1926833 (Migration)

1926833 (Migration) [2020] AATA 552 (24 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926833
MEMBER:Justin Owen
DATE:24 January 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Statement made on 24 January 2020 at 2:42pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence – driving offences – common assault – contravention of AVO – consideration of discretion – seriousness of convictions – expression of genuine remorse – steps taken to address behavioural and alcohol issues – pending review of Protection visa application – fear of returning to Columbia – degree of hardship – family members in Australia – applicant’s mental health condition – employment in Australia – circumstances giving rise to ground of cancellation – chronic disregard for the laws – 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

This is an application for review of a decision dated 17 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The 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 [in] June 2019 at [City 1] Local Court of drive with middle range PCA – 1^st offence; drive recklessly/furiously or speed/manner dangerous – 1^st offence; two counts of common assault; and one count of contravene prohibition/restriction in AVO (Domestic Violence).
The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister [Ms A], the applicant’s brother-in-law [Mr B] and his former partner [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PRE-HEARING SUBMISSION
The Tribunal received a pre-hearing submission in the form of a signed statement from the applicant (T1, Folio.107-208). The submission provides a biographical background of the applicant – he is a [age] year old Columbian citizen who came to Australia on a Visitor’s visa [in] March 2015. The applicant claims he came to Australia because he wished to escape from Columbia due to threats received from Columbian guerrillas associated with FARC: the Revolutionary Armed Forces of Columbia – People’s Army. He claimed guerrilla militants had tried to kill him in the past and had made threats to himself and his father who he stated had always been involved in politics. The applicant claims the guerrillas had contacted his parents since he departed Columbia trying to harass them to ascertain where he now was.
In relation to the events that led to the cancellation, the applicant claimed in March 2018 there was an argument between himself and [Ms C] which led to the Police being called and an AVO imposed. The applicant writes that the Police put him on the AVO for two years due to an alleged threat. He writes he accepted the AVO by consent without admission.
The applicant writes that [in] May 2018 he breached the AVO by contacting [Ms C] and messaging her since they had had an argument and he wanted to clarify everything. He writes that he went out with [Ms C] and an argument eventuated. He writes that [Ms C] locked him out of her apartment. He then threw small stones which broke her window and led to the Police being called. He writes that the Police then arrested and charged him with further offences which he pleaded guilty to.
The applicant writes [in] September 2018 he was charged with breaching the AVO. On that day he writes he met up again with [Ms C] at [a hotel], went to a restaurant, a nightclub and consumed alcohol together. He writes that they returned to the hotel at 2.30am and were evicted by the staff for playing music. The applicant claims he left his car key in the hotel room and tried to retrieve it. He claims this led to a struggle with the hotel’s security guard who he grabbed. The applicant writes he was charged with spitting at the guard and received a good behaviour bond when the matter went to Court.
The applicant writes that [in] April 2019 he was charged with mid-range drink driving, exceeding the speed limit by over 45km per hour and drive recklessly, furiously or manner dangerous. He writes he received a sentence of 7 months and a day, 3 months inside and 4 months and a day outside.
The applicant writes that his offences were related to alcohol addiction which he had not previously addressed. He claims he has not drunk for five months and prior to his incarceration was attending AA meetings. He claims to have learned from his mistakes and understands what he did was wrong. He points out he has completed the Traffic Offenders Rehabilitation Program (T1, Folio. 99). He states that he understands that the protection and welfare of the Australian community is paramount but he has dealt with his issues and will follow Australian rules and laws.
The applicant also claims that he has come to the realisation he suffers from mental health issues. He states he has been diagnosed with depression, anxiety and post-traumatic stress disorder. He included a psychologist’s report from [Ms D] dated [May] 2018 IT1, Folio. 103-107). He claims his mental health issues are caused by the difficulties he faced in Columbia and his separation from his two children in Columbia who he says he has not seen in five years.
The applicant states that the criminal justice system has taken the view he is not a threat to the Australian community as he has been allowed to serve the remaining part of his sentence in the community and released him on parole. The applicant provided a range of statements from friends and colleagues in the community attesting to his character (T1, Folio. 100-103).
The applicant asked the Tribunal to consider the impact detention would have on himself and his family and the detrimental effect he claims it would have upon preparing for his Protection visa review in the Tribunal as well as the difficulty in instructing legal representation.
The applicant provided a range of documentation with his submission including a statement from [Mr E] concerning whether the issue of whether Australia owes a ‘substantive due process’ to the applicant (T1, Folio. 15);documentation allegedly illustrating payments the applicant is making to his two children in Columbia (T1, Folio. 16-17); copies of text messages involving the applicant (T1, Folio. 55-56); a statement and Mental Health Plan in the name of the applicant’s sister dated 15 October 2019 (T1, Folio. 57-60); a statement from the applicant’s brother in law (T1, Folio. 62); copies of media articles concerning the FARC guerrillas in Columbia (T1, Folio. 69-78); a chapter concerning Australia’s international humanitarian obligations from a previous Senate committee report (T1, Folio. 78-90); an Asylum seekers and refugees guide from the Australian Human Rights Commission (T1, Folio. 90-93); and a statement from the applicant’s former partner [Ms C] (T1, Folio. 93-94).
A submission was also provided by the applicant’s [representative] (T1, Folio. 94-96) which covers a range of matters including common law issues; Australia’s non-refoulement obligations; the Convention on the Rights of the Child (CROC) and the degree of hardship that may be caused by the cancellation of the applicant’s visa.
Post-hearing the applicant through his representative also provided the applicant’s criminal history- bail report dated 29 April 2019 (T1, Folio. 110-113) and information pertaining to the applicant’s appointment with a psychological counselling service (T1, Folio. 115-117).
