2113037 (Migration)

[2022] AATA 2655

2113037 (Migration) [2022] AATA 2655 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113037

MEMBER:Kira Raif

DATE:8 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 08 February 2022 at 2:05pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – applicant convicted of several offences – mental health issues – best interests of Australian resident children – non-refoulement obligations – political situation in Afghanistan – subject to indefinite detention – character test assessment – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 36, 48, 65, 101-105, 107, 109, 127, 140, 189, 501
Migration Regulations 1994, Schedule 2, cl 050.223; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
MLNR v Minister for Immigration [2021] FCAFC 35
Parata v MHA [2020] FCCA 1582
WKMZ v MICMSMA [2021] FCAFC 55         

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan, born in [specified year]. He was granted the Resident Return visa (RRV) in December 2016. In June 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that  the applicant did not comply with s. 101 of the Act. It appears that the applicant did not respond to the NOICC and his visa was cancelled in August 2019. The applicant seeks review of the delegate’s decision.

3. The application for review appears to have been lodged outside of the prescribed period. However, the Tribunal has formed the view that the notification of the decision contained an error of the kind identified in Parata v MHA [2020] FCCA 1582. The type of notification used by the delegate in this case appears to have been invalid because it failed to convey which part of the Act provided for the review of the decision. As the Tribunal has formed the view that notification was invalid, the prescribed time limit for applying under s.127(2)(b) for review did not commence. The Tribunal thus finds that the application for review was validly made.

4. The applicant provided to the Tribunal his written submission and a number of documents on 24 January 2022. As the Tribunal hearing was scheduled to take place on the morning of 25 January, the Tribunal considers such late submission of evidence and argument less than helpful and contrary to the Tribunal’s Practice Direction. No explanation has been offered by the applicant’s representative, Refugee Legal in the submission of 24 January 2022 for the lateness of the submission. 

5. The applicant appeared before the Tribunal on 25 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the Notice comply with the requirements in s.107?

8. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

9. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  in December 2016 the applicant made an application for the Resident Return visa (RRV) and provided the following answers on the application form:

    a.on page two the applicant stated ‘no’ in response to a question whether he had ever been charged with any offence currently awaiting legal action,

    b.on page 3 the applicant stated ‘no’ in response to a question whether he had ever been convicted of an offence.

12. The applicant was granted the RRV on 8 December 2016. The primary decision record indicates that the Department received information that the applicant had been charged with two offences on 27 November 2016:

    a.drive behind other vehicle too closely to stop safely, and

    b.drive motor vehicle while license suspended – 2^nd offence.

13. The primary decision record also indicates that the Department received advice from the Australian Criminal Intelligence Commission in January 2019 indicating that the applicant has been convicted of the following offences:

[November 2016]	Contravene prohibition / restriction in AVO (domestic)	Fine $[amount]. Bond s. 9: 12 months
[October 2016]	Drive with middle range PCA – 2nd offence	Fine $[amount] Disqualification 6 months Participation alcohol interlock program 24 months
[October 2016]	Drive motor vehicle while suspended  - 1st offence	Fine $[amount] Disqualification 12 months
[June 2014]	Assault occasioning actual bodily harm (DV)	Bond s. 9 : 18 months
[May 2014]	Drive with low range PCA – 1st offence	Fine $[amount]. Disqualification 3 months

1. In his written submission to the Tribunal of 24 January 2022 the applicant confirms his criminal convictions. The applicant confirms that in 2010 and 2013 he was convicted of common assault and assault occasioning actual bodily harm, various driving offences between 2014 and 2017 and contravention of an AVO in November 2016. The applicant states that in February 2020 he was convicted of six counts of common assault (DV) and two counts of assault occasioning actual bodily harm and was sentenced to 1 year and 8 months imprisonment. The applicant concedes in that submission that the information concerning his past convictions was incorrect on the RRV application form.

2. In oral evidence, the applicant acknowledged his ‘mistakes’ and stated that during that time he was under pressure and was stressed. The applicant refers to his poor mental state and depression. He states that he lacked understanding of the law. These submissions are addressed more fully below. For the purpose of establishing the breach, the Tribunal acknowledges the applicant’s concession that he was convicted of various offences at the time he completed the application form.

