2314333 (Migration)

[2024] AATA 851

2314333 (MIGRATION) [2024] AATA 851 (26 FEBRUARY 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2314333

MEMBER:Bridget Cullen

DATE:26 February 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 26 February 2024 at 1.02pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence – consideration of discretion – circumstances of offence – medical condition – impact of guilty plea on visa status – financial, psychological and emotional hardship – favourable character references – decision under review set aside

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

1. This is an application for review of a decision dated 11 September 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).

2. The delegate cancelled the visa under s 116(g) on the basis that there was a prescribed ground for cancellation after the Applicant was convicted of an offence, resulting in his being sentenced to a Conditional Release Order of 18-months. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Applicant appeared before the Tribunal via Microsoft Teams video link on 20 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

4. 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

5. 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?

6. 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)(oa) is relevant.

7. Regulation 2.43(1)(oa) provides: (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:

   … (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)).

8. On 9 August 2023, the Applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging visa under s 116(1)(g) and r. 2.43(1)(oa) on the basis of his conviction of an offence against laws of the State of New South Wales. The NOICC stated that information provided by the Australian Border Force confirmed that the Applicant has been convicted of the following criminal offences in New South Wales:

   ·21/03/2023 Carry out sexual act with etc another person without consent.

9. The Applicant was sentenced to a Conditional Release Order of 18-months, commencing on 21 March 2023 and expiring 20 September 2024.

10. In his response to the NOICC, and also before the Tribunal, the Applicant agreed that a ground existed for the cancellation of his visa.

11. As the Applicant has been convicted of a criminal offence in New South Wales on 21 March 2022, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) 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

12. 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 Procedural Instruction ‘General visa cancellation powers’. The Tribunal has considered all of the Applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to remain in Australia

13. The Applicant and his wife arrived in Australia on Visitor (Tourist stream)(subclass 600) visas, [in] December 2018. On 06 March 2019, the Applicant lodged a Protection visa application, claiming that he cannot return to India. He was granted the visa that is the subject of this cancellation decision on 21 March 2019, allowing him to lawfully remain in Australia until his application for a Protection visa is finally determined or withdrawn.

14. On 30 April 2021, the Department refused to grant the Applicant a Protection visa, as the delegate was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations as outlined in section 36(2)(a) or section 36(2)(aa) of the Act. On 05 May 2021, the Applicant lodged an application for merits review of the decision to refuse his Protection visa application with the Tribunal.

15. The Tribunal has not yet determined the Applicant’s review of the Department’s decision to refuse his application for a protection visa. As such, the Tribunal finds that the Applicant’s purpose for remaining in Australia is consistent with the purpose for which he was granted the Bridging A visa. The Tribunal gives this little weight against cancellation.

    The extent of the Applicant’s compliance with their visa conditions

16. There are no visa conditions attached to the Applicant’s visa. Therefore, the Tribunal gives this factor neutral weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

17. The Applicant has resided in Australia since 2018, with his wife. Since cancellation, the Applicant has been unable to work as [an Occupation 1]. The evidence before the Tribunal is that the Applicant has a positive relationship with his former employer, and that he will be offered re-employment depending upon the outcome of these proceedings.

18. The Applicant and his wife are both experiencing health issues. The Applicant and his wife both gave evidence about the impact that the financial hardship of the Applicant’s inability to work has had on them. The Applicant’s wife is [age]-years old and unable to work due to health concerns. Presently, they are living off extremely limited savings. Were the Applicant’s visa to remain cancelled, the Applicant’s wife would experience significant personal and financial hardship.

19. The Tribunal is unable to assess the prospects of success of the review of the protection visa. However, the Tribunal accepts that the Applicant has a legal entitlement to pursue review. The Tribunal acknowledges that the Applicant may be eligible to apply for a Bridging E (subclass 050) visa to remain in Australia pending the court review.

20. The Tribunal considers the financial hardship of cancellation to be significant in circumstances where the Applicant’s wife has no ability to seek employment and where they are barely subsisting on limited savings at present.

21. The Tribunal has placed some weight on this factor in favour of not cancelling the Applicant’s visa.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

22. The Applicant and his wife provided the Tribunal with extensive evidence about the events that led to the Applicant’s conviction, following his plea of guilty.

23. The Tribunal has a copy of the Amended Police Facts Sheet, as agreed to by the Applicant at the time of his guilty plea. They indicate that [in] November 2020, the Applicant was travelling on a train, seated in the same vestibule as a 16-year-old schoolgirl. He was reported to have his hand in his pocket, and appeared to be grabbing his genitals. The episode was captured on CCTV, and reported to police. Subsequently, the Applicant was placed under arrest, and interviewed. At the interview, he did not make any admissions and indicated that, “he had an incontinence issue for about 2 years prior, but had not sought treatment”.  

