Hanna (Migration)

Hanna (Migration) [2022] AATA 821 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Joseph Hanna
REPRESENTATIVE:  Mr Sam Issa
CASE NUMBER:  2203716
HOME AFFAIRS REFERENCE(S):          BCC2016/4220235
MEMBER:Paul Noonan
DATE:7 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
Statement made on 7 April 2022 at 2:57pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) – Subclass 030 (Bridging C) – criminal convictions and imprisonment – application for medical treatment visa refused and affirmed, and appeal to Federal Court lodged – discretion to cancel visa – offences against random unrelated women – further allegation of offending in detention – hardship to Australian citizen sister and her children, and visa holder mother – lengthy immigration detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 030 (Bridging C) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The Department subsequently found that the applicant was incorrectly notified of this decision. The applicant was re-notified of the decision on 15 March 2022. The applicant applied for review with the Tribunal of this decision on 15 March 2022. The applicant requested and agreed with the Tribunal for an extension of time for the Tribunal to make its decision to enable further submissions to be prepared prior to the hearing.
The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground for cancelling the visa was made out. The prescribed ground set out in reg 2.43 of the Migration Regulations 1994 (the Regulations) (reg 2.43(1)(oa)) was the relevant ground. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sheena Namnoum, a friend of the applicant and Mr Ion Junior Joseph a fellow detainee of the applicant. The applicant was unable to contact the third witness, the applicant’s sister Mrs Denis Fares. The representative stated that he would resubmit a statement from Mrs Fares submitted with respect to past appeals to the Tribunal and which accurately represents the evidence she otherwise would have given. Statements from the Mrs Denis Fares, from Mrs Badra Al Bazouni, (the applicant’s mother), Ms Alana Fares (the applicant’s niece), Ms Celine Fares (the applicant’s niece) and Mr Raymond Fares (the applicant’s nephew) were subsequently received after the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review.
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), reg 2.43(1)(oa) in the case of the holder of a temporary visa such as that held by the applicant, that the Minister is satisfied that the holder has been convicted of an offence against the 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)). 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?
Section 116(1)(g), reg 2.43(1)(oa)
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 Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant.
It is a matter of record (see decision record on Tribunal file) that whilst onshore the applicant was convicted of the following offences in the state of New South Wales:
·Eight counts of – Assault with act of indecency – T2
The Tribunal finds that under such circumstances the applicant’s visa may be cancelled under section 116(1)(g) relying on prescribed ground in reg 2.43(1)(oa).
Applicant’s submissions
The applicant’s representative has addressed various issues in the applicant’s case and submits:
·That the applicant has strong ties to the Australian community and an assessed low risk of reoffending.
·That the applicant was not afforded an opportunity to comment prior to the original cancellation decision and therefore the Department did not follow proper process.
·That the applicant lodged a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa on 22 April 2022 which is currently before the Federal Court and it is on the basis of this current proceeding that the applicant seeks revocation of his bridging visa C (Class WC) (Subclass 030).
·That the applicant enjoys close emotional ties with his Australian citizen sister.
·That the decision not to revoke the cancellation would have a significant detrimental effect on the applicant’s elderly mother who resides in Australia.
·That the applicant has a strong relationship with his Australian citizen nephew and two nieces.
·That the applicant has a strong friendship with Ms Sheena Namnoum who is hoping to build a relationship with the applicant and that this relationship provides a strong incentive for the applicant not to reoffend.
·That the applicant has been assessed as having a low risk of reoffending, had no prior criminal history and has displayed good behaviour while in prison and detention.
·That the applicant has expressed remorse for his actions and the impact they had upon his victims.
·That allegations of sexual misconduct against a detention officer while in detention are disputed by the applicant.
·That the applicant has saved the life of a fellow detainee while in detention.
·That multiple professional assessments have commented on the applicant’s positive prospects for rehabilitation including the sentencing judge, a treating psychologist, Dr Mark Milic, report dated 11 November 2019, the State parole authority and the Tribunal decision in case 2012857.
·That the applicant has willingly engaged in sexual offenders courses aimed at enhancing his prospects for rehabilitation.
·That the applicant only intends to stay a short time in Australia upon his release from detention to obtain medical treatment and then to depart Australia. He will not be engaging in work as a hairdresser or any other work and this will also reduce the chances of him reoffending.
