2300726 (Migration) - [2023] AATA 2222

2300726 (Migration) [2023] AATA 2222 (1 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2300726
MEMBER:R. Skaros
DATE:1 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 01 February 2023 at 10:45am
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence – unlawful assault – threat to kill – damage to property – assaulting a police officer – consideration of discretion – Direction No.63 – the government’s view – best interests of any children – impact on the family unit – degree of hardship – circumstances in which the non-compliance arose – possible consequences of cancellation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
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 22 December 2017 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 is a [age]-year-old a citizen of Iran. He travelled to Australia by boat as an unauthorised maritime arrival in February 2013. He was granted a Bridging E visa on 14 November 2016 which was valid until 20 August 2017. While holding that visa, in January 2017, the applicant was charged with several offences by Victoria police. In July 2017, he was formally warned by the Department regarding his conduct.
On 26 August 2017, the applicant was granted a further Bridging E visa. The delegate cancelled that visa under s 116(1)(g) of the Act on the basis that the applicant had been charged with further offences. The applicant attempted to apply for review of that decision on 12 January 2018, however the Tribunal (differently constituted) found it did not have jurisdiction to conduct a review. On 19 January 2023, the applicant was renotified of the decision to cancel the Bridging E visa as the Department considered the initial notification to be defective. The applicant applied for review on 20 January 2023, and the Tribunal is satisfied that it has jurisdiction to conduct a review in respect of that decision. The applicant provided a copy of the Notice of Intention to Consider Cancellation (NOICC) (Form 1099) and a copy of the delegate’s decision record to the Tribunal.
The applicant appeared before the Tribunal on 30 January 2023 by video from the Melbourne immigration detention facility to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A], who appeared by video from her home. The Tribunal hearing was conducted with the assistance of an interpreter…

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 2300726 (Migration)

Details

AGLC: 2300726 (Migration) [2023] AATA 2222
Case: [2023] AATA 2222
Decision Date: 1 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Bridging E visa. The dispute arose from the applicant being charged with a range of serious offences, including unlawful assault, making threats to kill, criminal damage, possessing a controlled weapon, committing an indictable offence whilst on bail, and assaulting a police officer. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation decision.

The Tribunal first considered whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) was made out. This required being satisfied that the applicant, as a holder of a Bridging E visa, had been charged with an offence against a law of the Commonwealth, a State, or a Territory. The Tribunal found that the applicant had indeed been charged with numerous offences against the law of Victoria, and therefore, the ground for cancellation was established.

Following the establishment of the ground for cancellation, the Tribunal proceeded to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy as outlined in Direction No. 63. The Tribunal noted the government's view that instances of non-compliance should be considered for cancellation. The applicant had been convicted of some offences, including threats to kill, damage to property, and assaulting a police officer, for which he received a custodial sentence. The Tribunal also considered the applicant's relationship with his sister's children in Australia, who he stated were affected by his detention. However, the Tribunal weighed these factors against the seriousness and number of offences with which the applicant had been charged.

Ultimately, the Tribunal concluded that the circumstances favouring cancellation, particularly the gravity of the charges, outweighed those favouring non-cancellation. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Bridging E 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 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? 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. It provides that a visa may be cancelled, in the case of a holder of a Bridging E visa, if the Minister is satisfied that the holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country. The delegate’s decision record referred to an attachment which detailed the offences that the applicant had been charged with. The applicant did not provide a copy of that attachment. In his statement, the applicant referred to some of the incidents which led to the charges but did not provide details of the charges. At the hearing, the applicant could not recall all the offences he had been charged with prior to the issuing of the NOICC. Using the procedure of s.359AA, the Tribunal particularised the offences with which the applicant had been charged, including the following:·January 2017 - 3x unlawful assault, make threat to kill intending fear and criminal damage. ·August 2017 – possess a controlled weapon without excuse. ·November 2017 - make threat to kill – intending fear.·December 2017 – make threat to kill, commit an indictable offence whilst on bail, recklessly cause injury and assault a police officer. The applicant did not dispute the information put to him and proceeded to give evidence regarding the circumstances which led to him being charged. The applicant also provided details of the outcome of some of the charges. The Tribunal has had regard to the applicant’s evidence as part of its consideration of the discretion further below. For the purposes of determining whether the ground of cancellation exists, the Tribunal is satisfied that the applicant, who was the holder of a Bridging E visa, had been charged with various offences against a law of the state of Victoria. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(p)(ii) 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

Decision

Reasons for decision

The Tribunal, as guided by Direction No. 63, has carefully considered all the evidence before it and weighed up the consideration for and against cancellation of the applicant’s Bridging E visa. While there are several circumstances which favour non-cancellation of the visa, the Tribunal considered that these were outweighed by the circumstances in favour of cancelling the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.R. SkarosSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and any additional relevant matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. Primary considerations The government’s view The government’s view is that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in cl 6 is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The Tribunal is mindful that it must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3] [1] Clause 6(1)(a) of Direction No 63.[2] ACH15 v MIBP [2015] FCCA 1250 at [28]–[31]. [3] ACH15 v MIBP [2015] FCCA 1250 at [33]. In this case, the applicant has been charged with numerous offences, including unlawful assault, threat to kill, damage to property, committing an indictable offence whilst on bail, causing injury and assaulting a police officer, some of which he has been convicted and received a custodial sentence. In his statement, the applicant said he had been sentenced to a total of 16 months imprisonment, with a non-parole period of 10 months, after he and [Ms A] were seen arguing and yelling at each other outside [named accommodation] and the police were called. When asked which offences the conviction related to, the applicant said threats to kill, damage to property and assaulting a police officer. When asked if he was referring to the December 2017 charges, the applicant indicated he was. The applicant also gave evidence that in 2018, which was after his visa had been cancelled, he was charged with breaching a contravention order for which he received two months imprisonment with one month to be served concurrently. He said he was in prison at the time, and it related to phone calls between himself and [Ms A] during which he used swear words. The Tribunal has considered the circumstances which led to the visa being cancelled further below. In relation to the government’s view, the Tribunal considers that the offences for which the applicant has been charged, in respect of each instance of non-compliance, weigh strongly in favour of cancelling the applicant’s visa. The best interests of any children The applicant is not the father of any children who are under 18 years of age. When asked if there were any children in Australia who may be affected by the cancellation of his visa, he said his sister’s children. The applicant gave evidence that he has a sister in Australia who is married with [number] children. He said he and his sister’s children like each other and have a good relationship. His sister calls him every fortnight, including by video, and he gets to speak to the children. They are waiting for him to get out of detention. They visited him in detention on his birthday (in 2020 or 2021) and took him a cake.