CGW22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 171

Federal Circuit and Family Court of Australia

(DIVISION 2)

CGW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 171

File number(s):

SYG 947 of 2022

Judgment of:

JUDGE LAING

Date of judgment:

10 March 2023

Catchwords:

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s (Subclass 030) (Bridging visa) under s 116 of the Migration Act 1958 (Cth) – whether the visa could be cancelled whilst the applicant was on remand – whether the Tribunal failed to consider the applicant’s evidence or submissions – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 116, 359A, 376

Migration Regulations 1994 (Cth), reg 2.43

Cases cited:

DOZ16 v Minister for Immigration [2017] FCCA 1157; (2017) 320 FLR 386

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 852

Division:

Division 2 General Federal Law

Number of paragraphs:

23

Date of hearing:

3 November 2022

Place:

Sydney

Solicitor for the Applicant

The applicant appeared via video-link

Counsel for the First Respondent:

Ms K Morris, of Counsel, appeared via video-link.

Solicitor for the First Respondent

Hunt & Hunt Lawyers

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 947 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CGW22
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	10 March 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s Subclass 030 (Bridging C) visa (bridging visa).

   BACKGROUND

2. The applicant is a citizen of Papua New Guinea (PNG), who last arrived in Australia on 25 May 2018 on a Tourist visa. The applicant subsequently remained in Australia unlawfully for around 3 months before applying for a Protection (Class XA) (Subclass 866) visa (protection visa) on 2 November 2018. The applicant was granted a bridging visa that was associated with that application.

3. The applicant’s protection visa application was refused on 23 July 2019. On 1 August 2019, the applicant sought review of that refusal.

4. The applicant was subsequently convicted of a number of offences and charged with others. By letter dated 7 September 2021, the applicant was provided with a Notice of Intention to Consider Cancellation (NOICC) of his bridging visa under s 116 of the Migration Act 1958 (Cth) (Act).

5. On 10 November 2021, the Delegate decided to cancel the applicant’s visa. The applicant applied to the Tribunal for review of that decision.

6. On 18 May 2022, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’s DECISION

7. The Tribunal observed that a non-disclosure certificate had been issued under the Act, a copy of which had been provided to the applicant. The Tribunal considered that the certificate was valid. It observed that it had disclosed some of the underlying material and had otherwise informed the applicant of the ‘gist’ of the information (at [13]-[19]).

8. The Tribunal was satisfied that a ground for cancellation existed under s 116(1)(g) of the Act. That provision allowed cancellation of a visa if the Minister was satisfied that a ‘prescribed ground’ applied. The prescribed grounds included where, in the case of a relevant visa holder, the Minister was satisfied that the holder had been ‘convicted of an offence against a law of the Commonwealth, a State or Territory’: reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal observed that the applicant had been convicted of multiple offences against the laws of New South Wales and had acknowledged the grounds for cancelling the visa (at [20]-[22]).

9. The Tribunal proceeded to consider whether the visa should be cancelled. The Tribunal considered:

   (a)The purpose of the applicant’s travel to and stay in Australia, and whether the applicant had a compelling need to remain. The Tribunal accepted that the applicant was providing his wife and daughter in PNG with financial support from time to time. However, the Tribunal did not consider that the applicant’s employment was a compelling need for the applicant to remain. The Tribunal accepted that the applicant’s protection visa refusal review provided such a reason and that this was the purpose for which he had been granted the bridging visa. The Tribunal observed that the applicant may remain in detention whilst the review was finalised. This was weighed against cancellation (at [24]-[31]).

   (b)The extent of compliance with visa conditions. The Tribunal considered that there were no conditions attached to the applicant’s bridging visa and weighed this neither for nor against cancellation (at [32]).

   (c)The degree of hardship that may be caused. The Tribunal accepted that the cancellation would impose some limited hardship upon the applicant. It accepted that the applicant had been a solid and reliable employee, that he had been offered further employment and that he had contributed to his chosen sport. The Tribunal accepted that financial hardship may be caused to the applicant and his family due to the cancellation, although it did not accept that the applicant would be unable to mitigate this through employment in PNG. Whilst the applicant claimed to face danger in PNG due to tribal fighting and land disputes, the Tribunal observed that no corroborate evidence had been provided. The Tribunal considered that the applicant would be able to expand upon these claims in his protection visa application review, albeit from detention. The Tribunal weighed the consideration of hardship against cancelling the visa (at [33]-[50]).

