1806362 (Migration)

[2018] AATA 2378

1806362 (Migration) [2018] AATA 2378 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806362

MEMBERS:John Cipolla and Justin Owen

DATE:9 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant Subclass 050 (Bridging(General)) visa.

Statement made on 09 May 2018 at 11:00am

Statement made on 09 May 2018 at 11:05am

CATCHWORDS

Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging) General)) – Whether the grounds for cancellation exist – Where applicant has been charged with criminal offences – Ground for cancellation exists – Whether the visa should be cancelled – Significant hardship if visa is cancelled – Serious charges currently pending against the applicant – Undiagnosed mental health issues – Primary considerations given greater weight than secondary considerations – Grounds for cancellation outweigh hardship caused – Decision affirmed

LEGISLATION
Crimes Act 1900 (NSW), s 10
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Migration Act 1958 (Cth), ss 116(g), 375A, 499

Migration Regulations 1994 (Cth), r 2.43(1), Schedule 1, Item 1305

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

1. This is an application for review of a decision dated 7 March 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that that the applicant had been charged with a number of criminal offences in [State 1]. The charges are stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence); use of a carriage service to menace/harass/offend; intentionally or recklessly destroy/damage property. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was scheduled to appear before the Tribunal on 22 March 2018. Prior to the commencement of the review hearing, the Tribunal was advised that the applicant had recently engaged a migration agent for the purposes of the review who had, attended the scheduled review hearing with the applicant. The applicant’s newly engaged representative completed a form 956 authority, to represent the applicant. The Tribunal was advised by a registry officer that the applicants newly appointed representative was seeking an adjournment of the review as the applicant was due to appear in [Court 1] with regard to his outstanding criminal charges [in] April 2018, and was hoping for an adjournment to await the outcome of the criminal proceedings. Further to this, the applicant’s representative advised that the applicant would be seeking to obtain a report from a psychologist to submit to the Tribunal and to submit to the Local Court with regard to the outstanding criminal charges. The Tribunal consented to the postponement of the review hearing on this basis.

   PRE-HEARING SUBMISSION

4. The Tribunal received a pre-hearing submission dated 23 April 2018 from the applicant’s representative. The submission made reference to the applicant’s immigration history. The submission notes that the applicant travelled to Australia from Iran by un-authorised boat from [Country 1] in 2013 to seek refugee protection. The applicant did not lodge his own claims for protection but was included as a dependent member of his mother’s protection visa application

5. The submission notes that the applicant’s behaviour that led to the current charges could be informed by his psychological status, and the submission notes that the applicant has spoken to a psychologist in detention and is amenable to being assessed by a psychologist and psychiatrist to determine whether there are any underlying psychological or mental health issues that need to be treated.

6. The submission notes that the applicant sincerely regrets his actions and behaviour, and as a young man is finding immigration detention a difficult experience. The applicant’s ongoing detention is causing his mother and sister stress, with the applicants family believing the applicant’s behaviour may well have put their visas at risk, and they fear being forcibly returned to Iran where they believe they would face a real chance of persecution. The submission invites the Tribunal to consider the applicant’s young age, his mental well-being, his willingness to now seek psychological intervention, and the suffering that the applicant’s ongoing detention is having on his family unit.

7. Also provided was a submission from the applicant’s mother pertaining to the basis of her claims for protection and her family’s fear of being forcibly returned to Iran where they believe that their life and liberty would be at risk.

8. The Tribunal also received a report from [a] clinical psychologist dated [in] April 2018 pertaining to the applicant’s mother. The report states that applying the relevant diagnostic testing the applicant’s mother was suffering with severe depression, severe anxiety, panic attacks and post-traumatic stress disorder. The report notes that family issues and worries pertaining to her son situation and the family unit situation and their uncertain future was having a substantial impact on her mental health. The Tribunal has considered the contents of this report.

