1803338 (Migration) - [2018] AATA 1195

1803338 (Migration) [2018] AATA 1195 (12 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803338
MEMBER:Kira Raif
DATE:12 March 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 12 March 2018 at 2:44pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) – Subclass 050 ( Bridging (General)) – Substantive visa being processed – Ground for cancellation – Criminal record – Convicted of a number of offences – Charged with further offences and the charges remain outstanding – Applicant disputes convictions – Detained upon the visa cancellation – Feels threatened by other detainees – Needs professional help and access to services – Seriousness of the latest offence outweighs grounds for non-cancellation
LEGISLATION
Migration Act 1958 ss 116, 499
Migration Regulations 1994 r 2.43
CASES
ACH15 v Minister for Immigration [2015] FCCA 1250
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated [February] 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa (Bridging E visa) under s.116 of the Migration Act 1958 (the Act).
The applicant is a national in Myanmar (Burma) born in December 1997. He had been granted a Bridging E visa in December 2015. The visa was previously cancelled but reinstated following the decision of the Tribunal (differently constituted). On [date] February 2018 the applicant was issued with the Notice of Intention to Consider Cancellation under s.116(1)(g) of the Act. The applicant provided his response and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision
The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. 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)(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.
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 considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant has been convicted of a number of [offences]. These include:
a.[date]/11/16       resist officer in execution of duty   eight months bond
b.[date]/09/16       drive vehicle while licence suspended          12 months bond
c.[date]/04/16       drive while illicit drugs present  12 months bond
d.[date]/04/16       drive vehicle while licence suspended          12 months bond
e.[date]/04/16       negligent driving  $100 fine
f.[date]/04/16       drive vehicle while licence suspended  12 months bond
The applicant confirmed in his written submission to the Tribunal that he has been convicted of these of offences.
The primary decision record indicates that the applicant had been charged with further offences and the charges remain outstanding. These include assault, destroy or damage property, stalk, intimidate for physical harm, use of offensive language in public place, possess prohibited drug, assault occasioning bodily harm, destroy or damage property, robbery in company. The applicant’s evidence to the Tribunal is that some of these have been resolved while others are outstanding. The applicant’s evidence, in relation to each offence is as follows:
a.Assault occasioning actual bodily harm / common assault / damaging property / intimidation / armed with intent / custody of a knife in a public place / resisting police – he entered pleas of not guilty and the charge of resisting police is likely to be dismissed. These matters are ongoing before the court. The hearing will resume on [date] May 2018 and the representative submits these are unlikely to lead to a custodial sentence if found guilty but he has raised self-defence.
b.Robbery in company / steal from person – found not guilty
c.Common assault / damaging property / intimidation / offensive language. The applicant was found not guilty of offensive language but guilty of the remaining charges. The damage to property was regarded as trivial and was dismissed without conviction or penalty. The common assault and intimidation convictions are due for sentencing in April 2018 for sentencing.
d.Two charges of intimidation were dismissed.
e.Possession of prohibited drug – found guilty and sentencing is due in April 2018. The applicant intends to appeal as there was a finding that the search was unlawful. The Tribunal is mindful that a conviction stands until overturned.
The applicant concedes that the ground for cancellation exists.
The Tribunal finds that the applicant held a Bridging E visa and that he had been convicted of offences under the state law. The Tribunal finds that the ground set out in r.2.43(1)(p)(i) is made out. The Tribunal finds that there are grounds for cancelling the visa held by the applicant under s.116(1)(g) of the Act and r.2.43(1)(p) of the Regulations.
Consideration of discretion
Primary considerations
The applicant has been charged with the offence described above. It has been held that the first of the two primary considerations means that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework rather than that the power to cancel should be exercised rigorously, that is, strictly. The decision-maker must take the government’s view set out in that consideration as one of the matters to be weighed rather than simply following that view: see ACH15 v Minister for Immigration [2015] FCCA 1250. To that extent, the Tribunal acknowledges and accepts the applicant’s submission that consideration of the entirety of his circumstances is necessary when exercising the discretion.
The applicant’s submission to the Tribunal is that he does not pose a risk to the community. The applicant refers to the psychological report which suggests that the applicant ‘does not impress as inherently antisocial’. The applicant submits that it is not contrary to the public interest to allow him to remain in Australia. The representative submits that if the applicant is granted the substantive visa and released into community, there is no benefit to the community by keeping him in detention where he is subjected to the influence of ‘hardened criminals’. The Tribunal is not convinced that the public interest is necessarily a relevant consideration but if it is, it is not limited to the applicant’s future well-being and ability to contribute to the community but also includes the applicant’s conduct and the protection of the community, given that his conduct involves multiple offences and the most recent offences involve violence against others.
The applicant confirmed in oral evidence to the Tribunal that there are no children in Australia who would be affected by the cancellation. The applicant told the Tribunal his younger siblings in Burma rely on his income but the Tribunal is mindful that the policy refers to children in Australia and there are no children in Australia who would be affected by the cancellation.
Secondary considerations
The degree of hardship that may be experienced by the visa holder if the visa is cancelled
The applicant claims that given his circumstances, he has a good prospect of being granted the permanent visa and of being permitted to remain in the Australian community. The applicant claims that the consequences of cancelling his Bridging E visa would adversely affect not only his interests but also the interests of the Australian community because his well-being and his capacity to re-enter the Australian community in a positive way may be damaged. As noted above, the Tribunal does not consider that the interests of the Australian community are limited to assessing the applicant’s well-being and future capacity to contribute, although these are certainly significant considerations.
With respect to hardship, the applicant refers to his mental health concerns, stating he would experience a significant degree of hardship in detention. The applicant notes that he lived in supported accommodation and has been separated from his support systems. The applicant claims that his mental health and well-being are deteriorating because the targeted casework, counselling and treatment services are not available to him in detention and prolonged detention will exacerbate his condition. The applicant presented statements from several support organisations and the Tribunal accepts that he received support in the past and further support will be available to him in the future. However, the applicant has not satisfied the Tribunal that the same support systems, or different support systems, cannot be established if the applicant remains in detention. A statement from STARTTS received on [date] March 2018 suggests that the applicant will be able to continue with counselling even if he remains in detention, although the Tribunal acknowledges the writer’s opinion that the applicant’s progress may be adversely affected by his detention. The statement from Mission Australia also suggests that some, albeit limited, support may be available to the applicant in detention. There may well be other organisations that the applicant may be able to access that provide support to those in detention. Thus, while the Tribunal accepts that the applicant will have better access to support and better opportunities if he is not in detention, the Tribunal does not accept that the applicant will be denied support if he remains in detention. The applicant also claims that his mental health may be adversely affected as a result of his detention but the applicant has not satisfied the Tribunal that he would be unable to access relevant and adequate health care, including mental health care, while in detention.
The applicant refers to his poor experience in detention, including health problems, violence, threats and fear of other detainees. The applicant refers to an isolating and alienating environment in detention and notes that due to his personal characteristics, there are no others with his shared background and experience. The applicant referred to being scared and unable to eat and sleep. He said that he asked to see a doctor and was given an appointment but he had to wait for the appointment and the medication. The Tribunal accepts that the applicant may have experienced threats and feels unsafe because of his personal circumstances and the environment he is in. The Tribunal accepts the applicant prefers not to be in detention. The Tribunal accepts that detaining the applicant is likely to cause considerable hardship to him and such hardship may be exacerbated by the applicant’s particular circumstances, including those set out in the psychologist’s report.
The applicant claims he would be deprived of ready access to his legal representatives, support networks and family in Burma if he remains in detention. As noted above, the Tribunal does not accept that the applicant will be denied access to the support networks in detention, even if these are not the same support networks he had access to in the past or at the same level. Neither does the Tribunal accept the applicant would be denied access to his legal representatives. It is not uncommon for legal representatives to represent applicants in detention or in criminal custody and while such access may be more inconvenient to everyone involved, the Tribunal does not accept it would be unduly onerous, impossible or simply unavailable.