   (d)The circumstances in which the ground for cancellation arose. The Tribunal observed that the applicant had been convicted of 10 offences in 2020, including assault occasioning actual bodily harm – T2, Apprehended Violence Order (AVO) and driving with high range PCA. The applicant had also been charged in August 2021 with 5 other offences including ‘using carriage service to procure under 16 years for sexual activity’. The Tribunal considered that the applicant had demonstrated ‘a propensity to break the law and an ongoing disregard both for the laws of New South Wales and the safety of the community’. The Tribunal weighed this strongly in favour of cancelling the visa (at [51]-[66]).

   (e)Past and present behaviour towards the Department. The Tribunal observed that the applicant had responded to the NOICC and had actively engaged in the cancellation consideration process. However, he had also remained in Australia unlawfully for a period of 3 months. Whilst the Tribunal accepted that the applicant may have been unaware that his Tourist visa had expired, it considered knowledge of this to have been his responsibility. Overall, the Tribunal stated that it had weighed the applicant’s behaviour towards the Department ‘slightly against cancelling the visa’ (at [67]-[69]).

   (f)Any consequential cancellations under s 140. The Tribunal observed that there were no consequential cancellations and weighed this neither for nor against cancelling the visa (at [70]).

   (g)Mandatory legal consequences of cancellation. The Tribunal observed that as a result of cancellation the applicant would be an unlawful non-citizen liable for detention (potentially indefinitely) and removal, whose ability to apply for further visas was limited. The Tribunal considered that the applicant may be able to apply for a Bridging visa E, but was likely to remain in detention unless a further visa was granted. The Tribunal weighed these matters neither for nor against cancelling the visa (at [71]-[72]).

   (h)International obligations – non-refoulement. The Tribunal reiterated that no corroborative evidence had been provided in support of the applicant’s claims to face harm in PNG on account of tribal fights over land boundaries. The applicant’s protection visa application had been refused, although an application for review was pending before the Tribunal. The Tribunal considered that the applicant’s claimed fears in this regard would be considered as part of that review. This factor was found to weigh neither for nor against cancelling the visa (at [73]-[75]).

   (i)The best interests of any affected children under the age of 18 in Australia. The Tribunal observed that the applicant’s child lived with his wife in PNG. The cancellation would not result in separation of the family unit. The Tribunal weighed this factor neither for nor against cancelling the visa (at [76]).

   (j)Other relevant matters. The Tribunal referred to the additional offences with which the applicant had been charged, including ‘using carriage service to procure under 16 years for sexual activity’. The Tribunal stated that the charges ‘were matters for the criminal justice system, not the Tribunal’ and ‘would be determined by the Court’. The Tribunal acknowledged that there was no evidence that the applicant had been convicted of the charges at the time of its decision. It acknowledged that ‘a person charged with criminal offences is presumed innocent’ as well as the criminal standard of proof ‘beyond reasonable doubt’. However, the Tribunal considered that the charges were serious, and occurred within the context of the applicant’s significant criminal history and ‘demonstrated contempt for the laws of New South Wales’. The Tribunal considered that, although it was ‘not the Tribunal’s role to determine the guilt of the applicant’, the charges indicated some risk to the community. This was weighed in favour of cancelling the applicant’s visa (at [77]-[94]).

10. The Tribunal then weighed this evidence as follows (at [95]-[100]):

    95.There are clearly grounds to cancel the applicant’s visa on the basis of the applicant’s previous criminal convictions. The Tribunal has weighed the considerations. In this case, the Tribunal has considered the applicant’s significant criminal record and his history of recidivism. The Tribunal considers the applicant’s multiple high-range PCA convictions to be a particular concern and indicative of a contempt for both the law and for the safety of the public. In relation to his conviction for assault and the AVO, the Tribunal found the applicant’s explanation implausible and an attempt to, like his driving offences, justify his unacceptable and criminal behaviour. The applicant recognises he has an issue with alcohol – which he blames for much of his behaviour – but appears to have made little real attempt to either change his ways or, concerningly, take genuine responsibility for his actions beyond his response to the s. 359A correspondence on 12 May 2022.

    96.The Tribunal accepts the applicant is a hard worker, a good employee and committed to financially supporting his wife and child in PNG. The Tribunal has also taken into account the potential impact that cancellation of his Bridging visa C may have upon the day to day functioning of his small family unit. The Tribunal has had regard to his claims as to the hardship he and his wife will face should his visa be cancelled and the fact he has a Protection visa application review that remains unresolved. The Tribunal has taken into account that the applicant has not been found guilty by a Court of his four remaining charges from 17 August 2021.

