2305515 (Migration)

Case [2023] AATA 1333

2305515 (Migration) [2023] AATA 1333 (3 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  2305259 and
2305515

MEMBER:Simone Burford

DATE:3 May 2023

PLACE OF DECISION:  Perth

DECISION:

With respect to case number 2305259     The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

With respect to case number 2305515   The Tribunal sets aside the decision under review and substitutes a decision that the decision by the delegate on 14 April 2023 to cancel the applicant’s Subclass 050 (Bridging (General)) visa was of no legal effect because of the operative effect of the delegate’s decision on 11 April 2023 to cancel the same visa.

Statement made on 03 May 2023 at 4:45pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of several offences – second cancellation decision – timing of charges or conviction – financial hardship – funding a legal defence – best interests of a foreign resident child – working while on a Visitor visa – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 30, 48, 116, 127, 359, 360, 365, 367, 499
Migration Regulations 1994, rr 2.43, 4.21, 4.27

CASES

ACH15 v MIBP [2015] FCCA 1250
Fang v MIMIA [2004] FCA 1387
Fattah v Min Home Affairs [2019] FCAFC 31
Kim v MIAC (2008) 167 FCR 578
Meng v MIAC [2007] FMCA 173
MHA v CSH18 [2019] FCAFC 80
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 41 FLR 338
Swan v Minister for Home Affairs [2019] FCCA 702
Uelese v Minister for Immigration & Border Protection [2015] HCA 15
Zubair v MIMIA (2004) 134 FCR 344

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

APPLICATIONS

  1. There are two applications for review before the Tribunal - a decision dated 11 April 2023 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) and a decision dated 14 April 2023 made by a delegate of the Minister for Home Affairs to cancel the same visa under s 116 of the Migration Act 1958 (Cth) (the Act).

  2. The delegate on both decisions cancelled the visa under s 116(1)(g) because he had been charged with offences in Western Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    BACKGROUND

  3. The applicant is a citizen of Fiji. He first came to Australia in 2003 and has visited multiple times as a tourist or visitor. His latest arrival in Australia was in March 2020 on a Visitor visa.  He held…

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AGLC
2305515 (Migration) [2023] AATA 1333
Case
[2023] AATA 1333
Decision Date

CaseChat Overview and Summary

This matter concerned the review of two decisions by a delegate of the Minister to cancel the applicant's Subclass 050 (Bridging (General)) visa. The applicant, a citizen of Fiji, had been in Australia since 2020 and held various bridging visas pending the outcome of a protection visa application. The first cancellation decision, made on 11 April 2023, was based on the applicant having been charged with offences in July 2021. The second cancellation decision, made on 14 April 2023, was based on the applicant's conviction in November 2022 for common assault and unlawful and indecent assault. The Administrative Appeals Tribunal was required to determine the lawfulness of these cancellation decisions.

The primary legal issues before the Tribunal were whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were made out in relation to both the charges and the conviction, and if so, whether the visa should be cancelled having regard to all relevant circumstances. The Tribunal also considered the procedural validity of the cancellation decisions, including whether the notification requirements under section 127(2)(b) had been met and the implications of any potential jurisdictional error in the delegate's decision-making process. The Tribunal's jurisdiction to review such decisions, even if the primary decision was invalid, was also a key consideration.

The Tribunal reasoned that while the grounds for cancellation under section 116(1)(g) were established by the applicant's charges and subsequent conviction, the review was conducted 'de novo'. The Tribunal noted that procedural defects in the original cancellation decisions, such as inadequate notification or jurisdictional error, did not prevent the Tribunal from reviewing the matter. The Tribunal ultimately found that the second cancellation decision, made after the applicant had sought review of the first, was the operative decision under review. The Tribunal considered the evidence presented, including official records produced under summons, and determined that the visa should not be cancelled. The Tribunal set aside the second cancellation decision.