The Tribunal is also of the view that the applicant would be able to maintain telephone contact with his family overseas and with his brother in [Australian city 1]even if he remains in detention, although the Tribunal accepts that he cannot use a mobile phone and is limited to the use of a landline which is expensive. The Tribunal accepts that such access may be more limited than what it could have been if the applicant was not detained. The Tribunal also accepts that the applicant has provided financial support to his family and such support will no longer be available if the applicant cannot work.
The applicant claims that because of his characteristics, his experience in detention would be worse than that of others and that is an unfair punitive measure. The Tribunal considers such submissions misguided. Firstly, it is neither appropriate nor necessary to make comparisons between any hardship that the applicant is likely to experience as a result of his detention and the hardship that may be experienced by others. The discretionary considerations involved in this case relate to the applicant and not to any other detainee or hypothetical person. Secondly, detention in this case is not a punitive measure but the result of the fact that the applicant’s visa has been cancelled. The same consideration applies to any person who does not hold a valid visa and is subject to mandatory detention.
The applicant claims that the majority of detainees are those with significant criminal histories for very serious offences of whom he is afraid. The applicant claims that unlike other detainees, his ‘alleged’ offending is not of the kind that is likely to result in custodial punishment. The Tribunal notes that the applicant has been convicted of a series of offences, and other charges, which he is defending, remain outstanding. The applicant does not appear to appreciate the seriousness of his conduct or have any remorse for his actions. The Tribunal accepts the applicant’s evidence that he finds detention very difficult and that he feels threatened by other criminals, although the Tribunal is mindful that the applicant himself has an extensive criminal history and it is entirely possible that the applicant is perceived by others who do not have criminal convictions as someone who is threatening or intimidating.
The applicant claims that if his visa is cancelled, his life would be ruined because he would have no future. The Tribunal is mindful that the cancellation of the bridging visa would have no effect on the outstanding application for the substantive visa. The Tribunal acknowledges the applicant’s submissions that given his circumstances, he has a good prospect of being granted the substantive visa.
The applicant claims that he is vulnerable in the detention environment and ongoing detention will have an adverse impact on him due to a number of factors. The applicant also claims that detention will act as a deterrent effect on him in relation to any antisocial or criminal conduct in the future. As noted above, the Tribunal accepts that detention may cause considerable hardship to the applicant.
The impact of a decision to cancel the visa on the family unit
With respect to the impact of the cancellation on the family unit, the applicant claims that his separation from the family at a young age has affected him and it is important to his well-being to maintain connection to family. The Tribunal accepts that evidence but does not accept that the applicant will be denied an opportunity to contact his family overseas or his brother in Australia while in detention, even if he may be unable to do so face to face and even if he cannot use a mobile phone. There are other means of contacting the family that are available to the applicant, including phone and email, and his brother has every opportunity to visit the applicant in detention. While it may be more difficult to maintain such contact due to the applicant’s detention, the Tribunal is satisfied that such contact may be maintained.
The applicant told the Tribunal that he has elderly parents and young siblings who cannot support themselves and who rely on him. The Tribunal is not satisfied they are members of the applicant’s family unit and the Tribunal is also mindful that the applicant started working only recently, so the family would have had other means of support during the time the applicant had no means to offer such support.
