Singh (Migration)

Case [2020] AATA 1449

Singh (Migration) [2020] AATA 1449 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ratinderpal Singh

CASE NUMBER:  1933742

HOME AFFAIRS REFERENCE(S):          BCC2017/4182413

MEMBER:Antoinette Younes

DATE:23 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2020 at 1:42pm

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – visa grant based on fact or circumstance that did not exist – no visa held at time of application – previous substantive visa application refused, refusal affirmed and associated bridging visa ceased – invitation to attend hearing of review of refusal of substantive visa and notification of decision sent by post to last known address – no evidence of notification of change of address – circumstances beyond applicant’s control – visa granted by mistake – applicant and department taken to have received documents, whether or not they in fact had – discretion to cancel visa – study, work and community involvement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(9)(a), 116(1)(aa), 360A(2), 375A, 379A, 379B, 379C, 379D

Migration Regulations 1994 (Cth), Schedule 2, cll 020.211, 020.221

CASES

Lin v MIAC(2008) 218 FLR 177

Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104

Zubair v MIMIA (2004) 139 FCR 344

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 27 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

  2. The delegate cancelled the visa under s.116(1)(aa) on the basis that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

  3. 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. The applicant appeared before the Tribunal by telephone on 15 April 2020 to give evidence and present arguments.

  5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

  6. The applicant was represented in relation to the review by his registered migration agent.

  7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    SECTION 375A CERTIFICATE

  8. Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the…

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AGLC
Singh (Migration) [2020] AATA 1449
Case
[2020] AATA 1449
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Singh against the cancellation of his Bridging B (subclass 020) visa. The Department had cancelled the visa on the basis that it was granted on the existence of a fact or circumstance that did not exist. Specifically, the Department contended that at the time of Mr Singh's application for the Bridging B visa on 7 January 2014, he was not the holder of a Bridging A or Bridging B visa, which was a prerequisite for the grant of the visa under regulations 020.211 and 020.221. Mr Singh's previous substantive visa application had been refused, and that refusal affirmed, with his associated bridging visa ceasing on 29 July 2013, meaning he was an unlawful non-citizen between 30 July 2013 and 7 January 2014.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(aa) of the Migration Act 1958 (Cth) was made out. This section permits the Minister to cancel a visa if satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that did not exist. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(aa) was established because the decision to grant Mr Singh the Bridging B visa was based, in part, on the erroneous belief that he held a Bridging A or Bridging B visa at the time of his application, a fact that did not exist. The Tribunal then considered its discretion to cancel the visa. It noted Mr Singh's intention to study in Australia, evidenced by his completion of a Diploma of Management, and gave this some weight in his favour. However, it did not consider this intention to equate to a compelling need to remain in Australia. The Tribunal also gave limited weight to Mr Singh's submission that COVID-19 travel restrictions prevented his departure. Having considered all the circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr Singh's Subclass 020 (Bridging B) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As indicated in the course of the hearing, the Tribunal gives those allegations no weight due to the time that has elapsed since the making of those allegations (2016), lack of direct relevance to the issues for determination, and the fact that the allegations have not been tested.Consideration of claims and evidence 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)(aa). 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?s.116(1)(aa) – Fact or Circumstance for visa grant did not exist A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record provided by the applicant in support of the application for review. Specifically, the Tribunal noted that the information indicates that:· On 7 January 2014, the applicant was granted a Bridging B (subclass 020) visa (‘BVB’). The decision to grant him that visa was based, wholly or partly, on the existence of a particular fact or circumstance that did not exist.· When granting the BVB, the delegate was satisfied that the applicant met and continued to meet the relevant regulations, namely 020.211 and 020.221 stating that at the time of application the applicant is the holder of a Bridging A (Class WA) visa, or Bridging B (Class WB) visa and that at the time of decision the applicant continues to satisfy those criteria.· At the time of the applicant’s application for a BVB on 7 January 2014, he was not the holder of a Bridging A or Bridging B visa. The applicant last held a Bridging B visa which was associated with his subclass 572 visa application. The subclass 572 application was refused on 10 August 2011 and the refusal was affirmed by the MRT on 20 June 2013, meaning that the associated Bridging B visa ceased on 29 July 2013.· Departmental records indicate that for the period 30 July 2013 to 7 January 2014, the applicant did not hold a valid visa of any type and resided in the community as an unlawful non-citizen. Consequently, at the time he lodged the BVB application on 7 January 2014, the applicant did not hold a BVA or a BVB to meet the requirements of regulations 020.211 and 020.221.· Consequently, the decision to grant the applicant the BVB on 7 January 2014 was based partly on the fact that he met the relevant regulations, 020.211 and 020.221. However, as that fact or circumstance did not exist, the decision to grant the applicant the BVB was based in part on the existence of the fact or circumstance that did not exist.NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC)

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 020 (Bridging B) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

Therefore, the Tribunal finds that the ground for cancellation in s.116(1)(aa) exists. 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 There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia As mentioned in the delegate’s decision record, the applicant first travelled to Australia on 16 January 2009 as the holder of a student visa and did not complete any course while the holder of that visa. However, he has provided evidence that he completed a Diploma of Management in April 2015 and the Tribunal gives weight in favour of the applicant. The applicant has contended that he is a genuine student. The Tribunal is not reviewing the decision to refuse the student visa as that has been finalised by the MRT on 19 June 2013 based on the material available to the MRT at the time. On the evidence, the Tribunal accepts that the applicant travelled to Australia to study consistent with the purpose of the student visa he was granted. The applicant gave evidence that he has not undertaken any further studies and he has worked as a taxi driver. In submissions to the Tribunal, a request has been made for a referral for Ministerial Intervention to permit reapplication for a student visa. As advised in the course of the hearing, Ministerial Intervention is non-compellable and it is a matter for the applicant to make a direct request. The Tribunal makes no comments about whether any such request would meet the guidelines. The Tribunal is of the view that this supports a finding that the applicant has an intention to study in Australia and the Tribunal gives this aspect some weight in his favour. However, the Tribunal does not consider this intention to mean that the applicant has a compelling need to stay in Australia. The applicant has raised the issue of the COVID-19 pandemic contending that it is not possible to depart Australia. It is correct that currently, there are travel restrictions but that does not mean that this is a permanent arrangement or that the applicant would be forced to depart Australia under these conditions. On balance, the Tribunal gives this consideration limited weight in the applicant’s favour.·the extent of compliance with visa conditions There is no evidence before the Tribunal relating to breach of visa conditions. The Tribunal gives this consideration neutral weight.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant gave evidence that he has no family in Australia.