2311855 (Migration)

[2024] AATA 2290

2311855 (Migration) [2024] AATA 2290 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2311855

MEMBER:Kate Millar

DATE:5 April 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 05 April 2024 at 1:42pm

CATCHWORDS 
MIGRATION – Cancellation – Subclass 010 (Bridging A) visa – criminal conviction – ongoing review of the decision to refuse his application for a protection visa – compelling need to remain in Australia is met by the grant of a Bridging Visa E – cancelling his Subclass 010 visa will not affect his ability to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, rr 2.12, 2.43, Schedule 2

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. [Mr A] is a citizen of Kenya who has applied for a protection visa in Australia.

2. While his protection visa is being considered, he was granted a Bridging A (Subclass 010) visa.  [Mr A] has been convicted of several offences in Australia, with the most recent being driving under disqualification or suspension, dishonest dealings with documents and giving a false or misleading personal detail to an officer. [Mr A]’s bridging visa was cancelled because of this offending, and he has sought a review of this decision.

3. This is an application for review of a decision dated 1 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

4. Since [Mr A] applied for a review of this decision, [Mr A] advised that refusal of his protection visa was affirmed by this Tribunal (differently constituted), and he has applied to the Federal Circuit and Family Court of Australia.  He said he has been granted a Bridging Visa E (Subclass 050 visa) while this matter is before the Court. 

5. A hearing in this matter was scheduled for 2 February 2024.  [Mr A] sought an adjournment on the basis that he wanted to seek legal advice.  He was asked to provide evidence of an appointment with a lawyer or a notice that a lawyer is acting for him, and he was advised that if this was not provided the hearing would proceed as scheduled.  [Mr A] did not provide any information to show he had sought legal advice and the hearing proceeded on the scheduled date and time. He was asked at the hearing about whether he had obtained legal advice, and he said he had seen a lawyer and wanted to continue with the hearing unrepresented.  [Mr A] appeared before the Tribunal with a support person.

6. 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

7. The matters to be considered are whether a ground to cancel [Mr A]’s visa exists; and, if so, whether his visa should be cancelled.

   Does the ground for cancellation exist?

8. 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). The ground in reg 2.43(oa) is relevant. This states:

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

9. On 31 March 2023 [Mr A] was found to have committed the following offences:

   ·     Drive under disqualification.

   ·     Dishonest dealings with documents.

   ·     Give false or misleading personal detail to officer.

10. He was given a suspended sentence of 48 days with a suspended sentence bond of $500 for 12 months.

11. [Mr A] said he was taking a friend to an interview and the friend kept missing the entrance, so he drove her there which was a short distance.  When he was stopped by police, he gave the police a driver’s licence that was not his because he was disqualified from driving. 

12. [Mr A] has also been convicted [in] March 2021 of failing to comply with breath analysis directions.  [In] November 2016 an offence of trespassing was recorded without conviction.  [In] June 2016 he was convicted of failing to stop at a red light and driving with excess alcohol, and [in] June 2015 he was convicted of driving with excess blood alcohol.

13. As [Mr A] has been convicted of offences against the laws of South Australia, the ground for cancellation in s 116(1)(g) exists.

14. 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

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had 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’.

16. [Mr A] said this has been a stressful time for him because it has taken 5 years to get a decision on his protection visa application and because of his sexuality.  He said the only thing that gave him comfort was alcohol.  He tried to seek help with alcohol but could not stop.  After his last conviction he saw a psychologist as advised by his lawyer, and he has been able to open up about his sexuality which has helped his mental state and self-esteem.  The psychologist encouraged him to re-establish the bond with his family, and he reconnected with his uncles in Australia.  He is not currently seeing a psychologist and ceased in the middle of 2023 because of his finances. 

17. He has not attended any specific drug and alcohol courses but said he has attended a course on anger at Relationships Australia.  He does not have a certificate from the course.  He does still drink but says this is social, and he will have one to two beers at a social event and then leave.  He said he is working almost 7 days a week. 

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. [Mr A] is in Australia claiming Australia owes him protection obligations.  He has an ongoing review of the decision to refuse his application for a protection visa.  As a result, he has a compelling need to remain in Australia until his protection visa application is finally determined.

