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

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 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.
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.
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.
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.
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 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 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…

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.

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Details

Case: [2022] AATA 5077
Decision Date: 28 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging E (Class WE) visa, Subclass 050, held by the applicant. The cancellation was based on the applicant having been charged with serious criminal offences. The applicant had been in immigration detention for over five years.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out. Specifically, the Tribunal considered regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, which prescribes that a visa may be cancelled if the holder has been charged with an offence against a law of the Commonwealth, a State, a Territory, or another country.

The Tribunal found that while the applicant had indeed been charged with several offences at the time the cancellation decision was made, those charges had since been dismissed or the applicant had been acquitted. Consequently, the Tribunal concluded that the prescribed ground for cancellation under section 116(1)(g) no longer existed. As the ground for cancellation was not satisfied, the power to cancel the visa did not arise. The Tribunal set aside the decision to cancel the applicant's 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 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 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. On 19 March 2017 the applicant was charged with the following offences:a.Aggravated indecent assaultb.Deprivation of liberty – Criminal Codec.Unlawful and indecent assault – Criminal Coded.Threat with Intent to Compel the doing of an Act – Criminal Code The applicant was taken into immigration detention on 12 April 2017 and has remained there for some five and a half years. 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. 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]. 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? 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 .

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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