2113138 (Migration)

[2022] AATA 3246

2113138 (Migration) [2022] AATA 3246 (20 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113138

MEMBER:James Silva

DATE:20 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2022 at 5:26pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – issued in association with application for protection visa – criminal convictions, intensive correction order and apprehended domestic violence order – discretion to cancel visa – facts of offences and convictions not disputed but claim made that behaviour partly attributable to post-traumatic stress disorder – no documentary evidence provided of psychological treatment or alcohol and drug rehabilitation program – application for protection visa refused and application for review in progress – eligibility to apply for bridging E visa – separation and reconciliation with wife – wife’s separate protection visa application and bridging visa – little information about personal circumstances provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 375
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 23 September 2021 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 (Cth) (the Act).

2. The applicant is a national of Fiji, born in [Year]. On 16 October 2018, he was granted a Bridging A visa in association with an application for a protection visa. On 7 September 20211, a delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC) of the Bridging A visa. The applicant provided a response to the NOICC. On 23 September 2021, the delegate cancelled the visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa under s.116(1)(g), following the applicant’s convictions in October 2019 and August 2021 for various offences .

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 11 July 2022 to give evidence and present arguments. He is unrepresented in this matter.

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

   consideration of Claims and evidence

7. 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), which requires that a prescribed ground for cancelling a visa applies to the holder (subject to certain qualifications that are not relevant to this case). In the present case, the prescribed ground is regulation 2.43(1)(oa) which refer to the holder having been convicted of an offence (further details are set out below).

8. 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.

   Background

9. The applicant is a [Age 1] year old man from Fiji. The delegate’s decision record and the applicant’s submissions contain relevant background details.

   §  The applicant first arrived in Australia in September 2017, on a visitor (subclass 600) visa. He made four return trips to Fiji over the next 12 months. He most recently arrived in Australia [in] August 2018, also on a visitor visa.

   §  On 16 October 2018, he obtained a Bridging A visa associated with a protection visa application.

   § On 7 September 2021, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the Bridging A visa under s.116, on the basis of the applicant’s convictions in October 2019 and August 2021, for offences committed in New South Wales.

   §  The applicant responded to the NOICC on 15 September 2021, with a four-page statement concerning events in Australia and a summary of his protection claims (which include an undated photograph showing him with a black eye, and a number of weblinks to Facebook pages which address political and security issues in Fiji).

   § As noted above, the visa was cancelled on 23 September 2021, under s.116.

   §  The applicant applied for review of the cancellation decision on 28 September 2021.

   §  During the course of the review, he provided the Tribunal with a copy of the delegate’s decision; a statement dated 28 October 2021 (a slightly revised version of the response to the NOICC); a copy of an apprehended domestic violence order (ADVO) dated 25 May 2021, and a copy of a NSW Department of Justice Certificate of Completion of the ENGAGE intervention, dated 12 March 2022.

10. The applicant appeared before the Tribunal on 11 July 2022 to give evidence and present arguments. The hearing was conducted in English, in which the applicant is proficient. On the few occasions when necessary, the Tribunal paraphrased his statements to clarify or confirm them.

11. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of this matter and the individual circumstances of the applicant, including the fact that he currently does not hold any visa. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. The applicant is currently unlawful. He is unrepresented, and did not request the Tribunal to take evidence from any witnesses.

13. The applicant’s wife, [Ms A] is in Australia, and has made a separate protection visa application. The applicant told the Tribunal that, following a period of separation, they have now resumed living together. The couple’s [Age 2] year old daughter and [Age 3] year old son are in Fiji.

14. The Department file includes a number of documents relating to the applicant’s migration and criminal records; Department administrative processes; and the applicant’s protection visa application. The Tribunal has examined these, and determined that – aside from information already covered in the delegate’s decision record and the applicant’s submissions to the Department and the Tribunal - they do not contain any additional relevant information.

    Non-disclosure certificate

15. The Department file contains a certificate and notification under s.375A, dated 8 October 2021. The certain relates to certain folios on the Department file which contain internal briefings within the Department, and communications with NSW Police, concerning the applicant's immigration and criminal background. The delegate certified that the disclosure of the information, other than to the Tribunal, would be contrary to the public interest because it 'may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods’.

