2116957 (Migration)

[2022] AATA 1919

2116957 (Migration) [2022] AATA 1919 (18 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2116957

MEMBER:Deputy President Justin Owen

DATE:18 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 18 May 2022 at 10:53am

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of multiple criminal offences – period of unlawful residence – employment in Australia – financial hardship – significant criminal history – recidivism – best interests of the applicant’s child – risk to the community – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, 2.43

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s. 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s. 116(1)(g) reg. 2.43(1)(oa) on the basis that the applicant had been convicted of an offence against a law of the Commonwealth, State or Territory (whether or not the applicant held the visa at the time of the conviction and regardless of the penalty imposed (if any)). The applicant was convicted of ten separate offences in 2020, including assault occasioning actual bodily harm – T2, Apprehended Violence Order (AVO) and driving with high range PCA. The applicant was furthermore charged with five other offences including using carriage service to procure under 16 years for sexual activity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B].

4. 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

5. 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.

   Background to this review

6. The applicant is [an age]-year old Papua New Guinea (PNG) national. 

7. As outlined in the delegate’s decision record the applicant provided to the Tribunal, the applicant first arrived in Australia on a Tourist visa [in] July 2016 before departing [in] August 2016. The applicant explained that he came to Australia at this time as [an Occupation 1] as part of a [group] representing PNG. 

8. He returned to Australia [in] May 2018 on a further Tourist visa and has remained since this time.  The applicant explained that he liked Australia, and his wife and family in PNG required his financial support.  The applicant’s Tourist visa expired in 2018 whereby he became unlawful.  Following a period of about three months as an unlawful non-citizen, the applicant lodged a protection (subclass 866) visa application with the Department and was subsequently granted a Bridging C (subclass 030) visa in association with the application. The applicant explained at the Tribunal’s hearing that after acquiring a Bridging visa with work rights, he commenced employment in [Industry 1] in order to provide his wife and family in PNG with financial support.   

9. On 23 July 2019 the delegate refused the applicant’s protection visa application.  The applicant lodged an application for review of the refusal with the Tribunal on 1 August 2019.  The applicant informed the Tribunal at hearing that he is still awaiting the review of his Protection visa application at the Tribunal.

10. The applicant was charged and convicted of ten separate offences in 2020, appearing before the Court on [specified dates in] 2020. 

11. [In] August 2021 the applicant was charged by the NSW Police with a number of offences, including using a carriage service to procure under 16 years for sexual activity and using a carriage service to solicit child abuse material. The applicant was remanded in custody with bail refused.  At the Tribunal’s hearing the applicant explained he had been remanded in custody at [three different correctional facilities].  The applicant explained at the hearing that he had obtained bail in early 2022 at the [Court] but remained in custody for a significant period of time before he was finally released from the criminal justice system before being placed in immigration detention where he remains today. 

12. The applicant explained at the hearing that he was due to enter a plea in relation to his charges [from] August 2021 imminently. 

    Section 376 Certificate

13. At the conclusion of the hearing the Tribunal noted to the applicant that a certificate had been issued by the delegate under s. 376 of the Act.  A copy of the certificate was provided to the applicant.  The Tribunal notified the applicant that the certificate certified that disclosure of a number of folios in the Departmental file would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases, which would or would be likely to prejudice the effectiveness of those methods. 

14. The certificate purportedly covered four separate groups of documents:

    The ISS referral including Statement of Facts;

    NSWPOL information re offences;

    Citizenship Eligibility Request; and

    NSWPOL response re next Court hearing.

15. The Tribunal stated it considered the certificate to be valid.  The Tribunal noted its discretion to release the folios to the applicant.  The Tribunal provided the applicant with the NSWPOL information re offences, which were the same NSW Police Fact Sheets the applicant had supplied the Tribunal as well as some Court attendance information.  The Tribunal declined to release the remaining folios. 

16. The applicant was invited to make submissions on the validity of the certificate and why all the folios should be released.  No specific submissions as to the validity of the certificate were made.

17. The Tribunal stated at hearing that it wished to let the applicant know the ‘gist’ of the information that was subject to the s. 376 certificate.  The Tribunal explained the material consisted of a referral from the NSW Police Force to Australian Border Force’s (ABF) Immigration Status Service regarding the applicant’s charges in August 2021 of using a carriage service to procure a child under 16 years of age for sexual activity; and a charge of using a carriage service to solicit child abuse material. 

18. The Tribunal explained the certificate also certified procedural correspondence between the ABF, NSW Police and the Immigration and Settlement Services Group of the Department of Home Affairs concerning other charges and his case being referred to the Department of Home Affairs cancellations team. 

19. The Tribunal explained the certificate further certified Court Attendance Notices and the NSW Police Facts Sheet of [date] August 2021 – that it released to the applicant at the hearing – as well as the Department of Home Affairs’ Citizenship Assessment Tool for a person born outside of Australia and the form the applicant had filled out providing particulars for assessment for citizenship on 12 September 2021.  The Tribunal noted to the applicant that there was also correspondence between the NSW Police and Home Affairs and ABF concerning the applicant’s next court hearings concerning the charges [of] August 2021.         

