Heidarikakolaki (Migration)

[2023] AATA 4199

Heidarikakolaki (Migration) [2023] AATA 4199 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amin Heidarikakolaki

REPRESENTATIVE:  Mr John A Kotsifas, JK Legal Barristers and Solicitors

CASE NUMBER:  2210777

HOME AFFAIRS REFERENCE(S):          BCC2022/1845828

MEMBER:Michael Ison

DATE:20 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 20 November 2023 at 5:13pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for student visa – criminal conviction and community corrections order – on appeal, found guilty without conviction recorded – power to cancel does not arise – xstudent visa refusal remitted after review and currently under reconsideration – continued study in breach of conditions of Bridging E visa not relevant and no finding made – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 360(2)(b)
Migration Regulations 1994 (Cth), r 2.43(1)(oa), Schedule 8, condition 8207

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr Amin Heidarikakolaki, who is a 32-year-old Iranian national. Mr Heidarikakolaki is referred to as the applicant in these reasons for decision. The applicant’s immigration history in Australia may be summarised as follows.

3. The applicant first arrived in Australia on 19 March 2011 as the holder of a Business (Short Stay) (Class UC) (Subclass 456) visa. The applicant departed Australia on 7 April 2011.

4. On 11 January 2017 the applicant was granted an offshore Student (Class TU) (Subclass 500) visa, which was valid to 31 December 2019. The applicant returned to Australia on 8 February 2017. The applicant departed and returned to Australia three times as the holder of that Student visa.

5. On 31 December 2019 the applicant applied for a second Student visa whilst onshore in Australia and was granted a Bridging A (Subclass 010) visa at that time.

6. On 3 June 2020 the applicant was granted his second Subclass 500 visa that was valid to 15 March 2022.

7. On 15 March 2022 the applicant applied for a third Student visa and was granted a second Bridging A (Subclass 010) visa at that time.

8. On 13 March 2023 the applicant’s application for a third Student visa was refused.

9. On 2 April 2023 the applicant lodged an application for the Tribunal to review the refusal to grant him a third Student visa. That review is known as Tribunal review number 2304717. That application was heard by the Tribunal, differently constituted, on 26 June 2023 and the Tribunal remitted the applicant’s application for a third Student visa back to the Minister for reconsideration.

10. At the time of this decision the Department has not finalised its reconsideration of the applicant’s application for a third Student visa.

11. As noted above, on 15 July 2022 the applicant’s Bridging A visa granted to him on 15 March 2022 was cancelled under s 116(1)(g) and reg 2.43(1)(oa). It is the cancellation of the applicant’s second Bridging A visa that is the subject of this review.

12. On 16 July 2022 the applicant applied for a Bridging E (Subclass 050) visa which was granted on 20 July 2022 and was valid to 31 August 2022. That Bridging E visa had conditions 8101 (No Work), 8207 (No Study) and 8506 (Notify New Address) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.  

13. On 9 August 2022 the applicant applied for a second Bridging E visa, which was granted on 19 August 2022 and had conditions 8101 (No Work), 8506 (Notify New Address), 8207 (No Study) and 8564 (Must Not Engage in Criminal Conduct) from Schedule 8 of the Regulations attached.

14. On 19 August 2022 the applicant was granted a third Bridging E visa, which the applicant continues to hold at the time of the decision. The applicant’s current Bridging E visa has conditions 8104 (Work Limitation), 8506 (Notify New Address), 8207 (No Study) and 8564 (Must Not Engage in Criminal Conduct) from Schedule 8 of the Regulations attached.

    The primary decision of a delegate of the Minister

15. The applicant provided the Tribunal with a copy of the primary decision.

16. The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) on the basis that at the time of the delegate’s decision the applicant had been convicted of a criminal offence in Victoria. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

17. The applicant was represented in relation to the review by the applicant’s migration lawyer, Mr John A Kotsifas of JK Legal Barristers & Solicitors.  Mr Kotsifas is referred to in these reasons as the applicant’s representative or the representative.