The applicant’s representative has contended that the applicant was not afforded an opportunity to comment prior to the original cancellation decision and therefore the Department did not follow proper process. The Tribunal notes that s 127 of the Act sets out the procedure for notification of a decision. Subsection (3) provides that ‘failure to give notification of a decision does not affect the validity of the decision’. Nevertheless the Tribunal notes that, under s 119, the Minister must notify the applicant before deciding to cancel the visa under s 116. Despite this the Tribunal still has jurisdiction to review the decision and by conducting a full merits review the Tribunal will cure any such defect and afford the applicant an opportunity to comment through this hearing process which it has done.
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 / conclusions
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’ 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
The applicant entered Australia on a Partner (Provisional) (Class UF) Partner (Provisional)(Subclass 309) visa on 28 June 2011. It is accepted that this relationship ended in 2012. The Tribunal accepts that the applicant travelled to Australia for the purpose of reuniting with his spouse at that time.
The Tribunal notes that the applicant has cited that he requires medical treatment in Australia as a compelling reason to remain. The applicant’s application for a Medical Treatment visa has been determined by the Federal Circuit and Family Court of Australia on 9 March 2022 with his application having been dismissed. Accordingly, the issue of the applicant’s medical grounds has been considered and determined. However, the applicant’s representative noted that an appeal has subsequently been lodged to the Federal Court. The representative submitted that the medical issues raised have only been considered in the primary decision and the subsequent appeals were related to the non-payment of lodgement fees. He submitted that if the appeal is successful then the applicant will seek further review with respect to the primary decision.
The Tribunal questioned the applicant with respect to his medical condition and the applicant stated he requires ongoing physiotherapy. He stated that the physiotherapist informed him he may need surgery in the future if this treatment is not successful. He has found it difficult to obtain this treatment while in detention because of COVID-19 restrictions. The Tribunal notes that the applicant submitted a medical report form Dr Ahmad Mourtada dated 14 April 2021 with respect to chronic backpain. The plan summary was for discharge, paracetamol, a GP referral for an MRI and referral to a pain specialist.
The Tribunal questioned if the applicant could not readily access physiotherapy treatment in Lebanon. The applicant submitted that medical services are in a state of crisis in Lebanon and the health system has effectively ceased to function. The representative made submissions in this regard including country information from Medicins Sans Frontieres that reflects that the health system is in crisis in Lebanon, which the Tribunal accepts is the case. Nevertheless, objectively the treatment required by the applicant is not life threatening and the Tribunal gives this some weight in its considerations against the applicant. However the Tribunal does also give some weight in favour of the applicant with respect to the substantive visa application and the associated appeals process and notes that this requires the applicant to remain in Australia for the matter to be finally determined.
The extent of compliance with visa conditions
There is no evidence that the applicant has been non-compliant with a condition of his visa. The Tribunal gives this some weight in the applicant’s favour.
The degree of hardship that may be caused (financial, psychological emotional or other hardship
The applicant has made submissions with respect to the emotional need to remain in Australia to be near his sister and her children, his elderly mother and to nurture his relationship with Ms Namnoum. No submissions have been made with respect to financial hardship. The Tribunal notes that the applicant has been incarcerated for many years with little physical contact with his relatives. He gave evidence that he does speak to them regularly.
Ms Namnoum gave evidence that she has developed a close relationship with the applicant and views their future together as possibly encompassing marriage and children. She submitted it would cause hardship to her if the applicant was removed from Australia as it would jeopardise their relationship and she would miss him. She would support him if he is released which would help him not to reoffend.
The Tribunal has had regard to the applicant’s sister’s previous written submission and accepts that she is willing to support the applicant. The Tribunal has also had regard to the evidence and submissions of Mr Ion Junior Joseph and the written submissions of Mrs Denis Fares, Mrs Badra Al Bazouni, Ms Alana Fares, Ms Celine Fares and Mr Raymond Fares and notes that these people all provide positive character assessments and positive remarks about their experiences interacting with the applicant and their relationships with him and the stress that would be caused to them should he be removed from Australia. The Tribunal also notes that the applicant’s mother states that she is elderly and would be unable to travel back to Lebanon and being apart from the applicant would cause her hardship.
