Turemen (Migration)

[2021] AATA 4913

Turemen (Migration) [2021] AATA 4913 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arda Turemen

REPRESENTATIVE:  Ms Radhika Reddy (MARN: 0854275)

CASE NUMBER:  2113319

HOME AFFAIRS REFERENCE(S):          BCC2021/1770616

MEMBER:Kira Raif

DATE:22 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 22 December 2021 at 4:27pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – granted in association with application for partner visa – criminal convictions and imprisonment – discretion to cancel visa – relationship ceased, partner visa cancelled and application for review in progress – cancellation will not result in applicant having to depart – intention to apply for substantive visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 24 September 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 (Cth) (the Act).

2. The applicant is a national of Turkey, born in December 1994. He made an application for a Partner visa in August 2018 and was granted a Bridging A visa (BVA) in association with that application on 28 August 2018. In August 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa). It appears that the applicant did not respond to the NOICC and his visa was cancelled in September 2021. The applicant seeks review of the delegate’s decision.

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. The applicant appeared before the Tribunal on 22 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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)(g). 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.

5. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It provides the following

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Bridging A visa (BVA) in association with his application for a Partner visa in August 2018.

7. The primary decision record indicates that the Department received information from the AFP that in Mach 2021 the applicant had been convicted at the ACT Magistrates Court of the following offences:

8.     Destroy / damage property not exceeding $5000	9.     Convicted and released on entering a good behaviour bond for 12 months
10.      Common assault	11.      Convicted and sentenced to a term of 2 months imprisonment
12.      Chokes/ suffocates / strangles another person	13.      Convicted and sentenced to 11 months imprisonment (suspended), released after serving 8 months
Common assault	Convicted and released on entering a good behaviour order for 12 months
Destroy / damage property	Convicted and released on entering a good behaviour order for 12 months

1. In his submission to the Tribunal of 21 December 2021 the applicant described the various incidents and claims that he was the victim in the relationship. The applicant states that he had suffered financial hardship and was in an abusive and controlling relationship and was unable to work because of the incidents. The applicant states that he pleaded guilty on advice of his Legal Aid lawyer who did not have time to consider his case and the applicant claims he did not understand the implications of the guilty plea. In oral evidence, the applicant also stated that he has not accepted the convictions and he has been unfairly convicted.

2. The Tribunal finds the applicant’s evidence unpersuasive. The Tribunal does not accept that  the applicant pleaded guilty simply because his lawyer told him to do that and that he did not appreciate that a guilty plea was likely to lead to a finding of guilt and a conviction. The Tribunal considers is most likely that the court would have explained the process to the applicant and assessed the appropriateness of the guilty plea before accepting it. (The applicant confirms that an interpreter was present during court proceedings but claims the process was not explained to him.) While the applicant asked the Tribunal to assess the circumstances of the convictions, the Tribunal does not consider it has any power (or the need) to do so. It is not the role of the present Tribunal to revisit the circumstances of the criminal convictions, nor go behind the finding of guilt. It is not for this Tribunal to determine the correctness of the criminal convictions. If the applicant believes he has been wrongly convicted, he has an opportunity to file an appeal. There is no evidence before the Tribunal to indicate that he has done so or, importantly, that the conviction has been overturned.

3. The Tribunal considers a conviction to be probative evidence that an offence has been committed. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary (Bridging A) visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

4. 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

5. 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

6. The primary decision record indicates that the applicant made an application for a Partner visa so it can be said that the purpose of his travel and stay in Australia is to be with his partner. The applicant told the Tribunal that his Partner visa was also cancelled. The applicant told the Tribunal that his spouse relationship is no longer ongoing. He later suggested that due to his detention, he has not been able to see his partner and has been separated from her but she wants to help him but ultimately the applicant agreed that he is no longer in a relationship with the sponsoring Partner. The Tribunal is mindful that the applicant presented no evidence of ongoing relationship with the sponsor and having regard to the applicant’s oral evidence, the Tribunal finds that the relationship has ended. The Tribunal finds that the bridging visa was granted on the basis of the ongoing Partner visa application to enable the applicant to be with his partner and the Tribunal has found that the relationship ended. As such, the Tribunal does not consider that the applicant is able to fulfil the purpose of his travel and stay in Australia.

