1820025 (Migration)

[2019] AATA 991

1820025 (Migration) [2019] AATA 991 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820025

MEMBER:Justin Owen

DATE:6 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2019 at 2:35pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – protection claim currently reviewed by the Tribunal – degree of hardship – mental health issues – serious offences of a violent nature – genuine remorse – preparedness to participate in counselling – decision under review affirmed

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

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 29 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) Reg. 2.43(1)(oa) on the basis that the applicant had been convicted of an offence against a law of the Commonwealth, State or Territory (whether or not the applicant held the visa at the time of the conviction and regardless of the penalty imposed (if any)). 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 was convicted on 7 May 2018 at Parramatta Local Court of: contravene prohibition/restriction in Apprehended Violence Order (Domestic); one count of destroy or damage property less than or equal to $2,000; and assault occasioning actual bodily harm (Domestic violence – T2).

3. The applicant was also convicted on 23 April 2018 at Burwood Local Court of one count of drive with mid-range PCA; one count of Learner not accompanied by driver/police officer/tester and one count of Learner not displaying ‘L’ plates as prescribed.     

4. The applicant appeared before the Tribunal on 31 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

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

   PRE-HEARING SUBMISSION

6. The Tribunal received a pre-hearing submission in the form of a statutory declaration from the applicant dated 23 January 2019 (T1, Folio.113-114).  The submission provides a biographical background of the applicant – he is a [age] year old Fiji citizen who, after completing his tertiary studies where he graduated with a [specified qualification], worked for [Employer 1] in Fiji.  He writes that he was sent to [Country 1] to study and returned to Fiji in October 2015.  The applicant claims he fled to Australia in 2016 because he was falsely accused of leaking confidential government information to the public and a certain dissident [group].  The applicant claimed he was mistaken for another Fijian man who shares his name and works [with the same employer] but a different department.  The applicant claims this man was responsible for the leaking of the information. 

7. The applicant in his submission claims after returning from [Country 1] he was called upon by two men who took him away to a military camp where he was questioned, interrogated, assaulted and threatened.  The applicant writes that he subsequently departed Fiji for Australia and applied for a protection visa. 

8. The applicant in his submission writes that he is psychologically disturbed which impacted upon his relationship with the woman he was living with: presumably his claimed partner and the party he was convicted of assaulting.   The applicant writes that at times there was miscommunication between him and this woman.  He claims to suffer from flashbacks whilst sleeping and ‘it ended up beating her and her screaming will sometimes wake me up.’  The applicant claims that due to ‘our customs and religious belief’ his partner was not able to leave as he was ‘traditionally engaged to her.’

9. The applicant claims that he attempted to commit suicide on the day he was caught drink driving (convicted at Burwood Local Court [in] April 2018) because his imagination triggered him. 

10. The applicant claims the offences for which he was convicted pertaining to his partner happened during a communications breakdown.  He states that he travelled a considerable distance and walked 45 minutes to a work induction where, upon arriving, he found out he needed to do the induction via email.  He writes that his partner had changed the email password and he couldn’t reach her by telephone.  He writes that he became frustrated and stressed by the situation and when he reached home he could not stop himself and started to hit her.  He writes he felt sorry for her at the end, 

11. The applicant writes that he completed his six month Good Behaviour Bond (for breaching the AVO) and attended Counselling and Educational Development as recommended.  The counselling was conducted by [NGO 1].  The applicant supplied a copy of correspondence from [NGO 1] confirming the applicant’s claim concerning his attendance (T1, Folio.109).

12. The applicant also writes that he completed a two day Drink Driving and Awareness course. 

13. The applicant writes that he was fined $1,156 as well as a fine from his domestic violence conviction of $992.  He writes he owes $4,000 in real estate agent rent arrears and owes legal fees of $2,000. The applicant provided evidence of his various outstanding fines to the NSW Government as part of the penalties for his convictions.  The applicant also provided the Tribunal with evidence of his income and tax returns for the financial year ending 30 June 2018  

14. The applicant concluded his written submission by stating he is finding it hard to cope as his partner is at the detention centre and he could not provide her the assistance she needs.  He also wrote he wished to apologise for the behaviour that caused the cancellation of his visa. 