The circumstances in which the ground for cancellation arose
With respect to the circumstances in which the ground for cancellation arose, the applicant outlined the convictions and states that the offences were at the lowest end of the spectrum of seriousness, as evidenced by the penalties imposed, and none of these resulted in a custodial sentence. With respect to the outstanding charges, the applicant claims he was found not guilty of the robbery in company charge and of using offensive language. He was found guilty of recklessly damaging spices and seeds and common assault and intimidation. The property damage charge was dismissed without conviction. The applicant claims these charges should not be a basis for a cancelling of the visa. The Tribunal does not accept that argument. If the applicant had been convicted of offences, there is no reason why such conviction should be dismissed as being irrelevant to the exercise of discretion, and the charges are also relevant to establishing the breach under r.2.43(1)(p)(ii). The fact that the applicant disputes the convictions or plans to appeal does not detract from the fact that the applicant had been convicted of these offences and, at present, the conviction remains valid. The Tribunal accepts that the charges that have been dismissed or a charge resulting in a finding of not guilty are not relevant for the purpose of these proceedings.

The applicant claims that the charges brought against him are at the lowest end of the spectrum and most are capable of being dealt with summarily and he would normally be at liberty in relation to the finalised and pending charges, suggesting the charges are not serious enough to warrant deprivation of liberty. The applicant notes that he was granted bail in relation to the earlier offences and is unlikely to receive a custodial sentence. The Tribunal acknowledges that submission but as noted above, the applicant’s detention is caused by the fact that he is not a holder of a visa, not as a consequence of the criminal charges or convictions. The Act provides for mandatory detention in circumstances where a person holds no visa and that may result from the natural expiry of the visa, as well as a variety of other factors. That is, detention is not a punitive measure and can occur in circumstances of no wrongdoing by a person. It is not correct to state, in such circumstances, that the applicant’s detention is disproportionate to the nature of the offence because the detention is not consequential upon the offences but upon the visa cancellation.
The applicant told the Tribunal that he was unfamiliar with the law. The Tribunal is mindful that the nature of the offences – including violence and driving offences – are not unique to Australia. The applicant would be well aware that such conduct is not permitted under the law, whether or not he was familiar with the Australian laws.
The applicant told the Tribunal that when he committed the offences, he was very young and had no parental supervision but he is now more mature and works and pays taxes and would not do it again. The Tribunal notes that the conduct occurred in the past 24 months and the most recent conviction relates to conduct occurring around October 2017 and the Tribunal is not convinced that the applicant engaged in criminal conduct because of his immaturity which no longer exists.
The applicant explained the circumstances of the charges and convictions. The applicant said he used to have friends from different backgrounds but he did not know much about the law and he had no schooling in his home country. They used to spend time together and the others would ‘make trouble’ and when the police came, they would find him in the company of the others. The police would take down his name and the others would provide false information to the police stating he was involved when he was not involved. The applicant said that most of the charges have been dismissed. The Tribunal is mindful that the applicant has been found guilty of a number of offences and he appears to have little appreciation of the wrongful nature of his conduct. The Tribunal acknowledges the representative’s submission concerning the applicant’s mental state and lack of comprehension but the Tribunal is concerned that such lack of understanding may cause the applicant to engage in criminal conduct in the future.
With respect to the specific offences, the applicant’s evidence is as follows.
a.Common assault / damaging property / intimidation / offensive language – these offences relate to an incident in October 2017 when there was an altercation in a convenience store. Damaging property relates to the packages of seeds being knocked off the shelves and even though there was a finding of guilt, the magistrate found this offence to be trivial and no conviction was recorded. The common assault relates to an altercation with the store attendant. The store attendant alleged that he was punched by the applicant although the applicant told the Tribunal that the store attendant punched him. With respect to intimidation, the applicant is said to have threatened the store attendant and his family. The applicant disputes the finding of guilt and may appeal the conviction but needs to wait for the sentencing.
b.In relation to the possession of prohibited drug, the offence occurred in August 2017. When the applicant attended the police for bail reporting, a small amount of cannabis was found on him. The police search was held to be invalid.
c.In relation to the driving offences, the applicant said he was drug tested and cannabis was found in his oral fluid although there was evidence that his driving was not impaired by the drug.
d.With respect to driving while licence suspended, the applicant said that he held a learner licence and did not have an instructor accompanying him, so his licence was suspended. The applicant said on one occasion he was sitting in the driveway and was not driving and the police alleged he was driving. On another occasion he drove a short distance during the night when it was raining. The applicant said he was influenced by others who forced him to engage in such conduct.
e.With respect to negligent driving, the allegation is that he was driving in excess of the speed limit and cutting a corner, crossing into the incorrect side of the road. The applicant denied having done that.
The Tribunal finds the evidence concerning the applicant’s criminal history to be of significant concern. The applicant would be aware, if he was able to obtain the learners licence, that he required an instructor to be present in the car, yet he drove without an instructor. Once his licence had been suspended, the applicant would be well aware that he was not allowed to drive and even though the applicant told the Tribunal he did not know the law, the Tribunal is of the view that he would have been advised that a consequence of a licence suspension was being disqualified from driving. Again, if the applicant was able to obtain the learners licence, the Tribunal does not consider that he so lacked an understanding of the law as he now claims. The applicant continued to drive without a licence when he knew he was not permitted to do so. There are three occasions when he was detected doing so by the police and it is hard to believe that these were the only three occasions when the applicant was driving with a suspended licence, although the Tribunal acknowledges there are no other convictions.
The applicant repeatedly submits that the offences are at the lower end of the scale and none of them would lead to custodial sentences. The Tribunal acknowledges these submissions but the Tribunal notes that the offences are multiple, occurred over a lengthy period of time (about April 2016 to October 2017) and some of these are serious. Even if these offences do not result in a custodial sentence, in the Tribunal’s view, they represent the applicant’s disregard for the law and his willingness to breach the law.
The possible consequences of cancellation
One of the most significant consequences of the cancellation is that the applicant would not be a holder of a visa and would be subject to mandatory detention while his substantive visa application is being processed. The cancellation of the bridging visa would not adversely affect the processing of the substantive visa application.
The applicant notes that he is afraid if he is not granted the substantive visa, he will remain in indefinite detention as he cannot be removed from Australia. That submission is somewhat at odds with his claim that he has a strong basis to be granted a substantive visa, although the Tribunal accepts that there can be no certainty as to the outcome of such an application. In any case, the Tribunal does not consider that the detention will be indefinite. It may be lengthy and it may be indeterminate and the Tribunal accepts that such uncertainty may have a detrimental effect on the applicant’s well-being. The applicant claims that if he is eventually granted the substantive visa, it is counterproductive to keep him in detention, which would have an adverse effect on his well-being but as noted above, the detention is a consequence of the visa cancellation and is not designed to have punitive effect.
Any other matter considered relevant.
The applicant refers to the support services with whom he was engaged prior to the detention. The applicant claims that the decision to cancel will frustrate the progress he has made and the goals of mental health treatment cannot be pursued while he is in detention. The Tribunal accepts that the applicant’s opportunities will be more limited as a result of his detention, although as noted elsewhere, the Tribunal does not accept that the applicant will be unable to access support services in detention.
The applicant told the Tribunal that he was influenced by others but since he was in jail in late 2017, he cried a lot and decided not to have any dealings with these people again. The applicant refers to the support from the various organisations which helped him prior to detention. He claims his circumstances have now changed. He moved away from his area, lived in assisted accommodation and was planning to live independently. He has found a full-time job, which would help him tremendously, and made arrangements to receive counselling from STARTTS. He has re-established contact with his brother and they want to move to the same city, either [Australian city 2]or[Australian city 1], although no specific plans have been made yet. The applicant said that he used drugs in the past but he no longer uses drugs.
The applicant told the Tribunal that he has no family support in Australia and he referred to his past experiences in Burma, which have been traumatic. The Tribunal accepts the applicant’s evidence, particularly having regard to the report from[Dr A]. However, to the extent that the applicant claims these factors as a justification for him to engage in criminal conduct, the Tribunal is mindful that many of these factors remain and will continue in the future. The applicant is a young adult without parental support and supervision. He does have a brother in Australia but there is little personal contact as they live in different cities. The applicant claims that he has removed himself from bad influences but he also claims he found it difficult or impossible to do that in the past. [Dr A]’s report indicates that the applicant had made contact with STARTTS and he told the Tribunal they had agreed to offer him support and counselling but it is not apparent that this has had any positive effect on the applicant’s conduct in the past and, if such counselling is to start in the future, it is unlikely to have immediate effects.
The applicant claims he will not commit offences again as he no longer associates with bad people, has found a job and has no time for bad behaviour. However the Tribunal considers it highly problematic that according to his own evidence, his visa was previously cancelled and the applicant appeared before the Tribunal in the past and on that occasion he also promised not to engage in criminal conduct. The applicant made the same promises to the previous Tribunal as he does now but he had not fulfilled that promise. His most recent conviction relates to offences occurring in October 2017, after the previous visa cancellation and after the applicant had made undertakings not to engage in criminal conduct again. Indeed, these offences, which involve common assault and intimidation, are serious ones and involve violence and threats of violence against another person. That is, the severity of the applicant’s conduct has escalated after his earlier undertaking not to commit offences. The Tribunal acknowledges that some of the applicant’s circumstances are now different and the Tribunal accepts that having a full-time job, and an income, would greatly benefit the applicant in many respects. However, the Tribunal is also of the view that throughout the time when the applicant engaged in criminal conduct, he was fully aware that such conduct was wrong. He was fully aware of the repercussions, including in relation to his visa, at least since the first visa cancellation. He would have been put on notice by the first visa cancellation that he was at risk of the visa being cancelled, and of being detained, yet none of these matters affected his subsequent conduct.
The Tribunal has considered the totality of the applicant’s circumstances. The applicant has been convicted of other offences and the Tribunal has found that there are grounds for cancelling his visa.
The Tribunal finds that there are strong reasons why the visa should not be cancelled. The Tribunal accepts that the applicant is a vulnerable young man who finds detention particularly difficult given his personal characteristics and past experiences. The Tribunal accepts that the applicant needs professional help and that he would have better access to such services outside of detention, although the Tribunal is not satisfied that he would be denied such help in detention. The Tribunal accepts that the period of the applicant’s detention may be lengthy and is at present indeterminate. The Tribunal accepts that the applicant feels threatened and intimidated in detention, that his access to medical treatment is delayed and that he will experience a significant level of hardship if the visa is cancelled. The Tribunal is also prepared to accept that as a result of detention, the applicant’s contact with his family, and his ability to provide financial support to his family, will be more limited.
Against these considerations, the Tribunal has formed the view that the applicant has shown a persistent disregard for the Australian laws. His offences, while resulting in non-custodial sentences so far, are numerous and span a lengthy period of time. The Tribunal has formed the view that, contrary to the applicant’s evidence, he was well aware that his conduct was unlawful and inappropriate. It may be that the applicant is particularly susceptible to influence from others, as his evidence suggests, and the Tribunal acknowledges the applicant’s evidence that he has moved on, found a job and moved to different accommodation. However, the applicant’s past conduct may indicate that his conduct in the future would be no different. The applicant’s evidence to the Tribunal in relation to the most recent incident – which occurred after the last cancellation was set aside – that he had an altercation with a shop attendant, hit the attendant in the head and subsequently threatened the attendant and his family. The applicant had been convicted of assault and intimidation and in the Tribunal’s view, these are serious offences involving violence. Violence is not an acceptable form of resolving conflict and the Tribunal is not satisfied that the applicant appreciates that. By the time that offence was committed, the applicant had already spent time in detention and was well aware of the difficulties he would face if his visa was cancelled again, yet the applicant engaged in criminal and violent conduct. In the Tribunal’s view, these considerations outweigh those against the cancellation.
The Tribunal acknowledges that there are many factors that suggest that the applicant’s visa should not be cancelled, but the Tribunal has formed the view that the nature and persistency of the offending, and the escalation in the seriousness of the last offence when the applicant was warned about and was well aware of the consequences, outweigh such considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Kira Raif
Senior Member