3. The Tribunal finds, having regard to the information in the primary decision record and the applicant’s evidence, that the applicant had been convicted of a number of offences between May 2014 and November 2016. The Tribunal thus finds that when the applicant stated ‘no’ in response to a question whether he had been convicted of an offence, the applicant gave an incorrect answer. The Tribunal further finds that in November 2016 the applicant had been charged with two offences. The Tribunal thus finds that the applicant gave an incorrect answer when stating ‘no’ in response to a question whether he had ever been charged with any offence currently awaiting legal action. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given or provided. The Tribunal finds there was non-compliance with s. 101 in the way described in the NOICC.

   Should the visa be cancelled?

4. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

5. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

   The correct information

6. The correct information is that the applicant had been charged with offences and convicted of offences at the time he completed the application form.

   The content of the genuine document (if any)

7. This is not relevant in the present case.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

8. Any visa assessment entails an assessment of a person’s character, for the purpose of s. 501 of the Act. The applicant’s convictions and charges were relevant to that assessment.

9. In his written submission to the Tribunal the applicant states that PIC 4001 does not apply in relation to the RRV and his convictions may not have impacted the decision to grant him the visa. The applicant states that the incorrect information was ‘relatively minor’ and may not have affected the assessment of his character. Whether or not the applicant’s convictions can be characterised as minor, the issue before the Tribunal is not whether the visa would have been granted, if the correct information was known. Rather, the issue is whether the decision to grant the visa was based, even in part, on incorrect information. The Tribunal is of the view that the applicant’s convictions (acknowledging that the latest and most serious convictions occurred after the applicant completed the application form) were relevant to the assessment of whether s. 501 assessment is to be undertaken in this case and whether or not the grant of the visa was prevented by s. 501 (as required by s. 65(1)(a)(iii)). The Tribunal thus finds that the decision to grant the visa was based, in part, on incorrect information.

   The circumstances in which the non-compliance occurred

10. In his submission to the Tribunal of 24 January 2022 the applicant states that he departed Australia on three occasions since migrating to this country. He states that at the time of his last departure in November 2016 he was informed at the airport that his RRV had expired and he made the application for the visa from the airport in [Country 1] to facilitate his return to Australia. The applicant states that he was suffering from depression at the time, affected by his ongoing criminal proceedings, the breakdown of his marriage, financial and other hardship. The applicant states that he had prioritised his concern about his ability to return to Australia and care for the children. The applicant gave the same oral evidence to the Tribunal.

11. In oral evidence, the applicant also stated that he was stressed and under pressure at the time. The applicant states that he was naïve and ignorant and should have known more about the law. The applicant states that he and his children had suffered as result of his mistake. The applicant refers to the pressure of coming from a war-torn country and having to support many people and these circumstances had an effect on him. He claims he was suffering from depression, “phobia of the law”, mental health issues and other health concerns and it may have affected him at the time. The applicant states that he was taking anti-depressant medication and was prescribed new medication. He states that around 2016 or 2017 he admitted himself to hospital because of his mental health issues, which were affecting his life.

12. The Tribunal finds the applicant’s explanations unconvincing. The applicant’s claimed depression, mental health issues and other issues to which he refers do not appear to have affected his ability to travel and make the visa application and correctly answer other questions on the form. It is not entirely clear to the Tribunal how the applicant’s claimed ignorance of the law or being stressed or depressed would have prevented him from being able to truthfully answer the question on the application form about convictions. As the applicant appear to have been capable of providing all other answers on the application form correctly, the Tribunal does not accept that he was incapable (due to medication, his claimed depression or for any other reason) to correctly answer the question about his past criminal convictions or ongoing charges. The applicant has not established to the Tribunal’s satisfaction that medication or mental health issues, other health concerns, his personal background and circumstances or any other issues to which he refers (or the combination of such concerns) had affected the applicant’s capacity to understand the forms and to complete the forms in a way that  only correct answers were given or provided. The medical evidence before the Tribunal does not support that  contention. form in [Country 1]

13. The applicant also submits that when he was completing the , he was flying and had not slept for 18 hours. Even if that was the case, the Tribunal does not accept (and the applicant has not established to the satisfaction of the Tribunal) that as a result, he could not recall multiple convictions that had occurred in the four years before he completed the form and some in the short time before his application. As noted above, neither has the applicant satisfied the Tribunal that  he was incapable of understanding questions on the form and of completing the form.