THE TRIBUNAL HEARING
The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments. Oral evidence was also provided by three witnesses, the applicant’s sister, brother-in-law and former partner and flatmate. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
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 [in] June 2019 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.
The applicant explained he had come to Australia on a Visitor visa in March 2015. He explained the circumstances that led him to come to Australia. He stated he had been working with his father in Columbia in his [business]. He said his father was involved in politics and was threatened and blackmailed by a guerrilla organisation, FARC - the Revolutionary Armed Forces of Colombia—People's Army. The applicant stated FARC’s blackmail attempts were the start of his own issues. The applicant stated he become a main target of FARC through their interest in his father. He stated that he started hiding but the threats continued and the guerrillas visited his mother at night. He stated he couldn’t visit his children due to his fear of the guerrillas. The applicant said he was threatened and physically attacked by thugs that identified themselves as FARC rebels. He said he went to hospital and then into hiding where he decided to escape to Australia.
The Tribunal asked the applicant if these statements and evidence were those that he put forward in his Protection visa application. The applicant confirmed this was the case. The applicant added that he was also seeking medical evidence and psychologist’s reports for his application from Columbia. The applicant was to also confirm in oral evidence to the Tribunal that his application had been refused by the Department and was now under review separately with the Tribunal.
The applicant explained that he has two children aged [age] and [age] years in Columbia that live with their mother. He claims to send around $800AUD a month to his children. He stated that the children’s mother would not allow them to travel with him to Australia. He has no other children in Australia. His parents he said live in Columbia whilst he has [sisters] living in Australia and one living in [Country 1].
The applicant explained he works in [Industry 1] in Australia and has done so for four years. He claims to earn between $1,000 and $1,500 a week before tax. He said when he first arrived he worked as a [Occupation 1]. He stated that he had spent his money on clothes, tools and petrol for his car given he had done a significant amount of work in [Australian City 1]. He also stated that he helped his sister and her family financially.
The Tribunal noted from the delegate’s decision record the applicant provided that he was in a relationship with [Ms F]. The delegate acknowledged that a visa cancellation outcome may have had an adverse impact upon the applicant’s relationship with [Ms F] and their stated future intentions to get married. At the hearing the applicant stated he was no longer with [Ms F] due to his current situation. He said the relationship was not however ‘over for certain’. He said he was planning to talk again with [Ms F] when he was in the community. He stated that he had never lived with [Ms F] and she looked after her own rent and living costs whilst she lived with her own children. In relation to hardship for [Ms F] if he had to depart Australia, the applicant stated she suffers from depression and has previously received medical treatment. He intimated that cancellation would potentially cause her further distress.
The applicant stated he mainly socialised in Australia with his [workmates] and in the local Columbian [community].
The Tribunal discussed the charges and convictions as outlined in the decision record with the applicant.
In relation to his driving convictions he said he wished to apologise for his mistake. He said he had been celebrating his birthday with his family in [City 2] on a Sunday and had been expecting a workmate to drive him down to [City 1] that night as they had work in [on] Monday morning. He said that about an hour before he was due to be picked up he was informed he could no longer obtain a ride as his workmate was not travelling to [City 1]. The applicant said he made an impulsive decision to drive to [City 1] himself. He said he was stopped by the [State 1] Police near [City 1] where he returned a 0.12 blood alcohol limit – mid-range PCA. He stated he was also going more than 45km/h over the speed limit. In response to the Tribunal’s questions he said he did not consider the danger he was putting people in through his actions.
In relation to the common assault convictions, the applicant stated that it pertained to his meeting with [Ms C] at the [hotel] where they were both evicted from the property by management due to playing music in the early hours of the morning. The applicant said that he spat at security and grabbed the guard when he tried to go back and obtain his car keys. He said that the hotel called the Police. The applicant said that when the Police arrived he departed the property. He said the Police contacted him two days later.
The applicant stated the convictions pertaining to his breach of the AVO pertained to his visit to [Ms C] [in] May 2018. He said that [Ms C] locked him out of her property whilst he went to put the garbage out. He said he then threw rocks at her window, breaking the window. He said that he had gone to [Ms C]’s property to explain things to her and the relationship was finished. The applicant said he further breached the AVO and was subsequently convicted for his visit to [Ms C] at the [hotel] in September 2018.
The applicant explained that he received Good Behaviour Bonds or community correction orders for the common assault convictions and the breach of the AVO in 2018. He said the driving convictions in April 2019 – and the subsequent breach of the orders imposed in 2018 - were what led to his subsequent gaoling for those offences. The applicant stated that he had pleaded guilty to all the charges he faced.
The Tribunal asked the applicant why he breached the AVO. The applicant said there was no reason; it was an impulse reaction at the time. He stated he believed there was still an AVO in place today. The applicant said he hadn’t seen [Ms C] for about twelve months.
In relation to his driving convictions, he stated he was unaware when he would be permitted to drive a motor vehicle again.
The Tribunal discussed with the applicant his health and the 2018 report by his psychologist [Ms D]. The applicant said he was physically in good health but his psychological and mental health was affected by depression, anxiety and PTSD. The Tribunal asked the applicant if he had had any other treatment since then. He said he had not. He said he had however requested mental health treatment whilst in immigration detention.
The Tribunal discussed with the applicant his statement concerning alcohol and the impact that had had upon his behaviour. The applicant said his problems with alcohol had started not long ago and was due to the problems he faced in Columbia. He said he had not consumed alcohol for over five months after his DUI charge and conviction.
The Tribunal asked the applicant what his plans were if his cancellation were set aside. He said it was to return to employment and complete studies in both English and [Subject 1]. He stated his employer would take him back.
The Tribunal asked the applicant if his family offshore knew of his present circumstances and his detention. He stated that his mother and sisters knew but he was not sure whether his father was aware.
The applicant claims he has maintained compliance with all other visa conditions whilst in Australia.
In relation to hardship should his visa be cancelled, the applicant stated cancellation would have a very adverse impact upon his sister in Australia. He stated that he and his sisters loved each other very much. The applicant said his sister, brother in law and their [age] year old daughter – his niece were very close and it would be especially hard for his niece being unable to see her uncle.
In relation to his own parents, the applicant stated cancellation would be bad for his mother’s health and her existing [medical] problem. He stated his parents would be very worried for him should he be compelled to return to Columbia.
In relation to hardship caused to himself, the applicant stated he risked being persecuted if he returned to Columbia. He said there was uncertainty as to what might occur to him and his family if he returned. The Tribunal asked the applicant that, in relation to the danger he claimed to face, are these reasons the same as put forward in his Protection visa application that was refused by the Department and was currently before the Tribunal. He replied they were the same reasons. The applicant said he begged not to be sent back to Columbia.
The applicant also explained to the Tribunal the hardship he considered his employer in [Industry 1] would face if his visa were cancelled. He stated his skills and work ethic were highly valued by his employer and his employer knew he was a very good employee.
The applicant said that he had had no further dealings with the Department since the cancellation of his visa. He confirmed that no one else holds a visa as a result of his visa such as a dependent. He said that he did try and add his children to his visa once.
The Tribunal also received oral testimony from three witnesses.
The applicant’s former partner [Ms C] provided a written statement to the Tribunal and oral testimony pertaining to the applicant who she stated she had previously been in a relationship with for three months. She stated that she took an Apprehended Violence Order (AVO) with the applicant in April 2018. Nevertheless she stated she believed the applicant was not a risk or menace to society. She said from what she knew he was a good man with a good heart and deserved a second chance.
[Ms C] said that she was flatmates with the applicant around two years previously before their relationship commenced.
The Tribunal discussed [Ms C]’s own statement and the applicant’s breach of the AVO [in] May 2018. [Ms C] said the applicant had tried to contact her. She said he was concerned as his mother was unwell and he had not seen his children for a significant period of time. She thought he had been drinking. She said that there was no previous contact. The Tribunal noted from the statement of the damage done to her property by the applicant. [Ms C] said her neighbours contacted the [State 1] Police to inform them of the applicant’s actions.

The Tribunal noted from [Ms C] stated that she saw the applicant again [in] September 2018 where they went to a nightclub. [Ms C] confirmed her AVO against the applicant was still in place at that time. She said the applicant was having some issues so she agreed to talk to the applicant. [Ms C] confirmed that she and the applicant were ordered to leave the hotel the applicant was at due to making to the making of too much noise. She confirmed the applicant left his car keys in the room which led to a confrontation with security and the subsequent assault charges that led to his conviction.
The Tribunal asked [Ms C] about the fears she expressed for the applicant’s future if he were to return to Columbia. She confirmed the fears she held were based upon what she had been told by the applicant.
[Ms C] said she had not seen the applicant in over a year. She stated they were not really friends as such. She expressed concerns for the applicant’s mother who was unwell off-shore in Columbia.
[Ms C] said that the applicant deserved a second chance and was not a bad person. She said he was making genuine efforts to change his ways with attending Alcoholics Anonymous.
The applicant’s sister [Ms A] provided a written statement to the Tribunal (T1, Folio.59-60) as well as oral testimony. The applicant’s sister said she came to Australia around seven years ago on a Partner visa. In her oral testimony she stated that she has a good relationship with her brother the applicant. She stated that cancellation impacts adversely upon herself personally and the rest of their family, including her daughter who enjoys a close relationship to her uncle the applicant. [Ms A] said that she didn’t want to lose her only brother. She said she is a very sensitive and emotional person who had been adversely impacted by the visa cancellation.
[Ms A] said she last visited Columbia in May 2019 to see her unwell mother.
The Tribunal discussed with [Ms A] the submissions which included information pertaining to her Mental Health Plan. [Ms A] said that she had no history of any mental health issues or psychological counselling prior to the cancellation of the applicant’s visa. [Ms A] discussed the impact the applicant’s visa cancellation had had upon her own mental health.
[Ms A] discussed her family’s close relationship with the applicant. She said the applicant always had a room to stay in at their property in [Suburb 1] and previously [Suburb 2].
The Tribunal discussed with [Ms A] the applicant’s criminal convictions and her opinion as to why these events had occurred. [Ms A] stated that his behaviour had not been good but she was sure he had learned his lesson. [Ms A] asked for another chance for her brother and stated that he would be supported by his family.
[Ms A] said in September 2019 FARC the Columbian guerrilla organisation had reactivated and they were active in the area their family was from in Columbia. She expressed her fears for the applicant’s safety.
The applicant’s brother in law [Mr B] provided oral testimony. He stated he had known the applicant for eight years. He said the cancellation of the applicant’s visa as well as his incarceration had taken a toll on his wife, the applicant’s sister who had attempted suicide He said she had had no mental health issues until the applicant’s incarceration and visa cancellation. He stated the applicant was also close to his daughter and it had taken a toll upon her. [Mr B] said the applicant’s behaviour had been impacted by the use of alcohol. [Mr B] said the applicant had recognised this and as far as he knew was no longer using alcohol. [Mr B] said he was disappointed by the applicant’s reckless behaviour. He said he believed the applicant had learned his lesson.
The Tribunal invited the applicant’s representative to raise any further issues to the Tribunal’s attention.
The applicant’s representative said that before the applicant was incarcerated there were developments in Columbia that were a concern. He said that the peace accord between the government and FARC had ended and Columbia currently was very dangerous. He stated it was a critical time to send someone back to Columbia, particularly someone that had departed offshore who could be interpreted as a ‘traitor’ upon returning and viewed as an enemy.
The applicant’s representative said his client was very remorseful for what he had done. The applicant’s representative said the decision maker has to take into account all the aspects and mitigating factors in relation to the cancellation of the visa such as hardship to himself and his family. He stated that the delegate did not take into account all the factors as some factors were not brought to his attention such as the harm that would be caused to the applicant’s sister.
The applicant’s representative said that there were obligations owed to people that had made claims pertaining to persecution. The applicant’s representative said international law and the Australian Human Rights Commission demanded that these matters be taken into account.
The applicant’s representative said that there was common law in support of setting aside the visa cancellation. The applicant’s representative stated that a ‘crucial’ factor was whether the applicant would be a risk to the community if released. The applicant’s representative pointed out that the risk to the community was minimal, exhibited by the decision to release him to the community after serving his custodial sentence. He said that the applicant’s mental health needed to be considered as he suffered from PTSD as outlined in the psychologist’s report. He said that the difference was the applicant was now aware of it and had attended AA to deal with his alcohol problems. The applicant’s representative said the applicant would seek and undertake further psychological treatment once in the community. He said it had been very difficult to obtain such treatment from a Spanish-speaking psychologist whilst in detention.
The applicant’s representative explained the circumstances that led to the applicant’s drink driving offences. He stated that all relevant considerations needed be taken into account or there would be a breach of natural justice. He stated that all evidence needed to be taken into account. He said the applicant had admitted that there were grounds for cancellation. He asked all evidence be taken into account by the Tribunal in its deliberations.
At the conclusion of the hearing the applicant stated in relation to his Protection visa one of the grounds it was refused was one of the documents did not have an accent. The applicant’s representative said it was a tradition that in a document all the letters were capitals then an accent was not included. The Tribunal noted the applicant’s remark but noted that was a matter predominantly for the applicant’s Protection visa review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
A visa may be cancelled under s.116(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(oa) is relevant.
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 paragraph 2. The applicant 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 criminal offences by the [State 1] Police and convicted. The applicant, through his representative, acknowledged there are prescribed grounds to cancel the applicant’s visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The evidence before the Tribunal indicates that the applicant arrived in Australia [in] March 2015 on a Visitor visa. The evidence indicates that the applicant then applied for a Protection visa on 22 June 2015 and was granted his Bridging A 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 on 20 January 2017 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.
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.
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
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)
The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging visa be cancelled.
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.
The applicant has claimed returning to Columbia would cause him hardship. He has stated that he fears he will be targeted by the FARC guerrillas if he returns to Columbia. The applicant claimed FARC guerrillas had attacked him and attempted to kill him in the past and made threats to himself and his family. The Tribunal notes the submission of the applicant’s representative who states that the applicant ‘would face substantial peril including the risk of persecution and death’ (T1, Folio. 96) if he were forced to return to Columbia.
The Tribunal notes similar claims have been made by some of the applicant’s witnesses, yet all lacked in the Tribunal’s opinion any particular detail or any specificity of any threat. The Tribunal notes in the psychologist’s report dated 26 May 2018 the applicant provided, the applicant’s threats and violence he received from FARC guerrillas are briefly outlined (T1, Folio. 103-107). The Tribunal notes that these claims concerning the FARC guerrillas as outlined in the psychologist’s report are based on what the applicant has reported to the psychologist rather than any independent verification or fact-finding.
The applicant has provided the Tribunal with a number of media articles concerning the FARC guerrillas and the recent decision of a number of commanders to reject the peace accord signed by the Columbian Government and FARC in 2016 (T1, 70-73). The Tribunal notes that one of the articles quotes former FARC commander Rodrigo Londono who states that ‘the great majority’ of ex-FARC rebels remained committed to the peace agreement (T1, Folio. 71).
The Tribunal has noted the applicant’s claims as to the hardship he and his family will face through the actions of the FARC guerrillas should he return to Columbia but finds them generally vague and unspecific. The applicant in a somewhat confusing written statement (T1, Folio. 11) to the Tribunal stated that FARC guerrillas were continuing to extort money from his mother and the Columbian Attorney’s office as of September 2019 were enquiring into the matter of threats that were allegedly made against his mother (T1, Folio. 16).
The Tribunal nevertheless notes the very limited evidence the applicant has provided the Tribunal in support of this assertion beyond the above claim, his own testimony, supporting claims by his witnesses based upon what the applicant has told these individuals, a number of media articles concerning the current and past political situation in Columbia and a statement from the Columbian Attorney’s office they are enquiring into unspecified ‘threats’ against the applicant’s mother. The Tribunal notes the claims of the applicant concerning the alleged activities of the FARC guerrillas towards him and his family and the danger were refused by the delegate in the applicant’s Protection application and are currently before the Tribunal for review. On the limited evidence before it the Tribunal is not convinced that returning to Columbia will result in the applicant the hardship claims will occur from FARC guerrillas or any other insurgents. 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.
The Tribunal has noted the claims of the applicant’s representative in his submission that the delegate failed to take all relevant considerations into account in his decision including the ‘substantial peril’ he claims the applicant will face due to FARC guerrillas should he be forced to return to Columbia. The applicant’s representative has raised Australia’s non-refoulement obligations. The Tribunal has taken into account the applicant’s claims concerning the peril he claims he will face should he be compelled to return to Columbia. On the basis of the evidence currently before the Tribunal, the Tribunal is not satisfied that the applicant is facing the dangers he has claimed and will result in the hardship he has claimed. The Tribunal again notes that the applicant retains the ability to apply for a Bridging Visa ‘E’ should his Bridging Visa ‘A’ be cancelled that would allow him to remain in Australia to pursue his Protection review through the Tribunal.
The Tribunal has considered the hardship that may be caused to the applicant’s family. The applicant has claimed the cancellation of his visa will have a strongly adverse impact upon his family members in Australia, in particular his sister.
The Tribunal notes the statutory declaration of the applicant’s sister [Ms A] as well as the Mental Health Care Plan for [Ms A] that was submitted by the applicant (T1, Folios 57-60). The Mental Health Care Plan dated 15 November 2019 states that the applicant’s sister has been diagnosed with mixed anxiety and depression; family stress; and difficulties coping with change. The Plan signed by [a GP] states that since September 2019 [Ms A] had been very emotional, crying with suicidal thoughts and had attempted suicide. In [Ms A]’s written statement as well as her oral testimony to the Tribunal hearing she claimed she had developed depression and anxiety since the applicant was taken into detention. She claims to have attempted suicide twice in September and October 2019 because she is unable to cope with her brother’s detention and the fear he will be returned to Columbia where she claims he will be killed. [Ms A] states she has been referred to a psychologist for counselling. [Ms A]’s concerns were reflected in the evidence of her husband [Mr B] (T1, Folio. 62).
The Tribunal accepts that the applicant’s sister [Ms A] has been adversely impacted on an emotional level by the detention of the applicant. The Tribunal accepts that his detention has been upsetting to her and her own family including her niece and husband. The Tribunal accepts that she has sought medical support since the cancellation of the applicant’s visa.
The Tribunal notes from [Ms A]’s Mental Health Care Plan that she has never received specialist mental health care previously.
Whilst the Tribunal accepts the claim the applicant’s detention and cancellation of his visa has caused emotional hardship for his sister [Ms A] and her family including his niece, the Tribunal does not consider this to be a particularly unusual situation.
The Tribunal notes that there is no history of any psychological or mental health treatment in relation to the applicant’s sister prior to the applicant’s detention and visa cancellation. There is no corroborative evidence of any specialist medical diagnosis or reports from psychologists or psychiatrists as to the adverse impact this applicant’s situation is having upon the applicant’s sister [Ms A] and her family.
The Tribunal has a great degree of sympathy for [Ms A] and her family in Australia. It accepts that they enjoy a very close and genuine relationship with each other. It accepts the past few months have been a difficult, stressful and trying period for them. The Tribunal notes however that this situation is the same for many families that face the stressful situation of a family member in detention and facing a visa cancellation. The Tribunal notes the evidence before it but does not consider the applicant’s situation represents the imposition of hardship on his family in Australia that is particularly onerous or unreasonable.
The Tribunal has taken into account all of the evidence before it pertaining to the hardship cancellation of the applicant’s visa will have upon his family in Australia including his sister [Ms A] and does not consider it to be a compelling reason not to cancel the applicant’s visa in the circumstances of this review. The Tribunal notes that the applicant and his family in Australia can continue to remain in almost constant communication via modern technology if he were to return to Columbia. They can continue to provide each other with a significant degree of emotional and moral support. The parties can continue to maintain their family and social links with each other.

In relation to his own parents that reside in Columbia, the applicant told the Tribunal in response to its questions relating to hardship that the cancellation of his visa would be bad for his mother’s health and her existing [medical] problem. He furthermore stated they were concerned for him should he have to return to Columbia. The Tribunal has taken into account correspondence his mother provided to the delegate (D1, Folio. 29) where the applicant’s mother states she is suffering from hypertension, has been receiving medical treatment and she is supported financially for such treatment by the applicant. She claims that if the applicant is unable to work in detention then it will cause her financial hardship and she will not be able to afford her medications and her consultations. The Tribunal notes the statement of the applicant’s mother but does not consider the hardship to be significant. The applicant’s mother has [other] [children] in Australia and one in [Country 1] that she can seek support from. The applicant stated his father had his own business. There is no evidence before the Tribunal or claim made that he would be unable to seek gainful employment and provide financial assistance to his mother should his visa be cancelled and he be compelled to depart Australia for Columbia. The Tribunal gives the claim of hardship on this basis little weight. The Tribunal accepts that the applicant’s parents would be disappointed should he be compelled to return to Columbia. The Tribunal does not however consider this to be a particularly unusual or onerous hardship imposed upon his parents.
The Tribunal notes that the applicant in oral evidence stated he has two children residing in Columbia who he provides financial support to. He has a good employment record. The Tribunal notes that if he returns to Columbia he will have greater opportunities to spend time and connect with his two children if he so desires. He will have the ability to seek gainful employment in Columbia. The Tribunal does not accept his children in Columbia are facing any particular hardship should the applicant be compelled to return to Columbia.
The Tribunal accepts the evidence that the applicant enjoys a close and enduring relationship with his sisters that reside in Australia, his niece and their family. The Tribunal notes the various statements that have both orally and in writing by his siblings and in-laws in Australia and accepts they are have a genuinely close relationship. The Tribunal accepts the evidence that the applicant would prefer to remain in Australia with them rather than with his young children and parents offshore. The Tribunal is of the opinion that the applicant nevertheless has strong family ties to Columbia. In relation to hardship caused to the applicant’s family should he be compelled to return, the Tribunal ultimately does not accept that the applicant’s visa should not be cancelled on the basis of this consideration.