7. The purpose of the BVA is to enable the applicant to await the outcome of his application for the permanent Partner visa. That application is processed independently and the decision on that application would not be influenced by the outcome of the present review.

8. With respect to the need to stay in Australia, the applicant refers to his career and employment and the presence of family in Australia. The applicant states that he is a hard-working and law-abiding person. The applicant told the Tribunal that he wants to be released from detention so that he can spend the holidays with his friends and he spoke about his desire to return to employment. The Tribunal accepts that evidence but does not consider these factors constitute a compelling need for the applicant to remain in Australia.

   The extent of compliance with visa conditions

9. The applicant submits that he has been a law-abiding person and has not had any issues with the law previously. The applicant states that it was only during the relationship that he had issues with the law and not before or after the period of the relationship. The Tribunal acknowledges that there is no evidence of any other breaches of the law and there is no evidence of any non-compliance with visa conditions.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

10. The primary decision record indicates that although the applicant did not respond to the NOICC in relation to the cancellation of the BVA, he did provide a response in relation to the cancellation of his Partner visa and stated that he had used all of his savings to travel to Australia and his family could not support him if he had to return to Turkey. The applicant refers to financial hardship and states that he cannot support his family if he cannot work. The Tribunal acknowledges that the applicant may have used his savings to travel to Australia but is mindful that his ability to remain in Australia is not dependent on the applicant holding a Bridging A visa. The applicant needs to pursue a substantive visa, which is a separate and independent process.  

11. The applicant also claims that in Turkey he would not have access to the mental health treatment and other support that he receives in Australia. However, the applicant presented no evidence of any treatment he is receiving or intends to receive. He presented no evidence about the availability of treatment in Turkey. He presented no evidence about the availability of treatment in detention. Importantly, as noted elsewhere the cancellation of the Bridging A visa does not equate to the applicant having to return to Turkey. In such circumstances, the Tribunal does not accept that the cancellation of the visa would affect the applicant’s access to health care and support services.

12. In his written submission to the Tribunal the applicant also outlined the reasons why he should not be required to leave Australia. The applicant refers to an Imam of the Lakemba Mosque who was denied an Australian visa. The applicant claims that he has no political influence and not a security risk. The relevance of the Imam’s visa issues to the applicant’s case is not entirely clear to the Tribunal. Nor is the applicant’s political influence at issue here. The ground for cancellation arises not because the applicant has been assessed as a security risk, nor because of his political views. The ground for cancellation arises because the applicant has been convicted of offences.

13. The Tribunal also considers the applicant’s claims concerning his desire to remain in Australia to be of limited relevance in relation to the cancellation of a BVA because the cancellation of the Bridging visa is independent of any other processes the applicant has, including the ongoing review in relation to the Partner visa cancellation and his future visa intentions. Thus, the cancellation of the Bridging A visa will not result in the applicant being required to leave Australia. Whether or not the applicant holds the BVA, he will be permitted to remain in Australia to await the outcome in relation to the cancellation of his Partner visa. The applicant is also eligible to apply for another bridging visa, such as a Bridging E visa (he claims his earlier application has been refused and it does not appear he has made other applications). The applicant has also expressed an intention of seeking another substantive visa in Australia and if he makes a valid application, the applicant would be able to remain in Australia while that application is being processed. Thus, the Tribunal does not consider that the applicant will be required to depart Australia whether or not his BVA is cancelled. If the applicant’s Partner visa is reinstated, the Partner visa will supersede the Bridging A visa. However, should the Partner visa remain cancelled, the Tribunal is not convinced that a Bridging A visa that was granted in relation to the Partner visa application would be the most appropriate visa for the applicant.