9. The Tribunal also received a report from [Mr A] who had been engaged by the applicant to represent him with regard to the criminal charges of [March] 2018. The applicant’s criminal lawyer advised that he was going to arrange obtaining medical evidence including a psychiatric evaluation of the applicant with a view to making an application under section 32 of the Mental Health (Forensic Provisions Act) 1990. The applicant’s criminal lawyer stated that in the circumstances that the court agreed that the applicant should be the subject of a section 32 order the court will be asked to endorse a treatment plan pertaining to the applicants mental health/intellectual disability. The applicant’s representative advised that the matter has been adjourned until [July] 2018.

   THE TRIBUNAL HEARING

10. The applicant appeared before the Tribunal at a re-scheduled hearing on 24 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and sister.

11. At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal advised the applicant that it was conducting a review of the decision of the Department of Immigration to cancel the applicant’s Bridging visa under s.116(1)(g) of the Migration Act because prescribed grounds for the cancellation of the applicant’s visa existed under r.2.43(1)(p). The Tribunal explained to the applicant that the event that triggered the cancellation of his Bridging visa was the fact that he was charged with a number of criminal offences [in] March 2018 in [State 1]. As noted the above, the charges were stalking or intimidate intending to cause fear of physical or mental harm (personal violence offence); use of a carriage service to menace/harass/offend; intentionally or recklessly destroy/damage property. The Tribunal noted that the review required a determination of whether the grounds for cancellation existed and secondly whether having regard to the relevant Ministerial Directive the visa should be cancelled. The Tribunal explained for the benefit of the applicant the relevant primary and secondary discretionary considerations contained in that directive.

12. The Tribunal further noted at the outset of the review hearing that a Departmental officer had attached a s.375A certificate pertaining to the disclosure of certain information, namely one document contained in the Departmental file, which the delegate believed the release of would be contrary to the public interest. The Tribunal asked the applicant whether his criminal lawyer had given him a copy of the police fact sheet. The applicant advised that he had been given a copy of the police fact sheet and had read its contents. The Tribunal noted that the document that was the subject of a s.375A certificate was the police fact sheet which contained information relating to the victim. The Tribunal noting that the applicant had received the police fact sheet through his criminal lawyer and was aware of the identity of the alleged victim determined that s.375A certificate was not valid, and the release of the document would not be contrary to the public interest as it was already in the public domain. The applicant was invited to comment on this. The applicant confirmed again that he had received a copy of the police facts sheet and had read and understood its contents.

13. The applicant provided his name and date of birth. The Tribunal asked the applicant where he was born, and he advised that he was born in [Iran] in [a particular location in Iran].  The Tribunal asked the applicant about his schooling and at what age he commenced schooling in Iran. The applicant advised that he started school when he was 6 years old, and finished school in year 10 when he was 16 years old. The Tribunal asked the applicant how he fared academically at school. The applicant stated that he was not really good at school and that he found it very difficult to concentrate in secondary school.

14. The Tribunal asked the applicant who he was residing with in Australia, and he advised with his mother and sister and that he had no other siblings. The Tribunal asked the applicant about his father and he advised that his father passed away when he was [young] in a car accident. The Tribunal asked the applicant whether there were any other relatives killed in the accident and he advised that he thought that there were some [other family members] that were also killed as a consequence of the accident.

15. The applicant advised the Tribunal that he was raised by his mother in Iran. The Tribunal asked the applicant what his mother did for work, and he advised that she worked in Iran in [a particular occupation]. The applicant advised that his sister was [a particular age] and that she completed high school in Iran.

16. The Tribunal asked the applicant about his travel to Australia. The applicant stated that [details of the applicant’s travel to Australia removed] and then they travelled to [Australian City 1]. The Tribunal asked the applicant why he and his family travelled to [Australian City 1] and he advised that the family had some contacts in [a particular suburb of State 1].

17. The Tribunal asked the applicant whether he had engaged in high school studies in Australia and he advised that he had. The applicant stated that he attended [High School 1] where he undertook English-language lessons for 2 terms for approximately 28 weeks. The applicant then enrolled at [High School 2] in year 10, but he only attended that school for 2 months before the family relocated to [Suburb 1] and he then enrolled in [High School 3] a co-educational facility. The applicant stated that he spent about one year at school and left school at the end of year 11, and that he completed the HSC during that year but did not do well in his examinations. The Tribunal asked the applicant whether he had any problems at school, and he advised that he was not academically inclined. The Tribunal asked the applicant when he finished school and he advised at the end of 2015. The Tribunal asked the applicant what he did from the beginning of 2016, and he advised that he attempted to get work and worked in a number of jobs on a casual basis in [various occupations]. The applicant also advised that he worked at a [shop] in [Suburb 1].

18. The Tribunal asked the applicant about his work history over 2017 and he advised that he worked for about 4 months for a [business].  The Tribunal asked the applicant how he occupied his time for the duration of 2017 and he advised that he would predominantly go to the gym and spend time with a few of his friends.

19. The Tribunal asked the applicant about his work history over 2018 up until the time of his detention. He advised that he had no work until he managed to get some work [in a particular occupation] for a couple of days in early March. The applicant stated that he spent a lot of time in the gymnasium and [sports training].

20. The Tribunal noted that the police fact sheet made reference to a previous conviction of assaulting police. The Tribunal asked the applicant about the circumstances surrounding this particular offence. The applicant stated that he was working in a [business] in [Suburb 1]. The applicant stated that he finished at the [business] in the early hours of the [morning]. The applicant stated that after work he went into [a particular location] to have a cigarette and was assaulted by [a number of] men of mixed ethnicity, including some [men of a particular ethnicity]. The applicant stated that the people that assaulted him were extremely intoxicated. The applicant stated that as a consequence of the assault he ended up having stitches in [a particular part of his body] at [a particular hospital]. The applicant stated the police attended the scene of the assault and that the perpetrators of the assault fled the scene. The applicant stated that he asked the police to pursue the offenders but they did not accede to this request, the applicant stated as a consequence he lost his temper and spat at one of the police officers. The applicant stated that he made a mistake with regard to his behaviour. The applicant stated that the matter was dealt with at [Court 1] and he pleaded guilty. The applicant stated that a criminal lawyer, [Mr A] represented him in these proceedings. The applicant stated that he was given a one-year good behaviour bond and the matter was dealt with under section 10 of the Crimes Act with no conviction recorded.

21. The Tribunal explained to the applicant in detail the risk of self-incrimination and advised the applicant that prior to answering any questions about the current charges that he was not required to provide a response to any question if he felt that the response would incriminate him in any way. The Tribunal asked the applicant whether he wanted an opportunity to speak with his representative about self-incrimination prior to the Tribunal questioning him with regard to the current charges. The applicant advised that he would like some time and the hearing was adjourned to enable the applicant to consult with his representative.

22. Upon resumption of the hearing, the Tribunal asked the applicant about the circumstances pertaining to the current charges. The applicant stated that a friend told him about the prospect of some work [in a particular setting], and that he should approach somebody about that work. The applicant stated that he was given the prospective employers’ telephone number. The applicant advised that the position that he was enquiring about was a [particular occupation in a particular setting]. The applicant stated that he worked for 2 days. The applicant stated that he was advised after the 2 [days] that he was not suitable for the position.  The applicant advised that the employer and he had an argument on the phone about the payment of wages. The applicant stated that the employer advised him of an hourly rate and that he disagreed with the rate. The applicant stated that the employer was very rude to him on the phone and was swearing at him and the applicant stated that the employer never gave him any [work equipment].

