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

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).
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
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.
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.
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,…

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 Islam (Migration)

Details

AGLC: Islam (Migration) [2023] AATA 360
Case: [2023] AATA 360
Decision Date: 21 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant concerning the cancellation of their Bridging E (Class WE) visa. The dispute arose from criminal convictions, although no penalty was imposed after a significant period on remand. Other charges were not committed to trial due to the victim's refusal to attend court. The applicant provided no response to the Tribunal's invitation for comments or further information, resulting in limited evidence of their present circumstances.

The primary legal issue before the Tribunal was whether to affirm the decision to cancel the applicant's Bridging E visa, pursuant to regulation 2.43(1)(p) or (q) of the Migration Regulations 1994. This required the Tribunal to consider its discretion under section 116(1)(g) of the Migration Act 1958, guided by Direction No. 63. The Tribunal had to weigh specified primary and secondary considerations, including the government's view that prescribed grounds for cancellation should be applied rigorously, the best interests of any affected children, the impact on the family unit, the degree of hardship to the visa holder, and the circumstances in which the ground for cancellation arose.

The Tribunal reasoned that while the government's view favoured rigorous application of cancellation grounds, this did not mandate cancellation in every instance of non-compliance. Instead, it was a factor to be weighed within the discretionary framework. The Tribunal noted the absence of information regarding affected children or the impact on the family unit, rendering these considerations neutral. The applicant presented no evidence of hardship if the visa were cancelled, despite claiming an inability to return to their home country. The Tribunal acknowledged that some hardship might arise from departure. Crucially, the circumstances of the cancellation ground involved serious charges, including aggravated sexual assault and assault occasioning actual bodily harm, which occurred between October and November 2016. Although the applicant was not committed to trial for these offences because the victim refused to attend court, and some charges were withdrawn, the Tribunal considered the entirety of the applicant's circumstances.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa, concluding that, when considering all the circumstances, cancellation was warranted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelleddecision The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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 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 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 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 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 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. 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 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.