    Does the ground for cancellation exist?

20. 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 reg. 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg. 2.43(oa) is relevant.

21. At the hearing the Tribunal noted that the decision record the applicant supplied, stated that the applicant had acknowledged in his NOICC response that the grounds for cancellation of his visa existed.  The Tribunal discussed at the hearing with the applicant his criminal convictions from 2020.  He acknowledged the convictions, and agreed that they were grounds for the cancellation of his visa.  

22. The applicant has been convicted of multiple offences against the laws of the State of New South Wales. He also has criminal charges pending before the Court. 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 evidence before the Tribunal indicates that the applicant first arrived in Australia [in] July 2016 as the holder of a Tourist visa.  After departing Australia, the applicant arrived again [in] May 2018 on a further Tourist visa.  The applicant’s Tourist visa expired whilst he remained in Australia and the applicant became an unlawful non-citizen for three months, after which he lodged a Protection (subclass 866) visa application on 2 November 2018.  The applicant was granted a Bridging C (subclass 030) visa in association with this application.  This visa is the subject of this review. 

25. The applicant informed the Tribunal that his Protection visa application was refused by the delegate.  On 1 August 2019 the applicant lodged an application for review of the refusal of his Protection visa application with the Tribunal.  That application remains with the Tribunal for future review and has not currently been constituted to a Member. 

26. At the hearing the applicant stated that he had originally travelled to Australia on a Tourist visa [for professional reasons].  He claimed to have been unaware when his Tourist visa expired.  The applicant stated at the Tribunal’s hearing that he was then advised by [his] lawyers to apply for a Protection visa. 

27. The applicant stated that he commenced working in order to send money back to his wife and family in PNG after he was granted a Bridging visa in association with his Protection visa application of November 2018.  The applicant discussed the challenges of finding gainful employment in PNG and the importance of his employment in Australia that helped support his wife and daughter.

28. The Tribunal accepts that the applicant is providing his wife and daughter in PNG, from time to time, with financial support.  The Tribunal notes however that the applicant has not applied for an employment visa.  If his purpose to travel to and remain in Australia is to earn an ongoing income either through his employment in [Industry 1] or through [his profession], then the applicant should apply for the appropriate visa through the relevant immigration channels.  The Tribunal does not consider the applicant’s employment in Australia is a compelling need that means he should remain in Australia.    

29. The Tribunal notes that the applicant has an outstanding Protection visa review.  The applicant provided a brief summary of his claims for Protection, claiming there was trouble with the land boundaries in his village and dangerous conflict within his family.  Whilst the applicant’s application for a Protection visa was refused by the delegate, the matter remains with the Tribunal for review.  The Tribunal notes that should the applicant’s Bridging Visa A be cancelled; the applicant may remain in detention in Australia pending the finalisation of his Protection review by the Tribunal.

30. Given the applicant’s Protection visa application has yet to be considered by the Tribunal under review, and his Bridging visa was granted in association with this Protection application, the Tribunal considers the applicant has a compelling need to remain in Australia on this basis.  The Tribunal considers the applicant is currently meeting the purpose for which he was granted a Bridging visa in November 2018.   

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

    The extent of compliance with visa conditions

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

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

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

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

35. The applicant discussed his employment in Australia and the issue of financial hardship.  The applicant stated he was earning around $1,000 per week whilst in the local [Industry 1].  The applicant stated he had entered the workforce after he had been granted work rights on his Bridging visa.  The applicant discussed how he worked five to six days a week and had a commitment to his employment.  At the time his visa was cancelled he was working for [Employer 1] as a permanent and valued employee, having been working at the business for a significant time and paying his taxes. 

36. The applicant also submitted correspondence dated 3 February 2022 from [Employer 2], a [specified] business in [Town 1].  The Manager of the business, [named], states that the applicant will be employed by [Employer 2] on a full-time basis after he is released from detention.  The applicant at the Tribunal’s hearing stated that he had applied for the role prior to being taken into custody.  He stated the business remained keen for him to join their business. 

37. The Tribunal accepts that the applicant has been a solid and reliable employee.  The Tribunal accepts that he has a strong worth ethic and is valued by his employer.  The Tribunal is prepared to accept the applicant’s claim that [Employer 2] has offered him ongoing employment once he is out of detention.  The Tribunal notes however that the Bridging visa is not an employment visa.  A Bridging visa C will not usually have work rights attached to it, and will often only be added when the applicant shows a compelling need to work.  The Tribunal accepts there will be a degree of financial hardship for the applicant if his Bridging visa remains cancelled and he is unable to seek employment and take up his job offer. 