14. The applicant states that he is an ordinary person and not an immigration lawyer and he was incapable of completing the form. The Tribunal does not accept that to be the case. The relevant question was whether the applicant had been convicted of any offences. It does not relate to any complex legal constructs, nor does it require specialist knowledge. Having gone through the criminal justice process (on more than one occasions), the Tribunal considers the applicant was well aware that he had convictions and outstanding charges. Indeed, his evidence is that he was depressed, partly, due to the outstanding charges. The Tribunal does not accept that the applicant did not understand the question on the form or was incapable of answering that question due to any lack of understanding and absence of legal advice.

15. The applicant submits that he did not know that permanent resident visas could be cancelled and he was getting ready to acquire the Australian citizenship. While the Tribunal accepts that evidence, it is unclear to the Tribunal how that affects the applicant’s provision of incorrect answer on the application form.

16. The applicant states that he had suffered due to his lack of knowledge of the law and he tries to educate himself. The Tribunal finds that evidence problematic. The applicant’s convictions relate to driving offences and, having obtained the Australian driving license, the Tribunal is of the view that the applicant would have been aware of the Australian road rules. His other convictions are for assault and the Tribunal is of the view that even if the applicant was entirely ignorant of the Australian law, he would be aware that assault is not acceptable conduct in Australia.

17. The Tribunal does not accept the various explanations the applicant offered about the provision of incorrect answers. The applicant also told the Tribunal that he was facing too many things at the time, he was responsible for his family in Afghanistan and children in Australia, he was facing too many fines and criminal charges and he could not think of being put in detention again. The Tribunal is of the view that one the applicant’s explanations – that he was concerned about his ability to return to Australia – more truthful. That  is, the applicant may have thought that if his convictions were disclosed, he may not be granted the visa and he had decided to deliberately withhold that information to ensure he was granted the visa and able to return to Australia. In the Tribunal’s view, that was the real reason for the non-compliance.

    The present circumstances of the visa holder

18. The applicant has been residing in Australia since 2010. In his written submission to the Tribunal the applicant outlines the circumstances in which he was granted his permanent visa (through marriage to an Australian resident), the breakdown of that relationship and another relationship he had with an Australian resident. The applicant confirmed in oral evidence that both relationships had ended and that he was the subject of an AVO in relation to both partners.  

19. The applicant states that he has three children, aged [specified ages]. The applicant claims that his children suffered as a result of his mistake but the Tribunal is of the view that  this claim needs to be considered in light of the applicant’s relationships and interactions with his children. The applicant told the Tribunal that he does not have contact with the eldest child but his mother in law sends him information about the child. The applicant confirms that he has not had any contact with his eldest child in the past four months since he was detained, and prior to that he had contact through mediation and lawyers. The applicant states that he has no contact with the two younger children and he has not had any contact with these children for three years. The applicant states that the AVO remains in place (he believes it would expire soon) and covers his ex-partner as well as the children. In his post-hearing written submission to the Tribunal the applicant provided additional information about the circumstances which led to the AVO being issued and the convictions.

20. The applicant states that he is in detention centre and it is not the right place for him. The applicant states that prior to detention, he was involved in [specified industries] as [two specified occupations] and he had completed short courses in Australia. He has no income since his detention.

21. The applicant confirmed that he had made an application for a protection visa and the application was refused. He was out of time to make an application to the AAT. He applied for judicial review and the decision had recently been quashed. (It appears the matter was returned to the Federal Circuit and Family court for reconsideration.) The applicant also states that he has made applications for Bridging E visas which had been refused. The Tribunal accepts the applicant’s evidence.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

1. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act, although it appears that the applicant had not informed the Department of the incorrect answers, as he may have been required to do under s. 105 of the Act.

   Any other instances of non-compliance by the visa holder known to the Minister

2. There are no other known instances of non-compliance.

   The time that has elapsed since the non-compliance

3. The application was made in December 2016 and approximately five years passed since the non-compliance. The applicant claims that it is a long period and people change and he states that in the past three years he tried to improve himself to become a better person. The Tribunal acknowledges that evidence, which is addressed more fully below.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

4. The applicant claims that he has tried to become a better person since the non-compliance. However, the primary decision record indicates that at the time of the primary decision, the applicant was in criminal detention awaiting trial for domestic violence offences. The applicant confirms in his written submission and oral evidence to the Tribunal that in 2020 he had been convicted of several counts of assault and had been given a [period] custodial sentence.

5. The Tribunal found the applicant to have been evasive when asked to explain the circumstances of these offences. He referred to having ‘issues’ in the family and stated that it would affect him psychologically to answer such questions. The Tribunal has formed the view that the applicant was unwilling to disclose or discuss the seriousness of his past conduct. In his post-hearing written submission the applicant provided to the Tribunal a copy of the NSW Police Brief of Evidence in relation to the most recent offending which refers to regular violence throughout the applicant’s relationship with his partner and indicates that some of the violence occurred in the presence of the [specified] children. The applicant confirmed in his oral evidence to the Tribunal that the children were present during some of the incidents.

6. The Tribunal finds that the applicant had been convicted of multiple offences since the non-compliance. The fact that he received a substantial custodial sentence ([period]) emphasises the serious nature of his conduct. The Tribunal considers violent offences against women to be extremely serious.

   Any contribution made by the holder to the community.

7. The applicant refers to the length of his residence in Australia and his past employment. The applicant refers to his voluntary work in Afghanistan and states that since arrival in Australia he has been active in a community organisation as a volunteer. The Tribunal acknowledges the supporting statements the applicant provided with his written submission to the Tribunal and accepts that he has made some contribution to the community.

8. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s.140.

9. There are no persons whose visas would be subject to consequential cancellation.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

10. The applicant has three minor children in Australia. As noted above, his evidence to the Tribunal is that he has had limited contact with his oldest child and little or no contact with the two younger children for some years and they continue to be protected by an AVO. The circumstances that led to the issuance of the AVO had been explained by the applicant in his submission to the Tribunal of 2 February 2022. (The applicant was reluctant to discuss these matters in his oral evidence to the Tribunal.) The applicant concedes that some of the serious conduct that occurred in relation to his partner – which included physical violence – occurred in the presence of the children.

11. The applicant states that he dreams about his children and believes they deserve a good father and it is difficult for him to know that he is not part of their lives. However, he also told the Tribunal that due to his detention, he has not taken any steps to be able to be with the children or to play any parental role. The Tribunal has formed the view that the applicant does not have any meaningful role in relation to the children and has not had such a role in the recent past. The applicant claims that his removal from Australia will deny him an opportunity to reconcile with his family but there is little evidence before the Tribunal to suggest that his family is willing to reconcile or will do so in the future. If that occurs, the Tribunal is of the view that the applicant will have an opportunity to seek reconciliation irrespective of his place of residence, even if it might be easier to reconcile while he lives in Australia.

12. Having regard to the applicant’s evidence concerning his very limited (or non-existent) interactions with the children, the Tribunal is not satisfied the applicant maintains any parental responsibilities in relation to the children or that  he had such responsibilities in recent years. The Tribunal is not satisfied the applicant had taken any steps to achieve his claimed desire to be with the children or to be a good father for the children. In such circumstances, the Tribunal finds that the interests of the children would not be adversely affected by the cancellation of the applicant’s visa.

13. The applicant told the Tribunal that he was the subject of an AVO in both relationships, and that some of the offending conduct which resulted in the most recent convictions occurred in front of the children. The Tribunal is of the view that it is not in the best interest of any child to witness violence or threat of violence or other harmful behaviour among their parents, to be subjected to, or even observe such behaviour. The Tribunal is not satisfied the applicant fully appreciates the effect that his conduct may have had on the children.

14. The Tribunal has formed the view, having regard to all the circumstances of this case, that the best interests of the children would not be adversely affected by the cancellation of the visa.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

15. The applicant states that he is fearful of harm because of his [previous employment] and his Tajik ethnicity, as well as harm due to his family’s business affairs, being a returnee from Australia / the West and for other reasons. The applicant outlined the circumstances when he lived in Kabul and he refers to various country reports concerning the situation in Afghanistan. The applicant states that he had previously applied for a protection visa in July 2020 and had been refused. The applicant refers to the situation in Afghanistan, noting that the circumstances had changed since his protection visa application was refused in September 2020. The applicant states that he has no option to seek another protection visa. The applicant states that if he cannot be removed to Afghanistan and cannot make an application for a protection visa, he would be subject to indefinite detention.

16. In oral evidence the applicant told the Tribunal that his application for judicial review had been successful. In his post-hearing submission the applicant confirms that the matter has been returned to the Tribunal but he claims that  there is no certainty that his application for review would be considered and it is not for this Tribunal to determine whether he had been properly notified of the protection visa decision. Information before the Tribunal indicates the matter has been returned to the Federal Circuit and Family court (and not the Tribunal) and the Tribunal thus accepts that there is no active matter presently before the Tribunal concerning the applicant’s protection visa application and no certainty that the Tribunal will be able to conduct the merits review of the decision to refuse to grant him the protection visa. The Tribunal acknowledges that at present, the applicant does not appear to have an option of seeking another protection visa or seeking review of the decision to refuse to grant him the protection visa unless the s. 48A bar is lifted.

17. The Tribunal generally accepts, for the purpose of this review only, that there is a real chance that  if the applicant was to return to Afghanistan, he may be subjected to harm. However, the Tribunal is of the view that the cancellation of the visa need not result in the applicant being removed from Australia. This is because the applicant would be subject to an ITOA assessment and if it is determined that the applicant is owed protection, he would not be removed to Afghanistan. Further, the Full Federal Court stated in WKMZ v MICMSMA [2021] FCAFC 55 at [151] that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

18. The applicant’s evidence is that the ongoing process in relation to the protection is not a guarantee that he would not be removed from Australia and that he is not presently owed protection as he had not been found to be a refugee. The Tribunal finds that while the applicant has an active case before the courts, there is little or no likelihood of him being removed from Australia. for the reasons stated above, the Tribunal is also of the view that if it is determined, through an ITOA assessment or otherwise that the applicant is owed protection, he would not be removed from Australia to Afghanistan. The Tribunal is also mindful that the applicant is able to request the waiver of the s. 48A bar on the basis of the changed circumstances in Afghanistan, although there is no guarantee that he would be permitted to make another application. The Tribunal thus finds that the cancelation of the present visa will not result in the breach of Australia’s non-refoulement obligations.

19. The applicant also argues that Australia’s non-refoulement obligations are broader than those that arise under s. 36 of the Act and Australia’s international obligations would not necessarily be decided through a protection visa process. The Tribunal accepts that this is so.

20. The applicant’s evidence to the Tribunal is that his two relationships have broken down and that he has limited or no contact with his three children. The Tribunal finds that the family unity principles will not be breached as a result of the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

21. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be subject to detention and possible removal from Australia. The applicant submits that if his visa is cancelled, he would be subject to immediate removal under s. 198 of the Act. The Tribunal acknowledges that if the applicant is not granted another visa (and he claims he cannot make another application for a protection visa and has little or no chance of being granted a bridging visa), the applicant may be subject to detention and removal. However, as noted above, the Tribunal considers there is very little chance of the applicant being removed while he has an active case before an Australian court. The Tribunal also considers that removal will not take place if it is determined that Australia’s protection obligations arise in this case (for example, through an ITOA assessment) and the Tribunal finds that the assessment of Australia’s obligations would be undertaken before any decision is made to remove the applicant. the Tribunal does not accept that  the cancellation of the visa will (or is likely to) result in the immediate removal of the applicant.

22. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements he may have acquired as an Australian permanent resident and he would be ineligible to seek Australian citizenship. There are provisions in the Act which prevent the applicants from making certain visa applications without the Minister’s intervention although these restrictions do not apply in relation to all types of visas.

23. The applicant states that if his visa is cancelled, he may be subject to lengthy or even indefinite detention. His evidence to the Tribunal is that he has an ongoing judicial review process in relation to a protection visa and the applicant is eligible to make an application for a bridging E visa on that basis. The applicant provided to the Tribunal evidence that his multiple past applications for bridging visas had been refused and he claims there is little likelihood of obtaining a bridging E visa. The Tribunal acknowledges that there can be no certainty of visa grant. Given his past history of bridging visa refusals, the Tribunal acknowledges that there is perhaps only a small chance of the applicant being granted a Bridging visa in the near future, although the Tribunal is also of the view that circumstances may change, for example with the passage of time, and it cannot be said that he can never be granted a BVE, nor that  he could not be granted one soon. It is not for this Tribunal to determine the likelihood of the applicant being granted another visa. It is sufficient that he is eligible to seek a Bridging visa (and there may be other visas that he could seek that are not subject to s. 48 restrictions) and in such circumstances, it cannot be said that the applicant is liable for indefinite detention if his visa remains cancelled. Lengthy or even indefinite detention may be, but is not an inevitable consequence of the cancellation of the present visa.

