2017330 (Migration)

2017330 (Migration) [2021] AATA 302 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2017330
MEMBER:Louise Nicholls
DATE:15 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made at 4.35pm 15 January 2021
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal convictions – appeals in progress – other charges withdrawn, or applicant found not guilty – previous temporary working visa cancelled and cancellation affirmed – immigration detention – best interests of child – no contact with child for some time – court-appointed counselling – offences took place during acrimonious separation – compliance with conditions of bail and bridging visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359AA
Migration Regulations 1994 (Cth), r 2.43(1)(p)(i)
CASE
ACH15 v MIBP [2015] FCCA 1250
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of the United Kingdom and is [Age 1] years of age. He arrived in Australia [in] January 2013 as the holder of a [temporary work] visa. He was granted a Subclass 050 (Bridging (General)) in April 2020.
While holding this Subclass 050 (Bridging (General)) visa he was convicted of two offences in the District Court at [Location] [in] December 2020.
[In] December 2020 the delegate of the Minister for Home Affairs cancelled the applicant’s Subclass 050 (Bridging (General)) visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been convicted with two offences against the law of [a State of Australia] as set out in the “Notice of intention to consider cancellation” attached to the delegate’s decision record and further described in the Verdict and Judgment Record in the Departmental documents. The delegate considered the matters put forward by the applicant as to why his visa should not be cancelled but found after weighing all the information available the grounds for cancelling outweigh the grounds for not cancelling the visa.
The offences set out in the notice and Verdict and Judgment Record are:
· Unlawful stalking/Contravenes /Threatens to contravene an order/injunction-domestic violence offence – [specified section 1 of State criminal legislation]. The offence was found to have taken place between 2015 and 2016.
· Attempting to pervert the course of justice – [specified section 2 of State criminal legislation]. The offence was found to have to have taken place in 2016.
The applicant had been held in pre-sentence custody and the court declared that the 1143 days (over 3 years) spent in custody be imprisonment already served under the sentence. The applicant has been released from criminal custody and is now being held in immigration detention.
The applicant is also subject to a restraining order prohibiting contact, communication and other actions in relation to the complainant in the criminal conviction and the order shall continue to [December] 2035.
This is an application for review of the cancellation decision made on [in] December 2020.
The applicant appeared to give evidence and present arguments before the Tribunal on 17 December 2020 and 14 January 2021 by video conference from the detention centre in [City]. [Mr and Ms A] gave evidence by telephone [in] January 2021.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Material before the Tribunal
The applicant lodged an application for review [in] December 2020.
He provided the following documents;
·Undertaking as to Bail following grant of Bail by Judge of the District Court of [State 1] dated [April] 2020.
·Decision of the Tribunal, differently constituted, relating to the review of a refusal to grant a bridging visa dated [April] 2020.
·Letter in the nature of a character reference from [B] (undated).
·Letter in the nature of a character reference from [C] dated 31 December 2020.
·Letter in the nature of a character reference from [Mr D] dated 3 January 2021.
·Letter in the nature of a character reference from [E] 3 January 2021.
·Letter in the nature of a character reference from [F] dated 4 January 2021.
·Letter in the nature of a character reference from the applicant’s [brother] dated 30 January 2020 and [sister in law] dated 31 December 2020.
·Letter from [Mr and Ms A] dated 1 January 2021.
·Submissions made by the applicant (undated).
·Letter from [Mr G], QC and Notice of Appeal signed 4 January 2020 [sic].
·Extract of media article from [Newspaper] [January] 2021.
The delegate provided a
·Copy of the Verdict and Judgment Record in Q v [The applicant] (date of judgment 2020) showing the indictments and verdicts against the two charges.
·Copy of the Reasons for Judgment of [Judge H] delivered [in] 2020. The trial hearing dates were [in] 2020.
CONSIDERATION
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?
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(1)(p)(i) is relevant.
Regulation 2.43(1)(p)(i) provides a prescribed ground for cancellation is:
….
(p) in the case of the holder of a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa — that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or…
The applicant discussed the grounds for cancellation at the Tribunal hearing and put it to him that the evidence indicated that he had been convicted of two offences against the law of [State 1]. The applicant disagreed and stated that he was appealing the criminal convictions and that he had good prospects of success. He claimed that it followed that, until his appeal had been considered, he should not be regarded as having been convicted of an offence against the laws of [State 1].
In the applicant’s submissions he referred to his right to appeal the convictions. He stated that the fact that he was convicted was due to Legal Aid [State 1] believing that the Crown case did not constitute an offence. On this view, Legal Aid set its budget and scope for the defence which proved to be an error according to the Court. He claimed that he offered other robust defences, but the Legal Aid provided legal team did not look beyond its initial assessment based on the prosecution brief. He claimed that this will lead to a non-final conviction or a conviction likely to be set aside. He states that if it is set aside other defences can be put forward.
The Tribunal does not accept the applicant’s submission that he has not been convicted of an offence against the law of [State 1]. The evidence before the Tribunal indicates quite clearly that the applicant has been convicted in the District Court of [State 1] of two offences; unlawful stalking and attempting to pervert the course of justice. The Notice of Appeal provided by the applicant confirms the details of the offences for which the applicant has been convicted. There is no document indicating that the convictions have been set aside.
The Tribunal accepts that the applicant’s legal advisor has drafted, signed and lodged a Notice of Appeal in the Court of Appeal, Supreme Court of [State 1]. However, there are many possible outcomes of such an appeal; it could be withdrawn, the appeal may be dismissed and the decision of the District Court upheld, the appeal may be allowed on one charge but refused on the other, it could be allowed on both of the charges and a retrial ordered or the court could make a different order. The applicant gave evidence that he was confident he would be successful, but the Tribunal considers this is speculation on his part. There is no evidence or any opinion before the Tribunal which indicates the strong likelihood of a successful appeal.
At the hearing on 14 January 2021 the applicant claimed that the effect of his appeal “nullified” the convictions and when he was asked to explain he stated that his legal advisor had given him this advice. The Tribunal does not accept that the convictions have been set aside or “nullified”, whatever he might mean by nullified.
Even if the applicant was ultimately successful in his appeal, the Tribunal is satisfied, considering the plain words of the regulation and the evidence before it, that at the time of this decision the applicant has been convicted of two offences against the laws of [State 1].
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 power to cancel the visa should be exercised.
Consideration of discretion
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.
Background and Migration History
The applicant was born in the United Kingdom. He was granted a temporary work visa [in] January 2013 and was sponsored by [Employer] and worked and lived in [State 1] after he first arrived.
His temporary visa was due to cease on 2 January 2017 but he had taken steps to apply for a permanent skilled visa. However, his temporary visa was cancelled on 10 November 2016. He was taken into custody and held on remand until he was convicted of two offences [in] December 2020 and he is now held in immigration detention.
Up until March 2015 the applicant was in a de facto relationship with his former partner and the couple had one [child] together, [the child] who was born on [Date]. When the applicant arrived in Australia he was accompanied by his former partner, her [child] from a previous relationship and their [child].
The relationship between his former partner and the applicant broke down in March 2015 and the applicant was later charged with several offences which took place after the breakdown of the relationship.
In 2018 and 2019, a number of the charges originally laid against the applicant were either withdrawn, or the applicant was found to be not guilty. The remaining charges were dealt with by the District Court of [State 1] in 2020 and the applicant was convicted of two offences [in] December 2020.
The applicant’s temporary working visa was previously cancelled [in] November 2016 and the applicant sought merits review of that cancellation and [in] September 2018 the Tribunal, differently constituted, affirmed the cancellation decision. The applicant appealed the Tribunal’s decision, the Federal Circuit Court affirmed the Tribunal’s cancellation decision and [in] 2020 the Federal Court adjourned the applicant’s appeal against that decision to a date to be fixed after the final determination of the criminal proceedings in the District Court of [State 1].
Primary considerations
One of the prescribed primary considerations in cl.6 of the Direction is the Government’s view that the prescribed grounds in r.2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3]
[1] cl.6(1)(a) of Direction No.63.
[2] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [28]-[31].
[3] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [33].
The other primary consideration in the Ministerial Direction refers to the best interests of children in Australia under the age of 18 years who would be affected by the cancellation. The evidence before the Tribunal is that the applicant has a young [child], who is now [Age 2] years old.
The applicant and his former partner separated in 2015 when [the child] was [Age 3] years of age. His former partner has two children, an older [child] from a previous relationship and [the child]. The evidence of the applicant is that he has only had minimal contact with [the child] since the separation. The applicant gave evidence that when he and his former partner separated, they had discussions regarding the care of [the child] and contact, but could not come to an agreement.
He stated proceedings were commenced in the Family Court after separation. He claimed that as a result of his former partner’s false accusations against him the Court made an order in June 2015 that [the child] live with his former partner and that he have supervised contact. He claimed that in June 2015 his former partner gave consent for him to pick up [the child] at [her/his] childcare centre but when he arrived to pick [her/him] up, his partner denied they had agreement and police were called. He was charged with a child stealing offence but was later acquitted of that offence in 2018.
The applicant has not seen or had contact with [the child] since [2015]. He claims he is scheduled to attend a counselling session ordered by the Family Court aimed at reintegration in February 2021. He stated that if he is still in detention, he will not be able to attend this session.
The Tribunal has considered how the cancellation will affect the best interests of children in Australia under 18 years. No submissions or submissions were made in relation to the best interests of his former partner’s child and accordingly the Tribunal has not considered the interests of that child.
With respect to [the child], the Tribunal accepts that the applicant has had no contact with [the child] since 2015. It accepts that there are current family law proceedings but in the absence of any documents or other evidence it is not clear what applications have been made, what evidence has been placed before the court or what orders have been already been made by the Family Court. The applicant was vague about the nature of the current Family Court proceedings and it is difficult to form a view as to whether the applicant is being deliberately evasive or simply does not understand the nature of the proceedings. He did however, state that the court had ordered a family report be prepared by a consultant, [Mr I] and that interviews and assessments were to take place in February 2021.
In considering the best interests of [the child] the Tribunal notes the provisions of the Family Law Act 1975. Section 60B of the Family Law Act provides, in relation to children,
Objects of Part and principles underlying it
1. The objects of this Part are to ensure that the best interests of children are met by:
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
Section 60CC(2) of the Family Law Act provides that in determining a child’s best interests the court must consider
a.the benefit to the child of having a meaningful relationship with both of the child’s parents; and
In applying the considerations set out above the court is to give greater weight to the consideration set out in paragraph (2)(b).
Based on the evidence before it, the Tribunal considers that the cancellation of the applicant’s bridging visa will possibly have an impact on the best interests of [the child]. Subject to any evidence to the contrary, the principles and considerations set out in the Family Law Act indicate it is in [the child]’s best interests to have the benefit of both of [her/his] parents having a meaningful involvement in [her/his] life to the maximum extent consistent with [her/his] best interests and “the right to know and be cared for by both” [her/his] parents. [She/He] also has “a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development”.

As set out in the Family Law Act, it is the Family Court’s role to determine the best interests of a child based on all the available evidence and to make appropriate parenting orders. However, the Tribunal is also required, in deciding whether a bridging visa should be cancelled, to consider the best interests of any children under the age of 18 years who would be affected by the cancellation.
The Tribunal accepts the applicant’s evidence that he has not had any contact with [the child] since [2015], either in person or by electronic means. Thus, the cancellation of the bridging visa will not have an immediate impact on [the child] in terms of [her/his] day to day care or contact with the applicant or financial support.
However, the applicant gave evidence that there are current proceedings in the Family Court and that he is scheduled to attend a counselling “re-integration session” with a court appointed counsellor in February 2021. He told the Tribunal that the session cannot take place if he is in detention. The applicant has not provided any other evidence in relation to the purpose or nature of this session or whether it involves some form of supervised contact with [the child]. It is also not clear whether there are other electronic alternatives.
However, on the face of it, the Tribunal is prepared to accept that after such a long period since [the child] had contact with [her/his] father, it would not be ideal to have a counselling session, which might potentially involve [the child], while the applicant is in immigration detention. Due to the current COVID19 restrictions it is not possible for the applicant to be transported to the venue for the session.
