Taylor (Migration) - [2021] AATA 3278

Taylor (Migration) [2021] AATA 3278 (25 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kai Benjamin Taylor
CASE NUMBER:  2107160
HOME AFFAIRS REFERENCE(S):          BCC2021/629329
MEMBER:Kira Raif
DATE:25 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 25 August 2021 at 3:23pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to safety or good order of community – multiple serious traffic offences, demerit points, fines and suspension of licence – driving through tunnels at night and unaware of speed – change of address without notifying traffic authority or department, so unaware of infringement notices and department’s notice – limited understanding of actions – no traffic infringements in home country – application for student visa in progress and will be considered irrespective of the outcome of this review – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), (3)
Road Transport (Driver Licensing) Regulations 2017 (NSW), r 122
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 24 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of the UK, born in September 1995. He was granted a Bridging A visa (BVA) in March 2021 on the basis of an application for a Student visa. In April 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling the visa under s. 116(1)(e) of the Act. The applicant did not respond to the NOICC and his visa was cancelled in May 2021. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 25 August 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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)(e). 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.
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied 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…

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.

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Details

AGLC: Taylor (Migration) [2021] AATA 3278
Case: [2021] AATA 3278
Decision Date: 25 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Taylor against the cancellation of his Subclass 010 (Bridging A) visa by the Department of Home Affairs. The cancellation was based on the ground that Mr Taylor had committed multiple serious traffic offences, accumulating demerit points, incurring fines, and having his licence suspended. He had also failed to notify the relevant authorities of his change of address, meaning he was unaware of infringement notices and the Department's own notice regarding his visa. The case was heard by Senior Member Kira Raif of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the cancellation of Mr Taylor's Bridging A visa was justified. Specifically, the Tribunal had to consider whether the discretion to cancel the visa should be exercised, given the circumstances presented by the applicant. This involved weighing various factors, including the purpose of his travel and stay in Australia, his compliance with visa conditions, and the potential hardship that cancellation might cause.

The Tribunal acknowledged that the ground for cancellation did not mandate mandatory cancellation under s.116(3) of the Migration Act 1958 (Cth). In exercising its discretion, the Tribunal considered Mr Taylor's stated intention to study in Australia and his relationship with a Student visa holder. However, it noted that his ability to study and remain in Australia was contingent on the grant of a substantive visa, such as a Student visa, rather than the continued holding of a Bridging A visa. The Tribunal found no evidence of non-compliance with visa conditions. Despite accepting that Mr Taylor preferred to remain in Australia and had concerns about returning to the UK, the Tribunal concluded that the seriousness of his conduct and the potential harm it posed to others outweighed these considerations.

Consequently, the Tribunal affirmed the Department's decision to cancel Mr Taylor's Subclass 010 (Bridging A) visa.

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

Having regard to the seriousness of the applicant’s conduct, and the potential of harm it may cause to others, the Tribunal has formed the view that, in all the circumstances of this case, these factors outweigh others. 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 010 (Bridging A) 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 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 The applicant states in his evidence to the Tribunal that he had initially travelled to Australia on a Working Holiday visa and has made an application for a Student visa. The applicant states that he wishes to complete study in Australia to ensure a better future in his home country. He provided to the Tribunal evidence of his enrolment. The Tribunal accepts that evidence and accepts that the purpose of the applicant’s stay in Australia is to pursue study in this country. However, the Tribunal is mindful that the applicant’s ability to pursue study is not dependent on the applicant holding the BVA. Rather, the applicant’s ability to study depends on the grant of a Student visa to him. The application for the Student visa will be considered irrespective of whether or not the applicant is the holder of a Bridging A visa and irrespective of the outcome of this review, although the Tribunal acknowledges that the applicant may be required to meet additional requirements when seeking the Student visa, if his BVA remains cancelled. The applicant told the Tribunal that he has been in a relationship for about 11 months. His girlfriend has been granted a Student visa and he wants to remain in Australia with her and do his own course before returning to the UK. Despite lack of evidence concerning the relationship, the Tribunal is prepared to accept that the applicant is in a relationship with a Student visa holder and prefers to remain in Australia with her. Again, the applicant’s ability to do so depends on him being granted a substantive visa. The Tribunal acknowledges that the presence of his girlfriend in Australia may constitute a compelling need for the applicant to remain in Australia. The extent of compliance with visa conditions There is no evidence of any non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant states in his submission to the Tribunal that his intention is to pursue study in Australia and he is concerned about his future if his visa is cancelled. The applicant told the Tribunal that he cannot return to the UK where Covid is rampant. The Tribunal accepts that the applicant prefers to remain in Australia and does not wish to return to the UK. However, as noted above, the applicant presently has an application for a Student visa that has not been finally determined and the two applications are independent of each other. The cancellation of the Bridging A visa will not necessarily result in the Student visa being refused (although the applicant may need to meet the additional requirements of Item 4013). If the applicant is granted the Student visa, he will be able to remain in Australia to pursue study. The Bridging A visa is not designed to enable the applicant to remain in Australia on a long-term basis and study in Australia. It is merely a visa to enable the applicant to await the outcome of another visa and he can do so whether or not he holds a Bridging A visa.