    97. The Tribunal however has ultimately considered that these factors were considerably outweighed by the other considerations. The Tribunal notes that the Commonwealth Government has a low tolerance for potentially criminal behaviour by non-citizens who are in the Australian community on a temporary basis and do not hold a substantive visa. The applicant has already been convicted of a number of serious charges that involve both assault and putting the community at grave risk through multiple examples of high-range drink driving. The applicant faces further serious charges. The NSW Police and the Director of Public Prosecutions have considered the admissible evidence capable of establishing each element of the offences for which the applicant has been charged. The Tribunal considers that if the allegations pertaining to the applicant are true, it would be trite to say that he may be a risk to members of the Australian community such as young people utilising social media. The dangers of social media are well known. The problem of young and impressionable people being preyed upon and groomed by disingenuous adults on social media for sexual activity is a real one. The Tribunal notes that the potential consequences for the victims of such offences – especially children – are serious and may be the cause of long-term damage and trauma to individuals.

    98.The Tribunal accepts that both the applicant and his wife and child will face a degree of hardship in the cancellation of the applicant’s visa. This hardship however is outweighed, in the Tribunal’s opinion, by the gravity and seriousness of the matters for which the applicant has already been convicted, and the charges remaining before the Courts. The Tribunal considers the evidence suggests the applicant may be a risk to the community.

    99.The Tribunal considers that the nature of the criminal convictions, the remaining charges and the circumstances of the events that led to these convictions and charges are such that the Tribunal considers the visa should be cancelled. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both singularly and cumulatively.

    100.The Tribunal notes that it has not waited until receiving final clarification from the applicant or the Court as to either the applicant’s final plea and whether the applicant has been found guilty or innocent of the four remaining charges from 17 August 2021, before proceeding to make a decision. The Tribunal notes that even if the applicant was to plead not guilty, or in fact be exonerated of these four charges, the Tribunal’s ultimate decision affirming the decision to cancel his Bridging visa C would remain the same. Having taken into account the seriousness of his existing convictions from 2020, and having taken into account the various considerations, the Tribunal considers the seriousness of those convictions alone, and the danger the applicant may be to the Australian community, outweighs the various considerations before it.

11. The Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the Delegate’s decision (at [101]-[102]).

    PROCEEDINGS BEFORE THIS COURT

12. The applicant commenced proceedings in this Court by an application filed on 16 June 2022. The following was stated under ‘Grounds of application’:

    Why my visa was cancelled while I’m still on Remand

    Though my Reasons were genuine, there’s no consideration.

    According to s 116 of the Immigration Act, I wasn’t been convicted yet as to found guilty or not guilty yet and my visa was cancelled.

13. The grounds raised the fact that the applicant had not been convicted of certain outstanding charges at the time of the Tribunal’s decision. It is apparent that this was understood by the Tribunal which, as summarised above, emphasised its understanding that the applicant had not been convicted of those offences.

14. However, the applicant had been convicted of a number of other offences by that time. Those convictions had occurred in 2020. The earlier convictions were capable of enlivening s 116 of the Act. This was because they meant that a ‘prescribed ground’ applied, namely, that the applicant had been ‘convicted of an offence against a law of the Commonwealth, a State or Territory’: reg 2.43(1)(oa) of the Regulations. The Tribunal’s consideration that the cancellation power under s 116 of the Act was enlivened therefore reveals no relevant error. Nor does the Tribunal’s consideration of the additional charges as potentially indicating some level of risk to the community. As the Tribunal acknowledged, its role was not to apply the criminal standard of proof nor to assess the applicant’s guilt or innocence. Rather, the Tribunal’s task was to assess whether or not the visa should be cancelled, after weighing the material that was before it. That is what the Tribunal did. It did so noting that the outcome of its review would have been the same, even if the applicant were exonerated of the outstanding charges (at [100]).