38. The Tribunal nevertheless notes that the applicant has obtained through his employment in Australia a range of skills in [Industry 1].  At his hearing the Tribunal asked the applicant if those skills could not be utilised if he returned to PNG.  The applicant stated the local PNG industry was essentially a “closed shop” and there were very little opportunities available for someone like himself.  He claimed there were no jobs available.  The applicant’s wife, [Ms C] has also claimed in her correspondence that there are few job opportunities in PNG.  The Tribunal does not accept the veracity of such a claim in the absence of any corroborative evidence and considers it purely speculative.  The Tribunal is not satisfied the applicant, with his skill-set and experience (he also stated he could possibly seek employment in [a specified industry]), will be unable to seek gainful employment in PNG and mitigate any financial hardship he may face through the cancellation of his Bridging visa C. 

39. The Tribunal has considered hardship that might be caused to the applicant’s family. The applicant, when explaining the hardship caused to his family by the cancellation of his visa, stated the hardship was financial, educational and medical.  Correspondence was submitted by the applicant from his wife, [Ms C] dated 12 April 2022.  At the Tribunal’s hearing, attempts were made to contact [Ms C] in PNG by telephone at the applicant’s request as a witness.  The calls were unsuccessful as the telephone number provided was uncontactable.  In the correspondence submitted to the Tribunal, [Ms C] stated she and her children are living in Port Moresby and have been relying on the RA financially since he arrived in Australia.  [Ms C] stated that she and the applicant had had [a number of children together]. [Ms C] wrote that [one] child was adopted [and had] passed away.  [Ms C] has raised the financial hardship that would be caused by the cancellation of the applicant’s visa.

40. [Ms C] claimed that the incarceration of the applicant had had a devastating impact upon their family.  She claimed that due to the applicant being “in jail last year, we can’t be able to get any benefits as we have no money for food and our basic needs even with medical which is difficult because of no money. We lost our [child in] 2021 because she was fed on milk which we don’t have money to pay for milk and she died”. [Ms C] states that she could not obtain any assistance for a formal burial so buried their [child] at the front of their house.  [Ms C] claims their daughter is malnourished and the applicant is the only one supporting both herself and their daughter.  She states it is difficult to survive living in a settlement without work and money.  The applicant has provided some limited and largely undated evidence of transfers of monies to [Ms C].  Despite the relative lack of corroborative evidence, for the purposes of this review, the Tribunal accepts the applicant has provided ongoing financial support to his wife and daughter. 

41. The Tribunal accepts that [Ms C] will face increased financial hardship due to the cancellation of the applicant’s visa.  The Tribunal sympathises with [Ms C] whose correspondence outlines the hardship she and her daughter face in PNG. The Tribunal acknowledges that the inability of the applicant to continue transferring monies via electronic transfer to [Ms C] may have an adverse impact upon [Ms C] and her daughter: he claims that when he was working, he was sending around $250AUD to his wife each week.  The Tribunal acknowledges the relative lack of a social welfare system in PNG compared to Australia, and accepts the challenges [Ms C] faces.  The Tribunal notes however that should the applicant return to PNG, he may be able to seek gainful employment and support his wife and daughter directly.          

1. The applicant in his oral testimony at the Tribunal’s hearing stated he provided support to his [family members].  He said that he had [specified] siblings who had gone to university and were self-sufficient.  His three younger siblings however concerned him, and he stated they had not gone to school until he had provided money for their various tuition and school needs.  There is no corroborative evidence of the applicant’s support to his younger siblings.  The Tribunal nevertheless is prepared to accept that he has provided some financial assistance to them from time to time.

2. The applicant also claimed hardship in relation to his own safety should his visa be cancelled, and he ultimately return to PNG.  His wife [Ms C] stated in her correspondence that the applicant is head of the tribe, clan and the family. She writes that she has witnessed tribal fighting over land boundaries and has seen the applicant be attacked over this land. She states that she has “heard rumours about him [the applicant] if he come back to Papua New Guinea, is not suitable for him to survive”.The applicant discussed his concerns regarding various family members in relation to disputes over family or clan land.The Tribunal notes his claim, which he stated is the basis of his Protection visa application that is currently before the Tribunal.  There is no evidence before the Tribunal to corroborate the applicant’s claims of conflict over land boundaries.  The Tribunal notes the applicant will be able to expand upon such claims in his Protection visa application review. 

3. The Tribunal has also considered the specific hardship that may be caused to the applicant given he has an outstanding Protection visa review application, should his Bridging visa C be cancelled.  The Tribunal notes however that should the applicant’s Bridging visa C be cancelled, he will be able to remain in Australia to allow the review and finalisation of his of Protection application by the Tribunal. The Tribunal notes that the applicant will be able to continue his participation in the review concerning the refusal of his Protection application whilst in immigration detention. The Tribunal considers any hardship caused by the cancellation of his Bridging visa C to the applicant in relation to his Protection visa review, and the claims he wishes to make as part of that review, to be limited.

4. The applicant’s witnesses at the Tribunal’s hearing, [Witness B] and [Witness A], both attested to the hardship the applicant would face should his visa be cancelled.  [Witness A] stated he knew the applicant through [his profession].  He attested to the role the hardship the applicant faced during lockdown, and the important role the applicant played in providing leadership and organisation to other [Occupation 1] that travelled to [represent] PNG.  He stated the applicant’s behaviour that led to his convictions and charges was out of character, and stated that the applicant played an important role looking after his family back in PNG.

5. [Witness B] is a well-known promoter [for his profession], as well as a [prominent Occupation 1] in his own right.  He stated he had known the applicant for around five years.  He praised the applicant’s work ethic, reliability, and his commitment to his family in PNG.  He stated the applicant had helped build the reputation of his business.  [Witness B] spoke about the applicant’s support of his family and wife in PNG.

6. The Tribunal found [Witness B] and [Witness A] to be reliable witnesses and accepts their oral testimony that the applicant is a talented and experienced [Occupation 1]; he has made a contribution to [their industry] in his support for PNG [Occupation 1s] travelling to Australia; he has supported his wife and family financially; and is a loyal and reliable employee and friend.  The Tribunal has taken their evidence into account and given it some weight in the applicant’s favour. 

7. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia.  The Tribunal however considers the hardship that will be caused to the applicant should his visa be cancelled, to be limited.  The Tribunal notes that the applicant will also be able to see his wife and child who are living in PNG.  The Tribunal acknowledges the increased hardship the applicant’s wife and child may face should the applicant no longer be working in the Australian workforce.  The Tribunal nevertheless notes the applicant will be able to seek employment when he returns to PNG and provide his immediate family with financial support.  The Tribunal also again notes that the applicant will still be able to participate in and finalise his Protection visa application should his Bridging visa C be cancelled.

8. The Tribunal has considered the hardship that may be caused by the cancellation of the applicant’s visa.  The Tribunal is not ultimately satisfied there will be any significant hardship to the applicant.  In relation to his family, in particular his wife and child, the Tribunal does accept there may be some financial hardship they will face. This hardship may be exacerbated should he be detained further in relation to the criminal charges he is currently facing.  The Tribunal nevertheless considers this hardship can be mitigated when the applicant returns to PNG and seeks gainful employment.    

9. In relation to the degree of hardship that may be caused, the Tribunal weighs this factor against cancelling the visa.   

   The circumstances in which the ground for cancellation arose

10. The cancellation arose from the charging and conviction of the applicant of a number of criminal offences in the State of New South Wales.  The convictions are ten separate offences in 2020, including assault occasioning actual bodily harm – T2, Apprehended Violence Order (AVO) and driving with high range PCA. The applicant was furthermore charged in August 2021 with five other offences including using carriage service to procure under 16 years for sexual activity.

11. The Tribunal discussed the applicant’s 2020 convictions at the hearing. 

12. [In] February 2020, the applicant was convicted of driving a vehicle despite never having been licenced; using an unregistered vehicle on the road; and using an uninsured motor vehicle. In response to the Tribunal’s questions, the applicant replied he could not remember whether he pleaded guilty to the charges.  He stated that his friends had taken his motor vehicle and he had simply tried to drive the vehicle back to his home. 

13. [In] June 2020 the applicant was convicted of a further five driving-related charges including two separate charges of driving with high-range PCA; using an uninsured motor vehicle; driving a motor vehicle whilst disqualified; and using an unregistered Class A vehicle on the road.  The applicant admitted to the charges.  He explained that it had been “the same thing” as his earlier driving convictions, stating his friends had come to his house, an excessive amount of alcohol had been consumed, and his friends had taken his motor vehicle.  The applicant claimed he had merely tried to retrieve his motor vehicle but again had been intercepted by the Police whilst with the vehicle. 

14. The Tribunal asked the applicant as to why he had multiple drink-driving offences.  The Tribunal also notes the multiple convictions for driving whilst uninsured, unlicensed and unqualified.  The applicant at the Tribunal’s hearing stated that his motor vehicle was like a child to him, and he felt a need to immediately retrieve his vehicle after it was taken by his friends. 

15. The Tribunal considers many of these driving convictions to be serious breaches of the law and symptomatic of a contempt for the laws of New South Wales.  Little remorse was shown for the offences at the hearing, rather the applicant appeared to consider his actions justified.  The Tribunal harbours considerable doubts as to whether the applicant’s motor vehicle was ever taken by friends as he claims, and considers the more likely explanation is that the applicant simply took multiple opportunities to drive his vehicle himself despite it being uninsured, himself unlicensed, and his engaging in the consumption of excessive amounts of alcohol before getting behind the wheel of his vehicle.  The fact that the applicant is a repeat offender in relation to his motor vehicle offences, especially in relation to high-range PCA, is a particular concern.

