Jin (Migration)

[2017] AATA 2536

Jin (Migration) [2017] AATA 2536 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Longzhe Jin

CASE NUMBER:  1716721

DIBP REFERENCE(S):  30278018310

MEMBER:Kira Raif

DATE:9 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2017 at 7:13am

CATCHWORDS

Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Visa granted based on certain facts or circumstances no longer in existence – Application for ministerial intervention refused – Visa due to expire on same date as cancellation – Compassionate circumstances – Children in Australia – Best interests of children – Hardship does not outweigh grounds for cancellation

LEGISLATION

Migration Act 1958, s 116

CASES

MIMA v Zhang (1999) 84 FCR 258

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 31 July 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in November 1973. He was granted a Bridging E visa in May 2017. On 31 July 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(a) of the Act because the delegate formed the view that the decision to grant the visa was based on a fact or circumstance which no longer existed. The applicant provided his response to the NOICC and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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)(a). 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.

6. A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, ie satisfaction (per French and North JJ at [54]).

   Does the ground for cancellation exist?

7. According to the primary decision record, a copy of which the applicant presented to the Tribunal, the applicant was granted a Bridging E visa (BVE) on the basis of having an outstanding request for Ministerial intervention. The decision record indicates that on 29 May 2017 the Minister decided not to intervene and the applicant’s request was finalised.

8. The Tribunal finds that the decision to grant the applicant the Bridging visa was based, at least partly, on the fact or circumstance of an ongoing application for Ministerial intervention and that fact or circumstances no longer exists or is no longer the case. The Tribunal finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(a) of the Act.

   Consideration of discretion

9. 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’.

10. The purpose of the applicant’s stay in Australia, and of the grant of the most recent Bridging visa, was to enable the applicant to await the outcome of his request for Ministerial intervention. That request has now been finalised. The applicant does not have any other outstanding applications and while the Tribunal acknowledges his evidence that he plans to make another request for Ministerial intervention, the Tribunal is mindful that the applicant may not be entitled to be granted a Bridging visa on the basis of the repeat application to the Minister. The applicant’s evidence to the Tribunal is that his wife and two children live in Australia and he claims there is a compelling need for him to remain in Australia with his family. The Tribunal accepts that the applicant’s immediate family are in Australia but the Tribunal does not consider that a Bridging E visa is the most appropriate option for the applicant to remain in Australia with his family.

11. There is no evidence before the Tribunal to indicate the applicant failed to comply with visa conditions, at least in relation to the bridging visa that is the subject of this review. 

12. The cancellation of the visa will result in the applicant being an unlawful non-citizen, unless he is granted another visa, and that may result in the applicant being detained. The Tribunal accepts that this may cause a degree of hardship to the applicant, particularly in circumstances where his wife and children are outside of detention and intend to seek further visas in Australia. The applicant referred to financial hardship, as his wife has to work to support the children. However, the applicant also told the Tribunal that he did not work when his bridging visa did not allow him to work and he has not worked for some weeks. As such, the Tribunal is not satisfied that the cancellation of the bridging visa would cause financial hardship to the applicant. The applicant also referred to the emotional hardship that his child would experience as a result of being separated from his father. The Tribunal accepts that being separated from his immediate family would cause significant hardship to the applicant and his family members, including the two young children.

13. The Tribunal is mindful, however, that according to the applicant’s oral evidence to the Tribunal, his bridging visa would have expired on the day of the cancellation. There is no guarantee that the applicant would have been granted a further bridging visa, despite his evidence that he had always been granted bridging visas over the past two years, since the applicant does not appear to meet the criteria for the grant of another visa following the finalisation of his Ministerial request. There may not be any practical difference between the applicant being an unlawful non-citizen as a result of his bridging visa being cancelled and his bridging visa expiring naturally.

14. The circumstances in which the ground for cancellation arose are that the applicant made a request for Ministerial intervention and was granted the visa to await the outcome of that request as a lawful non-citizen and the request has been finalised. The purpose for which the visa was granted has been fulfilled and the applicant would have been well aware of the limited duration of his visa. The Tribunal does not consider that circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

15. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

16. The consequence of the cancellation is that the applicant does not have a valid visa. Unless he applies for, and is granted another visa, the applicant will be an unlawful non-citizen and may be subject to detention. There is no suggestion that he will be indefinitely detained and the present cancellation does not prevent the applicant from making a valid visa application without the Minister’s intervention, at least for some kind of visas.