23. The Tribunal asked the applicant whether he went to the residence of this employer. The applicant stated that a mate told him where the employer lived. The applicant claims that prior to attending the employer’s residence in [Suburb 2] he received a phone call from [police] stating that the employer was attending the police station making an allegation against the applicant. The applicant thought that the employer may be accusing him of stealing. The Tribunal asked the applicant why he did not attend the [police station] to sort things out and the applicant stated that he was not thinking clearly. The applicant stated that he attended the employer’s house and that he was in possession of a [weapon] and he [damaged] the employer’s [property] and swore at the employer. The applicant stated that as a result of this incident the police attended his house in [Suburb 1]. He advised that his mother and sister were home at the time. The applicant stated that the police had a warrant for his arrest and he was taken back to [a particular police station] and interviewed by police.

24. The Tribunal asked the applicant whether he was given bail by the police, and he advised that he was not and that he was kept in the holding cells at the police station after being questioned by the police for approximately 20 minutes. The applicant claims that he refused to answer any of the police questions. The applicant stated that the next day he was brought before a Magistrate at [Court 1] and that he had a private solicitor represent him in a bail application before the Magistrate. The applicant stated that he was granted bail by the Magistrate. The Tribunal asked the applicant what conditions applied to his bail and he advised there was an apprehended violence order put in place which meant that he was not allowed to approach the complainant (his former employer), or go within 100 meters of the complainant’s house, and that he must report to [a particular police station].  The Tribunal asked the applicant whether he had complied with bail conditions prior being placed in immigration detention. The applicant stated that he was removed by the Department directly from [Court 1] to [Detention Centre 1]. The applicant stated that he had now been in [Detention Centre 1] since early March 2018.

25. The Tribunal asked the applicant whether he had ever suffered mental health issues. The applicant stated that he spoke to a psychologist for the first time in [Detention Centre 1] for about 45 minutes. He advised that the psychologist believed that the applicant could be suffering attention deficit disorder, and the applicant believed that there was some merit in this assessment because he had never been able to concentrate at school. The applicant stated that when he was a child he had a fall and hit his head. The applicant stated that he has agreed to see a psychiatrist or psychologist in Australia for a more thorough assessment. The applicant stated that in Iran the only reason a person would see a psychiatrist is if they were crazy and thus he had never had any interaction with a psychiatrist or psychologist in Iran.

26. The Tribunal asked the applicant how he was spending his time in detention and he advised that he was sleeping and watching television. He advised that he had been working out from time to time in a gym in the facility but his training partner had left the facility and he was not inclined to train on his own. The Tribunal asked the applicant how he was feeling in detention and he advised that he was bored.

27. The Tribunal asked the applicant how his family were surviving in the community given that [Australian City 1] was an expensive city to reside in. The applicant advised that his mother had previously worked as [Occupation 1] in a [business] in [Suburb 3] but the [business] had closed down and his mother had lost her work. He advised that his mother was looking for another job and that she had been attending English language studies to improve her employability. He advised that his sister was at TAFE and the family were largely surviving on Centrelink benefits and that they were struggling financially. The applicant stated because he had not been able to secure ongoing work that he had not made a significant financial contribution to the family. The Tribunal asked the applicant about his outgoings and whether he had a mobile phone. The applicant advised that he had a mobile phone that cost $300 per year. The Tribunal asked whether the family had a car and he advised that his sister had a motor vehicle but that he did not have a car.

1. The Tribunal asked the applicant whether he believed his previous pattern of behaviour that brought him into adverse interaction with the criminal justice system on 2 occasions would occur again in the future. The applicant stated that he [was a relatively young age] at the time of the first offence and that he had been beaten up and believed that the police did not pursue the offenders. The applicant acknowledged that his behaviour was inappropriate. The applicant stated that he had never accessed a psychiatrist or psychologist in Iran because in that country these professionals were for ‘crazy’ people. The Tribunal asked the applicant why he did not access a psychologist at the time of the offence in 2015. The applicant stated that possibly his legal representative thought that he was ‘only a kid’ [since he was relatively young] and that such intervention was not necessary at that time.