19. [Mr A] has been granted a Bridging Visa E in connection with his ongoing review of the decision and will not be placed in detention or required to leave if his Subclass 010 visa remains cancelled. 

20. I find [Mr A]’s compelling need to remain in Australia is met by the grant of a Bridging Visa E and cancelling his Subclass 010 visa will not affect his ability to remain in Australia until his protection visa application is finally decided. 

    The extent of compliance with visa conditions

21. [Mr A]’s Subclass 010 was not subject to any conditions, and there is no information before me to show that he has breached the conditions of his previous visas.

22. On the day of the hearing, [Mr A] said he held a Bridging visa E that requires him to attend when required by Immigration, to notify Immigration 2 days before a change to his address and not to commit any offences.

23. On the day of the hearing, [Mr A] said he is required to leave the property he shares with his uncle because the lease was ending.  On being asked if he had given Immigration 2 days’ notice of the change to his address, he said they were still trying to negotiate with the landlord to remain at the property for longer.  He said his lawyer told him they have to provide Immigration with a physical address, and he was not yet sure what his address would be.  While there is some cause for concern that he is complying with the condition to notify Immigration of a change of address, it is assumed in his favour that he has not yet left his current address as they are trying to negotiate remaining at this address, and this is a neutral consideration.

24. [Mr A] was clear about the conditions imposed on his visa and how to comply with these conditions.  As he had not yet left the premises, he has complied with the conditions of his visa, and this consideration is neutral.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. It was submitted for [Mr A] that the cancellation of his visa will result in significant hardship because he has applied for a protection visa.  It is claimed he has reported several suicide attempts and was under the care of a clinical psychologist.  It is claimed on his behalf that his current work and ongoing psychological support are important elements in keeping him occupied until his appeal is heard.

26. If this visa is cancelled, [Mr A] will hold a Subclass 050 visa.  This visa is subject to condition 8401 to report at the time or times and in the place or manner the Minister specified, condition 8506 to notify Immigration at least 2 days in advance of any change to his address, and condition 8564 not to engage in any criminal conduct. 

27. If [Mr A] breaches condition 8564 he will not be able to make a further application for a Bridging Visa E and will be liable to be detained under s 189 of the Act.

28. I do not consider there is significant hardship to him in holding a different visa that requires him to report as required, notify of any change to address and not to engage in any criminal conduct until his protection visa application is finally determined.

29. [Mr A] will remain in the community and continue to work and seek any assistance for his mental health if his visa is cancelled.  The cancellation of his visa will result in some limits on other types of visa for which he can apply in Australia, and this is discussed further below  This factor weighs slightly in favour if not cancelling his visa.  . 

    The circumstances in which ground of cancellation arose. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

30. [Mr A] claims that his mental health suffered in Kenya because he is gay, and on his arrival in Australia, he was distrustful of everyone. He had a hard time fitting in and felt he could not trust anyone in the Kenyan or other African expatriate community. 

31. His first offence took place when he was drinking a lot because of the stress of his situation in Australia, and he claims he felt isolated and alone and dealt with the stress by drinking.  The second offence in 2016 was also alcohol-related because he felt worried and alone about his safety.  The offence of trespass was because he was drinking at a friend’s house, and he fell asleep there. It is claimed that [Mr A]’s main victim was himself as the offending was essentially a pattern of self-harm.  I do not agree.  His actions in driving with excess blood alcohol put other road users at risk, as did failing to stop at a traffic light.  His act of trespass was the result of drinking at a friend’s place where he was asked to leave but he said he fell asleep there.  He says his friend called the police, and because he had been drinking he was not sure of the circumstances.   

32. The failure to comply with blood analysis directions occurred when he was spending time with friends, and friends asked him to collect them at [a venue] and take them to [deleted].  When they decided to leave the house unexpectedly, he had alcohol in his system.  He claims when he was asked to do an alcohol test, he asked for the supervisor and was not offered the opportunity to do the test again. 

33. The offences of providing false documents and failure to provide identifying information resulted from wanting to take his friend to a job interview because his friend was having problems finding the entrance.  He said it was not far from where he was.  He gave police officers the licence of another person that was in the car he was driving because at that time he did not have a driver’s licence. 