16. In the State of New South Wales, a high-range PCA is where a driver has a blood alcohol concentration (BAC) of over 0.15: three-times the legal driving limit.  Twice in a number of months the applicant has driven his motor vehicle on public streets despite being essentially inebriated.  The Tribunal does not accept his explanation as to why he got behind the wheel of his car and considers the explanation implausible and an attempt to avoid responsibility for his own actions.  In the Tribunal’s opinion, the applicant’s actions are indicative of a blatant disregard for both the laws of New South Wales and the safety of his fellow road users.  The carnage which is witnessed on the roads due to the selfish actions of inebriated and reckless drivers is well known to all citizens.  To compound this situation, by travelling in an uninsured and unregistered vehicle whilst unlicensed exacerbates an already deplorable situation. 

17. The Tribunal discussed with the applicant his convictions [of] September 2020 for assault occasioning actual bodily harm – T2 and an Apprehended Violence Order (AVO) where conditions were imposed that he was not to:  a) Assault or threaten a named woman; b) stalk, harass or intimidate the named woman; and c) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the named woman or anyone she had a domestic relationship with.  The Order was put in place [until] August 2022.

18. The applicant explained that the convictions were the result of an unfortunate set of circumstances at his residence.  He stated that he had been hosting a party that the named woman, who he did not know, attended as the guest of one of his friends.  He claimed his friend and the named woman twice had sexual intercourse in his bedroom on his bed which upset him.  He stated he evicted them from his room.  He claimed his friend and the named woman had sexual intercourse a third time where his wardrobe door was broken.  The applicant claimed that his friend and the named woman then retired to his bathroom where they had sexual intercourse a fourth time.  The applicant claimed he subsequently threw the named woman and his friend out of the bathroom, which was needed by guests.  He conceded that he slapped the parties, which led to the named woman contacting the NSW Police. 

19. The applicant stated that the Police said to him that he should stop drinking alcohol.  The applicant stated he received bail and went to Court where he pleaded guilty.  The applicant stated he had a Legal Aid lawyer.  The Tribunal asked the applicant if he had done anything to address his alcohol consumption.  The applicant replied that the COVID-19 lockdown had increased stress and had led to the drinking of more alcohol. 

20. The applicant stated he had not had any further adverse interactions in relation to the AVO, which remains in place for another several months.  The applicant stated his sentence for the assault conviction, which was an [number]-month Community Correction Order (CCO) supervised by the Community Corrections Service, had concluded [in] February 2022. 

21. The Tribunal considers the convictions [of] September 2020 for assault and the imposition of an AVO to be serious.  The Tribunal is dubious as to the applicant’s explanation for the assault and the AVO, namely a friend and his girlfriend were having sexual intercourse in his apartment and that was upsetting him.  The applicant stated at the hearing that his assault conviction related only to the named woman, a situation the Tribunal finds surprising given his claim that he had essentially thrown both his friend and the named woman out of his party.   

22. Alcohol clearly plays a role in the applicant’s anti-social behaviour.  The Tribunal, whilst recognising the COVID-19 pandemic has had a detrimental effect on accessing support, is not satisfied that the applicant has done anything meaningful to address this issue.  The applicant did not, in the Tribunal’s opinion, demonstrate any responsibility or contrition for his convictions, rather he attempted to justify his behaviour and sheet the blame home for each conviction to unfortunate circumstance. 

23. The Tribunal considers the applicant has been convicted of a number of serious offences.   He has illustrated a propensity to break the law and an ongoing disregard both for the laws of New South Wales and the safety of the community. In relation to his eight driving convictions, his recidivism as a high-range drink driver is of enormous concern and makes him a danger to both the community and himself.  Anyone doubting the danger of high-range PCA to the community is advised to visit a Brain Injury Centre of any major public hospital to witness the carnage such actions can cause innocent citizens going about their business.  His convictions for driving whilst disqualified, never licenced, and driving uninsured and unregistered vehicles are symptomatic of a broader disregard for the law.  The Tribunal does not excuse such actions on the consumption of alcohol, particularly where repeat behaviour is being demonstrated.  The applicant, on the basis of his evidence to the Tribunal, is not an unintelligent man.  He is an articulate individual with a demonstrated work ethic.  He has the ability to take responsibility for his actions.  He has broken the law on multiple occasions with a range of serious offences, put the lives of citizens at risk, and has engaged in violent and anti-social behaviour.     

24. The applicant appears to have an issue with self-control. At the time of decision, he is facing further serious criminal charges including using a carriage service to procure someone under the age of 16 years of age for sexual activity as well as further motor vehicle offences.   

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

    Past and present behaviour of the visa holder towards the Department

26. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided states the applicant responded to the NOICC and has actively engaged in the cancellation consideration process. 

27. The Tribunal notes that the applicant was however unlawful for a period of three months prior to the lodgement of his Protection visa application.  He claimed at the Tribunal’s hearing that this was due to his lack of awareness that his Tourist visa had expired.  Whilst the Tribunal considers it plausible the applicant was unaware; the Tribunal nevertheless notes that an applicant has an obligation to ensure they remain aware of their migration status and their legal obligations. 