24. The Applicant was unemployed at the time of his arrest, and unable to afford legal counsel. The Applicant says that he was not given any advice about the possible impact that a guilty plea would have on his immigration status. The Applicant says that he pleaded guilty as his Legal Aid lawyer told him that this would be preferable than going to trial, and likely to result in a lesser outcome for him.

25. The Tribunal has a number of medical reports before it which corroborate the Applicant’s statement made to police about his incontinence issue. He says that he experiences urinary leakage, and he needs to reposition to avoid the wetness around his groin area. The Applicant’s wife has given evidence that this condition has also caused difficulties with marital intimacy.

26. Whilst the Tribunal accepts the fact of the Applicant’s guilty plea, but also observes that the evidence from his Urological Surgeon is entirely consistent with his claims to law enforcement at the time of his arrest, as well as his evidence in the Tribunal. The Urological Surgeon has diagnosed the Applicant with “post micturition dribble,” and given him advice about how to decrease the symptoms, as well as prescribing medication. As at the time of hearing, the Applicant continues to experience symptoms, the key issue being urinary leakage and the need to try to ensure that he has properly voided.

27. The Tribunal often sees Applicants who do not appreciate the impact that a guilty plea will have in a broader life context. The Tribunal must accept that the Applicant has been convicted of a crime that is serious, and that the impact of his conduct on the victim would have been distressing and confronting. The Tribunal cannot try to guess what would have happened had the Applicant chose to defend the charges. The conduct that led to the Applicant’s conviction consisted entirely of his accessing his genitals via his pocket, whilst fully clothed, for “no more than 3 seconds” as set out on the New South Wales Police Facts Sheet.

28. The Applicant’s medical condition, which is beyond his control, is a matter that was raised by him at the time of his guilty plea. The Tribunal accepts that the Applicant took a pragmatic approach to the decision to plead guilty in circumstances where he was experiencing financial hardship and stress. However, the Applicant pleaded guilty and therefore accepted at the time that he engaged in the conduct as described.

29. The Tribunal finds that the fact of the Applicant’s conviction supports the cancellation of his visa, but acknowledges that the evidence before the Tribunal is that the Applicant suffers from the urological condition he claimed to have, and that the symptoms of this condition are those that he described at the time of his arrest. In the circumstances before the Tribunal, the Tribunal gives this factor some weight in favour of cancellation.

    The past and present behaviour of the Applicant towards the Department (including whether they have been truthful and cooperative)

30. There is no information before the Tribunal to indicate that the Applicant has been uncooperative with the Department or with departmental staff. The Tribunal notes that the Applicant co-operated with the cancellation process and provided a meaningful response to the NOICC in a timely manner.

31. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

32. The information before the Tribunal indicates that there will be no consequential cancellation of any other visa under s 140 of the Act if the Applicant’s visa is cancelled.

33. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the Applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

34. The mandatory legal consequences of the cancellation of the Applicant’s visa are that he could become an unlawful non-citizen and may be detained in immigration detention under s 189 of the Act and may be deported from Australia under s 198 of the Act if he does not voluntarily depart. Cancellation of the Applicant’s visa will also mean that he is precluded from applying for some visas under s 48 of the Act while he remains in Australia.

35. In addition, cancellation of the Applicant’s visa means he will be affected by Public Interest Criterion 4013 which will limit the applicant’s ability to apply for a temporary visa to return to Australia for a specified period of time.

36. Given the Applicant’s age, and medical history, the Applicant says that he would find immigration detention particularly difficult. The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

37. Australia owes visa applicants a range of obligations under several international agreements that Australia is a signatory to. In particular, these obligations include the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol), the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), and the International Covenant on Civil and Political Rights (ICCPR).

38. The Tribunal has considered whether the cancellation of the Applicant’s visa would breach any obligation Australia owes under these international agreements. As the Applicant’s protection visa refusal remains under review, the Tribunal is not able to determine whether cancellation of the Applicant’s visa would be in breach of any international obligations.

39. The Tribunal observes that, were the Applicant’s visa cancelled, he may be eligible to apply for a BVE to remain in Australia pending resolution of the proceedings before the Tribunal. The Tribunal places a small amount of weight on this consideration as a factor against cancellation.

    Any other relevant matter

40. The Applicant has provided the Tribunal with favourable character references from community members, indicating that he has strong religious ties to his local church and community members. The Tribunal considers these ties to be a positive factor and gives them a small amount of weight against cancellation.

    Conclusion

41. The Tribunal has considered the Applicant’s circumstances. The Applicant has been convicted of an offence against the laws of the State of New South Wales and the Tribunal has found that there are grounds for cancelling his visa. The Tribunal has considered the factors which weigh in favour of cancelling the visa, most significantly the circumstances in which ground of cancellation arose. However, the Tribunal finds that the individual and cumulative effect of the considerations weighing against cancelling the visa, most particularly the financial, psychological and emotional hardship that may be experienced by the Applicant and his wife while they await the outcome of the protection visa review, outweigh the considerations in favour of cancellation.

42. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Bridget Cullen
    Senior Member