2400497 (Refugee)

[2024] AATA 4093

2400497 (Refugee) [2024] AATA 4093 (26 July 2024)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2400497

COUNTRY OF REFERENCE:                   India

MEMBER:  Louise Nicholls

DATE OF DECISION:  26 July 2024

DATE CORRIGENDUM

SIGNED:  4 September 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision: The decision record states on the front page and at the end "The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa." It should be “The Tribunal affirms the decision to cancel the applicant's Subclass 010 (Bridging A) visa.”

Louise Nicholls Senior Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry

CASE NUMBER:  2400497

COUNTRY OF REFERENCE:                   India

MEMBER:  Louise Nicholls

DATE:  26 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 26 July 2024 at 1:12pm

CATCHWORDS
REFUGEE – cancellation – Subclass 010 (Bridging A) visa – applicant had been convicted with offences – no evidence that the applicant has strong family, business or other ties in Australia –– the ground for cancellation in s 116(1)(g) exists – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 116, 424A

Migration Regulations 1994, r 2.43, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. The applicant is a citizen of India, and he is [age] years old. He arrived in Australia on [date] September 2019 as the holder of a Visitor visa. He was granted a Subclass 010 (Bridging A) visa on 18 December 2019 while awaiting the outcome of an application for a protection visa.

2. While holding the Subclass 010 (Bridging A) visa he was convicted of several offences in the [Court] in New South Wales on [date May] 2023.

3. On 13 November 2023 the delegate of the Minister for Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant. The applicant did not respond to the NOICC issued on 13 November 2023.

4. On 8 January 2024 the delegate cancelled the applicant’s Subclass 010 (Bridging A) visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been convicted with offences against the laws of the state of New South Wales.

5. The NOICC states that the applicant was convicted of the following offences on [date May] 2023:

   ·Sexually touch another person without [consent]. Sentence- Community Correction Order: [deleted].

   ·Stalk /intimidate intend fear physical etc harm [(personal)]. Sentence-Community Correction Order: [deleted].

   ·Wilful and obscene exposure in/near public place/[school]. Sentence-Community Correction Order: [deleted]

6. This is an application for review of the cancellation decision made on 8 January 2024. No further documents were provided to support the review.

7. The Tribunal obtained documents by summons from the NSW Police regarding the applicant’s convictions and the fact sheets associated with the charges laid against him in July 2022. The Tribunal also sought further information from the Local Court  [regarding] the applicant’s convictions.

8. The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

9. The applicant was initially represented in relation to the review, but the applicant told the Tribunal at the hearing that he was not able to pay his representative’s fees so his

representative did not appear with him at the Tribunal. At the end of the hearing the applicant lodged a notice of change of contact and representation details.

1. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Background

1. The gave evidence that he is [age] years old. When asked where he grew up, he stated he grew up in [a] District, Haryana State, India. His parents and two married sisters live in Haryana. His parents are currently engaged in farming activities. He stated that he attended school in Haryana and completed studies [at] [a named institute]. He told the Tribunal he could not remember if he lived in a village or town and did not really understand the question. When questioned further he stated his home was in the town of [Town 1].

2. After he finished his Institute training, he obtained a visitor visa to do some touring in Australia. He claimed he had a little bit of money saved and used that when he first arrived in Sydney and spent some time touring in Sydney. He stated that he was from a poor family, and he ran out of money so could not return to India. He applied for protection because there had been quarrels with someone, and he was told not to return to India.

3. After he obtained permission to work, he found work as a [occupation] from time to time. He lives in a rented house in [Suburb 1] which he shares with 2 other occupants.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. 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.

2. Regulation 2.43(1)(oa) prescribes the following as a ground for cancellation:

   (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));

1. The applicant gave evidence that he did not know why his visa was cancelled. When the Tribunal asked him if he had received a notice from the Department of Home Affairs in November 2023, he stated he had received something but did not speak English so did not know what it meant.

2. The Tribunal put it to him that he had engaged a representative to act for him in relation to the cancellation of his visa. It put it to him that he would have given his representative the

NOICC and that they would have discussed the NOICC which stated the Department was intending to cancel his bridging visa.

1. The applicant appeared to be somewhat evasive and unwilling to discuss why his visa had been cancelled, but eventually stated that he had a problem with a girl in 2022. He stated it was the first time he had a girl problem. He stated the case went on for a while and he then accepted a guilty plea. He noted that he had spent a lot of money on representation both for the court and for the Tribunal proceedings.

2. The Tribunal invited the applicant to comment on, or respond to, information it had obtained from the NOICC and from the NSW Police that he had been convicted of the offences set out earlier in this decision. It explained that if he had been convicted of these offences then this would mean that there were grounds for cancellation of his bridging visa. He elected to comment on the information at the hearing. He stated that he accepted being guilty because he did not have enough money to argue the case. The Tribunal put it to him that the police documents suggested that he had pleaded not guilty. He stated that for one year he had pleaded not guilty but did not have enough money to argue his case, so he changed his plea to guilty.

3. Considering the material before the Tribunal and the applicant’s oral evidence the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

1. 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’.

2. With respect to the matters set out in PAM3 the evidence is as follows.

   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.

3. The applicant stated he came to Australia with the purpose of touring but then applied for a protection visa. He stated his family had a fight with someone and they told him it was better for him to stay in Australia. When asked what had happened to his application for protection, he appeared confused. It appeared the applicant was under the impression that the matter before the Tribunal was in relation to his application for protection. The Tribunal explained the difference between an application for protection and a bridging visa. It explained that the that it appeared that the application for protection made by the applicant in 2019 has not yet been determined by the Department.

4. The Tribunal is satisfied that the purpose of the applicant’s stay in Australia is to await the outcome of his application for protection.

   The extent of compliance with visa conditions.

5. There is nothing before the Tribunal to indicate that the applicant has not been compliant with visa conditions attached to his visitor or bridging visas.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship).

1. The applicant gave evidence that he had paid his representative $2000 and then more and more money. He claimed that he cannot return to India because his life is in danger. He stated that the problem with the girl was the first time he had a problem in 4 years and he is sorry for his mistake.

2. The Tribunal put it to him that if his visa was cancelled and he did not have another visa, the Department would be obliged to take him into detention. He appeared quite shocked by this proposition. He stated he had not done anything wrong and should not be placed in detention. If he was detained, he would go back to India and if he did so he would be at risk of harm. He also stated that if he could not work, he would die from a lack of food. He stated his parents are old and would be upset if he were detained. He stated he had not done anything; he just goes to work and then returns home after he finishes work. He stated his whole life would be ruined if his bridging visa was cancelled.

   Circumstances in which ground of cancellation arose.

3. The Tribunal invited the applicant to comment on, or respond to, the matters set out in the Facts Sheet provided by the NSW Police, and which related to the offences with which the applicant was charged.

4. The Facts Sheet essentially set out the victim’s account of events. They were, that the applicant and victim met on a [venue]. The applicant and victim spoke, exchanged telephone numbers and sat together until the applicant grabbed the victim’s breast and squeezed it, exposed his penis to her and grabbed her hand to pull towards his penis. She became uncomfortable and called her brothers on the speaker of her mobile telephone and they told the applicant to stay away from their sister. The accused left the train at [a stop] and the matter was reported to police. The applicant then began contacting the victim on her mobile telephone by text messages, phone calls and WhatsApp using his mobile telephone numbers and his email address. The applicant shared his address and continued to call on the victim’s telephone over a number of days. The applicant attended [Suburb 1] Police Station on 20 July 2022 and was arrested and charged. The applicant was interviewed with an interpreter and admitted to sexual touching of the victim.

5. The Tribunal told the applicant that these were the facts alleged by NSW Police relating to the charges made against him in July 2022. He elected to respond at the hearing. He stated that the things which happened were with the girl’s consent and then she turned around. He stated he went to the police station, to court and spent a lot of money on the process. He stated it was two years ago and is an old story. He stated the girl willingly sat with him, and he made a mistake. He claimed it had gone to court and it was all over.

6. The Tribunal put it to him, again pursuant to s.424AA, that the Local Court  [had] advised the Tribunal that the applicant’s matters were listed for a breach of the Community Correction Orders which had been made when he was sentenced in 2023 and the breach been adjourned to 31 July 2024 for resentencing.

7. The applicant responded at the hearing and gave a confusing account of events relating to the breach of community correction orders. He stated he had been depressed and been given a government doctor and medication for a year. Then he had to buy the medicine himself and it was very expensive. He also said he spent $500 on seeing a doctor. He stated that they claimed he had not seen a proper doctor or taken his medicine and was in breach of the community correction orders. He claimed he now had made an appointment to see a

psychologist and on 31 July would show the court his mobile telephone which displayed the appointment he had made. He claimed he had done 120 hours of community service, and this was just a medical issue, and he has now obtained the relevant evidence for the court and expects it will be easily resolved.

Past and present behaviour towards the Department

1. There is no evidence of any non-compliant behaviour towards the Department.

   Whether there would be consequential cancellations under s.140.

2. The applicant is single and came to Australia on his own. There are no consequential cancellations under s. 140 of the Act.

   Whether there are mandatory legal consequences.

3. At the time of the cancellation the applicant held a Bridging Visa A. If the applicant’s Bridging visa A is cancelled, and he is not granted a Bridging visa E or another class of visa, he will become an unlawful non-citizen and will be subject to detention pursuant to s. 189 of the Act until his migration status is finalised.

4. The evidence indicates that the applicant’s application for a protection visa is pending determination by the Department. When the applicant’s migration status is finalised, he will either be granted a substantive visa, or he will depart voluntarily or be removed from Australia pursuant to s.198 of the Act.

5. The Tribunal is satisfied there is no prospect that the applicant will be held in indefinite detention.

6. If the applicant’s visa is cancelled, he will be prevented from lodging an application for a visa in Australia except for those in prescribed classes. He may also be subject to a period of exclusion for visa grants for three years from the date of visa cancellation.

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

7. The applicant is single and does not have any family members in Australia. There is no evidence to indicate that Australia’s obligation in relation to the best interests of children or family unity are issues for consideration. There is also no evidence before the Tribunal that the applicant has strong family, business or other ties in Australia. He stated that he does [specified] work from time to time and lives in a share house with other tenants.

8. The Tribunal has also considered whether cancellation will breach Australia’s non refoulement obligations not to expel or return a refugee to a country where they face a serious threat to their life or freedom because of his or her race, religion, nationality, membership of a particular social group or political opinion1. It has also considered Australia’s obligations under several treaties. Australia is a signatory of the International Covenant on Civil and Political Rights (ICCPR), Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty (Second Optional Protocol) and

1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)2.These Conventions provide for protection against refoulement where a person is not a refugee within the meaning of the Refugee Convention but there are substantial grounds for believing the person would be subject to significant harm through, for instance, cruel, inhuman or degrading treatment or punishment, torture or arbitrary deprivation of life.

1. The Department’s records show, and the Tribunal accepts, that the applicant has made an application for protection, but it has not been finally determined. Section 198(5A) of the Act provides that an officer of the Department must not remove an unlawful non-citizen if the non-citizen has made a valid application for a protection visa and the grant of the visa has not been refused or the application has not been finally determined. In practical terms this means that while the applicant is awaiting the determination of his application for protection and before he has exhausted any appeal rights he may have, he cannot be removed from Australia. In these circumstances the Tribunal considers there is no evidence that any international obligations relating to non- refoulement would be breached if the applicant’s visa was cancelled.

   Any other relevant matters

2. The applicant told the Tribunal that he has been working and would suffer great hardship because all the money he has spent on his visa application and legal costs would be wasted if his bridging visa was cancelled. He stated he has no money, and no one is helping him. He is not eating well, and his life will be ruined if his bridging visa is cancelled.

Assessment

1. The Tribunal has weighed the matters relevant to the consideration of whether the applicant’s visa should be cancelled.

2. In this matter the circumstances in which the ground for cancellation arose weighs significantly in favour of cancellation and there are few countervailing factors which weigh against cancellation.

3. The applicant has been convicted of sexual touching without consent, wilful and obscene exposure and stalking and intimidation intending to fear physical harm. The applicant characterises the offences as a mistake and that the girl consented to his conduct, however, if this were so the Tribunal considers that the court would have found the applicant to be not guilty of these offences. The applicant claimed that after being charged he entered a not guilty plea, he then changed his plea to a plea of guilty because he could not afford the cost of representation. However, the applicant could have proceeded without a lawyer or sought legal aid if this was the case. The Tribunal considers he admitted that he is guilty of the offences as charged. When discussing the circumstances, he also stated that it was two years ago and an old story. It appeared to the Tribunal that he was trying to minimise the nature of the conduct and that he lacked real contrition. Although it might be understandable to describe the obscene exposure as a minor offence the Tribunal does not consider sexual touching without consent as a minor offence. Further the most concerning aspect of the

2 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A(XXI) of 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989; and Conventional against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly and resolution 39/46 of 10 December 1984, 1465 UNTS 85 (entry into force 26 June 1987)

conduct was the applicant’s continued efforts to contact the victim when it must have been very clear that she did not want to have any contact with him after the non-consensual sexual touching and obscene exposure.

1. The Tribunal also notes that the applicant’s convictions have been listed for breach of the community correction orders and adjourned for resentencing. The applicant stated that the breach involved an allegation he had failed to attend for medical appointments and to take medication, however, there is no further information before the Tribunal on the nature of the alleged breach other than the confused account provided by the applicant. The information provided by the Local Court suggests that the applicant has not complied with the orders made when he was initially sentenced but the Tribunal has little in the way of any evidence or context surrounding the said breach and it has taken a neutral approach in terms of weighing this factor.

2. The purpose of the applicant’s need to stay in Australia is to await the outcome of his protection visa application but for reasons set out earlier the Tribunal finds that he will not be removed from Australia until his application is finally determined and this factor does not weigh strongly against cancelling the bridging visa. If the applicant’s bridging visa were cancelled, he would still be entitled to a determination of his claim for protection.

3. If the visa was cancelled there would be no breach of international obligations and there is no prospect of indefinite detention. The applicant is single and there is no evidence that children or other family members would be affected by the cancellation other than for his parents being upset at such an outcome.

4. Those matters which weigh against cancelling the visa are that there is no evidence of non- compliance with the applicant’s visa conditions and no evidence of any concerning behaviour towards the Department. Further if the applicant were not able to obtain a Bridging Visa E or another class of visa, he would become an unlawful non-citizen and subject to detention until his protection visa application was finally determined which would mean that he would not be able to work in Australia and would lose his freedom of movement within the community. He also stated his parents would be upset if they became aware of his detention. However, the Tribunal considers that these factors do not outweigh those matters which favour cancellation.

5. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Louise Nicholls Senior Member