The Tribunal notes from the delegate’s decision record the applicant provided that the delegate acknowledged that a visa cancellation may cause some personal hardship to the applicant’s partner [Ms F] in relation to their then current relationship and future intention to get married. The Tribunal notes from the decision record that this claimed relationship commenced in March 2019. The Tribunal questioned the applicant about his relationship with [Ms F]. He replied that he was no longer in a relationship with [Ms F] due to his current situation before stating it was not over for certain and claiming he would reach out to her again once he was out of detention. The Tribunal notes that the applicant has never lived with [Ms F]. He stated she suffered from depression and the cancellation of his visa would cause her further stress. On the evidence before it, the Tribunal is of the opinion the relationship is over and on the lack of any corroborative evidence as to the adverse psychological impact the cancellation of the applicant’s visa will have upon [Ms F] gives the claim of hardship no weight.
The Tribunal has considered the hardship that will be caused to the applicant himself, including his own mental and psychological health.
In his oral testimony the applicant stated he was in good physical health but his mental and psychological health had been adversely impacted by depression, anxiety and PTSD which he blames on his experiences in Columbia as well as long-term separation from his children. The applicant has also submitted he has had problems with the use of alcohol which he claims is due to the problems he claims to have endured in Columbia.
The Tribunal has noted the May 2018 report by his then psychologist [Ms D] who stated the applicant would benefit from psychological treatment including Cognitive Behavioural Therapy and pyscho-education on Post Traumatic Stress Management (T1, Folio. 102). The Tribunal asked the applicant if he had actually undertaken any treatment since the psychologist’s report over 18 months earlier. He said he had not. The Tribunal also notes that the applicant consulted his psychologist for the purposes of [Ms D]’s report just a few weeks after he was charged by the [State 1] Police Force with contravening an Apprehended Violence Order (T1, Folio. 113). The Tribunal finds the fact the applicant only consulted a psychologist after facing criminal charges – and failing to subsequently participate in any recommended treatment – curious. The Tribunal furthermore notes that the applicant arrived in Australia in March 2015 and was granted his Bridging Visa A in May 2015. Given the applicant has stated his depression, anxiety and stress has been largely caused by the situation he faced in Columbia, the Tribunal finds it unusual that there is no evidence of the applicant seeking any treatment for such conditions until May 2018 – some three years later and just a few weeks after he was charged with breaching an AVO.
The Tribunal notes the applicant whilst in detention has recently sought psychological counselling via a Spanish-speaking psychologist. The Tribunal nevertheless is not on the evidence before it convinced that the applicant’s psychological and mental health condition is as such that cancellation of his visa will represent a particularly challenging hardship to the applicant. The Tribunal notes that since arriving in Australia in 2015 he sought an appointment with a psychologist after being charged with breaching an AVO three years later and subsequently never sought any other professional medical assistance until being brought to detention.
The Tribunal has taken into account his claims to suffer from Post-Traumatic Stress Disorder (PTSD) which he claims is from his time living in Columbia. The Tribunal notes his psychologist in May 2018, after listing what the applicant had told her about his experience in Columbia with FARC guerrillas, writes that she believes the applicant’s emotional symptoms were the result of PTSD as a result of his experience in Columbia. The Tribunal notes that there is no other professional or specialist medical evidence before it to corroborate such claims. There is no evidence before the Tribunal of any mental health plan whether previously or current. The applicant has admitted that he did not subsequently seek any professional psychological or mental health treatment until being in immigration detention.
On the evidence before it the Tribunal does not consider the applicant’s mental health would be adversely impacted by his departure from Australia. If he were to return to Columbia he can seek assistance from his family including his parents. The Tribunal notes the applicant has stated his separation from his children for some five years has also had an adverse impact upon his mental health: if he were to return to Columbia he can potentially see his young children much more regularly and seek some sort of involvement in their lives. The Tribunal accepts the applicant has previously sought assistance for the claimed state of his mental health in May 2018 and has done so whilst in detention. In the absence of further corroborative evidence pertaining to the applicant’s mental health, the Tribunal finds that it is not satisfied that returning to Columbia will cause any particular hardship to the applicant via an adverse impact on his mental and psychological health.

100. The applicant in his written statement stated his offences had related to alcohol addiction which he had not addressed previously but impacted upon his daily life. He has claimed that he used alcohol to deal with his mental health problems.   He states that prior to incarceration he attended Alcoholics Anonymous approximately twice a week. The Tribunal accepts the evidence that the applicant has previously had some problems with alcohol. He claimed to have not consumed alcohol for some five months, a claim the Tribunal for the purposes of this review accepts. There is no evidence that the applicant is currently facing issues pertaining to the abuse of alcohol. The Tribunal notes that the applicant retains the ability to access counselling and support services if necessary in Columbia (for example through Alcoholics Anonymous locally) if there is any lapse in regards to alcohol.
101. The Tribunal has considered the financial hardship the applicant may face should his visa be cancelled. The applicant has worked in [Industry 1] for several years. The Tribunal notes the excellent letters of reference he received from his manager and his supervisor (T1, Folios 102-103) all attesting to his strong work ethic, honesty and reliability. The Tribunal accepts the applicant is an excellent employee and accepts that the loss of his job will regrettably generate a degree of financial hardship. The applicant is providing financial support to his two children in Columbia which will also be impacted upon. Nevertheless given the agreeable traits exhibited by the applicant and his sound employment record, the Tribunal is of the view that the applicant has the ability to find and secure gainful employment in the future in Columbia or elsewhere. The Tribunal whilst acknowledging the degree of financial hardship does not accept given the circumstances it is particularly unusual or onerous. The applicant has also submitted that the employer himself will face hardship through the need to replace an employee in a specialised industry. The Tribunal acknowledges the employer may be put to a degree of inconvenience through the loss of the applicant as an employer and the need to source a replacement. Whilst this is more likely in a small business, the Tribunal nevertheless does not consider the hardship caused by losing an employee to ultimately be a particularly unusual or overly onerous situation for the employer.
102. The Tribunal also notes that, should the applicant’s 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.
103. 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.
104. The Tribunal has considered the applicant’s claim that remaining in detention would have a detrimental effect upon preparing for his Protection visa review as well as causing difficulties in instructing legal representation. The Tribunal accepts that the applicant does not have and would not have the same flexibility with regards to personally seeing his legal representation if he remains in detention. The Tribunal also notes that the applicant is currently in immigration detention [whilst] his legal representation is domiciled in [City 2]. Whilst the Tribunal concedes there is some increased level of hardship for the applicant in relation to the issue of legal representation by remaining in detention, the Tribunal does not consider his situation to be unusual or onerous. The applicant can still access legal representation and prepare for his Protection review whilst in immigration detention. He can remain in communication with his existing legal counsel. He has the ability to seek legal representation locally in [that city] should maintaining representation in [City 2] become difficult or unworkable. That is a decision for the applicant to make. The Tribunal does not consider the issue of the applicant’s representation and his preparation for a Protection visa application whilst in immigration detention to be a particularly onerous hardship for the applicant and gives the claim little positive weight.
105. 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 may have benefitted from some of the counselling he has received via AA 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 various claims of hardship he will face should he return to Columbia. The Tribunal notes that the applicant will also be able to see his two children who are living in Columbia and he states he has missed. The Tribunal accepts there is a degree of emotional and mental hardship caused to his family in Australia should his visa be cancelled – his sister and niece especially. The Tribunal however considers this can be mitigated by remaining in contact through modern communication.   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.
106. 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
107. The cancellation arose from the charging and conviction of the applicant of a number of criminal offences in the State of New South Wales. The convictions are drive with middle range PCA – 1st offence; drive recklessly/furiously or speed/manner dangerous – 1st offence; two counts of common assault; and one count of contravene prohibition/restriction in AVO (Domestic Violence).
108. 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 an attempt to change his life via the completion of a number of counselling through AA and now seeking psychological counselling.
109. The Tribunal gives greater weight however to the fact the applicant has nevertheless been convicted of a number of significant and serious offences.   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 common assault.
110. The Tribunal furthermore notes the very serious driving offences: mid-range drink driving, exceeding the speed limit by over 45km per hour and drive recklessly, furiously or manner dangerous. The Tribunal has carefully considered the applicant’s explanation of the background to these particular offences: his need to return to [City 1] for work and the failure of an acquaintance to turn up and drive him from a social event he was attending with family in [City 2] to [City 1]. The Tribunal understands the inconvenience the applicant faced and his frustration with the situation. His response: getting behind the wheel of a motor vehicle and embarking on a hundreds of kilometres long journey to [City 1] with a mid-range blood alcohol limit is indicative, in the Tribunal’s opinion, of a blatant disregard for both the laws of New South Wales and the safety of his fellow road users. The carnage which is witnessed on the roads due to the selfish actions of inebriated and reckless drivers is well known to all citizens. To compound this situation by speeding in excess of 45 kilometres an hour exacerbates an already deplorable situation. The Tribunal notes that these offences occurred after the applicant had already been convicted of offences including contravening an AVO, damaging property and common assault (T1, Folio. 110-113) and ultimately led to his sentencing of seven months imprisonment with a non-parole period of three months. The fact that these serious driving offences occurred whilst the applicant was still under an 18-month Community Correction Order for breaching an AVO and common assault is indicative, in the Tribunal’s opinion, of a chronic lack of respect for the laws of the State of New South Wales and the Australian community.
111. The applicant explained to the Tribunal in some detail the circumstances surrounding the driving offences. 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 wilful and dangerous behaviour to both himself and the wider community. This is not an acceptable form of behaviour in the Commonwealth of Australia.
112. The Tribunal has also considered the applicant’s explanation for his behaviour that eventuated with convictions for common assault and contravening an AVO (Domestic Violence). The applicant in his written statement states that his offences had been related to alcohol addiction which he had not dealt with in the past. He states that he is now aware of his actions and how alcohol addiction affected every part of his life. He claims to have learned from his mistakes.   The Tribunal notes the oral and written evidence of [Ms C], the applicant’s former partner who had taken out the AVO in question. [Ms C] explained the applicant breached the AVO by contacting her and messaging her. She stated he was charged with breaching the AVO after she met up with the applicant where they dined and went to a nightclub in September. [Ms C] said that she saw the applicant despite an AVO being in place because she considered the applicant to be a good man and she did not fear him. She said he was trying to turn his life around and was seeking treatment. The Tribunal gives some positive weight to the applicant on the basis of [Ms C]’s supportive testimony.

113. [Ms C]’s comments were reflected in the evidence of the other witnesses including his sister, brother in law and in a number of written references. They have attested to his good character and have stated the criminal offences that were committed are a result of alcohol abuse. The use of alcohol it is submitted is at least partially owed to the difficulties the applicant faced in Columbia, his separation from his children as well as mental health issues including depression, anxiety and post-traumatic stress disorder.
114. The Tribunal accepts that the applicant has been attending AA meetings and is prepared to accept that he is no longer drinking. The Tribunal has taken into account the claims of the applicant and his witnesses both orally and in writing concerning the applicant’s previous issues with alcohol and has given them due consideration when considering the circumstances in which the grounds for consideration arose. The Tribunal notes the applicant completed his Traffic Providers Rehabilitation Program (T1, Folio. 99). The Tribunal does not however accept that the explanations that have been put forward for his behaviour mitigate the seriousness of these criminal offences.