28. On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

    Whether there would be consequential cancellations under s. 140

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

    Mandatory legal consequences of a decision to cancel the visa

30. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s. 189 and removal under s. 198 of the Migration Act if he does not voluntarily depart Australia.  The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled.  The applicant will also be subject to a s. 48 bar which will limit his options in applying for further visas in Australia.  Depending on the visa type for which he may apply in the future, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. 

31. The Tribunal notes that the applicant currently has an application for review before the Tribunal in relation to his refused Protection visa application. He is in immigration detention after receiving bail in the [Court] in relation to a number of criminal charges he is currently facing.   Should the applicant’s Bridging visa C be cancelled, and depending on the outcome of his current criminal charges before the Court, the applicant may be able to apply for a Bridging visa E that may allow the applicant to remain in Australia in the community until his Protection review is finalised by the Tribunal.  The legal consequence of the cancellation specific to the applicant is that he is likely to remain in immigration detention upon cancellation, unless another visa – the Bridging visa E which allows him to stay for, or pending the resolution of his Protection review before the Tribunal – is granted. Otherwise the applicant is most likely to remain in immigration detention whilst the review of his refused Protection visa application is undertaken by the Tribunal. The applicant of course may also potentially be returned to incarceration in the criminal justice system should he be convicted of his current pending charges.   On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

    International obligations – non-refoulement

32. At the Tribunal hearing the applicant spoke about his fear of returning to PNG and the dangers he faced should he return.  The applicant stated these are the same issues he has raised in his Protection visa application.  The applicant stated that he has concerns over tribal fights over land boundaries in his village.  He stated that his uncle wanted the land that he had inherited as the oldest son of his late father.  He previously argued that two years after the death of his father he was attacked by his uncle with a knife.  The applicant has submitted that he wants to remain in Australia until some of the older family members have died and he can then return and distribute land to his younger brothers and other family members.  The Tribunal asked the applicant if he had any evidence to support his assertions.  The applicant in response discussed at the Tribunal’s hearing the impact of sorcery which has led to the conflict.  No corroborative evidence as such has been provided to support his assertions.     

33. As outlined in the decision record the applicant previously supplied the Tribunal, the applicant lodged a Protection (subclass 866) visa application on 2 November 2018 seeking protection from PNG.  On 23 July 2019, the applicant was found not to be a refugee by the delegate.  The applicant subsequently appealed to the Tribunal.  At the time of decision that matter is still before the Tribunal. 

34. The cancellation of the applicant’s Bridging visa C would not prevent the applicant from awaiting the outcome of his Protection visa review currently before the Tribunal.  The Tribunal notes that his eligibility for Protection is a review and assessment by the Tribunal that is separate to this review pertaining to the applicant’s current Bridging visa. The applicant’s submissions concerning his need for Protection, and his fears of returning to PNG, will be considered as part of this review.  The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

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

1. The evidence indicates that the applicant has a child. The applicant confirmed that his child resides with her mother, his wife, in PNG.  Given these facts, the cancellation of the applicant’s visa will not result in either a separation of the family unit nor the separation of the children from either parent given the family unit has already been separated.  The Tribunal weighs this factor neither in favour nor against cancelling the visa.      

   Any other relevant matters

2. At the time of the delegate’s decision cancelling his visa, the applicant had been charged with a further five offences. As outlined in the delegate’s decision the applicant provided the Tribunal, [in] August 2021 the applicant was charged with:

   ·     Using carriage service to procure under 16 years for sexual activity;

   ·     Use carriage service to solicit child abuse material;

   ·     Drive motor vehicle during disqualification period – 2nd offence;

   ·     Not having an approved Interlock device installed; and

   ·     Not complying with a COVID-19 direction.

3. The Tribunal noted that the charges he was facing were matters for the criminal justice system, not the Tribunal, and those matters would be determined by the Court.  The Tribunal warned the applicant that it nevertheless was going to ask him some questions in relation to the charges on the basis they were relevant to the grounds for the cancellation of his visa.  The Tribunal warned the applicant that it would be writing a decision record.  The Tribunal informed the applicant that he did not have to answer any questions concerning his criminal charges on the grounds that anything he said may incriminate him in relation to those charges.  The Tribunal asked the applicant if he had a lawyer in relation to his charges.  He said that he did.  The Tribunal enquired of the applicant if he wished to talk to his lawyer about self-incrimination.  The applicant said he had discussed the Tribunal hearing with his lawyer for advice prior to the hearing.  The Tribunal repeatedly informed the applicant he did not need to answer any questions about his current charges if he did not wish to. The Tribunal is satisfied the applicant was adequately warned about self-incrimination in relation to his charges. 

4. The Tribunal discussed the charges with the applicant.  The applicant informed the Tribunal that the charge “use carriage service to solicit child abuse material” had been withdrawn by the prosecution.  The Tribunal accepts the applicant’s claim and draws no adverse inference from the charge. 

5. In relation to the charge “Use carriage service to procure under 16 years for sexual activity”, the applicant stated he would be entering a plea in about a week or so. The applicant had supplied the Tribunal with the Police Facts sheet in relation to the charges.  The applicant discussed the circumstances that led to the charge and responded to a number of the Tribunal’s questions.  He stated that he had obtained a new mobile telephone and downloaded social media to connect with his family in PNG.  He stated he downloaded a range of communication apps including WhatsApp, Facebook and Messenger.  He stated he almost immediately received lots of messages and gave his details to lots of people that contacted him.  The applicant agreed [in] July 2021 he had a conversation with someone that identified themselves as [under] age and a girl.  He agreed that he had told the person he was [age] years of age and from PNG.  He agreed he had asked for photographs from them and asked them to travel by train.  The applicant agreed that on [date] July 2021 he had talked to the person again via chat and asked them to come to his residence.  He said he had asked for photographs from them but only to clarify who he was communicating with. 

6. The applicant did not agree that the conversation with the person on the chat was sexualised or that he had asked them for sex.  He denied contacting them by telephone and engaging in a sexually explicit conversation with them or making arrangements to meet them at a later date for sexual activity. 

7. The applicant agreed that he had asked the person with whom he was corresponding to be his girlfriend and said it was she who suggested meeting on [date] August 2021.  He stated he had agreed to meet at an address in [Suburb 1].  When he arrived, he messaged the person and two Police officers arrested him.  He expressed his shock and stated that he never believed the person he was communicating with was [under] age as he didn’t think “little kids” would do that.  He stated he always believed he was meeting an adult woman.  In response to how he would actually plea, the applicant stated he would be consulting with his lawyer before entering a final plea as to the charges.   

8. The applicant stated he was very stressed by the experience after his arrest and couldn’t remember everything.  He stated he was locked up before going before the Court where bail was refused.  He remained incarcerated at variously [three named] gaols before finally achieving bail in the [Court] in February 2022. He states he nevertheless remained in custody until being released and immediately moved to [a named detention centre] in March 2022. 

9. On 5 May 2022 the Tribunal received information from the delegate pertaining to his existing criminal charges.  The information was covered by a s. 375A non-disclosure certificate.  On 6 May 2022 the Tribunal wrote to the applicant stating a s. 375A non-disclosure certificate was placed on the relevant folios restricting the Tribunal from disclosing the information on the basis that discourse would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of a confidential source of information; and where the information was provided in confidence, the provider had not consented to the disclosure of the information to the applicant.  The Tribunal invited the applicant to make submissions as to the validity of the certificate.

10. The Tribunal provided the gist of the information to the applicant, stating that the information from the NSW Police claimed he would be pleading guilty to the charges currently before the Court.  The Tribunal explained the relevance of the information and the consequences of the Tribunal relying upon it.  The applicant was invited to comment on or respond by 13 May 2022.

11. The applicant responded on 12 May 2022.  The applicant stated the charges were due to a “misunderstanding on social media”.  The applicant stated he regretted what had happened, realised it should not have happened and it was not in his personality.  The applicant stated prior to the events occurring he was stressed because of the COVID-19 lockdown and he had been laid off from his job, meaning he was getting many requests for money from both family and in relation to bills for matters such as rent. 

12. The applicant claimed he had the problem of “losing his mind” for at least 15-30 minutes when in stress which started in late 2019 when he was locked down and not working, which led to him drinking excessively.  The applicant stated he regretted the events [of] August 2021 and stated he would “never do that again” and pledged to follow and abide by the law. 

13. The applicant explained that his driving charges and the charge for breaching a COVID-19 Public Health Order were due to the fact he was driving on [date] August 2021 when he was still suspended, and the community was locked down due to the pandemic.  He explained that he breached the requirement that he have an interlock device on the vehicle as he was driving a friend’s motor vehicle.  The applicant stated he would not offend again and regretted his behaviour.

14. The Tribunal notes the applicant’s written response of 12 May 2022 and his statement of regret for the events that led to the charges [of] August 2021.  The Tribunal has taken into account his claims that his behaviour was influenced by the lockdown and financial issues he faced.  The Tribunal accepts that the COVID-19 pandemic caused citizens many challenges, but does not accept that it somehow provides a justifiable excuse for any of the behaviour for which he has been charged by the NSW Police. The Tribunal has taken into account his claims he will obey the law in the future.  Whilst recognising his claims of regret, the Tribunal notes that the applicant has not specifically confirmed he is pleading guilty to the charges before the Court.     

15. The Tribunal acknowledges that there is no evidence before it that the applicant has been convicted of these charges at the time of decision.  The Tribunal cannot, despite the correspondence put to the applicant under s. 375A and the response of the applicant, be entirely confident of how the applicant will plead when finally before the Court. The Tribunal is conscious of the fact that a person charged with criminal offences is presumed innocent.  He is not guilty until the charges are proven against him beyond reasonable doubt.  Beyond reasonable doubt is acknowledged as the “highest test in the land”. 