16. The Tribunal is satisfied that the information falls within the stated public interest reasons, as it relates (among other things) to internal checks and liaison, with details of the individuals involved and the kinds of checks that are made. It notes, in any event, that the delegate’s decision record includes the relevant information about the applicant's migration status and convictions.

17. The Tribunal wrote to the applicant to alert him to the certificate and its contents, and discussed it at hearing, inviting his comments. He did not address the validity of the certificate itself. He expressed interest in seeing the contents of the folios, restating that he had no intention to cause anyone any harm. The Tribunal noted these comments.

    Does the ground for cancellation exist?

18. A visa may be cancelled under s.16(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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. It states:

    (oa) in the case of a temporary visa holder other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

19. In the present case, the applicant was the holder of a Bridging A visa, which is a temporary visa other than subclass 050, 051 and 444 visas. As noted in the delegate’s decision record[1], the applicant was convicted as follows:

    §  [In] October 2019 in [Court 1] of (i) Common assault and (ii) ‘Behave in offensive manner in/near public place/school’; and

    §  [In] August 2021 in [ Court 2] of (i) ‘Wilfully obstruct person aiding officer’; (ii) ‘Assault occasioning actual bodily harm’; (iii) ‘Assaulting occasioning actual bodily harm (DV)’; (iv) Common assault (DV); and (v) Stalk/intimidated intend fear physical etc harm (domestic)’.

    [1] The applicant provided a copy of the record to the Tribunal.

20. The applicant does not dispute these facts (although he has made submissions about the circumstances in which they arose), or that the ground for cancellation exists.

21. The Tribunal finds that the convictions fall within the prescribed ground set out in s.2.43(1)(oa), as a ground for cancellation.

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

    Consideration of discretion

23. 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

24. The applicant obtained a visitor visa on 21 September 2017, valid for one year. He first arrived [in] September 2017. As the applicant acknowledged at hearing, he departed Australia and returned four times in the following 12 months. He said that during his visits here, he came to realise that Fiji was a difficult place, and that Australia would be a safe place for him and his family. He then decided to apply for a protection visa. His wife has since joined him in Australia, and has lodged a separate (though related) protection visa application.

25. The limited available material indicates that the applicant initially visited Australia for social purposes, and has subsequently sought protection. The Department refused the protection visa application, and it is now before the Tribunal awaiting merits review. The applicant is entitled to remain in Australia until the protection visa application is finally determined. The contents of his protection visa application and its prospects of success are not relevant to this review.

26. The Tribunal places a little weight on this factor against cancelling the visa (while noting, however, that the visa cancellation would not affect the applicant’s ability to remain in Australia while his protection visa application is being processed).

    The extent of compliance with visa conditions

27. The Bridging A visa had no conditions attached. This consideration is therefore not relevant.

    Circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

28. The ground for cancellation arose from the applicant’s convictions in August 2019 and October 2021, for various offences including assault. As noted in the delegate’s decision and discussed at hearing, the offending relates to three occasions:

    §  Convictions in October 2019 for common assault and offensive behaviour;

    ­   The Court recorded a s.10A conviction with no other penalty. In NSW, this applies for offences that are not trivial enough to be dismissed under s.10 of the Crimes (Sentencing Procedure) Act and when it is inconvenient to impose any further penalty.

    §  Convictions in August 2021 for an assault on paramedics; and

    §  Convictions in August 2021 for domestic violence.

    ­   In relation to these convictions, the applicant was sentenced to an aggregate term of imprisonment of 14 months, from [August] 2021 to [October] 2022, to be served by way of intensive correction in the community. Introduced in 2018, intensive correction orders (ICO) intend to help offenders to address contributing factors (such as mental health, drugs or alcohol) with community-based treatment. The Department file includes a copy of the ICO dated 2 September 2021, which requires the applicant to report to a community corrections officer and comply with all reasonable directions.

    ­   The ADVO dated 25 May 2021, in force for two years, stipulates (among other things) that the applicant not approach his wife for at least 12 hours after drinking alcohol or taking illicit drugs.

29. The applicant described the circumstances surrounding the offending in some detail, in the statements dated 15 September and 28 October 2021, and at hearing. The Tribunal does not have before it the sentencing remarks, or other documents that might give further insight into the circumstances of the offending.

