant was taken into immigration detention on 12 April 2017 and has remained there for some five and a half years.

13. In his interview with the department delegate on 12 April 2017 the applicant agreed that he had been charged with these offences but stated that he was innocent.

14. The applicant, through his representative, has provided the Tribunal with a detailed submission along with the following documents:

    a.The applicant’s Court Outcomes History – Criminal and Traffic – from the Western Australia Police Force.

    b.Letter from [Agency 1] in Victoria providing a detailed account of the applicant’s psychological functioning and his background;

    c.Summary of treatment provided to the applicant submitted by [Agency 2].

15. The Tribunal also has before it a copy of a differently constituted Tribunal’s decision dated 17 September 2021, relating to its review of the department’s decision to refuse the applicant a subclass 785 (Class XD) temporary protection visa. That Tribunal remitted the decision back to the department for reconsideration, having found the applicant to be a refugee.

    Do the grounds for cancellation exist?

16. At the time of the delegate’s decision in April 2017, the applicant was facing several criminal charges as set out in paragraph (11). However, at the time of the Tribunal’s decision those charges were either dismissed or the applicant was acquitted .

17. The applicant has provided the Tribunal with his court outcomes history showing that [in] March 2018, the charge of Threat with Intent to Compel the Doing of an Act was dismissed by [Court 1]. [In] December 2018, the applicant was acquitted of the remaining charges of Deprivation of Liberty and Aggravated Indecent Assault.

18. Therefore the basis upon which the cancellation was made no longer exists and has not existed for some time. Ministerial Direction 63 provides that:

    Where a Bridging E visa holder has been charged with an offence(s), but the charge(s) is/are dismissed, cancellation is not appropriate. Similarly, where a Bridging E visa holder has been charged with an offence but has been found by a court to be not guilty or the charge is otherwise dismissed, cancellation is also not appropriate.

19. The delegate of the Department provided no other reasons for cancelling the applicant’s Bridging Visa.

20. The Tribunal finds the fact that the charges against the applicant have been dismissed or he was otherwise acquitted of all charges in 2018. There is no evidence before the Tribunal that the applicant is facing any other charges or has been convicted of any crime.

21. For these reasons the Tribunal is not satisfied that the ground for cancellation in s 116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Ann Duffield
    Senior Member