Mandala (Migration)

[2018] AATA 196

Mandala (Migration) [2018] AATA 196 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngurah Bayu Putra M

CASE NUMBER:  1622517

DIBP REFERENCE(S):  CLF2016/93669

MEMBER:John Billings

DATE:25 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 25 January 2018 at 5:14pm

CATCHWORDS
Migration – Cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – Requirement not to engage in work – Applicant engaged in work – Consideration of discretion – Medical condition –Significant hardship if cancelled - Subsequent visa already obtained

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 376
Migration Regulations 1994, r 2.12, Schedule 8, Condition 8101

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 December 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant’s full name as it appears in the application for review is Ngurah Bayu Putra M but according to his passport the applicant’s full name is Ngurah Bayu Putra Mandala. 

3. The delegate cancelled the visa under s.116(1)(b) on the basis that Mr Mandala had not complied with a condition of the visa, being condition 8101 – that the visa holder not engage in work in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Mr Mandala appeared before the Tribunal on 23 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. Mr Mandala is a 40 year old national of Indonesia.   He arrived in Australia on 14 March 2009 holding a Class TU Student visa that ceased on 10 August 2011.  He was an unlawful non-citizen until 28 November 2016 when he was granted a Bridging C visa that was cancelled on 20 December 2016.  The visa was subject to condition 8101.  On 15 March 2017 Mr Mandala was granted a Bridging C visa with the same condition.  On 27 June 2017 he was granted a Bridging C visa that did not have that condition.  He is currently employed in a factory while pursuing certain medical investigations and treatment.  He told the Tribunal in effect that he has applied for a Class UB Medical Treatment (Visitor) visa. 

6. At the hearing Mr Mandala conceded that in December 2016 officers of the Department found him working on a farm.  He knew that there was a visa condition that he not engage in work.  Mr Mandala told the Tribunal that when he first came to Australia he studied a Management course but discontinued studies after five months.  In the years between 2011 and 2016 he worked from time to time “to pay the bills”.  Commenting on his unlawful status during this time he said that found out only later how he could obtain a Bridging visa.  Mr Mandala told the Tribunal about his health (regarding which he submitted medical information to the Department and to the Tribunal).  He also mentioned that his mother in Indonesia suffers diabetes and so, he said, cannot work.  Mr Mandala said that he wants to remain in Australia for medical treatment because it is difficult to obtain the treatment he needs in Indonesia and it is expensive.  He added that at his age it is difficult to obtain work in Indonesia. 

7. In circumstances where he had been granted a further Bridging C visa Mr Mandala was confused about the point of the review process but he did not elect to withdraw his application for review.  The Tribunal indicated to Mr Mandala that the decision under review is solely the decision made in December 2016 to cancel the Bridging C visa that he held at that time.

8. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Mandal’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. There was a non-disclosure certificate issued under s.376. The Tribunal does not consider the certificate to be valid for, among other things, the certificate does not certify that disclosure of matter or information would be contrary to the public interest. In view of Mr Mandala’s concession that he worked in breach of a visa condition it was not necessary for the Tribunal to invite him to comment on or respond to adverse information about that.

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)(b). 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?

11. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8101 attached to Mr Mandala’s visa. This condition requires that the visa holder not engage in work in Australia.

12. On the basis of the evidence held on the Department’s file, and Mr Mandala’s concession, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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

13. 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 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’.

14. The Tribunal has regard to relevant matters bearing in mind that the decision under review is the decision to cancel the Bridging C visa that was granted in November 2016 and cancelled in December 2016, and that Mr Mandala currently holds a new Bridging C visa that does not have condition 8101 attached. 

15. Mr Mandala may now have a compelling need to stay in Australia because of his medical condition and continuing treatment.  He may experience significant hardship if he cannot remain in Australia while he obtains treatment.  Concerning that issue, a considerable amount of medical evidence has been submitted by him.  Cancellation of the Bridging C visa issued in November 2016 will not operate to prevent him remaining in Australia for medical treatment for he has a new Bridging C visa. 

16. Mr Mandala appears to have been cooperative with the Department at least since November 2016. However, weighing in favour of cancellation of the Bridging C visa granted that month are the following factors in particular. For about five years after his Student visa ceased in 2011 Mr Mandala was an unlawful non-citizen. He has given no satisfactory explanation for that. There is no indication that the circumstances in which the ground for cancellation of the visa arose were beyond Mr Mandala’s control. In circumstances where Mr Mandala has a new Bridging C visa cancellation will not result in him becoming an unlawful non-citizen. On the face of it, Mr Mandala has not been prevented from applying for a Class UB Medical Treatment (Visitor) visa: see s.48 of the Act and r.2.12 of the Regulations. There are no consequential cancellations to consider and there is no indication that there are any international obligations that would be breached as a result of the cancellation.

17. Considering the circumstances as a whole, the Tribunal concludes that the Bridging C visa granted on 28 November 2016 should be cancelled.

    DECISION

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

    John Billings
    Senior Member