115. The Tribunal notes the applicant’s claim that he was suffering from PTSD, depression and anxiety. The Tribunal notes however 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 beyond recent moves to engage a Spanish-speaking psychologist. The applicant’s representative commented at the hearing the applicant had been trying to obtain further evidence from Columbia but had difficulties in doing so. No further evidence of this nature has been supplied by the time of decision, over seven weeks since the hearing. The Tribunal notes the applicant sought a psychologist after he was charged in May 2018 with offences including contravening an AVO. He did not however follow up on treatment as suggested by the psychologist. The Tribunal is not satisfied that the applicant’s claims pertaining to his mental health or his dependency on alcohol mitigate or provide an explanation to criminal behaviour that ultimately led to the applicant’s gaoling after previously being granted Community Service Orders. The Tribunal has noted the applicant’s claims of remorse, his acceptance that he has engaged in the wrong behaviour and his successful completion of a rehabilitation programme. This is outweighed however in the Tribunal’s opinion by the seriousness of the offences committed and the applicant’s repeat behaviour which indicates a disregard for the laws of the State of New South Wales.
116. The Tribunal notes that the applicant’s representative in his submission notes that whilst the offences were serious, the fact that the applicant has been released from gaol goes towards the fact he is no longer a risk or threat to the community. The intimation is the same should happen with regards to the applicant’s potential release from immigration detention. The Tribunal has considered the applicant’s claim. Whilst the Tribunal has taken into account the fact the applicant was indeed released on parole after three months, its own review pertains to the matters of whether there are grounds for cancellation and, if they exist, are there reasons why the visa should not be cancelled. Whilst the Tribunal provides some positive weight to the applicant’s early release from gaol, it is not ‘retrying’ the matter as such.
117. 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
118. 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
119. 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
120. 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. The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled. The applicant 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-refoulement
121. At the Tribunal hearing the applicant spoke about his fear of returning to Columbia and the dangers he faced from the FARC guerrillas should he return. He raised similar concerns in his written statements to both the Tribunal and to the Department previously.
122. As outlined in the decision record the applicant previously supplied the Tribunal, the applicant lodged a Permanent Protection (subclass 866) visa application on 22 June 2015 seeking protection from Columbia. On 20 January 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.
123. 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.
124. The evidence indicates that the applicant has two children. The applicant confirmed that both children reside in Columbia with their mother, the applicant’s former partner. 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.
125. The applicant through his representative also raised the Convention of the Rights of the Child (CROC) and Article 3.1 which states ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration’. The applicant submitted that the delegate failed to consider the adverse effect cancellation of the applicant’s Bridging visa would have upon his niece, the daughter of his sister [Ms A], with whom he has a good relationship. The applicant through his representative furthermore raised Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) which provides ‘the family is the natural and most fundamental group unit of society, and is entitled to protection by society and the State.’ The applicant has essentially submitted that the applicant’s niece in particular is entitled to the protection provided by Article 23 of the ICCPR and this was not taken into account by the delegate. The Tribunal has considered the applicant’s claim but does not accept it. Whilst the best interests of the applicant’s niece is not a mandatory consideration, the Tribunal has nevertheless treated the claim as a relevant consideration. The Tribunal considers the best interests of the applicant’s niece are best served with her remaining with her mother and father: a continuation of the current situation. Cancellation of the applicant’s visa will not bring about any change to this situation. The Tribunal accepts that the applicant has a good relationship with his niece as her uncle. The Tribunal notes however that whilst having ‘a room’ at his sister’s home, he was not permanently residing with his niece and his sister. The applicant according to his own evidence was spending a significant amount of time in fact residing in [City 1] instead and visiting his sister and niece on weekends. Previously he was residing with [Ms C]. The Tribunal notes that the applicant can remain in communication with his niece via electronic and telephonic communication. The Tribunal does not consider cancellation of the applicant’s Bridging visa is in some way undermining the applicant’s family unit. The Tribunal has considered the impact the cancellation of the applicant’s Bridging visa on the applicant’s niece. Whilst the Tribunal accepts the applicant’s niece would prefer the applicant’s Bridging visa was not cancelled, the Tribunal does not consider the hardship that will be imposed on her by such an action to be particularly significant.
Any other relevant matters
126. None.
Conclusion
127. The Tribunal has weighed the 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 and alcohol issues and the concerns expressed by his psychologist as to his mental health in May 2018. The Tribunal has also taken into consideration the claims he has made – albeit with little corroborative evidence - concerning his fear of returning to Columbia and his claims concerning his fear of returning to Columbia. The Tribunal has had regard to his claims as to the hardship he and his family will face should his visa be cancelled.
128. 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. The Tribunal takes a dim view of wanton and reckless behaviour on our roads that puts the lives of others at risk: any visit to a hospital emergency ward can illustrate the devastation that can be caused by drinking and driving, speeding and reckless behaviour on the roads. Whilst the Tribunal can accept the applicant was stressed at the time of the incident that led to his driving offences and his subsequent incarceration, the Tribunal notes that these criminal offences follow on from other serious convictions for assault and breaching an AVO.    The Tribunal has carefully considered the applicant’s explanation as to how his behaviour spiralled to this point. Whilst it accepts his statements of remorse, ultimately it does not consider this behaviour is either acceptable or excusable. The Tribunal has considered the applicant’s claimed mental health in relation to this behaviour. Whilst the Tribunal appreciates the counselling he is currently undertaking in immigration detention, the Tribunal notes the applicant has no previous history of mental health or psychological issues before it beyond a report prepared in May 2018 a few weeks after being charged by the [State 1] Police for breaching his AVO. The Tribunal does give some positive weight to the needs and desires of his family in Australia. The Tribunal found their concern, love and care for the applicant to be genuine. The Tribunal nevertheless considers their needs to be outweighed by the seriousness of the applicant’s convictions.
129. 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.
130. 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 is undertaking some counselling; however there is no current medical evidence 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 available outside of Australia including in Columbia. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.
131. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
132. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Justin Owen
Senior Member

[2020] AATA 552

24 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies