2404522 (Migration)

[2024] AATA 2063

2404522 (Migration) [2024] AATA 2063 (13 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rayan Hazim

CASE NUMBER:  2404522

MEMBER:Kira Raif

DATE:13 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 13 June 2024 at 12:39pm

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of multiple offences – mental health issues – period of unlawful residence – indefinite detention – limited ties to Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 29 February 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Lebanon, born in [specified year]. He was granted a Bridging C visa (BVC) in relation to an application for a substantive visa. In 2023 and 2024 the applicant was issued with the Notices of Intention to Consider Cancellation (NOICC). He provided his responses and the BVC was cancelled in February 2024. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. A visa may be cancelled under s 116(1)(g) if the Minister or the Tribunal 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 (Cth) (the Regulations). Regulation 2.43(1)(oa) provides the following:

   (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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  he was granted a BVC on 19 December 2022 in relation to an application for a substantive visa that was lodged in August 2019. The primary decision record indicates that information available to the Department shows that [in] September 2022 the applicant was convicted of the following offences at [Court 1]:

   a.Common assault

   b.Stalk / intimidate intend fear physical harm etc (domestic)

   c.Assault occasioning actual bodily harm

7. The applicant had been sentenced to serve supervised community corrections orders.

8. In his responses to the NOICC the applicant states that his former partner had made up claims against him and he denied assaulting his partner. In his declaration of 11 June 2024 the applicant also denies assaulting his partner. However, in his evidence to the delegate, the applicant also states that there was a private argument, and he reacted irrationally and as a result, his wife sustained an injury [specified]. That does not support the applicant’s claim that there was nothing between them and that the entirety of the allegations had been made up by his former spouse. The applicant states that he pleaded guilty on advice of his lawyer.

9. In oral evidence to the Tribunal, the applicant stated that he acknowledged and admitted that he had made a mistake. The applicant states that he ‘did not understand anything’ when he went to court and it was not until very recently that he understood that he had been convicted of three offences. In his written submissions of 11 June 2024 the applicant also refers to poor representation by his criminal lawyer (which resulted in his incarceration for [number] days). The Tribunal finds the applicant’s claims unpersuasive. The Tribunal does not accept that the applicant would have gone through the court proceedings, and he claims to have been legally represented, without any understating of the process and the convictions. The Tribunal is of the view that if it was obvious to the court or the applicant’s representatives that his English was so poor as to preclude him from engaging in the process, an interpreter would have been appointed by the court. The Tribunal also notes that nearly two years had passed since the convictions and the Tribunal does not accept that in that time the applicant failed to gain any understanding of his convictions.

10. In any event, the Tribunal considers the fact of conviction to be evidence that the crimes had been committed. The Tribunal is not required (nor permitted) to go behind the conviction. There is also no evidence that the applicant sought to overturn his conviction (if he claims he had not committed any offences) and there is no evidence that the convictions had been quashed.

11. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a Bridging visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s 116(1)(g) and reg 2.43(1)(oa).

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. The applicant states that he had travelled to Australia on a Business Visitor visa, which he extended, and he then made an application for a substantive visa. The primary decision record indicates that the applicant had also been unlawful for a brief period after his Visitor visa expired. The applicant denies this in oral evidence and he told the Tribunal that he instructed a lawyer who made the application for the substantive visa before his Visitor visa expired. In his post-hearing submission the applicant explains that the application for the substantive visa was made on the last day of his Visitor visa but was found to be invalid and was re-lodged some two weeks later without the agent informing him. The Tribunal accepts that the applicant genuinely believed that he was holding a visa and any period of non-compliance may not have been intentional. The Tribunal does not draw any adverse conclusions from that fact.

14. If the purpose of the applicant’s travel to Australia was as a business visitor, it appears that he is not fulfilling that purpose by seeking a permanent visa and the applicant told the Tribunal that he did intend to remain in Australia and stay away from his family when seeking the Visitor visa. It appears that the applicant never intended to fulfil the purpose stated in his Visitor visa.

15. The applicant told the Tribunal that he travelled to Australia because he had been persecuted in Lebanon as his family is very conservative, unlike him, and his brother has threatened him. The applicant states that he cannot return to Lebanon. The Tribunal acknowledges that the applicant had made a valid application for a substantive visa which is yet to be determined. His bridging visa, that is the subject of this review, was granted to enable the applicant to await the outcome of the substantive visa application and that purpose is being fulfilled. Whether or not the applicant has a compelling need to remain in Australia, he will be able to do so while his substantive visa application is under consideration irrespective of the outcome of this review.

    The extent of compliance with visa conditions

16. In his submissions to the delegate the applicant states that he has always complied with visa conditions and is of good character. He provided to the Tribunal a character reference and his Australian police certificate. There is no evidence of any non-compliance with visa conditions.

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

17. In his written submission to the Tribunal the applicant refers to the traumatic experiences in Lebanon and the hardship he has experienced in Australia, due to his inability to work and the “emotional abuse” from his ex-wife. The applicant refers to the emotional hardship and the effect of these factors on his mental health. The applicant states that he needs to seek professional help which he is not able to do due to his financial situation. The applicant states that if he is placed in detention, his psychological well-being will be significantly affected.

