2429604 (Migration)

[2024] AATA 3498

2429604 (Migration) [2024] AATA 3498 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2429604

MEMBER:Louise Nicholls

DATE:2 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 September 2024 at 5:11pm

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – granted in conjunction with application for protection visa, made after working visa ceased – criminal convictions, imprisonment, community correction orders and fine – discretion to cancel visa – economic conditions and financial circumstances – family home destroyed by cyclone – circumstances of offences – currently in immigration detention – application for protection not finally determined and applicant cannot be removed – application for review not out of time because of defective notice – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 198(5A)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

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 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 Vanuatu, and he is [Age] years old. He first arrived in Australia [in] May 2019 as the holder of a Subclass 403 seasonal worker visa. He was granted a further seasonal worker visa in 2021 which ceased on 21 July 2022.

2. He was granted a Subclass 030 (Bridging C) visa on 27 September 2022 while awaiting the outcome of an application for a protection visa.While holding the Subclass 030 (Bridging C) visa he was convicted of several offences in the [Local Court] [in] July 2023 and [May] 2024.

3. On 10 July 2024 the delegate of the Minister for Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant. On 16 July 2024 the applicant responded to the NOICC.

4. The NOICC stated the applicant had been convicted of the following offences:

   ·[Local Court], [05]/2024 - Destroy or damage property (DV). Sentence Community Correction order - 18 Months commencing [05]/2024 concluding [11]/2025.

   ·[Local Court], [05]/2024 – Possess prohibited drug. Sentence - s.10A conviction with no other penalty.

   ·[Local Court], [05]/2024 –Assault occasioning actual bodily harm (T2). Sentence - Imprisonment 4 months commencing 20/03/2024 concluding 19/072024.

   ·[Local Court] [05]/2024 – Common assault (DV) T2. Sentence - Community Correction order 2 years commencing [05]/ 2024 concluding [05]/2026.

   ·[Local Court [07]/2023 – Never licensed person drive vehicle on road. Sentence - First offence fine $200.

5. On 9 August 2024 the delegate cancelled the applicant’s Subclass 030 (Bridging C) visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been convicted of offences against the laws of the state of New South Wales.

6. This is an application for review of that cancellation decision. The application was initially thought to be out of time because the application was filed outside the prescribed time limits. The Tribunal is of the view that the Department’s notification was defective because it had advised of a 7-day time limit which was the prescribed time limit while the applicant was in criminal detention. However, when he was taken into immigration detention that time limit changed and accordingly the applicant was not given the correct information at the time of notification. Therefore, as the notice was defective time did not run from the date of notification and accordingly the Tribunal considers the application for review is a valid application.

7. The applicant appeared before the Tribunal on 2 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.

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

   Background

9. The applicant gave evidence that he is [Age] years old and was born in Vanuatu. His parents are alive and living in Vanuatu. He has [brothers] also living in Vanuatu.

10. His parents are farmers and support themselves by harvesting their crops and selling their produce at the markets. He does not know how his brothers support themselves.

11. The applicant attended school in Vanuatu and after he finished school he was not in paid employment. He helped his parents with the crops before he obtained a temporary work visa and came to work in Australia.

12. The applicant is not married but has a girlfriend and [Age]-year-old child living in Vanuatu.

13. He has had two temporary work visas; the first was granted in 2019 and he arrived in Australia [in] May 2019. He returned to Vanuatu at the end of the visa period. He obtained a further temporary work visa in October 2021 and returned to Australia [in] October 2021. His visa ceased on 21 July 2022 and he applied for a protection visa on 19 September 2022. He was granted a bridging visa while awaiting the outcome of his protection visa application. When his protection visa was refused by a delegate of the Department he applied to the Tribunal for a review of that decision and he was granted a further Subclass 030 (Bridging C) visa on 24 August 2024.

14. Prior to his convictions and imprisonment in May 2024 he was working at a [workplace] near [City], NSW.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

16. 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) of the Act. 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?

17. 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.

18. 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));

19. The applicant provided a response to the NOICC on 16 July 2024 in which he agreed that there were grounds for cancellation. 

20. The applicant lodged a copy of the cancellation decision with his application for review. The cancellation decision sets out the detail of the offences with which the applicant was charged, and the outcomes. The decision states that the applicant has been convicted of several offences against the laws of NSW.

21. At the hearing the Tribunal read out the record of his convictions as set out in the NOICC and cancellation decision. He agreed that he had been convicted of those offences and the record was correct.  

22. 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

23. 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’.

24. In response to the delegate’s NOICC the applicant stated that

    ·His visa should not be cancelled because his country is very poor economically. His family is also very poor and live in poverty. He could not complete his education or get a better job because of his financial circumstances.

    ·He did not hear from his family while he was in jail and knows they are facing a hard time because he has not been working to send money back home.