14. The applicant told the Tribunal that because of his detention, he has been separated from his girlfriend, with whom he has been in a relationship for four years. He has not been able to see her or get in touch with her due to his detention. (He also told the Tribunal that the relationship has ended it is likely, in the Tribunal’s view, that the relationship ended due to the incidents leading to the convictions and not the applicant’s detention.) As noted above, the Tribunal accepts that if the applicant does not hold a visa, he may remain in detention and this may cause considerable hardship to the applicant, including limited access to friends and relatives.

15. The applicant told the Tribunal that his career would be much better in Australia than overseas. The Tribunal accepts that this may be so but as noted elsewhere, furthering one’s career is not a purpose of a Bridging A visa. That visa would not enable the applicant to maintain long-term employment in Australia. The applicant needs an appropriate visa to be able to live and work in Australia on a long-term basis. The applicant told the Tribunal that he completed study in Australia and intends to apply for a sponsored visa. However, the applicant concedes that he cannot apply for a Business visa onshore because of the operation of s. 48 of the Act.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

16. The ground for cancellation arises because the applicant has been convicted of several offences.

17. In his submission to the Tribunal the applicant claims he had experienced financial hardship and other hardship and had a ‘bad experience’ during the relationship. The applicant states that he has been a victim in the relationship. The applicant notes that he had no issues with the law either before or after the relationship and it was only during that period that there were issues. The applicant claims that the convictions were wrong and he does not accept these. As noted above, the Tribunal is of the view that convictions serve as evidence that crimes have been committed and convictions suggest that the applicant was the perpetrator, rather than a victim of family violence. The applicant told the Tribunal that he is suffering for the mistakes of others. The applicant appears not to appreciate the nature of his conduct (as evidenced by convictions) and this suggests to the Tribunal that the applicant has no insight into his conduct.

18. The applicant notes that the magistrate recommended for him to receive psychological counselling. The representative has made submissions about the applicant’s mental health and his decision-making capacity but, with respect, the Tribunal does not consider that a person without specialist expertise in the relevant field is in the position to make such determinations. There is no evidence before the Tribunal from a suitably qualified health professional concerning the applicant’s mental state.

19. The Tribunal does not consider that the convictions occurred due to circumstances beyond the applicant’s control.

20. The representative submits that the applicant worked for a well-regarded restaurant and the employer is willing to sponsor him for a visa. As noted above, the applicant acknowledges that he is subject to s. 48 bar and will not be able to seek a Business visa (or most other visas) onshore. The applicant states that he wants to stay in Australia for about a year and make another application in the future. The Tribunal does not consider this to be the purpose of a Bridging A visa. The Bridging visa must attach to an application for a substantive visa and is not designed as a stand-alone visa to enable the applicant to live in Australia.

    Past and present behaviour of the visa holder towards the department

21. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

22. There are no persons whose visas would be subject to consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

23. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, the processing of the applicant’s Partner visa application is independent of the present cancellation and the applicant would be permitted to remain in Australia to await the outcome of that process. If the applicant’s visa is cancelled, he can make an application for another visa in Australia but would be limited in the types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to an offshore visa application.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

24. There are no children who would be affected by the cancellation.

25. With respect to the non-refoulement obligations, the applicant told the Tribunal that he intends to seek another substantive visa in Australia and any claims the applicant may have with respect to Australia’s protection obligations would be considered as part of that process. The Tribunal also notes that, for the reasons stated above, the cancellation of the applicant’s Bridging A visa would not result in the applicant being required to leave Australia, at least while he has other visa processes on foot. In these circumstances, the Tribunal finds that the cancellation of the visa will not result in Australia’s non-refoulement obligations being breached in this case.