Orders

Orders of the court

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Background

Background to the litigation

The delegate on both decisions cancelled the visa under s 116(1)(g) because he had been charged with offences in Western Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.BACKGROUND The applicant is a citizen of Fiji. He first came to Australia in 2003 and has visited multiple times as a tourist or visitor. His latest arrival in Australia was in March 2020 on a Visitor visa. He held Visitor visas (or associated Bridging visas) until he lodged a Protection visa application on 30 July 2021. He was granted a Bridging visa A (subclass 010) visa on 24 August 2021 pending the outcome of his protection visa application. The applicant’s Bridging visa A was cancelled on 10 March 2023 pursuant to s 116(1)(g) of the Act because the delegate was satisfied that the applicant had been convicted of criminal offences under Western Australian law [in] November 2022, namely one count of Common assault and one count of Unlawful and indecent assault. The applicant provided a copy of that cancellation decision to the Tribunal with his application for review (the Bridging visa A cancellation decision). The applicant lodged an application for review of that decision with the Tribunal on 12 March 2023.[1] [1] Tribunal ref: 2303513 On 16 March 2023 the applicant was granted a Subclass 050 (Bridging (General)) visa. The applicant provided an unsigned copy of the decision to grant that visa to the Tribunal. The applicant told the Tribunal after he was granted that visa, he decided not to proceed with his application for review of the Bridging visa A cancellation decision. Consistent with this evidence, Tribunal records indicate that on 19 April 2023 the Tribunal (differently constituted) determined it did not have jurisdiction in the matter as the associated fee for lodgement had not been paid. On 11 April 2023 the applicant’s Subclass 050 (Bridging (General)) visa was cancelled (the first Bridging visa E cancellation decision). The applicant was notified of the decision by hand on the same day. The delegate cancelled the visa under s 116(1)(g) because the applicant had been charged with offences in Western Australia on [a day in] July 2021, namely two counts of Common assault and one count of Indecent assault. The applicant sought review of that decision on 13 April 2023.[2] The applicant provided a copy of the notice of intention to cancel his visa and the decision to cancel the visa to the Tribunal.[2] Tribunal ref: 2305259 On 14 April 2023 a delegate of the Minister issued a second notice of intention to cancel the applicant’s Subclass 050 (Bridging (General)) visa (issued on 16 March 2023). A second decision to cancel that visa was made on the same day (the second Bridging visa E cancellation decision). That decision was notified to the applicant by hand on 18 April 2023. The applicant sought review of that decision with the Tribunal on 20 April 2023.[3] The applicant provided a copy of the notice of intention to cancel his visa and the decision to cancel the visa to the Tribunal.[3] Tribunal ref: 2305515

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Issues with respect to the two decisions As noted above, the Department has made two decisions to cancel the applicant’s Bridging visa E, one on 11 April 2023 and one on 14 April 2023. The second decision was made after the applicant sought review of the first decision. With respect to the first Bridging visa E cancellation decision, it appears there were a number of issues with the decision which may have given rise to the purported second decision. The first was that it appeared the notification of the first Bridging visa E cancellation decision did not meet the requirements of s 127(2)(b) of the Act, in that it did not expressly state Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [40]–[44]. As this meant the timeframes for seeking review had not commenced it does not effect the validity of the cancellation decision itself.[4] In any event the applicant applied for review within the statutory timeframes.[4] See s 127(3). Having regard to the second decision it appears the Department took the view that the decision was affected by jurisdictional error because the delegate had failed to properly consider the legal consequences of the decision. Again, as the Tribunal is reviewing the decision ‘de novo’ such an error would not mean the decision is not reviewable by the Tribunal even if rendered the delegate’s decision ineffective[5].[5] Fang v MIMIA [2004] FCA 1387 at [31] – [35]. Cancellation decisions under s 116 are reviewable by the Tribunal if the visa holder was in Australia both at the time of the decision and at the time of the review application. [6] Such decisions will be reviewable even where the primary decision is invalid, for example, because the delegate failed to comply with the mandatory procedural requirements set out in the Act;[7] where the visa should not have been granted[8] or where the person who made the purported decision lacked the requisite delegation.[9] Decisions are reviewable where the visa would have already expired at the time of the Tribunal’s decision.[10][6] Section 338(4) provides that decisions to cancel bridging visas held by a person who is in immigration detention because of that cancellation are reviewable. Non-citizens with cancellation decisions reviewable under this sub-section would be in Australia when their visas are cancelled, as a visa is generally essential for non-citizens to travel to Australia (s 42) and immigration detention applies to and is authorised for unlawful non-citizens in Australia: see ss 178, 189.[7] Zubair v MIMIA (2004) 134 FCR 344 at [28]–[32], applying Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Secretary DSS v Alvaro (1994) 50 FCR 213, Yilmaz v MIMA (2000) 100 FCR 495 and Thayananthan v MIMA (2001) 113 FCR 297. Note, however, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1).[8] Meng v MIAC [2007] FMCA 173[9] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purported decision made by a person who lacked the requisite delegation if a valid application for review is made. It also held that the words ‘powers and discretions that are conferred by this Act on the person who made the decision’ in s 415(1) ([pt 7]; s 349(1) [pt 5]) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective (at [65]).[10] Kim v MIAC (2008) 167 FCR 578 at [32]–[34].