Without being conversant with any of the evidence in Family Court proceedings, the Tribunal is prepared to accept it is in [the child]’s best interests to have some form of contact with the applicant in the long term and that the counselling session in February 2021 may be critical in the courts and parties evaluation of how contact can be re-established if the court considers this is in the best interests of [the child]. If the applicant’s visa is cancelled the counselling session will be cancelled and on the limited evidence before it, the Tribunal considers this is not in the child’s best interest.
Secondary considerations
The impact of a decision to cancel the visa on the family unit.
The applicant has given evidence that his parents are living in the United Kingdom and his brother and sister in law are living in [State 2]. He gave evidence that his brother has sponsored his parents for parents’ visas. His brother has provided a statement of support to the applicant and stated that if the applicant’s visa was cancelled it would make it difficult for him and his family to keep up family contact.
The applicant has also provided evidence that he sees his friends [Mr and Ms A] and their [children] as his “de facto” family and that the visa cancellation would have an impact on them. He has worked with [Mr A] for a number of years and has been close friends with them since his arrival in Australia. When the applicant was granted a bridging visa in April 2021 he lived with the [As] until he returned to immigration detention in December 2020. [Mr and Ms A] both gave evidence by telephone [in] January 2021 as well as providing statements in which they describe their knowledge of the applicant and their observations about his conduct while living with them. They wholeheartedly support the applicant, have a high regard for him and are strongly committed to his release from detention.
[Mr A] told the Tribunal that he had sat in on the trial of the applicant and heard all the evidence presented during the trial. He was surprised at the outcome and, notwithstanding the evidence he heard and the convictions, he and his wife continue to support the applicant and would welcome him back to their home if his bridging visa was restored. The both observed that while he was living with them, he obeyed his bail and bridging visa conditions rigorously. As an example, [Ms A] stated that the conditions provided he was restricted to their home between 7pm to 7am each day. If they were out watching their [children’s] sporting games the applicant would ensure he was home by 7pm even if he had to leave halfway through the games. The [As] gave evidence that they have provided accommodation, living costs, transport and welfare without cost to the applicant because of their strong commitment to his welfare and interests. They observe that the applicant is highly dependable and used to take their children to school every day, to sporting events and helped with their homework. They have also left their children in the applicant’s care overnight. The applicant has also helped in the care of [Mr A]’s elderly mother and has taken her to medical appointments and other social events.
The [As] stated that their children had formed a strong relationship with the applicant during his time with them and are upset at losing contact with him. [Mr A]’s mother has also been affected by the loss of contact.
The degree of hardship that may be experienced by the visa holder if the visa is cancelled. degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant stated that there were several reasons why he will experience hardship as the result of his visa cancellation.
The first is that is will be unable to attend a session with the Family Court appointed counsellor and report writer in February 2021 due to remaining in detention together with COVID restrictions on transport.
Secondly, he has obtained the pro bono assistance of senior counsel in [City] to assist with his appeal to the Court of Appeal, as well as Federal Court proceedings regarding the previous cancellation of his temporary work visa. As the assistance is pro bono and he does not have a solicitor he will need to provide instructions and documents in person. This will not be possible or greatly restricted if he remains in immigration detention.
He is unable to work and contribute to his own financial support. After such a long period on remand prior to his trial, the extended period of detention has affected him emotionally and psychologically.
The circumstances in which the ground for cancellation arose.
The Tribunal has received a copy of the District Court’s reasons for conviction delivered [in] December 2020. The Tribunal has read the reasons and has considered the findings made by the Court.
The judgement is 85 pages long and goes through the evidence in meticulous detail, applying the criminal standard of proof to the evidence given by the complainant, various witnesses and the defendant (the applicant).
Essentially the court noted that the applicant commenced a relationship with his former partner in the UK in 2008. They moved to Australia with their [child] and his former partner’s [child] and settled on [in State]. The relationship broke down in 2015.
The Tribunal invited the applicant pursuant to s.359AA to comment on, or respond to, some of the findings made by the Court. It explained that the findings were relevant to consideration of the circumstances in which the ground for cancellation arose and that the applicant could seek further time to respond or comment if he wished. The applicant elected to respond or comment at the hearing.
The Tribunal invited him to comment on/respond to the Courts finding
·That he was not a credible witness. He stated he was surprised at this finding as the judge had stated during the hearing she found him to be credible and that the complainant was not credible.
·That he had made false complaints that the applicant had possession of, and was dealing in, drugs. He stated that those allegations were true. He stated that his legal advisors had argued the case on the lack of evidence whereas he had wanted to defend the case by asserting his innocence.
·[Details deleted].
·That he was responsible for a series of 000 calls, as well as [Crime reporting services] submissions. The Tribunal noted he had denied making one call but when it was played in court, he admitted it. He stated he had admitted he made some calls but there was some confusion over who had made certain calls. He thinks he just got it wrong when he was questioned about one call in court.
·That he followed the complainant’s car [in] September 2016. He stated that there was no camera evidence of him following the car and he did not agree with this finding.
·That he tried to encourage other person’s to falsely claim responsibility for making the calls to [Crime reporting services]. He disagreed with this finding.
·That he planted drugs or arranged for drugs to be planted in the complainant’s car. He disagreed with this finding and said the conclusion was ludicrous.
The applicant pointed out that he had lodged a Notice of Appeal and sought to have the convictions set aside. He wanted the chance to put forward a positive defence and to assert his innocence.
In considering the circumstances in which the ground for cancellation arose the Tribunal has read the findings made by the District Court. Essentially the Court found that following the separation of the applicant and his former partner, the parties could not come to an agreement regarding the care and contact of their [child]. As a consequence of the acrimonious separation and dispute regarding [the child], the Court found that between [March] 2015 and [October] 2016 the applicant engaged in stalking behaviour including making intimidating phone calls to the complainant, attempting to locate the complainant and their [child], following the complainant, making false complaints to police about the complainant and planting drugs in the complainant’s car. It also made findings about that the applicant was not a credible witness. The Court set out its detailed consideration of the evidence and how it reached its findings.
The applicant told the Tribunal it did not accept the findings of the Court and is pursuing an appeal to the Court of Appeal. The Tribunal has read the contents of the Notice of Appeal.
However, as it stands at the time of this decision, the Tribunal notes the findings of the District Court and the subsequent convictions. Having explained to the applicant it accepts that he is appealing the decision and has made no admissions, the Tribunal asked him to consider what comments he would make on the conduct described in the court’s reasons.
He stated that, without admission, [details deleted].
Further while on remand, he was a model detainee and he has also been a model detainee in immigration detention. While he was living with the [As], he met all his bail and bridging visa conditions. He has never tried to contact the complainant or any witnesses and does not intend to do so. He has never been accused of any violent or physically abusive conduct to the complainant or the children. He stated he loved his [child] and wanted to resume a relationship with [her/him].
The Tribunal considers that the applicant’s conduct, as set out in the Court’s findings, was deliberate, intimidatory and vindictive. However, and without making any excuses for the conduct, it notes the conduct took place 5 years ago in the context of a separation and dispute over contact to [the child]. Further there is no evidence or any suggestion that the applicant has ever been violent or that he has physically harmed the complainant or the children.
The applicant has spent a lengthy period on remand and his sentence on conviction was time already served on remand. When asked why he did not apply for bail until 2019 he stated that it was on the advice of his criminal lawyer who told him that if he was granted bail, his bridging visa may be refused and he would end up on Christmas Island without access to his lawyers for his upcoming trial. This understanding of the advice may have led the applicant not to seek bail. When bail was granted it was granted on several conditions and the evidence indicates that the applicant has met the conditions of his bail.
The applicant appeared before the Tribunal, differently constituted, in April 2020 in relation to the refusal of his bridging visa in April 2020. The Tribunal Member noted that the applicant was insightful as to his own behaviour, his relationship with [the child] and possibilities for the future. He told that Tribunal he accepted that [the child] was better off with his former partner and that it would take some time to re-establish a relationship. This evidence does appear to show reasonable insight; however, it does conflict somewhat with the later submissions provided to the Tribunal.
Those submissions refer to the principles of family unity, the best interests of [the child], his right to appeal, community expectations and his need to access lawyers for the purpose of family law proceedings and his appeal. They are a mix of factual and legal assertions which are mixed and somewhat confused. The Tribunal considers they partly reflect the applicant’s frustrations with his situation and partly reflect his inability to take some responsibility for his past behaviour and also to blame others for his predicament. He refers to his former partner’s severe psychological issues and the possibility of [the child] being at risk. He appears to blame Legal Aid and his former lawyers for his unsuccessful defence, he blames his criminal lawyers for poor advice concerning a bail application and generally tries to deflect blame for his conduct and situation.