30. The applicant emphasised that he never intended to hurt anyone, and had not acted maliciously. He stated that his behaviour (particularly in relation to the assault of the paramedic) was partly attributable to Post Traumatic Stress Disorder (PTSD) that he claims to have suffered as a consequence of his experiences in Fiji (which form part of his protection visa application), but his accounts also point to alcohol abuse. Key points were:

    §  In the 2019 incident, he had been drinking with a friend in a [Suburb 1] pub, and went next door to get cigarettes. Back outside, he thought he saw his friend, and crept up behind him and slapped him on the stomach, as a prank. However, it turned out to be another person, who reacted angrily. Three men standing nearby started to assault the applicant; he suffered bruises and swelling to his forehead.[2] The police attended the scene, and interviewed and charged the applicant.

    §  In relation to the offending in late 2020 (the ‘paramedic assault’ incident), the applicant described having fallen asleep in the street after going out drinking. (His written statement refers to him waiting for someone to give him a lift home, whereas at hearing, he said that he had fallen asleep during a lift, and the driver had let him out onto the footpath.) Some neighbours, obviously concerned for his welfare, called paramedics. The applicant woke up strapped to a stretcher, panicked and tried to break free. He was swearing, and grabbed a paramedic’s wrist. In the process, an overgrown fingernail caused a cut to the paramedic’s skin.

    ­   The applicant wrote that, as a person suffering PTSD, the experience of being strapped down made him recall his mistreatment at the hands of the Fiji military. He stressed that he did not intent to obstruct, assault or harm medical staff.

    §  The applicant explained that the domestic violence offences relate to an occasion in mid-2021 when he slapped his wife during a verbal argument, triggered by her angry refusal to give him money to buy alcohol, after he had already been drinking. He suggested that his wife’s anger was linked in part to him facing charges arising from the paramedic assault in late 2020.

    [2] The applicant provided a photograph showing him with a black eye and bruising to his forehead. In his statement of 28 October 2021, he wrote about his wife having taken a photograph of his bruises to the face and body following an alleged assault in Fiji. The injuries he claims to have suffered in the fight in Kings Cross in 2019 appear to have been similar. Which incident the photograph relates to does not materially affect this decision.

31. PTSD: As noted above, the applicant claims that an underlying cause for his behaviour, particularly his reaction to the paramedics, has been PTSD linked with his (claimed) experiences in Fiji.

    §  He wrote in September 2021 that he had discussed this with a case officer, who had recommended he attend seminars and workshops to attend these issues.

    §  In the statement dated 28 October 2021 he wrote (with minor grammatical corrections): ‘I have been attending a psychiatrist in order to try to identify and heal the disorder that has been acquired through the years of torment in Fiji. […] I have been in contact with [an] institution that is available in NSW that will enable my healing mentally and correcting the disorder that has tormented me for years.’

    §  At hearing, the applicant said that he had been attending a psychologist in [Suburb 2] to deal with his PTSD and related mental health issues. He said that these were largely conducted via video (Zoom), and that he had not been able to continue them following the expiry of his Medicare card (i.e. since he no longer has a visa).

    §  The applicant said that the psychologists had dealt with his PTSD from his experiences in Fiji. Asked whether they had also discussed other issues, such as alcohol abuse, he replied obliquely that he was ‘not suicidal’.

32. Alcohol abuse: As noted above, the applicant had been drinking around the time of his offending, on each occasion. In his statement of 28 October 2021, he wrote that he has entered a ‘smart recovery programme for alcohol and drug rehabilitation’, and that he had stopped drinking at his wife’s request. At hearing, he referred to a rehabilitation program at [Program provider], which he had attended via videoconference. He did not have details to hand, but undertook to contact his mentor and submit any further materials post-hearing. The Tribunal has not received any further materials.

33. The applicant submitted a certificate showing his completion of the ENGAGE course, which ‘is a brief voluntary intervention for perpetrators of intimate partner violence’, involving ‘a six hour workshop and referrals to support services as required’.[3] This would appear to be linked with the ICO, in which offenders are given the opportunity to address underlying contributory factors (which include mental health and substance abuse issues).

