Bellamy (Migration)

[2018] AATA 3085

Bellamy (Migration) [2018] AATA 3085 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Peter Bellamy

CASE NUMBER:  1811362

HOME AFFAIRS REFERENCE(S):           

MEMBER:Ann Duffield

DATE:2 May 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 02 May 2018 at 2:53pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Offences committed in Australia – Mental illness – Compliance with bail conditions – Rehabilitation programs – Applicant’s remorse – No compelling reasons to travel to or remain – Lack of commitment to seek medical help – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 499
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 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 19 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the applicant’s visa exists under r.2.43(1)(p)(ii) in that he has been charged with a number of offences committed in Australia. 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 on 1 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de-facto partner and his mother.

4. The applicant was represented in relation to the review by his registered migration agent and she attended the hearing.

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

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

7. The applicant is a citizen of New Zealand born on 20 September 1988 (29 years old). He first arrived in Australia in 2016.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

   s.116(1)(g) - prescribed ground

9. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(p)(ii) is relevant.

10. The Tribunal issued a subpoena to the Commissioner of the Queensland Police Service on 24 April 2018 to provide the applicant’s Person History and all charge sheets relating to outstanding charges in the State of Queensland. That documentation was provided on 26 April 2018. The Tribunal sent the material to the applicant advising him that the information contained therein would be discussed at the hearing and he would be invited to comment as the material would form the reason or part of the reason for affirming the decision.

11. The applicant was charged [in] September 2017 with the following offences alleged to have occurred between [May] 2017 and [September] 2017:

    a.[Criminal offence 1]

    b.[Criminal offence 2]

    c.[Criminal offence 3]

    d.[Criminal offence 4]

    e.[Criminal offence 5]

    f.[Criminal offence 6]

12. The applicant was granted bail on that day and [in] October 2017 the applicant’s bail was varied to the following:

    a.Surrender passport and not make application for a new or replacement passport

    b.No unsupervised contact with [certain people]

    c.Reside at a specific address

    d.Prohibited from using [content].

13. The applicant’s subclass TY444 visa was cancelled in relation to these matters and he was granted a bridging visa which was cancelled. It is that cancellation which is subject to this review.

14. The Director of Public Prosecutions dropped the six charges in relation to [criminal offence], but the applicant will face a sentencing hearing in August 2018 in relation to the [other] charges,  as well as a fifth charge of “[criminal conduct]” .

15. In response to the notice of intention to cancel his bridging visa the applicant made the following claims:

    a.He faces hardship whilst he remains in detention because he is unable to work and has mental health issues

    b.His is remorseful about his actions and has been going to counselling and [rehabilitation].

    c.He has a job to go to if released from detention.

    d.He does not see himself as a threat to the community.

    e.He claims that he will remove himself from Australia after he is sentenced.

16. Prior to the hearing the applicant provided a record of his bail conditions; a letter from his employer stating that they would re-employ him and a letter from the applicant’s criminal lawyer in relation to his current convictions.

17. The applicant presented at the Tribunal hearing with a very low aspect but was cooperative with the Tribunal and answered all questions openly.

18. The applicant told the Tribunal that he intended to plead guilty to all five charges in August (see paragraph 14) and that he would go home after serving whatever time he was sentenced to.

19. For this reason, 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.

    Evidence at the Tribunal hearing

20. The applicant told the Tribunal that on the day he was arrested and charged for the crimes noted above he became suicidal and had to be taken to the hospital by the police. He said that when he returned home his girlfriend had moved out. Asked if she did that because of his arrest and the reasons for his arrest he said that it was. When questioned by the Tribunal about her disappearance on the day, the applicant’s girlfriend said she was shocked and disgusted by the charges laid against him and what he had done. She said that she left Australia immediately for Christchurch, New Zealand, and has lived with the applicant’s parents since around October 2017.

21. The Tribunal further questioned the applicant’s girlfriend about why she and the applicant were still in a relationship after what he had done. She said that what he had done was so completely out of character that she believes it was a one off thing. She says neither he nor she can explain why he did what he did but she believes that he is very remorseful and hates himself for what he did. She said that his mental health has suffered significantly and he is depressed and anxious all the time. She said that he had lost around 30 kilograms since September last year.

22. The applicant himself was contrite and expressed his remorse and bewilderment at what he had done. Asked if he had sought psychiatric help, the applicant told the Tribunal that he had four appointments with a psychiatrist and gave the Tribunal a short note confirming that. The Tribunal put to the applicant and his adviser that it would expect something with more detail from a treating psychiatrist, including a diagnosis and prognosis for future offending. The applicant’s adviser told the Tribunal that it would have taken some time to produce such a document and they did not have that kind of time.

23. The Tribunal asked the applicant if he had been attending counselling sessions about his offending whilst in detention and he said that he had attended a number of courses for his [conduct] and behaviour and showed the Tribunal the course material. Asked what he had learned about his behaviour he said that he still didn’t know why he did what he did but was convinced it had something to do with his previous long term [actions] and his continued [actions] since he was 16 years of age. Asked if he had sought psychological or psychiatric counselling or help the applicant said that he had one session. Asked why he did not seek any more the applicant told the Tribunal that he couldn’t handle being in detention and was used to being outside. He said that being locked up was not helping his mental health and he needed to be outside and working and getting on with his life before his trial date in August.