    Submissions received on behalf of the applicant

18. On 17 November 2023 the Tribunal received a submission on behalf of the applicant from the representative which attached documents including:

    ·a four-page written statement from the representative, undated;

    ·a three-page written statement from the applicant, dated 16 November 2023;

    ·a certificate for a Bachelor of Sport and Exercise Science, issued to the applicant from La Trobe University, dated 8 February 2023;

    ·a Confirmation of Enrolment in the course Master of Clinical Research at Monash University, course start date 27 February 2023 and course completion date 31 December 2024;

    ·Notification of Refusal of the applicant’s application for a third Student visa and Decision Record of a Student visa refusal, from the Department, dated 13 March 2023;

    ·Decision made by the Tribunal, differently constituted, for the applicant’s related Tribunal review number 2304717, dated 26 June 2023;

    ·the Result of Appeal dated 3 May 2023 in which his Honour, Judge Gamble of the County Court of Victoria, set aside the orders made by the Magistrates’ Court of Victoria at Melbourne on 5 May 2022 and made alternate orders;

    ·the applicant’s submissions as the appellant for his appeal against his criminal law sentence, lodged with the County Court of Victoria, by the applicant’s criminal law solicitor Nelson Brown Legal, dated 2 May 2023;  

    ·a letter to the applicant from Nelson Brown Legal, dated 25 August 2023, informing that the County Court of Victoria removed the requirement of ongoing judicial monitoring as a condition of the applicant’s Community Corrections Order; 

    ·a screen capture of a text message dated 6 October 2023, from a Case Manager of the Melbourne Justice Service Centre, informing the applicant that the sessions he was having with his psychologist have been approved as hours of unpaid community work for the purposes of his Community Corrections Order;

    ·a screen capture of a text message, from a Case Manager of Melbourne Justice Service Centre, confirming that to date the applicant has 86 ½ hours of his unpaid community work condition of his Community Corrections Order to complete;

    ·a report from Mr Burrows, dated 24 April 2023, approved by his supervisor, Dr Mathew Barth, psychologist, in relation to the applicant’s participation in the sex-offender treatment program;

    ·a confirmation letter, in relation to Participation in the Sex-Offender Treatment Program by the applicant, from Mr Geoffrey Burrows, provisional psychologist, dated 24 August 2023; and

    ·the primary decision and other documents that are not relevant for present purposes.

    Tribunal decision

19. As a result of the information received on 17 November 2023, the Tribunal has decided that it is not necessary to invite the applicant to appear before it to give evidence and present arguments. The Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it as provided for in s 360(2)(b) of the Act.

20. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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

22. 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.

23. Regulation 2.43(1)(oa) provides:

    (1)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:

    …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a 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));

24. The applicant does not contest that in the Magistrates’ Court of Victoria at Melbourne on 5 May 2022 he was convicted of a single charge of sexual assault and ordered to complete a two-year Community Corrections Order the conditions of which included he complete 200 hours of unpaid community work, undergo treatment and rehabilitation to address violence against women and sex offending and not engage in providing massage or any other services which involve touching the body of female clients or customers.

25. Based on this information a delegate of the Minister found there was a ground to cancel the applicant’s Bridging A visa under s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations.

26. The information now before the Tribunal, which it accepts, is that the applicant appealed his sentence to the County Court of Victoria and on 3 May 2023 Judge Gamble of the County Court of Victoria set aside the orders made by the Magistrates’ Court of Victoria at Melbourne on 5 May 2022 and issued fresh orders finding the applicant guilty without conviction of one charge of sexual assault. His Honour ordered the applicant to serve a Community Corrections Order of 18 months with conditions including that the applicant perform 200 hours of unpaid community work and undergo treatment and rehabilitation to address violence against women and sex offending.

27. At the date of the Tribunal’s decision the information before the Tribunal is that the applicant has pleaded and been found guilty of one charge of sexual assault, but no conviction has been recorded. There is no information before the Tribunal to indicate that the applicant has been convicted of a criminal offence in relation to any other matter either in Victoria, elsewhere in Australia or overseas.

28. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) exists at the time of this decision. It follows that the power to cancel the applicant’s visa does not arise.

    Other matters

29. The information before the Tribunal is that the applicant has held three Bridging E visas since 20 July 2022 and each of those visas has had condition 8207 from Schedule 8 attached. Condition 8207 provides that the visa holder must not engage in any studies or training in Australia.

30. Based on information the applicant has provided to the Tribunal it appears he has continued to study while holding one or more visas with condition 8207 attached and it further appears that the applicant is currently enrolled in a Master’s degree. As these matters are not relevant to the Tribunal’s consideration of whether there is a ground for the cancellation of the applicant’s visa the Tribunal makes no finding in relation to them.

31. However, as the information provided by the applicant indicates – at least in the absence of an explanation from the applicant – that he may have and may continue to be acting in breach of a condition of his current (and potentially previous) Bridging E visa the Tribunal draws this to the Department’s attention for its consideration.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Michael Ison
    Senior Member