    ·The purpose of his travel in Australia is to work and earn money and send money back to help his family, his church and community. He also wishes to help the economic situation of his country. If he could get the chance to study he could build his skills for the future.

    ·Since being in jail he has learnt about failures, accepted why he is in jail and also knows what causes him to be in jail. He stated he is a good person and tries to do good, but his alcohol consumption has driven him to do the wrong things in his life. He is sorry for what he has done and accepts he did not comply with the conditions of his visa. He stated if he has the chance he would make good use of the opportunity and comply with visa conditions. He would build up good behaviour towards the Department and will not follow the pathway of his past but would focus on the future for the sake of his family.

    ·He is the [birth order] of [siblings] and has had the opportunity to travel and help his family. If his visa is cancelled, he does not know where he would gain income to sustain his family. The economy of his country is very poor and citizens do not get Centrelink payments as Australians do to help in times of need. He also has an unfinished family house and is still working to be able to complete and does not know whether he is going to be able to finish the building if his visa is cancelled.

    ·He claims that the grounds the cancellation arose because he was under the influence of alcohol at the time. He stated that if he had the chance to stay and work in Australia he would not go after the victims and will stop using drugs and alcohol and will not disturb the Australian community. He claims he will respect Australian laws and focus on his goals.

25. At the hearing the Tribunal read out the written reasons he had given to the delegate as to why his visa should not be cancelled. The applicant was asked whether there was anything further on each of the matters set in PAM3 and any other relevant evidence which supported  his claim that his visa should not be cancelled.

26. 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.

27. The Tribunal put it to the applicant that he was awaiting the review of the refusal of his protection visa which was still before the Tribunal. He also stated he wanted to be able to live in Australia and work and eventually become a permanent resident and citizen. He stated once he was a permanent resident, he hoped to bring his girlfriend and child to Australia to live with him.

    The extent of compliance with visa conditions.

28. There is no evidence the applicant has breached the visa conditions on his substantive visas or his bridging visas.

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

29. The applicant stated he would suffer hardship because the family home in Vanuatu was destroyed by a cyclone in 2015 and he was working so that it could be rebuilt. He stated that his girlfriend and child currently live with her family. He stated that his family would struggle if he was not working and earning money.

    Circumstances in which ground of cancellation arose.

30. The Tribunal asked the applicant to explain the circumstances of his several convictions.

31. He stated that on one occasion he was invited to a workmate’s house and was drunk. He does not remember what happened but was told that he chased a woman called [Ms A] out into the street and the police were called. He was also told that he had punched his workmate’s brother-in-law. He could not remember anything else

32. On another occasion he was drunk and went to see a woman called [Ms B] at her home. He does not clearly remember what happened but [Ms B]’s sister spoke rudely to him and he was told he punched the door and walked back to his place. He stated that there was an apprehended violence order in relation to [Ms B] but he understood she had gone back to [Country] since the incident.

33. The Tribunal put it to him that he had been sentenced to four months in prison which suggested that someone had been injured in either of these incidents. He stated that he had punched his workmate’s brother-in-law.

34. When asked if he wished to give any further evidence about these incidents, he stated he wanted to apologise for committing those offences.

    Past and present behaviour towards the Department

35. There is no evidence that the applicant has had any adverse interactions with Departmental officers.

    Whether there would be consequential cancellations under s.140.

36. 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.

37. At the time of the cancellation the applicant held a Bridging Visa C. If the applicant’s Bridging visa C 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.

38. The evidence indicates that the applicant’s application for a protection visa is pending review by the Tribunal. 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.

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

40. 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.

41. 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 is currently residing in [a] Detention Centre.

42. 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 opinion[1]. 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 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] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137

    [2] International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification

43. The applicant stated that he borrowed some funds from friends in Vanuatu and is not sure what will happen to him if he returns.

44. The Department’s records show, and the Tribunal accepts, that the applicant has made an application for protection, the applicant has been refused and he has applied to the Tribunal for review. His application is pending determination.

45. 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 the review of his protection visa 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

46. The applicant did not offer any other evidence to support his application.

    Assessment

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

48. 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.

49. The applicant has been convicted of several offences, two of which are characterised as domestic violence offences and one of which is assault occasioning actual bodily harm for which the applicant was sentenced of imprisonment for a period of four months. The Tribunal is aware that current government policy in relation to domestic violence is that such conduct is unacceptable and not to be condoned. Further the government has an expectation that bridging visa holders will not engage in criminal conduct and, in particular, should not engage in conduct which is characterised as family violence.

50. The purpose of the applicant’s need to stay in Australia is to await the outcome of his application for the review of his protection visa refusal, 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 application for review.

51. 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 his family in Vanuatu who would be deprived of the income he provides towards their financial support.

52. 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 not have freedom of movement within the community. However, the Tribunal considers that these factors do not outweigh those matters which favour cancellation.

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

   DECISION

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

   Louise Nicholls
   Senior Member

   
   
   

(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).

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)