2. The Tribunal asked the applicant if he was released into the community, what his plans would be. The applicant stated that he would undergo assessments. The applicant stated that he would also attempt to find ongoing employment in the community.

3. The Tribunal took evidence from the applicant’s mother. The witness advised that she and her son and daughter travelled to Australia in 2013, arriving by unauthorised boat [in Australia]. The Tribunal asked the applicant why the family came to [Australian City 1]. She advised the family had a contact in [Australian City 1] and that is why they travelled to the city. The Tribunal asked the witness about her family, and she advised that she only had one son and one daughter and that her husband passed away in a car accident in 2001.

4. The Tribunal asked the witness about her son’s schooling in Iran. The witness advised that her son commenced school at the age of 5 or 6 through to the age of 16. She advised that her son had problems at school and struggled with study and concentration.

5. The Tribunal asked the witness how the family had been surviving financially. The witness advised that she previously had work as [Occupation 1] in a [business] in [Suburb 3] [providing a particular service]. She advised that the [business] closed in April 2017 and since that time she had not been able to find ongoing employment. She advised that she had been attending TAFE to improve her English language skills to increase the chances of finding employment but she had not been attending since her son was detained. She advised that her daughter was studying at TAFE.

6. The witness advised that the detention of her son had a substantial impact on the family unit and she had been extremely distressed and upset as a consequence. She advised that this has impacted on her ability to find work. She advised that she had never been separated from her son and that his removal from the family unit had an adverse impact on both herself and her daughter. The Tribunal asked the witness whether her son had any problems with the police or criminal justice system in Iran prior to coming to Australia and she advised that he had not.

7. The Tribunal asked the witness whether she had met any of her son’s friends and she advised that she knew 2 of them, one being his [sports] coach, and another who was a close friend of her son from Iran. The Tribunal noted that the applicant had advised that he first came into adverse interaction with the criminal justice system [at a particular age] after he was leaving a [business] that he was working at in [Suburb 1]. The witness stated that from what she heard her son was on his way home from work when a few people approached him and surrounded him and beat him. The police attended the scene of the incident but did not take any action against the perpetrators who assaulted her son, and that as a consequence her son lost his temper and spat at the police. The witness stated that from what she heard in court he spat on the car of the police and that there was blood in his mouth as a result the beating. She advised that the police took her son to hospital as he had an injury on [a particular part of his body] that required stitching as well as an injury on [another part of his body].  She advised that as a result of her son being charged with assault police he was put on a one-year good behaviour bond and that no conviction was recorded. She advised that her son complied with the conditions of the good behaviour bond.

8. The Tribunal asked the witness what her reaction was to the latest charges from March 2018. The witness stated that she was very upset about what happened and she believed her son should not have engaged in this behaviour. She advised that she believed that her son had underlying psychological issues and that he needed professional treatment. She advised that she had seen a psychologist and counsellor and it had improved her condition and that she had formed the view that her son would derive similar benefits particularly with regard to controlling his temper and with regard to anger management. The witness stated that she always advised her son to think about the consequences of his actions and to act in a lawful manner.

9. The Tribunal noting that the witnesses’ son had 2 negative interactions with the criminal justice system asked the witness what made her believe that it would not happen again. The witness stated that she had already taken steps for her son to have psychological evaluation and counselling if released from detention. She had also obtained books that may help her son with regard to his temper and anger management and she advised that her son had spoken to a counsellor in detention.

10. The Tribunal asked the witness whether the anger management issues that she described existed in the domestic environment at home. The witness stated that she and her daughter had never experienced any problems with the applicant in the home environment. The witness stated that since the death of her husband that she had tried her best as a single mother to keep her family intact.

11. The Tribunal noting that given that the witness had not worked since April 2017 that the family unit must be experiencing financial pressures. The Tribunal asked the witness how she was affording a migration agent and criminal lawyer and whether these costs were adding to her financial burden. The witness stated that she obtained some funds from her brother who was living in [another country] and that she had also borrowed money from a friend with an agreement to repay that money as soon as she found a job. The witness stated that she was also thankful for the migration representative who was charging a reasonable fee for service.

12. The Tribunal asked the witness where there was anything more that she wanted to state with regard to her son’s predicament. She advised that she wanted the Member to help her family, that she believed that it was in her son’s best interest that he be released from detention to live under her supervision and to seek treatment and intervention from a psychologist.  The witness stated that every time she visited her son in detention that he seemed very flat.

13. The Tribunal noted that the applicant had showed the Tribunal a scar on [a particular part of his body], and asked the witness how her son obtained that scar. She advised that when he was a young child in Iran that some kids pushed him and he hit [a particular part of his body] against the wall requiring stitches.

14. The Tribunal took evidence from the applicant’s sister. The Tribunal asked the applicant’s sister about her recollection of the attack on her brother in 2015. The witness advised that [a number of] young people, a number of [men] who were drunk surrounded her brother and picked a fight with him and attacked him. She advised that no one from the [business] across the road from the [location] where the attack happened, namely [a particular business], came to help. She advised that the police attended the scene, and her brother was bleeding and his shirt was ripped and that they came to her brother and did not pursue the offenders. She advised that her brother as a consequence of this knocked on the window of the police car and spat at a police officer in the face. The witness stated that her brother advised her that he asked the police to obtain the ID cards of the perpetrators of the assault but the police did not do anything. She advised that as a consequence, her brother was charged and attended court.

15. The Tribunal asked the witness what her reaction was to the current charges her brother was facing. She advised that her brother was given bail by a Magistrate at [Court 1]. She advised that it had been very difficult to adapt to life in Australia for the family. She advised that her brother attended high school when they first relocated to [Australian City 1] and that he would spend a lot of his time going to gym. She advised that her brother did not have many friends. She advised that it was her belief that her brother had a problem with anger management, but she advised that he was not aggressive in the domestic environment.

16. The Tribunal asked the witness what her assessment of the impact of detention was on her brother. She advised that he had been flat and depressed since he had been in detention. She advised that the people in detention were much older than him and that she missed her brother and wanted him to return home.

17. The Tribunal asked the witness what made her believe that her brother would not engage in inappropriate behaviour going forward. She advised that her mother had made an appointment for her brother to see a psychologist for assessment and treatment of anger management, and that she believed that it was in her brother’s best interests for him to be in the home environment.

18. The witness added that as she and her brother only held Bridging visas that they had both experienced abuse from employers. She advised that she had been given a trial at a [business], and that she worked for 3 days in this role. She advised that she was forced to do a lot of heavy manual lifting, such as unloading boxes of [goods]. She advised at the end of the 3 days she was not given ongoing work and she was not paid for the work that she undertook. She advised that she had no recourse as a consequence.  She advised that her brother experienced the same abuse but his reaction was inappropriate.

19. The Tribunal asked the applicant’s representative whether he wanted to make any closing submissions. The representative concurred with the evidence of the applicant’s family that the applicant had a problem with his temper and anger management, and that it would be in his best interests to have proper psychological intervention. The representative stated that the applicant had ongoing problems with concentration. The representative stated that despite the fact that the applicant was a kickboxer and had trained extensively at gym’s since coming to Australia that he had never assaulted a person. The representative stated that the applicant’s first criminal charge arose as a consequence of his perception of the police not pursuing the offenders that beat him up. The representative noted that the applicant acknowledged that his behaviour in the past had been inappropriate and realised that there was a need for intervention to address anger management issues. The hearing concluded.

20. For the following reasons, the Tribunal has decided to affirm the cancellation decision under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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(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.

    Does the ground for cancellation exist?

22. 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)(p)(ii)) is relevant as the applicant had been charged with a number of offences in [State 1].

23. The evidence before the Tribunal indicates that the applicant has been charged with a number of criminal offences in [State 1], and for this reason the Tribunal finds that the ground for cancellation under s.116(1)(g) r.2.43(1)(p)(ii) exists.

24. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

25. 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.

26. 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.

27. 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.

28. 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. The Tribunal has also had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’

29. The evidence before the Tribunal indicates that the applicant arrived in Australia with his mother and sister as an unauthorised maritime arrival in 2013 when the applicant was a minor.

30. The evidence indicates that the applicant and his mother and sister [details of travel removed], before settling in [Australian City 1]. The evidence indicates that the applicant’s father passed away when the applicant was a young child, and that the applicant was raised by his mother. The evidence indicates that the applicant’s mother initially obtained work in [State 1] as [Occupation 1] at a [business] in [Suburb 3], but her place of employment closed down in April 2017 and she has not been working since that time.

31. The evidence before the Tribunal indicates that the applicant has worked from time to time in [various industries] and the evidence indicates that he has predominantly been unemployed, because of difficulty sustaining long-term employment.

32. The evidence before the Tribunal indicates that the applicant’s sister has also undertaken employment from time to time, but has also struggled to maintain ongoing employment and she is currently pursuing studies at TAFE.

33. The evidence before the Tribunal indicates that the family have been surviving on Centrelink benefits. 

34. The evidence indicates that the applicant has no dependent children.

35. The evidence before the Tribunal indicates that the applicant has previous adverse interaction with the criminal justice system in [State 1] and was charged with assault police. Evidence was obtained during the course of the review hearing pertaining to the circumstances in which the applicant was charged with this offence. The applicant’s account was that he was set upon by a group of drunken males and beaten, and that the injuries he sustained required a hospital visit and stitches.  The evidence of the applicant was that he became incensed by the fact that in his view, the police, failed to pursue the perpetrators of the assault. As a consequence the applicant became angry and spat at a police officer which resulted in the laying of the charge. The evidence indicates that this matter was dealt with in [Court 1] and that the applicant was put on a 12 month good behaviour bond and no conviction was recorded.

36. The evidence also indicates that the applicant has anger management issues that his family believe need to be addressed.  The applicant advised that he had spoken to a psychologist in detention and that the feedback from the psychologist suggested a possible attention deficit disorder.  The written evidence provided at review and by the applicant’s mother at hearing is that the applicant is more than likely to be suffering with undiagnosed mental health issues that need to be addressed.  The evidence of the applicant and his mother was that accessing treatment for any mental health issues in Iran causes stigma as such treatment is associated with people deemed to be ‘crazy’.  There was no current evidence before the Tribunal with regard to the applicant’s mental state.

37. The evidence before the Tribunal indicates that the applicant has been charged with a number of offences that stem from him undertaking a work trial [in a particular setting] and not being paid for the work. The applicant’s response to this was verbally aggressive and the evidence indicates that the applicant attended the residence of his former employer in the possession of [a weapon] and that he caused damage to his former employer’s property and made violent threats to his former employer and to members of his former employers family unit. The applicant’s behaviour that has led to the current charges will be dealt with in [Court 1] in July 2018. The evidence indicates that the applicant’s criminal lawyer is hoping to collate evidence pertaining to the applicant’s mental health and have the matter dealt with under section 32 of the Mental Health (Forensic Provisions Act) 1990. The Tribunal finds having regard to the police facts sheet, which was discussed with the applicant at hearing that the offences are serious in nature.

38. The evidence before the Tribunal indicates that the detention of the applicant since early March 2018 has had an adverse effect on the applicant’s mother and sister.  The applicant’s mother has been formally assessed by a Consultant Psychologist to be suffering with depression, post-traumatic stress disorder, panic attacks and anxiety.  The report notes that this has been further exacerbated by the families unresolved immigration status and the uncertainty surrounding the family’s future.  The evidence indicates that the detention of the applicant and the ongoing cancellation of his visa is having an adverse impact on the applicant’s family unit.  The Tribunal has taken into account the impact the cancellation of the applicant’s visa will have on the applicant’s family unit.

39. The Tribunal has taken into consideration the circumstances that led to the cancellation of the applicant’s visa, and the evidence indicates that the applicant’s actions were anti-social and unacceptable having regard to societal standards that exist in Australia.  The Tribunal finds that the right of an unlawful non-citizen to reside in the community is a privilege, and that this privilege brings with it a responsibility to adhere to accepted societal standards and abide by the laws of Australia.

1. The Tribunal is satisfied that the cancellation of the applicant's Bridging E visa will impose hardship on the applicant with him having to remain in detention. The Tribunal also acknowledges the applicant's mother and sister have been adversely affected by the applicant’s detention and has as noted had regard to the secondary considerations pertaining to the impact of a cancellation on the applicant’s family unit.  The Tribunal is also mindful of the fact that if the applicant’s Bridging visa is cancelled, he will not be able to apply for a further Bridging visa (Schedule 1 Item 1305). He would therefore remain in detention until his status is resolved, which could take some time.

2. However the evidence before the Tribunal indicates that the applicant has had two adverse interactions with the criminal justice system since 2015. The first pertaining to the assault police charge in 2015 at which time the applicant spat at a police officer. The Tribunal notes that the matter was dealt with by way of section 10 of the Crimes Act where the offence was proven but no conviction was recorded and the applicant was subject to a 12 month good behaviour bond.

3. As noted the most current charges pertain to the applicant, armed with [a weapon], making threats to the family of and damaging the property of a former employer whom the applicant claims owed him wages for the few days he spent [undertaking] a work trial.  The Tribunal notes that the current charges are serious and the applicant is the subject of an apprehended violence order as a consequence. 

4. The Tribunal has weighed the primary and secondary considerations. In this case, the Tribunal considered the applicant’s age, the ongoing hardship to the applicant in remaining in detention. The Tribunal also took into consideration that the period of any detention is uncertain and this may adversely affect the applicant’s mental health.  The Tribunal notes that there is no medical evidence at the current time, regarding the applicant’s mental health condition, just an undertaking that the applicant was prepared to undergo assessment for the purpose of his current criminal proceedings. The Tribunal had regard to the emotional distress to the applicant’s mother and sister regarding the applicant’s situation and the consequences if the visa is cancelled.

5. However, the Tribunal considered these factors were outweighed by the other considerations. Firstly, the Tribunal is mindful that the primary consideration applicable is the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously and be given greater weight than any secondary considerations. The principles of the Ministerial Determination include that mandatory detention applies to any non-citizen who arrives and remains in Australia and who does not hold a visa, and the Australian Government has a low tolerance for criminal behaviour by non – citizens who are in the Australian community on a temporary basis and do not hold a substantive visa. Further, the principles indicate that in order to effectively protect the Australian community and to maintain integrity and public confidence in the migration system, the Government has introduced measures that support education of Bridging E visa holders about community expectations and acceptable behaviour and where a person has been charged with the commission of a criminal offence there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing. The applicant’s bridging visa conditions did include a condition regarding the Code of Behaviour and not to engage in criminal conduct. 

6. The charges the applicant faces involve serious allegations and involve verbal violence and threats and malicious damage.  The Tribunal considers that the nature of the charges and the circumstances of the events that led to the charges being laid as described by the police and the applicant are such that the Tribunal considers the visa should be cancelled.  The Tribunal accepts the applicant will be emotionally affected by his detention and may require psychological assistance, however there is no current medical evidence before the Tribunal to indicate that he is suffering a serious mental health condition, and the Tribunal accepts his mental health is being monitored whilst he is in detention as he has been seen by a psychologist and has ongoing access to such services from within detention.

7. After carefully considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

8. The Tribunal affirms the decision to cancel the applicant Subclass 050 (Bridging(General)) visa.

   John Cipolla
   Senior Member

   Justin Owen
   Senior Member