15. The applicant provided a range of documentation with his submission including a statement dated 28 November 2018 from [NGO 2] stating the applicant had been referred by [NGO 1] to [NGO 2].  The Counsellor states that in a recent assessment had carried out the applicant had illustrated symptoms ‘considered symptomatic for Post-Traumatic Stress Disorder (PTSD).  [NGO 2] (T1, Folio109-111) The Counsellor wrote based on these results he would request a full psychological assessment for the applicant (T1, Folio. 124).

16. A report from the provisional psychologist at [NGO 1] was also provided.  The report states the applicant attended four sessions at [NGO 1] in June and July 2018 before being referred to [NGO 2].  The [NGO 1] representative claimed the applicant’s mood had been assessed and he was in the range for depression and for both physiological and psychological symptoms of anxiety.   

17. The applicant provided evidence from [a] Court [in] Fiji that his marriage with his wife had been dissolved [in] December 2016 (T1, Folio.128).      

18. The applicant also submitted a range of documentation concerning his academic history; employment in Fiji; his Christian outreach work; and his impressive efforts at tertiary and support, including representing Fiji in [a sport] at the [junior] level.

    THE TRIBUNAL HEARING

19. The applicant appeared before the Tribunal on 31 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

20. 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 Home Affairs 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)(oa). The Tribunal explained to the applicant that the event that triggered the cancellation of his Bridging visa was the fact that he was convicted of a number of criminal offences on 7 May 2018 in the state of New South Wales. 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.

21. The applicant explained to the Tribunal that he had arrived in Australia in December 2016 on a Visitor Visa before claiming Protection.   He explained he completed school before attending [a named educational institute].  He was heavily involved in a range of campus activities including being elected as [a position] and as [specified position in] the Institute’s highly successful [sports team].  He did further tertiary study through [another educational institution]. 

22. After studying the applicant entered the workforce in 2005 at [Employer 1].

23. The Tribunal asked the applicant why he claimed protection after arriving in Australia in December 2016.  He stated that after returning to Fiji from studies in [Country 1] in October 2015 he was staying with his children.  He said that his daughter informed him there were people to see him.  He claimed he was taken to a military base and wrongly accused of being involved with [a named] group and leaking Government information.  He said he was wrongly accused as there was a man with the same name working at [Employer 1] who was doing this.  He claimed he was kept at the military installation for three days and was [beaten].  He said he was warned not to go to the media.  The applicant said he had no trust of the Fiji Police, military and other services that were all under the control of the government. 

24. The Tribunal asked the applicant what was the outcome of the Protection application.  He replied that it had been refused by the Department and was currently under appeal at the Tribunal. 

25. The Tribunal asked about the applicant’s work history whilst in Australia.  He said he had worked in [a certain industry] on a range of [projects].  He said he was proud to work on such endeavours.  The applicant said he had not worked since his visa was cancelled. 

26. The Tribunal asked the applicant about his partner.  He said he met her in Fiji in 2015.  He explained to the Tribunal that his partner had arrived in Australia from Fiji in 2015 and claimed protection.  The applicant said his partner was currently in [immigration detention] and had been there for around three months.   He said he lived with her after coming to Australia and was living with her at the time of the assault for which he was convicted.  The applicant said he had not lived under the same roof as his partner since the assault occurred.  The Tribunal asked the applicant as to his claimed relationship with his partner.  He said that even after the AVO they remained together as they were ‘traditionally engaged’.  The Tribunal asked the applicant how often he sees his partner.  The applicant said it was over three months ago.  He said he takes items such as clothes to his partner at [immigration detention] but does not see her, leaving them with Department officials.  In response to the Tribunal’s questions he said he doesn’t know what family and friends his claimed partner has in Australia.  