17. The applicant advised the Tribunal that his son’s visa was not cancelled as a consequence of the cancellation of his visa. His wife and other child hold Business visas. The applicant’s evidence is that there are no persons in Australia whose visas would be subject to consequential cancellation as a result of the cancellation of the applicant’s visa.

18. The applicant does not claim, and there is nothing to suggest, that Australia’s non-refoulement obligations would be breached if the applicant’s visa is cancelled. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation. 

19. The applicant refers in his written submission to the Tribunal of 7 August 2017 to the best interests of his Australian born children. The applicant notes that the children are young, will be included in his partner’s future visa application that she intends to make and states that it is in the best interests of the children not to be separated from their father, which would occur if the applicant’s visa is cancelled. In oral evidence the applicant referred to his elder son’s special needs and said that his children had been affected by his detention. The Tribunal is mindful that the children’s visas would not be affected by the cancellation of the applicant’s visa and that the children can continue to remain in Australia on whatever visas they are presently holding irrespective of the outcome of this application. Nevertheless, the Tribunal acknowledges that if the applicant’s visa is cancelled, and if he is not granted another visa, the applicant may be required to leave Australia or he may be subject to ongoing detention. The Tribunal acknowledges that it may be in the best interests of the children that they remain with both parents.

20. The Tribunal considers it significant, however, that the bridging visa that is the subject of this review is a temporary visa only. The applicant’s oral evidence to the Tribunal is that his visa was valid until 31 July, the day of the cancellation. If the visa was not cancelled, that visa would have expired, with the same effect that the applicant, subject to any other visa grant, would become an unlawful non-citizen. There is no practical difference, for the purpose of this consideration, to the applicant’s Bridging visa being cancelled on 31 July or his visa expiring on that day. It is difficult to see how in such circumstances, the cancellation of the visa would adversely affect the best interests of the children because the effect of the cancellation of the visa would not be more detrimental to the applicant’s circumstances and the children than its natural expiry.

21. The Tribunal also notes that the best interests of the children, while a primary consideration, are not the only consideration before the Tribunal. Even if the Tribunal were to accept that it is in the best interests of the children that the visa not be cancelled, the Tribunal considers that other factors that favour cancellation outweigh that consideration, most notably the fact that the visa that was cancelled would have already expired. It is futile, in the Tribunal’s view, to set aside the cancellation of a visa which would no longer be in effect and which would not enable the applicant to be released from detention. In the Tribunal’s view, these considerations outweigh all other considerations.

22. Overall, the Tribunal has found that there are grounds for cancelling the visa. The Tribunal accepts that considerable hardship may be caused to the applicant and his family if his visa is cancelled and if the applicant remains in detention. The Tribunal is prepared to accept that it is in the best interests of the children for them to have the support of both parents. The Tribunal accepts that the applicant had complied with visa conditions and had been cooperative with the Department. However, the Tribunal has also formed the view that the applicant can no longer fulfil the purpose for which the visa was granted as his Ministerial request has been finalised. The applicant’s stay in Australia, to await the outcome of that request, can no longer fulfil that purpose. The Tribunal notes that the bridging E visa does not allow the applicant to remain in Australia with his wife and children indefinitely, or even long term, and that is what the applicant indicated his plan to be. The Tribunal places significant weight on the fact that even if the visa was not cancelled, it would have already expired and would not enable the applicant’s release from detention.

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

24. The applicant advised the Tribunal that he does not wish to depart Australia and requested the Tribunal to refer the matter to the Minister. The applicant referred to his desire to be with his wife and children and for the children to be included in another visa application to be made by his wife. The Tribunal is mindful that the circumstances in which the cancellation arose is because the applicant had previously made the request to the Minister and only recently the Minister decided not to intervene. The applicant’s representative argues that the earlier request to the Minister fails to refer to the various Conventions but a copy of the request provided to the Tribunal indicates that the applicant did refer to the presence of his family in Australia and the birth of his two children in Australia. This is the basis on which the applicant claims his case should be considered by the Minister and that information was before the Minister when the decision was made not to intervene, whether or not the applicant made specific reference to any Convention. The applicant has not presented to the Tribunal evidence to show there was a meaningful change in his circumstances since the Minister decided not to intervene to justify a further referral. In such circumstances, the Tribunal decided not to refer the matter to the Minister. The applicant has the option of making a request to the Minister without such a referral.

    DECISION

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

    Kira Raif
    Senior Member