15. The pleaded grounds also contended that the Tribunal gave ‘no consideration’ to the applicant’s ‘genuine’ reasons. However, the Tribunal appears to have considered in some detail the reasons given by the applicant as to why his visa should not be cancelled. These included the applicant’s submissions regarding the circumstances of his offending and the hardship that he and his family (including his child) would experience if his visa remained cancelled. Whilst the Tribunal did not, expressly, refer to having dealt with the interests of any children (such as the applicant’s child) as a primary consideration, I accept the Minister’s submission that it was not obliged to do so in circumstances where there were no children who were potentially affected residing in Australia: see DOZ16 v Minister for Immigration [2017] FCCA 1157; (2017) 320 FLR 386 at [54]-[66]. I also accept the Minister’s submission that it was open to the Tribunal, having read and understood the applicant’s claims to face harm on account of tribal disputes, to have reasoned in the manner that it did i.e. by weighing this by reference to the lack of corroboration and the fact that these claims may be more fulsomely assessed during the protection visa application review process: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 (Plaintiff M1) at [9] and [22]-[30].

16. The applicant did not identify in the pleaded ground any specific reason or evidence that he contended had not been considered.  However, in an affidavit filed with his application to the Court, the applicant additionally stated the following:

    I have written a letter regarding the decision made.

    I also have a letter from a relative regarding how hard the life back in Papua New Guinea.

    I have provided photographs of my late brother [name redacted] died on [date redacted], related to tribal fight issues over the land boundaries.

    Letter from my wife [name redacted], expressing the hardship she is facing with the kids.

17. It was not clear from the above precisely what documents the applicant was referring to in his affidavit, nor whether they were said to have been before the Tribunal. The date that the applicant gave for his brother’s death, which has been redacted, occurred after the Tribunal’s decision. The Tribunal could not be said to have relevantly erred by failing to take into account information that was not provided to it before it became functus officio: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 852 at [48]-[49]. To the extent that the applicant referred to a letter from his wife dated 12 April 2022 (CB 226), that letter was considered at [38]-[41] and [43] of the Tribunal’s decision.

1. At the hearing, the applicant submitted that the Tribunal should have considered how stressful it was for him to respond to the NOICC in his circumstances, and with no one to support him. In particular, the applicant submitted that it was unfair for the Tribunal to have relied upon what it understood to be his acceptance that s 116 was enlivened by his convictions. He denied agreeing to this. The applicant submitted that he was not legally qualified, had not understood the legal provisions, was stressed and had no one to assist him when he appeared before the Tribunal.

2. I am not unsympathetic to the applicant’s position. It would undoubtedly have been difficult for him to have responded to the NOICC when he was unrepresented, in his circumstances. However, in a letter provided to the Delegate, the applicant stated: ‘the cancellation of my visa on regulation 2.43(1)(oa) should still exist on the grounds that I am on a temporary visa and the offences I have caused’. The letter then detailed the reasons the applicant submitted his visa ought not to be cancelled, despite ‘the offences that [he had] caused’. There was therefore some evidence before the Tribunal indicating that the applicant had acknowledged his convictions as grounds for cancellation. No evidence has been provided to the Court, such as a transcript, capable of challenging the Tribunal’s understanding at [21] that the applicant had made a similar acknowledgment at his hearing before the Tribunal. Regardless, there appears to have been no dispute that the applicant had been convicted of offences. On account of this, s 116 was enlivened. This was the case whether or not it was acknowledged by the applicant. Therefore, even if the Tribunal had misunderstood his evidence in this regard at the hearing, it is not apparent how such a misunderstanding could have been material to the Tribunal’s decision.

3. The applicant also submitted that it was difficult for him to prepare for his hearings before the Tribunal from a detention centre. He was not able to review documents submitted with his protection visa application before the hearing of his matter because they were thrown out by a real estate agent whilst he was in custody. This meant that he had given some incorrect answers in response to questions, because he had been unable to review his documents. The applicant observed that the Tribunal had referred to the applicant’s lack of corroborative evidence. He submitted that the Tribunal should have considered how difficult it was for him to provide such evidence, given the position that he was in.

4. However, there is no evidence before the Court such as a transcript indicating that the applicant raised with the Tribunal that there were documents he wished to provide, but was experiencing difficulties in doing so. Paragraph 73 of the Tribunal’s decision indicates that the Tribunal had ‘asked the applicant if he had any evidence to support his assertions’ made in respect of his protection claims. The applicant is not recorded as responding that he had such evidence, but instead appears to have further discussed those claims. In any event, it is apparent that the Tribunal was minded to defer assessment of the question as to whether the applicant was owed protection obligations in respect of his claims on the basis that it was open to him to pursue his protection visa review application. This reasoning was open to the Tribunal: Plaintiff M1 at [9] and [22]-[30].

   CONCLUSION

5. For the above reasons, the application must be dismissed.

6. I will hear from the parties in relation to costs.

24          I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 10 March 2023