18. The Tribunal is prepared to accept that detaining the applicant may affect his mental health. However, the Tribunal is mindful, firstly, that no steps had been taken to detain the applicant despite his apparently unlawful status since February 2024 (the applicant’s post-hearing submissions to the Tribunal indicate that he had not sought another visa until 12 June 2024 and was thus an unlawful non-citizen). Secondly, and significantly, the applicant is eligible to make an application for a Bridging E visa that would enable him to remain in Australia lawfully while awaiting the outcome of his application for the substantive visa and the applicant informed the Tribunal on 12 June that he had made that application. In the circumstances, and while the Tribunal acknowledges that it is possible that the applicant would be detained as an unlawful non-citizen, the Tribunal is of the view that in practice, the possibility of the applicant being detained is insignificant. Nevertheless, the Tribunal acknowledges the applicant’s concerns that his BVE application may not be successful and the Tribunal accepts that if the applicant is detained as a result of being an unlawful non-citizen due to the cancellation of the BVC, that may cause significant hardship to the applicant.

    Circumstances in which ground of cancellation arose

19. The ground for cancellation arises because the applicant had been convicted of offences set out above and not because of a relationship breakdown. The applicant claims in his evidence to the delegate that he did not commit those offences and that his former spouse had made up allegations against him. As noted above, the Tribunal does not accept these explanations, given that the applicant pleaded guilty (even if on advice of his lawyer) and the convictions have not been overturned. The applicant’s own evidence is that he attended a court hearing and was represented by a lawyer. In the Tribunal’s view, the fact of the conviction is evidence that  the offending conduct took place and the applicant’s continuous denial of his behaviour is of some concern to the Tribunal.

20. In his declaration of 11 June 2024 the applicant provided a detailed description of events leading to the conviction and expressed his remorse for his conduct. In his oral evidence to the Tribunal the applicant admits his ‘mistake’ and has expressed his remorse. In his written submission to the Tribunal the applicant refers to ‘enduring trauma of emotional abuse’ inflicted by his former partner and he told the Tribunal that the circumstances occurred as his wife was provoking him and for a long time he had been repressing his emotions. The applicant also refers to the hardship of his going through the unfair legal process. As noted above, the Tribunal is somewhat concerned about the applicant’s apparent attempt to blame his ex-partner for his conduct.

    Past and present behaviour of the visa holder towards the department

21. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

22. There are no persons who would be affected by consequential cancellation.

    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

23. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, the applicant has an outstanding application for a substantive visa that has not been finally determined. That process is independent and would permit the applicant to remain in Australia until the review is determined. Nevertheless the Tribunal acknowledges that if the applicant is not granted another visa, he may be detained as an unlawful non-citizen. The cancellation of the visa will also result in the application of s 48, limiting the applicant’s options of applying for another visa onshore and of the exclusion period in relation to future applications. (The Tribunal is mindful that s 48 and the exclusion period in PIC 4013 already apply due to the refusal of the applicant’s substantive visa application and not only due to the cancellation of the BVC.)

    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

24. The applicant claims that if his visa is cancelled, he would be liable for removal and he is fearful of returning to his home country. The applicant states that his removal would be in breach of the various Conventions and the non-refoulement obligations.

25. The Tribunal does not accept the applicant’s claim because the cancellation of his visa will not result in the applicant having to be removed from Australia. As noted elsewhere, while the applicant has an outstanding application for a substantive visa that has not been finally determined, the applicant will not be removed from Australia. The two processes are independent and if it is determined that the applicant is owed protection obligations, he will not be removed from Australia in breach of Australia’s non-refoulement obligations. Thus, the Tribunal finds that the cancellation of the visa will not result in the applicant being removed from Australia and will not be in breach of Australia’s non-refoulement obligations.

26. The applicant refers to his minor [child] in Lebanon, stating that he has not seen [them] for six years. The applicant states that if he has been in Australia for close to six years and has not achieved anything, his [child] will see him as a failure. It is unclear how the cancellation of the applicant’s bridging C visa will affect the applicant’s child, noting that the applicant will be able to remain in Australia, irrespective of whether he holds a Bridging C visa, to await the outcome of his application for the substantive visa. The Tribunal does not consider that the best interests of the applicant’s child (or any other child) will be affected by the cancellation of the applicant’s Bridging C visa.

27. The Tribunal finds that Australia’s international obligations will not be breached by the cancellation of the applicant’s visa.

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

28. The visa in question is not a permanent visa.

    Any other relevant matters

29. In his evidence to the Tribunal the applicant has expressed remorse for his conduct and he repeatedly told the Tribunal that he had made a mistake. He states that he complies with the law and had attended the police station when he received the text from the police asking him to attend. The applicant provided to the Tribunal a copy of his police certificate and a character reference. The Tribunal acknowledges that there are no other convictions. The Tribunal is also prepared to accept that the applicant is considered to be a person of good character by a friend.

30. The applicant states that he had never been given his rights in Australia (he has no access to Medicare and has not been given work rights). It is not clear to the Tribunal why he believes these to be his ‘rights’ if he was assessed as not meeting the eligibility criteria. The applicant states that his application for work right has been refused multiple times and he told the Tribunal that his applications were refused because he was not able to produce the requested evidence. The Tribunal does not consider this to be a denial of the applicant’s rights, nor a circumstance that weighs in favour of setting aside the cancellation.

31. The applicant refers to his substantial ties to Australia, having lived here for close to six years. He refers to having a supportive circle of friends in Australia (in the absence of close family) who are a source of support for him. The Tribunal acknowledges that the applicant has been living in Australia for a significant period and the Tribunal is prepared to accept that he has formed friendships in this country. The Tribunal is mindful, however, that the applicant has never held a substantive visa since the expiry of his Visitor visa and in the absence of a permission to remain in Australia permanently or even long term (that is, in circumstances where the applicant would be required to leave Australia unless granted another visa), the Tribunal places limited weight on the applicant’s ties to Australia. The Tribunal also notes that the cancellation of the BVC does not equate to the applicant having to leave Australia, so that his ties will remain intact irrespective of his visa status.

32. The applicant refers to having had a hard life previously and the hardship he had experienced when facing the legal system in Australia. The applicant refers to his commitment to rehabilitation and self-improvement. The applicant presented no documentary evidence about having participated in any formal rehabilitation programs and in his oral evidence to the Tribunal the applicant on multiple occasions seemed to blame his ex-partner for her conduct and for provoking him.

33. In his written submission the applicant states that he does not pose a danger to the community and states that his convictions were not for serious crimes but on the lower end of the scale, as is evidenced by the sentence. The Tribunal accepts that the offending may have been at the lower end of the scale but is of the view that any form of family violence offending cannot be classified as ‘not serious crimes’. To claim otherwise, and the applicant’s repeated attempts in oral evidence to blame his conduct on his former partner (he referred to being provoked and denied some of the offending took place), suggests, in the Tribunal’s view, that the applicant lacks insight into his conduct.

1. The applicant claims that he is not a risk to the community and has been compliant with the law other than the above convictions. He states that he has completed the community corrections order. The Tribunal acknowledges that there is no evidence of any other convictions and no evidence that the applicant had engaged in any behaviour in breach of Australia’s laws or any other anti-social behaviour.

2. In his post-hearing submission the applicant states that has made an application for a Bridging E visa (and he provided evidence of that to the Tribunal) which is likely to be refused due to character grounds, which also led to the cancellation of the BVC. The applicant requested the Tribunal to address the issue of the applicant’s character. The Tribunal considers that submission misguided as the applicant’s BVC was not cancelled on character grounds but because the applicant has a criminal conviction. Any criminal conviction, no matter how minor, could provide a ground for cancelling a bridging visa, unlike character considerations which do not arise merely because a person has been convicted of an offence. Thus, the Tribunal does not consider that a cancellation of a Bridging visa under s. 116 ands r. 2.43(1)(oa) can be equated to a determination that the applicant does not pass the character test and the cancellation of the BVC does not necessarily suggest that the application for the Bridging E visa will be unsuccessful. It is not necessary for the Tribunal to consider whether the applicant passes the character test and the Tribunal makes no determination on the issue.

3. The Tribunal has considered the entirety of the applicant’s circumstances. The Tribunal has found that the applicant has been convicted of offences and that he held a bridging visa and therefore there are grounds for cancelling his visa.

4. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the cancellation of the visa would not cause significant hardship to the applicant because the applicant will not be required to leave Australia and because his detention is unlikely (noting that the applicant is eligible to seek a Bridging E visa and has made such an application after the conclusion of the hearing). Nevertheless, the Tribunal acknowledges that there is a possibility that the applicant will remain an unlawful non-citizen if his BVC is cancelled and if he is not granted the BVE and that he may be detained as a result. The Tribunal accepts that detention may cause significant hardship to the applicant.

5. The Tribunal has decided that the cancellation will not be in breach of Australia’s international obligations. The Tribunal acknowledges that there are significant legal consequences to the cancellation, although the Tribunal notes that many of these already apply due to the refusal of the applicant’s substantive visa. The Tribunal accepts that the applicant has been residing in Australia for close to six years and that he may have formed strong community ties here but the Tribunal gives this consideration limited weight in the circumstances where the applicant has never had a visa to permit him to remain in Australia permanently or even long term.

6. The Tribunal has decided to place the greatest weight on the circumstances in which the ground for cancellation arose. The applicant had been convicted of family violence offences. The applicant seeks to minimise his culpability for offending, stating that offending was not serious, that much of the evidence was fabricated by his ex-partner and by suggesting that the victim has provoked him. The Tribunal has formed the view that the applicant does not have a strong insight into his offending conduct.

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

   DECISION

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

   Kira Raif
   Senior Member