34. These circumstances weigh in favour of cancelling his visa.

    Past and present behaviour of the visa holder towards the Department

35. [Mr A] said on the day of the hearing the lease had ended and he needs to find a new place to live.  He was asked if he had advised Immigration of a change to his address, and he said they have not moved out yet.  While this was a cause for concern as a condition of his visa is that he needs to notify Immigration 2 days before a change to his address, he said he has not yet left his current address and he has no other permanent physical address.  He says they are asking the landlord to give them another fortnight.

    Whether there would be consequential cancellations under s 140

36. There are no consequential cancellations that apply.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation, and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

37. [Mr A] holds a Subclass 050 visa and is not liable to detention or removal if his Subclass 010 visa is cancelled.  His Subclass 050 visa will remain in effect until he is granted a protection visa or for 28 days after a further decision is made on his protection visa (cl 050.050.512 of Schedule 2 to the Regulations).

38. [Mr A] said his concern is the effect of cancelling his visa on his ability to apply for a work visa or travel to Australia in the future.  He is currently working as a [occupation] and said he has completed a [qualification] but has not passed the English language test to register as [an occupation].

39. He is also concerned that it will be expensive to get legal assistance to apply for other visas because the cancellation on his record will make any future visa application more complicated. 

40. If [Mr A]’s visa is cancelled, s 48 of the Act limits other types of visas for which he can apply within Australia.  The types of visa for which he could apply are set out in reg 2.12 of the Regulations and include Skilled – Nominated (Permanent), Skilled Work Regional (Provisional) and Skilled Employer Sponsored Regional, (Provisional) which are work visas.

41. If the visa for which he applies is subject to condition 4013, he will be affected by a risk factor if his visa is cancelled under s 116(g) and reg 2.43(oa). This means an application must be made more than 3 years after his visa was cancelled unless the Minister is satisfied there are compelling circumstances affecting the interests of Australia or compelling or compassionate factors that affect an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (public interest criterion 4013).

42. [Mr A] retains the ability to apply for certain visas in Australia if his visa is cancelled.  This may be subject to a limitation if he applies for the visa less than 3 years after the cancellation, however if he can show certain compelling or compassionate circumstances, this can be waived.  As he holds a current visa and can still apply for a work visa and have the application of condition 4013 waived, I do not consider that the cancellation of the visa causes [Mr A] significant hardship. 

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

43. As [Mr A] will not be removed from Australia if the visa is cancelled as he holds a Subclass 050 visa, no international obligations are potentially breached if the visa is cancelled.  There is no suggestion that there are any children affected by the decision.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

44. While the visa is a temporary visa and not a permanent visa, [Mr A] has three uncles and two cousins in Australia.  He has been living with one of his uncles in Adelaide, with one uncle in country South Australia and one in Melbourne.  His cousins live in Adelaide.  

45. [Mr A] has some family ties in Australia and is employed in Australia which weighs slightly in favour of not cancelling his visa.

    Other matters

46. [Mr A] states he has since seen a psychologist and has reconnected with his family in Australia, and while he still drinks, this is much less than he did in the past.  He says he has complied with the terms of his good behaviour bond which will expire soon. 

47. A report dated 26 May 2023 from the psychologist states [Mr A]’s treatment will need to continue for 6 months at which time the psychologist will be able to provide a more thorough assessment of [Mr A]’s treatment progress.  [Mr A] said he does not have a report from the psychologist.   He is not seeing a psychologist at this time and last saw his psychologist in the middle of 2023.  [Mr A] provided a list of appointments with a psychologist between 22 March 2023 and 11 September 2023.  He last attended an appointment in July 2023, and appointments after July 2023 were cancelled or not attended.  He attended six appointments in the period 3 April 2023–4 July 2023.

48. [Mr A] is a [occupation] and has worked [for] the last 1–2 years.  He is also working in [a field], starting a second job 2–3 weeks before the hearing.  He says he has a [qualification] and will register when he has passed the English test, which he was unable to pass last year.  [Mr A] is contributing to the community by working as a [occupation], and he hopes to register as an [occupation] when he passes the required English language test.  This weighs in favour of not cancelling his visa.

    CONCLUSION

49. Having considered the circumstances as a whole, and the circumstances that weigh in favour of and against cancelling [Mr A]’s visa, I consider his offending history outweighs those factors that are in favour of not cancelling his visa and that his visa should be cancelled. 

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kate Millar
    Senior Member