16. The Tribunal gives greater weight however to the fact these are very serious criminal charges.  The Tribunal notes that the applicant already has a significant criminal history in Australia.  He is a recidivist with a demonstrated contempt for the laws of New South Wales.

17. The Tribunal notes the Police Fact Sheet the applicant supplied the Tribunal and its grave concerns as to the claims that have been made as to the applicant’s attempt to procure whom he believed was [an under-age] girl for sexual activity.  The Tribunal recognises the immense and catastrophic damage that can be done to a victim from sexual offences and notes the charge suggests the applicant may have a predatory nature towards young females.  As stated previously, it is not the Tribunal’s role to determine the guilt of the applicant in relation to these alleged offences.  The Tribunal is conscious of the fact that a person charged with criminal offences is presumed innocent.  He is not guilty until the charges are proven against him beyond reasonable doubt.  The Tribunal nevertheless considers the charges – made by the NSW Police and the prosecution undertaken by the Director of Public Prosecutions – suggests that there is admissible evidence that is capable of establishing each element of the offences, there are reasonable prospects for conviction, and that the matter should proceed in the public interest. 

18. The Tribunal considers that a person who is alleged to have behaved in the manner and committed acts such as those with which the applicant has been charged, may be a risk to the community.

19. The Tribunal weighs the applicant’s current charges in favour of cancelling the applicant’s visa.

    Conclusion

20. There are clearly grounds to cancel the applicant’s visa on the basis of the applicant’s previous criminal convictions.  The Tribunal has weighed the considerations.  In this case, the Tribunal has considered the applicant’s significant criminal record and his history of recidivism.  The Tribunal considers the applicant’s multiple high-range PCA convictions to be a particular concern and indicative of a contempt for both the law and for the safety of the public.  In relation to his conviction for assault and the AVO, the Tribunal found the applicant’s explanation implausible and an attempt to, like his driving offences, justify his unacceptable and criminal behaviour.  The applicant recognises he has an issue with alcohol – which he blames for much of his behaviour – but appears to have made little real attempt to either change his ways or, concerningly, take genuine responsibility for his actions beyond his response to the s. 359A correspondence on 12 May 2022. 

21. The Tribunal accepts the applicant is a hard worker, a good employee and committed to financially supporting his wife and child in PNG.  The Tribunal has also taken into account the potential impact that cancellation of his Bridging visa C may have upon the day to day functioning of his small family unit.  The Tribunal has had regard to his claims as to the hardship he and his wife will face should his visa be cancelled and the fact he has a Protection visa application review that remains unresolved.  The Tribunal has taken into account that the applicant has not been found guilty by a Court of his four remaining charges [from] August 2021.

22. The Tribunal however has ultimately considered that these factors were considerably outweighed by the other considerations. The Tribunal notes that the Commonwealth Government has a low tolerance for potentially criminal behaviour by non-citizens who are in the Australian community on a temporary basis and do not hold a substantive visa.  The applicant has already been convicted of a number of serious charges that involve both assault and putting the community at grave risk through multiple examples of high-range drink driving.  The applicant faces further serious charges.  The NSW Police and the Director of Public Prosecutions have considered the admissible evidence capable of establishing each element of the offences for which the applicant has been charged.  The Tribunal considers that if the allegations pertaining to the applicant are true, it would be trite to say that he may be a risk to members of the Australian community such as young people utilising social media.  The dangers of social media are well known.  The problem of young and impressionable people being preyed upon and groomed by disingenuous adults on social media for sexual activity is a real one.  The Tribunal notes that the potential consequences for the victims of such offences – especially children – are serious and may be the cause of long-term damage and trauma to individuals.    

23. The Tribunal accepts that both the applicant and his wife and child will face a degree of hardship in the cancellation of the applicant’s visa.  This hardship however is outweighed, in the Tribunal’s opinion, by the gravity and seriousness of the matters for which the applicant has already been convicted, and the charges remaining before the Courts. The Tribunal considers the evidence suggests the applicant may be a risk to the community.  

24. The Tribunal considers that the nature of the criminal convictions, the remaining charges and the circumstances of the events that led to these convictions and charges are such that the Tribunal considers the visa should be cancelled.  The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both singularly and cumulatively.

100.   The Tribunal notes that it has not waited until receiving final clarification from the applicant or the Court as to either the applicant’s final plea and whether the applicant has been found guilty or innocent of the four remaining charges [from] August 2021, before proceeding to make a decision.  The Tribunal notes that even if the applicant was to plead not guilty, or in fact be exonerated of these four charges, the Tribunal’s ultimate decision affirming the decision to cancel his Bridging visa C would remain the same.  Having taken into account the seriousness of his existing convictions from 2020, and having taken into account the various considerations, the Tribunal considers the seriousness of those convictions alone, and the danger the applicant may be to the Australian community, outweighs the various considerations before it.    

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

DECISION

102.   The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Justin Owen
Deputy President