Overall, the Tribunal considers that the claims that the applicant’s sister, her children or his mother would suffer significant emotional hardships if he is removed from Australia to be doubtful. This is because the applicant has spent many years incarcerated and he could readily maintain contact over the phone and video conference as he has been doing for many years if he was to be removed to Lebanon. The Tribunal accepts that the applicant has a strong relationship with his Australian citizen nephew and nieces, his sister and mother, however life will continue for these individuals much as it has since the applicant was first incarcerated in December 2016 and where he has remained since, although in detention since September 2019. Further, with respect to Ms Namnoum the Tribunal doubts that his removal will cause her significant emotional hardship as this relationship is in a very initial stage with no financial interdependence. Further she is able to join the applicant overseas if desired. While she noted that this would be difficult, the applicant also stated that he was intending to return to Lebanon where the majority of his family reside either after his medical treatment is finalised or if his application is unsuccessful rather than remain in detention so Ms Namnoum’s position will likely be the same regardless of the outcome of this matter. Nevertheless, the Tribunal gives the hardship with respect to emotional hardship considerations some weight in favour of the applicant with respect to the applicant’s immediately family, especially his mother, but notes that this weight is moderated by its consideration that these people have been without close physical contact with the applicant for many years.
The circumstances in which the ground of cancellation arose
On 5 December 2016 the applicant was convicted by Downing Centre District Court for the following offences:
·Eight counts of – Assault with act of indecency – T2
The Tribunal regards the applicant’s past criminal behaviour as significant. The Tribunal finds that the number of incidents, with a documented nine victims, is significant and the offences are of a sexual offending nature and not too distant in the past. The Tribunal gives the applicant’s past behaviour and the circumstances in which the ground for cancellation arose considerable weight against the applicant.
The Tribunal has weighed this against the submissions with respect to the applicant’s feelings of remorse and his rehabilitation efforts, including engaging in sexual offender courses aimed at enhancing his prospects for rehabilitation; a report from Dr Mark Milic, dated 9 October 2021, recommending ongoing rehabilitation with respect to the applicant’s past criminal offending with good prospects for rehabilitation; the findings of the Parole Board including a decision not to enter the applicant on the sexual offenders register and a past favourable decision of the Tribunal (differently constituted) with respect to the applicant’s Bridging E (Class WE) visa which found favourably with respect to his risk of reoffending.
The representative also submitted that the applicant is older and wiser and is highly motivated not to reoffend to avoid further detention and to progress his life with the assistance of his immediate family and Ms Namnoum. The Tribunal also notes and accepts the submission made that the applicant had no prior criminal history and that he received a glowing character assessment from his fellow detainee Mr Joseph who stated that the applicant had saved his life when he was attempting suicide. The Tribunal gives these past actions some weight in the applicant’s favour.
With respect to the claim of good behaviour in prison and detention the Tribunal noted that there is an allegation of sexual misconduct by a detention officer against the applicant on his file. The applicant’s representative submitted that this is disputed and noted that no charges have been laid. Further that the Department has agreed to add a file note to the record which states that the allegation is disputed. The representative stated that this is a matter of some frustration to the applicant as the record is documented with no way for him to test its veracity as formal charges were not laid. Nevertheless, the Tribunal is concerned that such an allegation, from an independent detention officer, has made its way onto the file given the criminal history of the applicant. Further the allegation stands and has not been withdrawn. The Tribunal gives this some weight against the applicant.
The visa holder’s past and present behaviour towards the Department
There is no evidence that the applicant has displayed poor behaviour towards the Department. The Tribunal gives this factor some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140
Not relevant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Not relevant as the applicant has had a previous visa refused since last entering Australia.
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
Not relevant.
Any other relevant matters
None.
Overall conclusion
Considering the circumstances as a whole, the Tribunal concludes that, on balance, the visa should be cancelled. As set out in these Reasons the Tribunal gives the applicant’s past behaviour, and the circumstances in which the ground for cancellation arose considerable weight, and notes that this offending was perpetrated not against relatives of the applicant, who gave strong evidence in favour of the applicant’s character, but against random unrelated women within the community. Further, as set out in these Reasons, the Tribunal is also concerned by the allegation of further sexually aggravated offending in detention. The Tribunal finds that these considerations outweigh the evidence weighted in favour of the applicant as set out in these Reasons.
DECISION

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

[2022] AATA 821

7 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies