Islam (Migration)

[2023] AATA 360

Islam (Migration) [2023] AATA 360 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rashadul Islam

CASE NUMBER:  2218434

HOME AFFAIRS REFERENCE(S):          BCC2016/3711358

MEMBER:Kira Raif

DATE:21 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 21 February 2023 at 14:18pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal conviction – no penalty imposed after long period on remand – other charges not committed to trial because victim refused to attend court – no response to tribunal’s invitation to comment or further information provided – limited evidence of applicant’s present circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), r 2.43(1)(p)(ii)

Crimes Act 1900 (NSW), s 61

CASES

ACH15 v Minister for Immigration [2015] FCCA 1250

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 7 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Bangladesh, born in August 1987. On 7 November 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of his visa as the delegate formed the view that there were grounds for cancelling the visa under s. 116(1)(g) of the Act. The applicant provided his response to the NOICC and his visa was cancelled in November 2016. An officer of the Department subsequently formed the view that the notification of the decision was invalid and the applicant was renotified of the cancellation decision on 13 December 2022. The applicant now seeks review of the delegate’s decision.

   Procedural history

3. On 16 December 2022 the Tribunal wrote to the applicant inviting him to attend a hearing on 22 December 2022. The applicant replied through his representative stating that he needed more time to obtain further documents and seeking a postponement of the hearing. At the applicant’s request and with his agreement, the hearing was postponed to 31 January and, again at the applicant’s request, it was further postponed to 22 February 2023.

4. In the meantime, the Tribunal obtained documents relating to the charges and the outcome of the court proceedings. On 24 January 2023 the Tribunal wrote to the applicant pursuant to s. 359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The correspondence referred to the information recorded in the NSW Police Facts Sheet and information about the court outcomes.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 27 January 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 26 January 2023 the applicant’s representative informed the Tribunal that they were no longer acting for the applicant. The representative informed the Tribunal that the applicant had been informed of the Tribunal’s s. 359A correspondence and was advised that  the deadline to respond to it was 27 January 2023. The representative also confirmed that the applicant was aware of the content of the Tribunal’s correspondence.

7. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. On 7 February 2023 the Tribunal wrote to the applicant, noting that he failed to respond to the Tribunal’s letter and that he was no longer entitled to attend a hearing. However, the Tribunal informed the applicant that it would consider any submissions or further evidence that he wished to present by 14 February 2023. At the time of this decision, the applicant had not provided any further evidence to the Tribunal. He has not indicated his intention to do so, nor sought more time to provide further submissions.

9. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

   Relevant law

10. 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.

11. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(p) is relevant. It provides that a ground prescribed for the purpose of s. 116(1)(g) is,

    in case of a holder of a Subclass 050 (Bridging (General)) visa….  The Minister is satisfied that the holder has been charged with an offence against a law of the Commonwealth, a state, a territory or another country.

12. In considering whether a Bridging E visa should be cancelled 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.

13. 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

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

14. 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.

15. 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.

    Does the ground for cancellation exist?

16. The applicant provided to the Tribunal a copy of the NOICC. It indicates that the applicant was a holder of the Subclass 050 Bridging visa. It also indicates that in November 2016 he had been charged with ‘aggravated sexual assault victim under the age of 16” and ‘common assault’ under s. 61 of the NSW Crimes Act 1900.

17. The Tribunal finds that the applicant held a Bridging E visa and that he had been charged with offences under the state law. The Tribunal finds that the ground set out in r.2.43(1)(p)(ii) is made out. The Tribunal finds that there are grounds for cancelling the visa held by the applicant under s.116(1)(g) of the Act and r.2.43(1)(p) of the Regulations.

18. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

19. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 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 Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation

20. The applicant has been charged with the offences described above. It has been held that the first of the two primary considerations means that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework rather than that the power to cancel should be exercised rigorously, that is, strictly. The decision maker must take the government’s view set out in that consideration as one of the matters to be weighed rather than simply following that view: see ACH15 v Minister for Immigration [2015] FCCA 1250. The Tribunal acknowledges that consideration of the entirety of the applicant’s circumstances is necessary when exercising the discretion.

    The best interests of any children under the age of 18 in Australia who would be affected by the cancellation

21. There is no information before the Tribunal to indicate that there are any children who would be affected by the cancellation of the applicant’s visa. This consideration is neutral.

    The impact of a decision to cancel the visa on the family unit

22. There is no information before the Tribunal about 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

23. The applicant has not presented any evidence to the Tribunal to indicate that he may experience hardship if his visa is cancelled. The primary decision record indicates that the applicant claims he cannot return to his home country but there is no evidence before the Tribunal about his present circumstances or the circumstances in his home country.

24. The Tribunal acknowledges that given the applicant’s residence in Australia, some hardship may be caused if the cancellation of his visa may result in him having to depart Australia.

    The circumstances in which the ground for cancellation arose

25. The Tribunal has been provided with the police charge sheet and other documents relating to the charges and the conviction. (This information was provided to the applicant pursuant to s 359A of the Act). The information indicates that the applicant was charged with a total of 8 offences, including 5 x Aggravated Sexual assaults of a victim under 16 years, 1 x indecent assault of person under 16, and 2 x assault ABH, which occurred between 05/10/2016 and 03/11/2016. The matters proceeded to the District Court but the applicant was not committed to trial because the victim refused to attend court. A number of charges were withdrawn after February 2018.

26. Without the victim’s cooperation, the only offence capable of being proven in the absence of the victim was a common assault because it was witnessed by police.  

27. A common assault matter was heard at the Penrith Local Court on 16/04/2018 with conviction proved under section 10A, with no other penalty. By this time the applicant had spent 17 months in custody on remand and he was released on that date.

28. The applicant has been provided with the information in the NSW Police charge sheets. He has not provided to the Tribunal any additional or different information about the above circumstances and has not challenged the above information. In his response to the delegate the applicant is recorded to have stated that he was trying to help the girl, who was like a sister to him, and that he gave her shelter.

    The possible consequences of cancellation

29. A significant consequences of the cancellation is that the applicant would not be a holder of a visa and would be subject to mandatory detention while any application for a substantive visa is being processed. The cancellation of the bridging visa would not adversely affect the processing of any substantive visa application. The applicant would also be subject to the operation of s. 48 if his visa is cancelled.

    Any other matter considered relevant

30. The applicant has not raised any other matter.

31. The Tribunal has found that there are grounds for cancelling the visa because the applicant held a Bridging E visa and because he was charged with an offence under state law. The Tribunal accepts that the cancellation of the visa may cause hardship to the applicant because the applicant will remain in detention if he has an outstanding application for a substantive visa and also because the cancellation of his visa would result in the applicant being precluded from making other visa applications due to the operation of s. 48.

32. There is very limited evidence before the Tribunal about the applicant’s circumstances. The applicant has not taken the opportunity to present written submissions, nor did he respond to the Tribunal’s s. 359A letter, denying the Tribunal the opportunity to ascertain his present circumstances and his view about the circumstances in which the ground for cancellation arises. On the limited evidence before it, the Tribunal has decided to place greatest weight on the circumstances in which the ground for cancellation arises, being the fact that the applicant had been charged with offences (and had been found guilty of having committed the offence). While the Tribunal accept that some hardship may be caused by the cancellation, there is little evidence before the Tribunal about the applicant’s present circumstances or the consequences of the cancellation.

33. There is no evidence to indicate that the cancellation would adversely affect the best interests of any children or that it would impact any family members.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    decision

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Kira Raif

    
    

    Senior Member