    Any other relevant matters

1. The applicant refers to his strong work ethic and the high regard in which his employer holds him. The Tribunal is prepared to accept that evidence but is mindful, as noted above, that should the applicant’s bridging visa remain cancelled, the applicant is able to seek a Bridging E visa with permission to work. The Tribunal acknowledges the applicant’s evidence that his earlier application for the BVE was refused and the Tribunal also acknowledges that  the applicant is able to make another application.

2. The applicant he told the Tribunal that he is a good person and the Tribunal acknowledges the applicant’s evidence about being considered as a person of good character by others. The Tribunal accepts that this may be so, although it is not clear whether those who provided character references are aware of the applicant’s convictions or the circumstances leading to the convictions.

3. The applicant makes submission as to why he should be permitted to remain in Australia (including his skills and employment, good character and compliance with the laws, contribution to economy, presence of family members and settlement in Australia). The applicant told the Tribunal that he wants to remain in Australia for a year to be able to seek a ‘sponsored’ visa in the future. As noted elsewhere, the Tribunal does not consider that this is the purpose of a Bridging A visa. That visa was granted in relation to a specific process associated with the Partner visa application. The Partner visa has been cancelled and that decision is subject to a separate review application before this Tribunal. As noted above, the outcome of that review would determine whether the applicant needs a bridging visa (he would not need one if his Partner visa is reinstated) or should have one.

4. The applicant states that because of the visa cancellation, he cannot work and his family is affected financially and emotionally. The Tribunal accepts that the applicant’s ongoing detention – which is the result of the cancellation of the Bridging A visa – has prevented the applicant from engaging in employment and is prepared to accept that this may have caused financial hardship to the applicant and his family. The Tribunal is also mindful, however, that the Bridging visa would only be for a limited period only depending on the outcome of his Partner cancellation review.

5. The applicant claims (at the suggestion of his representative) that if he is granted the Bridging visa, he can make contact with his partner and try to resume the relationship and support her financially. The Tribunal does not accept that evidence, firstly because the applicant was free to make contact with the sponsor and try to resume a relationship with her while in detention (subject to any DV restrictions), if he had a genuine intention of doing so and, more importantly, because there is no evidence before the Tribunal that the sponsor has any intention of resuming her relationship with the applicant. The Tribunal does not accept that the cancellation of the Bridging visa is affecting the applicant’s chances of re-establishing his relationship with the sponsor.

6. The applicant has indicated to the Tribunal that he intends to apply for another substantive visa in Australia. The Tribunal acknowledges that the applicant has a right to make that application onshore and, once the application is made, the applicant will be eligible to apply for a Bridging visa on the basis of that application. The Tribunal does not consider that the present Bridging A visa – which was granted on the basis of the Partner visa process – is appropriate to enable the applicant to remain in Australia in case he decides to seek a different visa in the future.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa because he has been convicted of offences. The Tribunal places significant weight on the fact that the applicant’s relationship with the sponsor has, on his own evidence, ended, and the applicant also told the Tribunal that his Partner visa has been cancelled, so it sems that the applicant can no longer fulfil the purpose of his travel and stay in Australia. The Tribunal also places considerable weight on the fact that the cancellation of the Bridging A visa will not result in the applicant departing Australia because of his ongoing Partner cancellation review and that  will ameliorate, in the Tribunal’s view, much of the hardship to which the applicant refers.

8. The Tribunal places weight on the circumstances in which the ground for cancellation arose. The offences noted above are serious and while the applicant claims he was the victim in the relationship and he has been wrongly convicted, there is no evidence of the convictions being overturned. The Tribunal has formed the view that the applicant has little insight into his conduct.

9. The Tribunal acknowledges that considerable hardship would be caused by the cancellation, primarily because it would result in the applicant’s ongoing detention and inability to engage in employment. However, in the Tribunal’s view, greater weight should be placed on the fact that it is not the bridging visa that would permit the applicant’s long term residence in Australia and he needs to consider other options, unless his Partner visa is reinstated.

10. The cancellation of the visa would not result in a breach of Australia’s international obligations and no children would be affected by the cancellation.

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

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member