24. The Tribunal put to him that it had no evidence before it to suggest that his previous [experience] caused him to offend and in any case, if it had, it seemed to the Tribunal that the damage had been done and on that basis, it was not impossible for him to re-offend.

25. The applicant said that he had not [engaged in the conduct] since he arrived in Australia in 2016 and [stopped] two months ago. He said that now that he was not [engaged in the conduct] he was more clear-headed and was certain that he would not re-offend.

26. Asked why he engaged in the way he had with [certain people], the applicant said he could only put it down to the long term effect of [experiences], including [experiences] that he had been [engaged] in New Zealand.

27. He said that after the trial and sentencing in August he wanted to return to Christchurch and live with his girlfriend and get on with his life. Asked why, if he wanted to go back to New Zealand, he had lodged an appeal to the AAT on the cancellation of his TY444 visa, the applicant said that he wanted to do whatever he could to stay out of detention.

28. The applicant was detained by the Department of Home Affairs on 9 April 2018. Up until that time he had been living in the community under strict bail conditions described in paragraph 12 above. He told the Tribunal that his current bail address was the address of a friend with whom he had been sharing accommodation since March 2018.

    Consideration of discretion

29. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (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. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

30. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.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.

31. 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.

32. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and 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 circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    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

33. The applicant told the Tribunal that his parents and girlfriend live in Christchurch and he intends to return there after his sentencing in August 2018. He only arrived in Australia in 2016 so has been here for less than two years. He has not significant attachment to anyone here and has said that he will re-establish himself in New Zealand.

34. The applicant claims that he would depart now if he was allowed to but he has surrendered his passport and is prevented by his bail conditions from leaving the country.

35. The Tribunal is satisfied that there are no compelling reasons for the applicant to travel to or remain in Australia.

    the extent of compliance with visa conditions

36. There are no conditions on a TY444 visa and the applicant has held no previous visas of any class.

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

37. The applicant has claimed that his ongoing detention is not helping his mental state. He says that he hates himself for what he has done and has suicidal ideation. The Tribunal has carefully considered this aspect of the witnesses’ evidence and is moved by the applicant’s apparent remorse.

38. The Tribunal notes that he was hospitalised and has lost a significant amount of weight and would clearly benefit from psychiatric or psychological help. However there is no evidence before the Tribunal that the applicant has a commitment to seek such help. He has had four appointments with a psychiatrist but the Tribunal has no information about the nature of those appointments, or a diagnosis or a prognosis from a mental health professional. The Tribunal also notes that the applicant has only sought one counselling session whilst in detention.

39. The Tribunal also accepts that the applicant is finding life inside detention very difficult and understands his frustration. However, whilst he has a job to return to and will be sharing accommodation with a friend as per his bail conditions, he has no other compelling reasons to be released. His partner is in New Zealand and he wants to go there as quickly as possible to live with her, his has no children to attend to or a mortgage to pay. The Tribunal understands that he claims to have a debt of some $50,000 that he owes his parents but has not seen any evidence of such a debt. In any case, the point is that the applicant has no particular connections outside detention such that there is a compelling need for him to be released on those grounds. Indeed, if he remains in detention, he may take the opportunity to commit to attending counselling in a controlled environment where he can be supervised. But that is neither here nor there.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

40. The applicant knowingly engaged in [certain] behaviour [and] has admitted this. Even though such behaviour happened [in a certain environment] and not in person, the Tribunal considers the crime a grave one and absent any evidence that the applicant’s behaviour was linked to or caused by any mental illness the Tribunal is not satisfied that the applicant’s behaviour was beyond his control.

41. The Tribunal does recognise, in this context, that the applicant has been granted bail and that he has complied with all his bail conditions over a period of some seven months. The Tribunal does give this aspect of the evidence some considerable weight.

    past and present behaviour of the visa holder towards the Department

42. There is no evidence that the applicant has not been compliant in his behaviour with the department.

    whether there would be consequential cancellations under s.140

43. This is not applicable to the current case.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

44. The Tribunal notes that the effect of a cancellation would prevent the applicant from applying for a further visa without the intervention of the Minister. The Tribunal is also mindful that he would remain in detention and have difficulties obtaining a new Australian visa in the future. However, the applicant has told the Tribunal that it is his intention to depart Australia and not return after his sentencing in August.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

45. There is no evidence before the Tribunal that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation.

46. The Tribunal does not consider that there are any other relevant matters to consider.

47. The Tribunal accepts the applicant’s evidence that he will suffer emotionally, mentally and financially if he remains in detention. The Tribunal has found several factors weigh against cancellation. However, the applicant’s criminal offending is a matter of grave concern to the Tribunal, as are his efforts to downplay the seriousness of his offending by insisting there was no victim as the offence happened on line and it was a police set up. Also of concern to the Tribunal is the lack of commitment shown by the applicant to seek proper medical and psychiatric help whilst he was on bail and also whilst he has been in detention.

48. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s visa. The Tribunal has been especially cognisant of the applicant’s obvious remorse for his offending and the fact that he abided by his bail conditions. On balance, however, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those to the contrary.

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

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Ann Duffield
    Senior Member