24. The applicant refers to the decision in MLNR v Minister for Immigration [2021] FCAFC 35 suggesting it would be unreasonable to assume he could be granted a Bridging E visa, given the past history of refusals. In the Tribunal ‘s view, the circumstances here are different because the applicant is capable, perhaps with the passage of time or through other conduct, of establishing that he would not engage in criminal conduct in the future and that he would abide by visa conditions, thus meeting cl. 050.223 (which appears to have been the main impediment to visa grants in the past). Thus, while the Tribunal acknowledges the applicant had been refused many Bridging visas, the Tribunal does not consider he is unable to be granted one in the future. Nevertheless, as noted above, the Tribunal acknowledges that he applicant now has a substantial criminal record which would affect the assessment of his character in future visa applications. That is, there is a real likelihood that the applicant will not be granted another visa and that he would remain in detention, potentially for a long time, if his visa is cancelled.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

25. The applicant states that he had previously applied for a protection visa in July 2020 and that  application was refused. He did not seek review and his application regarding the validity of the notification presently was recently successful in court. The applicant states that  he does not have an option of applying for a further protection visa due to the restriction in s. 48A of the Act. The applicant states that if he cannot be removed to Afghanistan and cannot make an application for a protection visa, he would be subject to indefinite detention. These matters have been addressed above. While the Tribunal finds that the applicant is eligible to seek other visas, including a Bridging E visa, the Tribunal acknowledges that he has been refused many of these applications in the past and there is probably a small chance of the applicant being granted a BVE in the immediate future, so there is a real likelihood of lengthy detention.

26. The applicant refers to the effect of the prolonged detention on his well-being and he attached reports from IHMS and STARTTS and states that indefinite detention would cause him further serious psychological harm and would be in breach of the ICCPR and CAT. The applicant submits that such harm should be given dispositive weight in favour of setting aside the cancellation because of the consequences it would have on him, the reputational damage to Australia and because it would be contrary to the national interests. The Tribunal acknowledges these factors but considers that national interests and Australia’s reputation and national interest may also be considered in light of Australia’s enforcement of its migration law and policy, and persons’ compliance with immigration requirements. There is a certain degree of public interest, in the Tribunal’s view, in ensuring visas are granted on the basis of truthful information.

27. The applicant refers to his mental state and he provided to the Tribunal medical reports indicating he suffers from a number of ailments and has a history of depression and anxiety. The STARTTS report recommends that the applicant should receive ongoing psychological treatment and the applicant’s evidence to the Tribunal is that he has been seeing a health professional weekly while in detention and intends to continue to do so if released. The applicant refers to the assault he has suffered while in detention and the effect it has had on his health. The applicant told the Tribunal that he has been seeing the psychologist weekly while in detention and wants to continue with the treatment if he is released from detention. The applicant told the Tribunal that it has been difficult for him to be in detention and to be seeing people there and ongoing detention would cause him hardship. He refers to the psychological pressure and ‘mental torture’. The Tribunal accepts that evidence and generally accepts that if the cancellation of his present visa is to result in the applicant’s ongoing detention, it would cause significant hardship to the applicant.

28. The Tribunal provided to the Tribunal a number of character references. The Tribunal accepts that those who provided references believe the applicant to be a person of good character. The applicant states that he has been in detention for a long time, he wants to be released and continue wit his employment and to be a contributing member of the community. The applicant states that he realises his mistakes. The Tribunal acknowledges that evidence buy has some difficulty accepting it. The applicant’s evidence to the Tribunal is that he had been convicted of assault (DV setting) in the first relationship. He had committed family violence in his first relationship. After the breakdown of that relationship, the applicant committed the same offence in the second relationship, having been convicted of several counts of assault and assault occasioning actual bodily harm. The Tribunal is mindful that the offending occurred over a lengthy period of time. It was not a one-off offence when the applicant failed to appreciate his conduct. The offences were repeated and occurred over several years. So did his driving offences. The Tribunal acknowledges the applicant’s evidence that he has sought professional help and had seen health professionals and undertook other courses but the applicant’s claim that he is now a changed person is yet to be tested if the applicant is to reside in the community in in another relationship.

