Sajjad (Migration)

[2020] AATA 1511

Sajjad (Migration) [2020] AATA 1511 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Waseem Sajjad
Mrs Aleena Ehsan
Master Muhammad Shahveer

CASE NUMBER:  2000238

HOME AFFAIRS REFERENCE(S):          BCC2019/5279470

MEMBER:Irene O’Connell

DATE:14 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 020 (Bridging B) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 14 April 2020 at 12:53pm
Statement made on 14 April 2020 at 12:53pm

CATCHWORDS

MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – risk to safety and good order of Australian community – criminal charges – proceedings pending at time of hearing – bail – intention to plead not guilty – previous convictions for driving offences – health in immigration detention – criminal justice visa and release from detention – possibility of risk – wife and child have returned to home country – decision under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(e)(i)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 6 January 2020 by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 020 (Bridging B) visa.

2. The applicant, a Pakistani citizen, arrived in Australia on 25 October 2015 as the holder of a student visa. Following the cancelling of his student visa he was issued with a Subclass 010 and then a Subclass 020 (Bridging B) visa. The cancellation of the latter is the subject of this review.

3. The applicant’s visa was cancelled under s.116(1)(e)(i) of the Migration Act 1958 (the Act). Section 116(1)(e) stipulates as the ground for cancellation that ‘the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.’

4. The applicant was arrested by the NSW police on 10 August 2018 and charged with several serious offences. These offences were [Offences 1-5]. The applicant was granted bail and scheduled to appear in [a] District Court in May 2020. The delegate found that the existence of these charges was sufficient to give rise to a finding that the applicant may be or might be a risk to the safety and good order of the Australian community.

5. In seeking review of the delegate’s decision, the applicant named his wife (the second named applicant) and son (the third named applicant) as review applicants. However, as the delegate’s decision was made only in respect to the first named applicant the Tribunal does not have jurisdiction with respect to the other applicants.

   EVIDENCE BEFORE THE TRIBUNAL

6. The Tribunal has before it Departmental file number BCC2019/5279470 containing the Notice of Intention to Consider Cancellation (NOICC) issued to the applicant on 21 November 2019, the applicant’s response to this notice (undated) and the decision record of the delegate cancelling the visa. In his response to the NOICC the applicant states that he is not guilty of the charges and that it would be unfair to cancel his visa prior to a court outcome. He further argues that he should not be perceived as a risk to the Australian community as the court found it fit to grant him bail and he does not have a criminal record. He also argues that because of the cancelling of his Bridging visa he is in immigration detention and that his detention places considerable hardship upon himself and his family.

7. The Tribunal also has before it copies of the applicant’s Court Attendance in respect to his Bail application, and the NSW Police Fact Sheet (dated 10 August 2018) setting out both his current criminal charge and prior convictions in respect to driving offences. The applicant provided these documents to the Tribunal along with several statutory declarations from friends, family and former employers testifying to his good character.

8. The applicant gave evidence to the Tribunal both by way of written submission (dated 10 March 2020) and oral testimony at a hearing held on 12 March 2020. In his evidence to the Tribunal the applicant maintained his innocence in respect to the charges and his determination to prove this in court. He stated that he considered several aspects of the Police Fact Sheet to be incorrect most particularly relating to [two specific aspects] in the claimed incident. He acknowledged he has several convictions relating to driving offences but stated that many were of minor significance whilst others such as driving whilst disqualified were a result of his circumstances and need to drive to earn an income.

9. The applicant stated that he is experiencing anxiety and panic attacks in detention and has concerns about his health and well-being at the Villawood Immigration Detention Centre. He stated that he needs to be released from detention in order to properly prepare for his criminal trial as he is unable to do so from the confines of immigration detention.

10. He asked that the Tribunal consider and place weight on the character witness statements he has provided to the Tribunal. He indicated that his wife and child had returned to Pakistan.

    FINDINGS AND REASONS

11. Under s.116 of the Act, a visa may be cancelled if the grounds for cancellation are made out. The threshold for the ground to be made out is a low one requiring only that there is a possibility that a person, may or might be a risk to the community. The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 regarding s.116(1)(e) states as follows:

    ….firstly, to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might on their arrival in Australia) be a risk to the safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.

12. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) is made out. That is the applicant has been charged with criminal offences (albeit that he maintains his innocence) and these charges are of a serious nature. The seriousness of these charges as set out in the NSW Police Fact Sheet and the applicant’s not insignificant number of previous driving convictions give rise to the possibility that the applicant may or might be a risk to the good order of the Australian community.

13. The cancellation of a visa under s.116 is however discretionary; not mandatory. In considering whether the visa should or should not be cancelled there are no matters specified in the Act or Regulations that are required to be considered. The Department’s Procedures Advice Manual PAM3 on ‘General visa cancellation powers’ does however provide guidance on matters relevant to the exercise of discretion. These matters are considerations such as hardship to the applicant, the visa holder’s compliance with visa conditions, past and present behaviour towards the Department, Australia’s international obligations and legal consequences of the cancellation.

14. As set out above the applicant has argued that his visa should not be cancelled as the cancellation of his visa means that he must be in immigration detention as an unlawful non-citizen. Detention places a significant emotional strain on him and hampers his ability to access legal assistance in preparing his defence.

15. Department Movement Records indicate that shortly after the applicant’s hearing at the Tribunal the department issued the applicant with a Criminal Justice visa (ZB-951) releasing him from immigration detention. In so doing this significant consequence of the cancellation of his Bridging visa is no longer of relevance. The applicant is no longer under the constraints of immigration detention and is free to seek legal assistance in respect to his criminal case.

16. It is also to be noted that the applicant’s immediate family returned to Pakistan sometime previously such that there are no immediate or mediate consequences to them in respect to the cancellation of his Bridging visa.

17. The Tribunal notes and accepts the various character references that the applicant has provided testifying to his good character. The Tribunal notes that these are from close associates and family members.

18. However, the Tribunal also notes that the applicant has a series of driving offences including driving whilst disqualified. This, in the mind of the Tribunal, demonstrates a degree of disregard for the law and the safety and good order of the community.

19. In light of this fact and given that the applicant is no longer in immigration detention and subject to this hardship resulting from the cancellation of his Subclass 020 (Bridging B) visa  the Tribunal has concludes  that the applicant’s visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 020 (Bridging B) visa.

21. The Tribunal has no jurisdiction with respect to the other applicants.

    Irene O’Connell
    Deputy Division Head