Fattah (Migration) - [2017] AATA 2787

Fattah (Migration) [2017] AATA 2787 (18 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Sharif Mohammad Abdul Fattah
CASE NUMBER:  1730258
DIBP REFERENCE(S):  BCC2017/2097054
MEMBER:Wendy Banfield
DATE:18 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 18 December 2017 at 12:13pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Criminal charges pending against applicant – Risk to the Australian community – Procedural fairness – Reasonableness of detention – Ability to prepare defence to criminal charges - Character references
LEGISLATION
Migration Act 1958, ss 116, 376, 499
Migration Regulations 1994, r 2.43
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) (BVE) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been charged with an offence against the laws of the state of New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Prior to the hearing, the following documents were submitted:
·     Police Checks for Sharif Fattah from Bangladesh, Iran and New Zealand;
·     Bail Conditions for Sharif Fattah;
·     Summary of Donations and Loans to Sharif Fattah;
·     Statutory Declaration of Syed Ahmad dated 7 December 2017;
·     Statutory Declaration of AKM Shamsuddin dated 7 December 2017;
·     Statutory Declaration of Rajab Ali dated 7 December 2017;
·     Character References of Hon Matthew Robson dated 2 May and 24 July 2017;
·     Section 192 Detention Acknowledgement dated 30 November 2017;
·     Ombudsman Report into Bridging Visa Cancellations due to Criminal Charges or Convictions.
·     Statutory Declaration of Sharif Fattah dated 7 December 2017.
The applicant appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses Rajah Ali, Akim Shamsuddin, Akim Nazrul Islam, Syed Saifuddin Ahmad.
Background
The applicant is a citizen of New Zealand who was born in Bangladesh and is currently aged 61. He came to Australia in January 2016 as the holder of a Subclass TY444 visa and worked as a medical practitioner in general practice. On 7 March 2017 the applicant was charged with criminal offences against the laws of New South Wales. In May 2017 he was granted bail with conditions as to his conduct.
On 16 October 2017 the applicant’s Subclass TY444 visa was cancelled and on 8 November 2017 he was granted a BVE. He was advised to report to the Department on 30 November following a court appearance on 29 November. The applicant attended the Department and following an interview process, his BVE was cancelled and he was taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fattah (Migration)

Details

AGLC: Fattah (Migration) [2017] AATA 2787
Case: [2017] AATA 2787
Decision Date: 18 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Bridging E (Class WE) visa, Subclass 050, held by the applicant, Mr. Fattah. The Minister had cancelled Mr. Fattah's visa on the grounds that he had been charged with an offence against the law of New South Wales, as prescribed by regulation 2.43(1)(p)(ii) of the Migration Regulations 1994. Mr. Fattah contended that the cancellation was unfair and unreasonable, and that the charges were laid at a time when he was not a holder of a Bridging E visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 was established. It also had to consider whether to exercise its discretion to cancel the visa, having regard to Direction No. 63, which mandates the consideration of specified primary and secondary factors. These factors include the government's view on rigorous application of cancellation grounds, the best interests of any children affected, the impact on the family unit, hardship to the visa holder, the circumstances of the offence, and the consequences of cancellation.

The Tribunal found that the ground for cancellation was established, as Mr. Fattah had been charged with offences under New South Wales law, and the wording of the regulation did not impose a temporal limitation on when the charges must have arisen. In exercising its discretion, the Tribunal noted that while it placed some weight on Mr. Fattah's account of his interaction with departmental officers, it could not assess the reasonableness of his detention as it lacked sufficient information. The Tribunal also rejected the argument that the charges must have arisen during the period Mr. Fattah held a Bridging E visa, as this was not a requirement of the legislation. The Tribunal affirmed the decision to cancel Mr. Fattah's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(p)(ii) is relevant. The regulation states: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:(p) in the case of the holder of a Subclass 050 Bridging (General)) visa … that the Minister is satisfied that the holder: (ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country… The Tribunal has considered the evidence in relation to whether the grounds for cancellation arise in this case. The applicant has been charged with offences against the law of the state of New South Wales. Having considered the context and purpose of the regulation, the Tribunal is satisfied the wording is clear and unambiguous. For these reasons, 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 power to cancel the visa should be exercised.Consideration of discretion In considering whether to cancel a Bridging E visa 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. 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. 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.

Decision

Reasons for decision

During the hearing, the Tribunal referred the applicant to a Certificate issued by the Department under s.376 of the Migration Act regarding the Tribunal’s discretion to disclose certain information. The Certificate notified the Tribunal that disclosure of the material to which the document referred would be contrary to the public interest because it may be contrary to the interest of a third party. The applicant’s representative provided a written submission on 8 December 2017 in response to an invitation to comment. The submission states that the Tribunal should not take the information into account because it was not put to the applicant before his visa was cancelled or alternatively, the Tribunal should not give any weight to the material. The Tribunal agrees that the material does not assist the Tribunal in the exercise of its powers and has not considered it in the decision.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Wendy BanfieldMember

Ratio Decidendi

Legal Principle Established

For these reasons, 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 power to cancel the visa should be exercised.Consideration of discretion In considering whether to cancel a Bridging E visa 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. 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. 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. 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 considered the submissions made regarding the cancellation process carried out by the Department and the applicant’s claims that it was unfair and unreasonable. The Tribunal places some weight on the applicant’s account of the events that took place during the meeting with Departmental officers, however the applicant has been given the opportunity to make submissions and present arguments to the Tribunal as to why he believes his visa should not be cancelled. Regarding the applicant’s claim that he was held for questioning in contravention of s.192(2) of the Migration Act, the Tribunal is unable to give weight to this claim as it is unable to determine what the officer of the Department reasonably suspected would occur if the applicant was not detained. The applicant has claimed that the grounds for cancellation do not arise in his case because the charges were laid at a time when he was not the holder of a BVE. It was submitted that there should be a temporal limitation to the cancellation ground so that only charges arising during the time the non-citizen holds a BVE would give rise to the grounds. The Tribunal has considered the representative’s submissions but places no weight on the claim because, as the applicant has acknowledged, s.116 of the Migration Act and r.2.43(1)(p) of the Regulations do not specify the time within which the charges must be laid.