Ratio Decidendi

Legal Principle Established

Having regard to the nature of the information and the information covered which was relevant to the Tribunal’s review was provided in official records produced under summons from the relevant authorities, the Tribunal formed the view it as not necessary to have regard to the material covered by the certificate in determining the reviews. In this regard the Tribunal preferred the official records produced on summons during the review.CONSIDERATION 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.Issues with respect to the two decisions As noted above, the Department has made two decisions to cancel the applicant’s Bridging visa E, one on 11 April 2023 and one on 14 April 2023. The second decision was made after the applicant sought review of the first decision. With respect to the first Bridging visa E cancellation decision, it appears there were a number of issues with the decision which may have given rise to the purported second decision. The first was that it appeared the notification of the first Bridging visa E cancellation decision did not meet the requirements of s 127(2)(b) of the Act, in that it did not expressly state Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [40]–[44]. As this meant the timeframes for seeking review had not commenced it does not effect the validity of the cancellation decision itself.[4] In any event the applicant applied for review within the statutory timeframes.[4] See s 127(3). Having regard to the second decision it appears the Department took the view that the decision was affected by jurisdictional error because the delegate had failed to properly consider the legal consequences of the decision. Again, as the Tribunal is reviewing the decision ‘de novo’ such an error would not mean the decision is not reviewable by the Tribunal even if rendered the delegate’s decision ineffective[5].[5] Fang v MIMIA [2004] FCA 1387 at [31] – [35]. Cancellation decisions under s 116 are reviewable by the Tribunal if the visa holder was in Australia both at the time of the decision and at the time of the review application. [6] Such decisions will be reviewable even where the primary decision is invalid, for example, because the delegate failed to comply with the mandatory procedural requirements set out in the Act;[7] where the visa should not have been granted[8] or where the person who made the purported decision lacked the requisite delegation.[9] Decisions are reviewable where the visa would have already expired at the time of the Tribunal’s decision.[10][6] Section 338(4) provides that decisions to cancel bridging visas held by a person who is in immigration detention because of that cancellation are reviewable. Non-citizens with cancellation decisions reviewable under this sub-section would be in Australia when their visas are cancelled, as a visa is generally essential for non-citizens to travel to Australia (s 42) and immigration detention applies to and is authorised for unlawful non-citizens in Australia: see ss 178, 189.[7] Zubair v MIMIA (2004) 134 FCR 344 at [28]–[32], applying Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Secretary DSS v Alvaro (1994) 50 FCR 213, Yilmaz v MIMA (2000) 100 FCR 495 and Thayananthan v MIMA (2001) 113 FCR 297. Note, however, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1).[8] Meng v MIAC [2007] FMCA 173[9] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purported decision made by a person who lacked the requisite delegation if a valid application for review is made. It also held that the words ‘powers and discretions that are conferred by this Act on the person who made the decision’ in s 415(1) ([pt 7]; s 349(1) [pt 5]) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective (at [65]).[10] Kim v MIAC (2008) 167 FCR 578 at [32]–[34].