    [3]

34. In relation to the domestic violence, the applicant said at hearing that he lived separately from his wife until about the end of March 2022. He said that they have reconciled, and he is abiding by the terms of the ADVO. The Tribunal notes the applicant’s comments that he left his previous accommodation at the expiry of the lease in March 2022, implying that he moved back with his wife at least in part for financial or other practical reasons. The applicant did not present his wife as a witness, and the Tribunal has little real insight into the current state of the relationship.

1. The Tribunal has no medical evidence before it of a PTSD or other mental health diagnosis; or any proper assessment of substance abuse; or details of the applicant’s consultations with any psychiatrist, psychologist or other health professionals. The terms of the ICO and the ADVO; the applicant’s completion of the ICO course; and his references to having participated in some form of counselling are consistent with such issues having contributed to the offending, but the Tribunal is unable to be more specific (including on whether he suffers from PTSD linked with any specific experiences in Fiji). It notes, however, that the Court – in sentencing him to 14 months imprisonment, to be served in the community under an ICO – had information to hand about the contributory factors, and reflected these in the sentence.

2. The Tribunal places weight on the fact that the offending occurred on three separate occasions, which appear to have involved impulsive or reckless criminal conduct, linked to drinking. On the available information, the Tribunal places some weight on this consideration in favour of cancelling the Bridging A visa.

   Past and present behaviour of the visa holder towards the department

3. The Tribunal has no adverse information about the applicant’s behaviour towards the Department.

   Whether there would be consequential cancellations under s 140

4. The applicant’s spouse is in Australia and has lodged a separate protection visa application. The visa cancellation would not result in the cancellation of her Bridging A visa, or have any other consequences.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

5. The applicant confirmed that, following the cancellation of his last Bridging A visa on 23 September 2021, he has been unlawful. As such, he has been liable to detention, although removal from Australia would not have been possible while he has an ongoing protection visa application.

6. The Tribunal has little insight as to what has occurred between 23 September 2021 and the present, some ten months when he has in fact been liable to be detained.

   §  At hearing, the applicant said that his previous representatives had focused on the Bridging A visa cancellation. He appeared vague when asked whether he had approached the Department, or considered or applied for a Bridging E visa, to at least regularise his migration status. At one point, he said that he had only recently become aware of that option. At another point, he said that he thought his previous representatives had applied for a Bridging E visa on his behalf some time earlier.

   §  The Tribunal is unable to form any view, on the limited available evidence, as to whether the applicant and/or his representative actively considered steps to obtain a bridging visa; whether the Department knew his whereabouts and circumstances; and/or whether the Department considered enforcement action.

7. The Tribunal accepts that the visa cancellation would result in the applicant being unlawful and liable to detention. He would be eligible to apply for a Bridging E visa. The Tribunal is unable to speculate as to the likelihood of such a visa grant (in particular, whether he would meet all the criteria such as compliance with visa conditions). In the event that the Department detained the applicant, the Tribunal expects that would lead to the expedited processing of his protection visa application (which is at the AAT for merits review), and that any period of detention would be limited.

8. Section 48 statutory bar: Under s 48(1)(b)(ii) of the Act, applicants who have had their visas cancelled since their last entry into Australia may only make a valid visa application for the classes of visas which have been prescribed by reg 2.12 of the Migration Regulations. These include partner, protection and bridging visas, among others. In the present case, the applicant has an ongoing protection visa application. There is nothing to suggest that he plans to make a valid application for any other visa.

9. Public Interest Criterion 4013: PIC 4013(2) states that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 [and other sections of the Act] […] (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(oa) [and other sub-regulations…] applied to the person. PIC 4013(1) states that a person affected by this risk factor can be granted a visa only if the visa application is made more than three years after the visa cancellation; or the visa grant is justified within three years on the basis that the Minister is satisfied there are compelling circumstances that affect the interests of Australia, or compassionate and compelling circumstances that affect the interest of an Australian citizen […]. This applies to a number of temporary visas, but not protection visas. As noted above, it would not affect his ability to apply for a Bridging E visa, if he were detained.

