Bin Erik (Migration)

[2021] AATA 2146

Bin Erik (Migration) [2021] AATA 2146 (1 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hasbullah Bin Erik

CASE NUMBER:  1912100

HOME AFFAIRS REFERENCE(S):          CLF2016/66327

MEMBER:Michelle East

DATE:1 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 01 April 2021 at 11:46am

CATCHWORDS
MIGRATION – Cancellation – Bridging C (Class WC) visa – Subclass 030– unlawful non-citizen– failed to respond to hearing invitation – breached condition 8101 –applicant was working – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 May 2019 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of his visa. 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 was invited to appear before the Tribunal by telephone on 1 April 2021 to give evidence and present arguments.

4. The Tribunal attempted to call the applicant on the contact number provided with his application for review, however the number was disconnected.

5. An alternative number for the applicant was located on another application for review that he has with the Tribunal.  When the Tribunal attempted to contact him on that number the receiver had no knowledge of the applicant.

6. Accordingly, the Tribunal is satisfied that it has made all reasonable attempts to contact the applicant.  The hearing invitation was sent to the email address provided for the authorised recipient on the application for review and the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given.

7. In these circumstances the Tribunal has decided to exercise its discretion to make a decision on the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)(b). 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8101 is attached to the applicant’s visa. This condition requires the applicant to not work.

11. The applicant provided to the Tribunal a copy of the delegate’s decision record.  It records, among other things, that condition 8101 is attached to the applicant’s Subclass WC-030 bridging visa granted on 7 March 2019.

12. A Notice of Intention to Consider Cancellation (NOICC) was provided to the applicant on 13 May 2019 and stated the applicant was located at a known address linked to a person of interest.  When questioned how he was funding his travel he stated his adopted sister supported him with cash.  When asked to provide evidence of this he was unable to.  The delegate stated that based on this as well as the address where he was located gave rise to the suspicion that he had breached condition 8101 and grounds for cancellation may exist.

13. The applicant was interviewed on 14 May 2019 and a decision was made on that date to cancel his visa.

14. The Tribunal notes the applicant has subsequently been granted a Subclass WE-050 bridging visa on 14 May 2019.

15. Evidence provided to the Tribunal includes a photograph of an unsigned Statutory Declaration from Ms Lenstra of Carnarvon.  She stated she has known the applicant since he arrived in Australia on 17 March 2016 and she is aware he cannot work at all.  She said that he has stayed with her and she gives him support.

16. The Tribunal is aware that it is not bound by the rules of evidence.  Nonetheless, the evidence upon which a party seeks to rely must have at least some probative value.  The statement of Ms Lenstra which is unsigned and unsworn does not in the Tribunal’s opinion have any probative value at all.  Accordingly, the Tribunal has placed no weight on the statement.

17. Based upon the record of interview as contained in the delegate’s decision the Tribunal is satisfied that the applicant did not give a satisfactory answer when questioned as to how he supported himself since arriving in Australia.  This gives rise to the genuine probability that the applicant has been working illegally to support himself.

18. The Tribunal finds that the applicant has failed to comply with the requirements of condition 8101. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

19. 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’.

20. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

21. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion.  In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

22. The applicant was originally granted a Subclass UD-601 visa offshore on 2 March 2016 and arrived in Australia on 15 March 2016.  That visa ceased on 15 June 2016 and the applicant became an unlawful non-citizen.  On 21 October 2016 the applicant lodged an application for another visa and has been granted a series of associated bridging visas Subclass WC-030 with condition 8101 attached.  The application for the other visa was refused and an application for review has been lodged with the Tribunal on 3 April 2017.

23. The purpose of the visa holder’s original visa would have been as a visitor.  The Tribunal is not satisfied that it was the applicant’s intention to only come to Australia as a visitor.

24. The Tribunal finds this weighs in favour of exercising the discretion to cancel the visa.

    The reason for and extent of the breach

25. The Tribunal is not satisfied by the applicant’s explanation as to how he was supporting himself since his arrival in Australia.  The implication is therefore that the applicant was working in breach of his visa condition.

26. The Tribunal finds this weighs in favour of exercising the discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose

27. The decision record of the interview between the delegate and the applicant stated that ‘during the interview visa holder mentioned that he has many debts to settle.  Need to pay off mobile phone contract in 2 years.  He wants to work to take care of himself and pay off debts in Malaysia’.

28. This evidence is consistent with the delegate’s conclusion that the applicant was working.

29. The Tribunal finds this weighs heavily in favour of exercising the discretion to cancel the visa.

    The degree of hardship (financial, psychological, emotional or other) that may be caused to the visa holder and any family members

30. In his interview the applicant said he owed a cousin some money. The Tribunal has no other evidence before it of any hardship the applicant may suffer.

31. The Tribunal finds this weighs in favour of exercising the discretion to cancel the visa.

    The visa holder’s past and present behaviour toward the Department

32. As noted above, the applicant arrived in Australia on a visitor visa and after becoming an unlawful non-citizen, lodged an application for a protection visa.

33. The delegate’s decision notes that several attempts were made to contact the applicant to regularise his visa status when he became unlawful with no success.

34. The Tribunal finds this weighs in favour of exercising the discretion to cancel the visa.

    Any consequential cancellations that may result

35. There is no evidence before the Tribunal of any consequential cancellations that may result.

36. The Tribunal finds this weighs in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

37. The applicant is currently on another bridging visa.  In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia.  If that is so, he has the opportunity to depart Australia.  If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.

38. The Tribunal is mindful that section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skill visas. This limits the visa applications which can be made by the applicant whilst onshore.

39. The Tribunal considers this factor weighs slightly against the exercise of its discretion to cancel the visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

40. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations.  These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

41. No evidence has been provided to suggest the Tribunal would be in breach of its international obligations.

42. The Tribunal considers this factor neutral in the exercise of its discretion.

    Consideration of discretion

43. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa far outweigh the reasons for not cancelling the visa.  The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Michelle East
    Member