The possible consequences of cancellation;
If the applicant’s bridging visa is cancelled, he will become unlawful and will remain in detention until his migration status is finalised. He will either; be granted a substantive visa and released from detention, or he will depart Australia.
The Tribunal is satisfied there is no prospect that the applicant will be held in indefinite detention.
Any other matter considered relevant.
The applicant arrived on a temporary work visa and gave evidence that at the time of his separation from his former partner he was on a pathway to obtaining a permanent skilled visa. His temporary work visa was cancelled when he was charged with several criminal offences and the cancellation was affirmed by the Tribunal. He applied for judicial review and the cancellation was upheld by the Federal Circuit Court but when the matter went before the Federal Court the review was adjourned to await the outcome of the District Court criminal proceedings.
The applicant has given evidence which the Tribunal accepts that his primary purpose to remain in Australia is so that he can re-establish a meaningful relationship with his [child]. He also gave evidence that his brother, sister in law and [their child] are living in [State 2] and he is expecting his parents to join them in the future.
There is no evidence that he has failed to comply with visa conditions. The delegate’s cancellation decision indicates he has been co-operative with the Department and that he was compliant during his previous period of detention.
The applicant has no criminal history and points to the various volunteer roles he took on when he was in remand and in immigration detention.
The applicant has provided a large number of supportive character references which indicate he has a significant amount of community support from the [As] and other members of the community. [Mr A] and [Mr D] (former work colleague) both attended court throughout most of the trial proceedings. [Mr D] stated that the applicant’s conduct was respectful and despite the conviction maintained his dignity and composure.
Assessment
There are several significant matters to be weighed in the discretion as to whether the applicant’s visa should be cancelled.
The Tribunal has considered that the applicant has been found guilty of two indictable offences and that the District Court has found that he has engaged in stalking behaviour including making intimidating phone calls to the complainant, attempting to locate the complainant and their [child], following the complainant, making false complaints to police about the complainant and planting drugs in the complainant’s car. These are serious matters which are of concern to the Tribunal. As noted earlier the Tribunal finds the conduct described in the District Court decision was deliberate, intimidatory and vindictive. It notes that the applicant does not accept the court’s findings and has lodged an appeal.
However, the Tribunal also considers that; the best interests of [child], which is a primary consideration, will be affected if the visa is cancelled; the applicant will undergo significant hardship as set out earlier in this decision; the conduct took place in 2015 and 2016 in the context of a family breakdown and the applicant has served a period of imprisonment in relation to the offences. There is no evidence he is presently a risk to any individual or member of the community, however he does appear to continue to have a grievance against his former partner. Even though the best way forward for the applicant would appear to be to reach a compromise with his former partner and focus on the best interests of [the child] to have a good relationship with both parents the Tribunal considers he will continue to pursue his grievances through the Family Court and the Court of Appeal.
However, while on bail and a bridging visa he met quite stringent conditions and the Tribunal does not consider he will try to contact his former partner or breach any of the conditions of the orders made in the District Court.
He has too much to lose if he does not meet visa conditions or engages in similar conduct in the future. Any breaches will affect Family Court proceedings, criminal proceedings, District Court restraining orders and his ongoing migration matter before the Federal Court. It will also lessen his prospects of ever obtaining a permanent visa. Further if he engages in conduct which is a risk to an individual or the community the Department could take steps to cancel his bridging visa again.
The [As] are his friends and have been very supportive, particularly during the 8 months the applicant lived in their home and interacted with their family. They are understandably predisposed to him, but they are also aware of the circumstances of his criminal convictions and the findings of the District Court. Despite this, they continued to be supportive and both were quite emphatic that the applicant will meet all the conditions of his bridging visa if the visa was not cancelled.
Overall and taking into account the matters which are prescribed for consideration the Tribunal considers the matters which support the cancellation are outweighed by those matters which indicate the visa should not be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Louise Nicholls
Senior Member

[2021] AATA 302

15 January 2021

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