27. The applicant explained to the Tribunal that he had divorced his wife in Fiji in November 2016.  He said he and his former wife have [number of] children aged between [age] and [age] years of age.  He states that the children live with their mother in Fiji. 

28. The applicant explained to the Tribunal that his mother and father, whilst separated, each reside in Fiji.

29. The Tribunal asked the applicant about friends he had in Australia.  The applicant said his previous work colleagues and claimed some members of the church he was attending in [Suburb 1].  The Tribunal asked the applicant the name of the church, he said he did not know. 

30. The applicant claimed he has no previous interactions with the Police beyond the two sets of convictions from 2018.

31. The Tribunal asked the applicant about the circumstances that led to his criminal convictions on 7 May 2018.  The applicant said the events were the result of a ‘miscommunication’.  He said he was not aware that time he could obtain counselling for his mental health issues.  He said on the day of the assault he had travelled to [Suburb 2] to do an induction course for a job.  Upon arriving he discovered the induction had to be done on-line via his email.  He said his partner had changed his email password and couldn’t be reached by telephone.  He said he returned home where the assault occurred.  He said his partner was injured and he deeply regretted this. He said he didn’t intend to harm her.   The applicant said the next day he was charged by the NSW Police who took him to the station where he stayed overnight.  He claimed he was bailed by the Magistrate the next day.

32. The applicant said he pleaded guilty to the charges as he realised it was a serious matter and he realised that he personally required counselling. 

33. The Tribunal asked the applicant why he had breached the AVO.  The applicant said he and his partner were traditionally engaged and they love each other.  He said he had wanted to reconnect with his partner.

34. The applicant said he had reconciled with his partner and they were still together.  He admitted they were not living together since the incidents that precipitated the criminal charges.  He said he was still helping his partner by bringing her clothing to [immigration detention]. The Tribunal asked what evidence did he have he was in a relationship with the partner.  He claimed both he and his partner have a lease on a [property] in both their names.  He admitted however that he has not resided with his partner since the incidents that led to the conviction in May 2018.   

35. The Tribunal asked the applicant about the incidents that precipitated the convictions of April 2018 such as drink driving.  The applicant became emotional and said that that night he had made up his mind to end his own life.  He said the NSW Police saved him when they caught him driving over the legal limit. 

36. The Tribunal asked the applicant about the treatment and counselling he had been receiving as part of his conviction.  He stated he had visited [NGO 1] initially for four visits and had then moved to [NGO 2] where he had had seven consultations.  The Tribunal noted the reports that his condition had improved following counselling including no further suicide ideation.  The applicant agreed he was feeling better after counselling.  The Tribunal noted that [NGO 2] had recommended the applicant undertake a full psychological assessment.  The applicant said he had not done this as he could not afford the $800 fee. 

37. The applicant said he did not have a Mental Health Plan.  The applicant said further treatment was planned through [NGO 2] after the [counsellor] returned from leave.  The applicant said he had not seen a psychologist prior to coming to Australia. 

38. The applicant said he does not receive any government benefits.  He claims to be living with friends in [Suburb 3].  He claims his friend helps look after him financially.  The Tribunal asked the applicant how he then financially looks after his partner.  He responded that he and his friends hold fundraisers to raise money that can be used to assist her.  The Tribunal enquired about any financial support the applicant provides to his children.  He said that his friends help him out but he does not send money often. 

39. The applicant said his major financial cost were his fines from his convictions along with legal and real estate bills.  The applicants said he wants to pay back his fines and be a good person, contributing to Australia.   The applicant said he had paid back some of the fines but still owed a significant amount of money.  He said he has not yet paid back his legal and real estate costs. 

40. The applicant agreed that he was still on a good behaviour bond for assault occasioning actual bodily harm until May 2019.  He said he had had no incidents with the Police.

41. The Tribunal asked what impact the cancellation would have on his partner.  He said it would be a major problem but did not elaborate.  The Tribunal asked similarly about the impact on the rest of his family.  He said similarly it would be a major problem but did not elaborate.

42. The Tribunal asked the applicant about what family members he has residing in Australia.  He has no immediate family but has some cousins living in Australia.

43. The Tribunal asked the applicant about the hardship returning to Fiji would cause him.  He replied that he has a fear of interrogation if he returns and he has no trust in Fiji and the authorities.  He said he has bad flashbacks and would fear for his life.

44. The applicant stated that if his visa was cancelled and he had to return to Fiji he feared for his safety.  He said that he was humbly asking for forgiveness for what he had done in terms of his convictions.  He said he wished to be a good citizen of the Commonwealth of Australia and wanted to make a meaningful contribution to the nation.                   

    CONSIDERATION OF CLAIMS AND EVIDENCE

45. 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.

    Does the ground for cancellation exist?

46. A visa may be cancelled under s116(1)(g) if the Minister 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.

47. At the hearing the Tribunal noted that the decision record the applicant supplied stated that the applicant acknowledged to the delegate that he had incurred the convictions summarised in paragraphs 2 and 3.  The applicant agreed that was the case and confirmed to the Tribunal that he had incurred the convictions.  In oral evidence to the Tribunal the applicant confirmed that he had been charged with offences by the NSW Police and convicted. 

48. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

49. 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

50. The evidence before the Tribunal indicates that the applicant arrived in Australia in December 2016 on a Visitor visa.  The evidence indicates that the applicant then applied for a Protection visa on 31 January 2017.  On 22 February 2017 he was granted his Bridging visa (subclass 010) which is the subject of this review.  The Tribunal notes that the applicant’s Protection application was subsequently refused by the delegate and the refusal is currently under review with the Tribunal.  The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia was not in contravention of the purposes for the grant of the visa. 

1. The Tribunal has considered whether the applicant has a compelling need to travel to or remain in Australia.  The Tribunal notes the applicant travelled to Australia with the purpose of lodging a Protection application.  Whilst the application was refused by the delegate, the matter remains with the Tribunal for review.  The Tribunal considers the application for review of the Protection application could potentially constitute a compelling need to remain in Australia.  The Tribunal notes however that should the applicant’s Bridging Visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia pending the finalisation of his Protection review by the Tribunal. The Tribunal also notes that the applicant may be able to continue his participation in the review concerning the refusal of his Protection applicant whilst in immigration detention.   

2. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor slightly against cancelling the visa. 

   The extent of compliance with visa conditions

3. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the prescribed grounds of the applicant’s criminal convictions and the delegate being satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.  The Tribunal notes that there are no conditions attached to the applicant’s Bridging visa.  The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

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

4. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his Bridging visa be cancelled.

5. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside.  The Tribunal is satisfied that the cancellation of the applicant’s Bridging Visa A will impose some limited hardship upon the applicant. 

6. The applicant has claimed returning to Fiji would cause him hardship.  He replied that he has a fear of interrogation if he returns and he has no trust in Fiji and the authorities.  He said he has bad flashbacks and would fear for his life.  The Tribunal notes the very limited evidence the applicant has provided the Tribunal in support of this assertion beyond his own testimony and a number of academic works concerning the current and past political situation in Fiji (T1, Folio.31-44).  The Tribunal has noted the claims of the applicant concerning the alleged activities of the Fijian authorities, the danger he believes he is in if he returns to Fiji and his lack of faith in the authorities were refused by the delegate in the applicant’s Protection application and are before the Tribunal for review.  The Tribunal noted at the hearing that the applicant claims he had been interrogated in late 2015 by the authorities but did not however depart Fiji for Australia until December 2016, more than a year later.  The applicant replied that was because he had to make preparations to leave.  The Tribunal notes the applicant’s response but is of the view there was little urgency displayed by the applicant in departing Fiji if he was in grave danger.  On the limited evidence before it the Tribunal is not convinced that returning to Fiji will cause the applicant the hardship from the authorities that he has claimed.   The Tribunal furthermore notes however that should the applicant’s Bridging Visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia pending the finalisation of his Protection review by the Tribunal.

7. The Tribunal notes that the applicant in oral evidence stated he has six children aged between four and eighteen residing in Fiji.  His parents reside in Fiji as do other family members.  The applicant stated he has no immediate family in Australia and few friends.  The Tribunal is of the opinion that the applicant has strong family ties to Fiji and any return to Fiji will in all likelihood be of benefit rather than a hardship in relation to the applicant’s emotional state.     

8. The Tribunal asked the applicant as to the hardship the cancellation would have on his family.  The applicant said it would have a major impact but did not provide any detail or elaborate on the claim. 

9. The Tribunal enquired as to the hardship his claimed partner, currently in [immigration detention], would face should his visa be cancelled.    He said it would be a major problem but did not elaborate.  The Tribunal notes he has previously claimed to the delegate that this partner was unemployed, a full-time volunteer working at a nursing home and he was financing her accommodation and everyday expenses (D1, Folio.21).  The Tribunal found obtaining testimony from the applicant concerning his claimed partner – who he was convicted of breaching an AVO and assaulting – difficult.   The Tribunal notes the applicant has claimed they have a ‘traditional engagement’ but notes that the applicant in oral evidence said that he does not visit her when he drops off items to her at [immigration detention], has not seen her for at least three months and in oral evidence said he has not resided with her since the occasion of the assault.  The applicant also claimed that he and his claimed partner have remained together despite the incidents due to customs and religious beliefs.  The Tribunal notes that there is virtually no corroborative evidence before it pertaining to the applicant’s relationship with his claimed partner.  Any claims of hardship she will face from the applicant’s visa being cancelled are based on his testimony.  The Tribunal notes his previous claims to the delegate to financially support his claimed partner but recognises his current claims of financial hardship and being without paid employment since the incident that led to his conviction for assault.  The Tribunal is not satisfied on the evidence before it that the applicant’s claimed partner will suffer hardship should the applicant’s visa be cancelled.   The Tribunal also notes that should the applicant’s Bridging Visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia and continue to provide his claimed partner with support pending the finalisation of his Protection review by the Tribunal. 

10. The Tribunal has considered the applicant’s health and his psychological state and the hardship that might be generated by his return to Fiji.  The Tribunal notes the evidence of the treatment he has received via counselling through [NGO 1] and subsequently [NGO 2].  The Tribunal accepts that the counselling has been of positive value to the applicant’s sense of self and his general wellbeing.  The Tribunal notes the applicant in oral evidence admitted his mental health had improved as a result of the counselling.  The Tribunal notes however that this counselling commenced as a result of his conviction for assault. The Tribunal accepts that individuals can have psychological challenges prior to any formal diagnosis or treatment but nevertheless notes that the applicant has no history of previous mental health issues or of any treatment.  He admitted at the Tribunal’s hearing he does not have a Mental Health Plan.  The Tribunal accepts that lack of finances may have precluded him from obtaining further treatment in Australia including a full psychological assessment.  The Tribunal is however of the opinion that counselling and other mental health services are available in Fiji.  The Tribunal accepts the counselling services are of benefit to the applicant but it is not convinced he will be unable to access similar services offshore in Fiji.  The Tribunal furthermore notes that should the applicant’s Bridging Visa ‘A’ be cancelled, the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia (as an alternative to detention) and continue his Australian counselling and psychological support pending the finalisation of his Protection review by the Tribunal. 

11. The Tribunal notes from the decision record the applicant provided that in response to the NOICC the applicant claimed he had a number of outstanding debts to settle including legal and counselling fees as well as his fines from his convictions and living expenses such as electricity and rent.  He also claimed to support his wife financially.  At the hearing the applicant, whilst claiming some of his debt had been repaid, claimed to still owe a significant amount of money to the same parties.  The applicant provided the Tribunal with copies from August 2018 of his overdue fines from the NSW Government. (T1, Folio.103-108) The applicant told the Tribunal he wished to be able to clear these debts.  The applicant also provided the Tribunal with evidence relating to his previous paid employment including PAYG summaries for the 2017-18 financial year. The Tribunal accepts that the applicant remains in debt and is living with the financial support of a good friend.  The Tribunal accepts the applicant has a genuine desire to repay his debts.  The Tribunal however notes that the applicant has incurred a significant proportion of these debts not through misfortune but as a result of his criminal behaviour. The Tribunal also notes that there is nothing precluding the applicant from seeking employment again in Fiji and repaying his fines and other debts whilst offshore.

12. The Tribunal asked the applicant about financial support he provides his [children].  The Tribunal noted his claims of financial difficulties and how he supports his children.  He said that his friends help him out but he does not send money often.  There is no evidence to suggest the applicant would not be able to seek gainful employment in Fiji and financially assist his children. 

13. The applicant has claimed he wants to remain to work in Australia and contribute to society.  The applicant supplied the Tribunal with evidence of his employment in Australia where he has worked in [a certain industry].  The Tribunal accepts that the applicant worked until the cancellation of his visa and has attempted to make a meaningful contribution in the workforce.  The Tribunal accepts that the applicant is a well-educated, diligent and hard worker who is currently facing financial challenges due to his inability to remain in employment after the cancellation of his visa.  The Tribunal notes the applicant’s impressive academic and work qualifications and experience and is not satisfied he will not be able to re-enter the work force in Fiji.  The Tribunal also notes that, should his Bridging Visa A be cancelled, the applicant may be able to apply for a Bridging Visa ‘E’ (as an alternative to detention) to remain in Australia for the finalisation of his Protection application.  If granted the applicant may be able to apply for work rights on the grounds of financial hardship.  The Tribunal on the evidence before it considers the degree of financial hardship that may be caused on the applicant through the cancellation of his visa to be limited.     

14. The Tribunal has also considered the specific hardship that may be caused to the applicant given he has an outstanding Protection visa review application should his Bridging Visa A be cancelled.  The Tribunal notes however that should the applicant’s Bridging Visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia pending the finalisation of his Protection review by the Tribunal. The Tribunal also notes that the applicant may otherwise be able to continue his participation in the review concerning the refusal of his Protection applicant whilst in immigration detention. The Tribunal considers any hardship caused by the cancellation of his Bridging Visa A to the applicant in relation to his Protection visa review to be limited.     

15. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia.  The Tribunal however considers the hardship that will be caused to the applicant should his visa be cancelled to be limited.  The Tribunal accepts that he has benefitted from some of the counselling he has received and believes his desire to work in Australia and make a contribution to be a genuine one.  The Tribunal however is not convinced on the evidence before it concerning the claims of hardship at the hands of the authorities if the applicant returns to Fiji.  The Tribunal notes that the applicant will also be able to see his six children who are all living in Fiji.  The Tribunal furthermore is of the opinion that there will be little, if any hardship to the applicant’s family in Fiji should he return.  Based on the evidence before it relating to the applicant’s claimed partner who is currently in [immigration detention], the Tribunal is unconvinced she will face any significant degree of hardship should the applicant’s visa be cancelled.    As stated above when considering the degree of hardship that may be caused to the applicant across a range of areas, the Tribunal also has noted that should the applicant’s Bridging Visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia pending the finalisation of his Protection review by the Tribunal. 

16. In relation to the degree of hardship that may be caused, the Tribunal weights this factor in favour of cancelling the visa.    