1. The Tribunal has considered the totality of the evidence before it. The Tribunal has found that the applicant had not complied with s. 101 of the Act and that there are grounds for cancelling his visa.

2. The Tribunal accepts that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal acknowledges that the applicant may be unable to return to Afghanistan and unless he is granted another visa, the applicant is likely to spend a long time in detention. While the applicant has the option of seeking a Bridging visa and he has an ongoing judicial review process in relation to the protection visa application (and it cannot be said that he is liable for indefinite detention), there can be no certainty that these options will result in the applicant being released from detention or being granted a visa to remain in Australia. The Tribunal accepts that there is a real possibility of the applicant being detained for a lengthy period if his present visa is not reinstated and there is also a possibility of indefinite detention if the applicant is not granted another visa and cannot be removed to Afghanistan. The Tribunal acknowledges the medical evidence in relation to the applicant and the effect of detention on his well-being, as well as the applicant’s own evidence. The Tribunal accepts that ongoing detention may adversely affect the applicant’s mental health and may otherwise adversely affect the applicant’s health and well-being. These are strong reasons why the visa should not be cancelled.

3. The Tribunal acknowledges that the applicant has been living in Australia for a lengthy period exceeding ten years, that over five years passed since the non-compliance and that the applicant had contributed to the community prior to his detention. The Tribunal acknowledges that the cancellation of the visa would have serious legal consequences as it would severely limit the applicant’s future visa options and ability to remain in Australia if he is not granted another visa. The Tribunal also acknowledges the applicant’s evidence that he has appreciated his conduct and has changed, although the Tribunal remains unconvinced by these claims, given the recency of the convictions. Nevertheless, the Tribunal accepts that significant hardship would be caused to the applicant by the cancellation of the visa. These are also strong reasons why the visa should not be cancelled.

4. The Tribunal has determined that the cancellation would not be in breach of Australia’s non-refoulement obligations and does not accept the claim that it is Australia’s national interests for the applicant’s visa to be reinstated.

5. The Tribunal accepts there are many factors why the visa should not be cancelled. However, the Tribunal has decided, in the circumstances of this case, to place greater weight on other factors. Firstly, the Tribunal has determined that the decision to grant the visa was based, in part, on the incorrect information. Not only was the applicant convicted of multiple offences at the time he made the application, he was also charged with other offences. That  information was not before the decision-maker and was relevant to determining whether the applicant had passed the character test (whatever the outcome of that assessment may have been).

6. The Tribunal has rejected the various explanations the applicant had offered for the non-compliance. The Tribunal does not accept that the applicant’s claimed poor mental health or lack of knowledge of the law or any of the other factors he put forwarded resulted in the breach. Rather, the Tribunal is of the view that the applicant had deliberately withheld the information about his convictions and charges so as not to jeopardise the grant of the visa and his ability to return to Australia. That is, the breach was deliberate. The Tribunal considers that the circumstances in which the non-compliance occurred weigh in favour of the cancellation.

7. The Tribunal also places significant weight on other breaches of the law that occurred since the non-compliance. The applicant had been convicted of assault and assault occasioning actual bodily harm. The circumstances of these offences are discussed in the applicant’s submission to the Tribunal of 2 February 2022 and, in the Tribunal’s view, show the applicant’s serious disregard for the welfare and safety of his partner and two young children. The Tribunal is mindful that the applicant has multiple convictions involving family violence, which span over several years and relate to both of his partners. Despite the applicant’s claim that he tried to be a better person, it appears that the applicant had shown persistent disregard for the law and the safety of others. The Tribunal considers these offences, involving violence against another person, in the presence of his children (on his own evidence) extremely serious. These factors weigh in favour of the cancellation.

8. The Tribunal has decided to give greater weight to the factors that weigh in favour of the cancellation than those that weigh against the cancellation.

9. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Kira Raif
    Senior Member