2317471 (Migration)

2317471 (Migration) [2023] AATA 4113 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Shira Nina Sebban (MARN: 2217749)
CASE NUMBER: 2317471

MEMBER:Andrew McLean Williams
DATE:8 November 2023
PLACE OF DECISION: Brisbane
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 08 November 2023 at 3:55pm
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of several offences – Magistrate set aside the conviction previously recorded – former drug addiction – indefinite detention – disproportionate to custodial term – non-refoulement considerations – mental health issues – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 499; Ministerial Direction 63
Migration Regulations 1994, 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 convened in circumstances of urgency[1] of a decision dated 17 July 2018 made by a Delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 050 Bridging (General) visa, pursuant to s.116(1)(g) of the Migration Act 1958 (Cth) (‘the Act’).
[1] On 27 October 2023 the Applicant was issued with a ‘re-notification’ of the visa cancellation decision dated 17 July 2018.
The Delegate cancelled the visa under s.116(1)(g) on the basis that a ‘prescribed ground’ for cancelling the visa applies to the Applicant. The prescribed ground specified in the Notice of Intention to Consider Cancellation, as was issued to the Applicant on 17 July 2018 was identified as Regulation 2.43(1)(p)(ii).
Pursuant to Regulation 2.43(1)(p)(ii), a prescribed ground for cancellation of a visa pursuant to s.116 in the case of a holder of either a Subclass 050 Bridging (General) visa or a Subclass 051 Bridging (Protection Visa Applicant) visa includes that the Minister has become satisfied that the holder has “been charged with an offence against the law of the Commonwealth, a State, a Territory, or another country”.
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 appeared before the Tribunal on 8 November 2023 in a video hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
The Applicant was represented in relation to the review by his authorised representative Ms Shira Sebban OAM (MARN 2217749) from ‘Human Rights for All’. Ms Sebban also attended the Tribunal Hearing on 8 November 2023, and has gone to some considerable effort to prepared detailed written submissions, those now dated 6 November 2023. The Tribunal is indebted to Ms Sebban for that assistance.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should now be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Applicant is a Faili Kurdish, Shia Muslim, born in Iran, who first arrived in Australia at Ashmore Reef [in] July 2013 as an unauthorised maritime entrant. The Applicant was baptized as a member of [Church 1] in Australia [in] April 2016.
In October 2013 the Applicant was granted an initial Bridging Visa E (‘BVE’). On 4 August 2016, the Applicant was invited to apply for a temporary protection (Subclass 785) visa.
In about 2017, the Applicant became addicted to prescription pain killers which he obtained on the black market and in consequence of that drug addiction started to engage in, (and was convicted of), various minor crimes, including shoplifting and trespass. In consequence of those convictions, on 11 September 2017 the Applicant was issued with a Notice of Intention to Consider Cancellation (‘NOICC’) of his then extant bridging visa, that which had been granted to the Applicant on 19 July 2017. The Applicant was interviewed by officers from the Department of Home Affairs in relation to the grounds for cancellation expressed in NOICC, and a decision was made at that stage to not proceed with the cancellation of the Applicant’s Visa.
On 28 September 2017, the Applicant lodged a Safe Haven (Enterprise) Visa (‘SHEV’) application in which he claimed protection from Iran “because I fear I will face harm because of my ethnicity, my imputed political opinion, my religion, my membership of a particular social group is a failed asylum seeker and other reasons”. On 3 October 2017 the Applicant was granted a further BVE associated with this SHEV application.
The Applicant’s SHEV application was ultimately determined unfavourably by the Immigration Assessment Authority (IAA) on 11 April 2019. By the date of that determination the Applicant was already being held at [Detention Centre 1] and was already facing visa cancellation proceedings in relation to the BVE issued to the Applicant in association of his SHEV application.
[In] July 2018 the Applicant was involved in a car accident which resulted in several further criminal charges being laid against him, and his being taken into custody by the police and detained at [Prison 1]. The Applicant then appeared the next day ([specified]) at [Court 1] for a scheduled sentencing hearing referrable to some earlier minor stealing and drug charges. Although the court was unable to secure the services of a Kurdish interpreter for the hearing [in] July 2018, that sentencing hearing proceeded anyway, and the Applicant entered pleas of guilty to all charges, including to a set of fresh charges arising out of the car accident [in] July 2018.
[In] July 2018 the presiding Magistrate sentenced the Applicant to 12 months imprisonment, immediately fully suspended, on condition that the Applicant agree to enter into a good behaviour bond for a further period of 12 months.
On 17 July 2018, and while still being held at [Prison 1], the Applicant was given a hand-written Notice of Intention to Consider Cancellation (‘NOICC’) of his BVE under s.116 of the Migration Act. Approximately 10 minutes later, a decision was made to cancel the Applicant’s visa. It is this visa cancellation decision that is now the subject of these review proceedings before the Tribunal.
[In] October 2018 the Applicant was transferred to [Detention Centre 1] where he has remained ever since.
[In] March 2021 the Applicant made another appearance before [Court 1] to enter a plea of guilty to a charge of ‘affray’ referrable to an altercation between detainees that had occurred at [Detention Centre 1 in] February 2019. Although pleading guilty, the Applicant also informed the court that he had become involved in the affray only after having formed a genuine fear that he was in danger and needing to act in his own self defence. However, the presiding Magistrate determined that the Applicant had acted disproportionately, and in a manner exceeding any objective requirement for self-defence. Nonetheless, the sentencing Magistrate still did not regard the Applicant’s conduct as revealing any high degree of moral culpability, such that the Applicant was sentenced to an 18 month community corrections order only, for this affray offence.
During that same court appearance [in] March 2021, the court set aside the convictions previously imposed on the Applicant [in] July 2018, noting these to have been ‘irregular’ and ‘wrong as a matter of law’ - particularly in light that the Applicant had been seemingly awarded a head sentence of 12 months imprisonment (albeit wholly suspended) yet in circumstances wherein the maximum penalty for the charged offence was only six months. In those circumstances the court set aside the order of 12 months imprisonment wholly suspended on condition that the Applicant enter into a 12 month good behaviour bond, and re-sentenced the Applicant in relation to some of the other charges that had been heard and determined against the Applicant [in] July 2018.
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?
As indicated, 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 regulation 2.43(1)(p)(ii) has been specified to be the basis for the cancellation. Pursuant to Regulation 2.43(1)(p)(ii), a prescribed ground for cancellation of a visa pursuant to s.116 in the case of a holder of either a Subclass 050 Bridging General) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa includes that the Minister is satisfied that the holder has (ii), “been charged with an offence against the law of the Commonwealth, a State, a Territory, or another country”.
In her written and oral submissions to the Tribunal, Ms Sebban contends that the specified grounds for cancellation of the Applicant’s Visa in the NOICC dated 17 July 2018 ‘no longer exist’ by reason of the orders made by the Magistrate [in] March 2021 setting aside the conviction previously recorded against the Applicant [in] July 2018. The Tribunal was invited by Ms Sebban to review and consider the audio recording of the sentencing hearing from [Court 1] from [March] 2021, which has been obtained by Ms Sebban and submitted to the Tribunal.
The Tribunal has now listened to the sentence hearing recording and notes it to reveal those matters now expressed in paragraph 18 of these reasons. However, the Tribunal is unable to accept Ms Sebban’s submission that the grounds for cancellation as expressed in the NOICC dated 17 July 2018 ‘are not made out’, by reason that the expressed ground for cancellation (ie: that arising under regulation 2.43(1)(p)(ii)), requires no more than that the Minister be satisfied that the Applicant has been charged with an offence against the law of the Commonwealth, a State, a Territory, or another country. The Applicant has been charged with State offences under the laws of New South Wales, and this is - in and of itself - sufficient for purposes of regulation 2.43(1)(p)(ii), such as to now make out a ground for cancellation under s.116(1)(g) of the Act.
Having satisfied itself that the putative ground for cancellation in s.116(1)(g) exists, the Tribunal must next proceed to consider whether the visa should be cancelled.
Consideration of the discretion:
In considering whether a Bridging E visa should be cancelled on the basis of prescribed grounds under either regulation 2.43(1)(p) or 2.43(1)(q), the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act (‘Direction No. 63’).
Direction No. 63 requires the Tribunal to take into account specified ‘primary’ and ‘secondary’ considerations, where these are relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The ‘primary’ considerations are:
·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The ‘secondary’ considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
Direction No. 63 states that primary considerations should ‘generally’ be given greater weight than any secondary considerations; that one primary consideration ‘may’ outweigh the other primary consideration; and that information from independent and authoritative sources should ‘generally’ be given greater weight than information from other sources. The Tribunal has also had regard to the overall circumstances of this case, including matters raised by the Applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
Ms Sebban submits, and the Tribunal now accepts, that trauma experienced by the Applicant when still in Iran, and his feelings of hopelessness in Australia and concern for the welfare of his remaining family in Iran (given their status as members of a persecuted minority in Iran) was a substantial contributing factor to the Applicant’s former drug addiction which commenced after his arrival in Australia, and which, in turn, was the context for the Applicants criminal offending that led to his visa cancellation.
Although the Applicant has now been refused a Safe Haven (Enterprise) (SHEV) Visa, the Tribunal was informed that the Applicant intends to seek Ministerial intervention, and still maintains that he has a genuinely held and well-founded fear of either ‘persecution’ or ‘significant harm’ if returned to Iran, such that the Applicant will not voluntarily return to that country.
Given that the Applicant arrived in Australia prior to 19 March 2018, he is also unable to be involuntarily returned to Iran (in other words he cannot be deported), and nor does he have the option of being accepted by a third country. In these circumstances, in the event that the Applicant’s visa were not to be re-instated, then the Applicant would be required to face the prospect of an indefinite and indeterminate period of detention at [Detention Centre 1] or another similar immigration detention facility. The Tribunal notes the [medical] records of the Applicant, and in particular notes the [Agency 1] psychological reports on the condition of Applicant; and notes these to paint a bleak picture of a man undergoing an inexorable mental and physical decline in consequence of the circumstances of his ongoing detention. Here, the Tribunal notes that the Applicant has been detained in Immigration detention for more than five years now, being a cumulative period disproportionate to any custodial term that might theoretically have been imposed on the Applicant for any of his past criminal offending in Australia.
In relation to the various matters required for consideration by Direction No 63, the Tribunal records the following:
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:
The applicant arrived in Australia in my 2013 as an unauthorised maritime entrant. The Applicant maintains that he is eligible for protection in this country on both refugee and complimentary protection grounds and seeks to make a request for Ministerial intervention.
The extent of compliance with visa conditions:
The evidence before the Tribunal dictates that sometime after his arrival in this country the Applicant became addicted to Fentanyl and other narcotic substances obtained illegally, and in consequence of that began to commit criminal offences. These appear to be predominantly ‘low level’ larceny-type offences, street offences, and some motor vehicle offences. Being charged with such offences does amount to an instance of non-compliance with the Applicant’s visa conditions, such that to this extent there has been non-compliance by the Applicant with the conditions of his various visas.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship):
In the event that the Applicant’s visa is to remain cancelled, it seems more probable than not that the Applicant be caused to face significant financial psychological emotional and other hardships.
The circumstances in which ground of cancellation arose:
The circumstances in which the ground for cancellation arose are as now described in these reasons.
Past and present behaviour of the visa holder towards the Department
Other than for the affray charge whilst in immigration detention, there is no evidence before the Tribunal to suggest that the Applicant has been other than co-operative with the Department.
Whether there would be consequential cancellations under s.140:
This consideration is not presently relevant
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:
The Applicant is already in immigration detention, and in the event that his visa remains cancelled the Applicant will continue to be liable to on-going immigration detention. The Applicant’s forcible/non-voluntary removal to Iran is not possible such that the Applicant would be required to face indefinite detention with no foreseeable prospect of that changing. Given the Applicant’s maintained protection claims there is no conceivable prospect of a voluntary return to Iran.
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:
The cancellation of the Applicant’s visa does give rise to complex non-refoulement considerations. The best interests of minor children and questions of family unity are not presently relevant.
Any other relevant matters:
The Tribunal considers that the declining physical and mental health of the Applicant - as is revealed in the [medical] records and in the [Agency 1] psychological assessments of the Applicant - is a relevant consideration; as is the fact that the Applicant is the sole potential source of income for his elderly parents and other family members in Iran, who are prevented from paid employment by reason of their status as persecuted Faili Kurds in Iran. The Tribunal further notes that during his time in immigration detention that the Applicant has undergone Suboxone treatment, and has weaned himself from dependency on illicit drugs, such that the Applicant is now much less likely to present as a risk of further criminal offending.
Considering the circumstances as a whole, the Tribunal determines that the Applicant’s visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.
Andrew McLean Williams
Member

[2023] AATA 4113

8 November 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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