10. The Tribunal places small weight on this factor against cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)[4]

    [4] The Tribunal has decided to first consider the legal consequences of cancellation, as these will play a key role in determining what other financial, psychological, emotional or other hardships may flow from cancellation.

11. The applicant has indicated that the visa cancellation would cause him and his family hardship, including financial pressures and perhaps emotional tensions.

    §  He said that, since September 2021, he has been unemployed, and merely doing some bottle collections for recycling. He intimated that there were both financial and psychological effects from not being allowed to work.

    §  His wife is working at [a Workplace] in [Suburb 3], and has the burden of meeting the family’s expenses. (His account of the domestic violence in 2021 suggested that financial issues were one source of friction within the relationship.)

    §  The applicant said that his daughter is studying at university in Fiji; his son is in high school; and his mother has retired. They depend on remittances from Australia; and his wife is now shouldering that financial burden.

12. The Tribunal accepts that the Bridging A visa cancellation would cause the applicant and his family some financial and emotional hardship, in that he would not have permission to work or access to Medicare and other services; that he would be liable to detention; and that it may cause some tension in his relationship with his wife. However, there is very little information about the family’s finances, the applicant’s health needs or other circumstances, to help gauge the degree of hardship that would ensue.

13. The Tribunal places some small weight on this consideration against cancelling the visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

14. The cancellation of the applicant’s Bridging A visa will not lead to his removal from Australia, as he has an ongoing protection visa application. Australia’s non-refoulement obligations therefore do not arise.

15. As noted above, the applicant’s family are already separated, with his wife in Australia, and his two children, a [Age 2] year old daughter and a [Age 3] year old son, studying in Fiji. As the visa cancellation would not result in the applicant’s removal from Australia, it would have no impact on the location of the family members, or undermine the principle of family unity.

16. The applicant pointed out that his relatives in Fiji – including his [Age 3] year old son – rely on funds he and his wife send them. At face value, it would appear that the best interest of the son is in the visa not being cancelled, so that the applicant has permission to work and scope to send more money to him. However, there is little information about the applicant’s past financial support for his son, the current arrangements or what other options there might be. The Tribunal accepts that it is in the son’s best interest for the visa not to be cancelled (that is, that the applicant continue to hold a Bridging A visa with work rights). However, on the limited available evidence it finds that this interest is marginal, and it places little weight on it as a factor against cancelling the Bridging A visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

17. As the Bridging A visa is not a permanent visa, his is not a relevant consideration.

    Any other relevant matters

18. The applicant stated that he has followed the terms of the ADVO and the ICO, completed the ENGAGE course and engaged with health care professionals (at least while holding a Medicare card). He impressed on the Tribunal that he has resumed living with his wife, and that the cancelation of the Bridging A visa would be detrimental to family harmony as well as his children’s and mother’s material wellbeing. The applicant did not present any witnesses, and gave few details. The Tribunal accepts for the purpose of this decision that the applicant is complying with Australian law and seeking to address the factors that led to his past offending. However, compliance with Australian law and community standards are minimum expectations of non-citizens. The Tribunal therefore places neutral weight on these factors.

    Summary

19. The Tribunal has considered the totality of the applicant’s circumstances. It finds that there are grounds for cancelling the visa because the applicant has been convicted of offences while holding a Bridging A visa.

20. Taking the best interests of the child as a primary consideration, the Tribunal accepts that it would be in the [Age 3]-year old son’s best interest for the visa not to be cancelled. However, there is very little information about the extent of the son’s reliance on the applicant’s past financial support, current arrangements, or the availability of other funds. The Tribunal therefore places minimal weight on this factor against cancelling the visa. The Tribunal also accepts that the visa cancellation leaves the applicant liable to be detained, at least until his protection visa application is finally determined, although he may be eligible for a Bridging E visa. This may involve some hardship for the applicant, including in terms of his capacity to earn money and support family members, and psychologically.

21. The Tribunal places greater weight on the circumstances in which grounds for cancellation arose, namely the applicant’s convictions for offences committed on three separate occasions, in 2019, 2020 and 2021, and the limited, inconclusive evidence as to whether the underlying causes have been resolved. The Tribunal concludes that the factors in favour of cancelling the visa outweigh those against.

    Conclusion

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

    decision

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

    James Silva
    Member