    The circumstances in which ground for cancellation arose

17. The cancellation arose from the charging and conviction of the applicant with a number of criminal offences in the State of New South Wales.  The convictions are contravene prohibition/restriction in Apprehended Violence Order (Domestic); one count of destroy or damage property less than or equal to $2,000; and assault occasioning actual bodily harm (Domestic violence – T2).  The applicant was also convicted a month earlier of one count of drive with mid-range PCA; one count of Learner not accompanied by driver/police officer/tester and one count of Learner not displaying ‘L’ plates as prescribed.     

18. The Tribunal has given some weight to the applicant for successfully completing his good behaviour bond in relation to his contravention of the AVO.  The Tribunal also notes the applicant has not been involved in any further incidents that have required the involvement of the Police. The Tribunal furthermore gives some weight to the applicant’s acceptance of responsibility for his actions and for what the Tribunal considers his genuine remorse.  The Tribunal also notes the fact that on the evidence he appears to have been cooperative with the Police and has made a meaningful attempt to change his life via the completion of a number of counselling and other sessions. The Tribunal recognises that the Court did not see fit to incarcerate the applicant following his conviction.   

19. The Tribunal gives greater weight however to the fact the applicant has nevertheless been convicted of a number of significant offences.   The Tribunal considers domestic violence to be a very grave and serious offence.  The Tribunal recognises the remorse of the applicant but notes that there were offences committed by the applicant of a violent nature that include the breaching of an AVO and assault occasioning actual bodily harm. 

20. The applicant explained to the Tribunal in some detail the circumstances surrounding the assault. The Tribunal accepts his evidence that he was frustrated and stressed after having spent a considerable amount of time travelling to a workplace induction and then being unable to access his own email when needed.  The Tribunal does not however consider such circumstances mitigates or excuses the applicant’s violent behaviour.  This is not an acceptable form of behaviour in the Commonwealth of Australia. 

21. The Tribunal recognises the applicant’s enthusiasm for his counselling courses and has taken into account the statements by the [NGO 1] provisional psychologist and the [NGO 2] counsellor concerning their assessments the applicant is suffering from Post-Traumatic Stress Disorder.  The Tribunal notes that there is no evidence or claim of any such behaviour prior to coming to Australia and there is no formal Mental Health Plan or ongoing formal medical treatment currently in place.  Even if there is a need for formal and ongoing mental health treatment, the Tribunal notes that mental health, behavioural and rehabilitation services are available in Fiji: The Tribunal also notes that [NGO 1]: a national charity providing all Fijians experiencing a personal crisis with access to 24 hour crisis support and suicide prevention services – is also available in Fiji.   

22. The applicant has explained to the Tribunal the background to the convictions and his recollection of events. Having taken all the evidence into account the Tribunal weights the circumstances in which the ground for the cancellation arose in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

23. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided states the applicant responded to the NOICC and has actively engaged in the cancellation consideration process.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

    Whether there would be consequential cancellations under s.140

24. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa.  The Tribunal therefore finds that there will be no consequential cancellations under s. 140 if the visa is cancelled.  The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa. 

    Mandatory legal consequences of a decision to cancel the visa

25. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal notes that the applicant currently has an application for review before the Tribunal in relation to his refused Protection visa application. Should the applicant’s Bridging Visa ‘A’ be cancelled, the applicant may be able to apply for a Bridging Visa ‘E’ that may allow the applicant to remain in Australia until his Protection review is finalised by the Tribunal. The legal consequences of the cancellation specific to the applicant is that he is likely to be removed to Immigration Detention upon cancellation unless another visa - the Bridging Visa ‘E’ allows him to stay for or pending the resolution of his Protection review before the Tribunal. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

    International obligations – non-refoulment

26. At the Tribunal hearing the applicant spoke about his fear of returning to Fiji and the dangers he faced from government and military authorities should he return.  He raised similar concerns in his written statements to both the Tribunal and to the Department previously.

1. As outlined in the decision record the applicant previously supplied the Tribunal, the applicant lodged a Permanent Protection (subclass 866) visa application on 31 January 2017 seeking protection from Fiji.  On 29 June 2017 the applicant was found not to be a refugee by the delegate.  The applicant subsequently appealed to the Tribunal.  At the time of decision that matter is still before the Tribunal. 

2. The cancellation of the applicant’s Bridging Visa ‘A’ would not prevent the applicant from awaiting the outcome of his Protection visa review currently before the Tribunal.  The Tribunal notes that his eligibility for Protection is a review and assessment by the Tribunal that is separate to this review pertaining to the applicant’s current Bridging visa. The  Tribunal weighs this factor neither in favour nor against cancelling the visa. 

   The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

3. The evidence indicates that the applicant has [number of] children aged between [age] and [age] years of age.  The applicant confirmed that all [the] children reside in Fiji with their mother, the applicant’s former wife from whom he divorced in November 2016.  The applicant provided at the Tribunal hearing a copy of his of the Certificate dissolving his marriage with his former wife and the mother of his [children] from [a] Court [in] Fiji (T1, Folio.125). 

4. Given these facts, the cancellation of the applicant’s visa will not result in either a separation of the family unit or the separation of the children from either parent given the family unit has already been separated.  The Tribunal weighs this factor neither in favour nor against cancelling the visa.       

   Any other relevant matters

5. None.

   Conclusion

6. The Tribunal has weighed the primary and secondary considerations.  In this case, the Tribunal has considered the seriousness of the applicant’s convictions and his repeated statements of regret and remorse for his behaviour.  The Tribunal has taken into account his preparedness to participate in counselling to address his behavioural issues and the concerns expressed by his counsellor and provisional psychologist as to his mental health.  The Tribunal has also taken into consideration the claims he has made – albeit with little corroborative evidence -  concerning his fear of returning to Fiji and his claims concerning his suffering at the hands of the authorities. The Tribunal has had regard to his claims as to the hardship he and his claimed partner will face should his visa be cancelled. 

7. However, the Tribunal considered these factors were outweighed by the other considerations. The Tribunal notes that the Commonwealth 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.  The Tribunal takes a particular view of criminal behaviour that includes violence and in particular domestic violence.  Whilst the Tribunal can accept the applicant was working hard and was stressed at the time of the incident that led to the conviction for assault, the Tribunal does not consider this behaviour is either acceptable or excusable.  The Tribunal has considered the applicant’s mental health in relation to this behaviour.  Whilst the Tribunal appreciates the counselling he has undertaken have been beneficial to the applicant, the Tribunal notes the applicant has no previous history of mental health or psychological issues and notes any treatment appears to be from the period following the applicant’s criminal convictions. As to his claimed partner and his desire to remain in Australia to support her, in the absence of any meaningful supportive evidence as to the relationship and the support he is providing her, the Tribunal gives the claims little weight against cancelling the visa.    

8. The Tribunal furthermore notes that should the visa be cancelled, the applicant may be able to apply for a Bridging Visa ‘E’ that may allow him to remain in Australia until his Protection review is finalised as an alternative to detention.     

9. The applicant’s convictions involve the committing of criminal assault and the breach of an apprehended violence order.  The Tribunal considers that the nature of the convictions and the circumstances of the events that led to the convictions are such that the Tribunal considers the visa should be cancelled.  The Tribunal accepts the applicant may be emotionally affected should he be detained in immigration detention.  The Tribunal accepts the applicant undertook some counselling, however there is no current medical evidence is before the Tribunal to indicate that he is suffering a serious mental health condition. The Tribunal notes that access to further counselling, behavioural and general mental health services are readily available outside of Australia including in Fiji.  The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.

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

    DECISION

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

    Justin Owen
    Senior Member