2203613 (Migration)

[2022] AATA 963

2203613 (Migration) [2022] AATA 963 (25 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203613

MEMBER:Peter Vlahos

DATE:25 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

This Statement was made on 25^th March 2022 at 2.13PM

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) –criminal convictions and imprisonment – discretion to cancel visa – application for protection visa refused and application for judicial review in progress – numerous offences in very short period – circumstances of offending – psychological risk assessment – participation in rehabilitation courses – potential to remain in immigration detention for some time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 375A

Migration Regulations 1994 (Cth), r 2.43

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 March 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Iran, born on [Date] He was most recently granted a Bridging E visa in 24 February 2016. On 24 August 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of the bridging visa because he had been charged with a number of offences against the law in the State of Victoria. The applicant provided his comments to the NOICC and his visa was cancelled under s.116 (1)(g) of the Act (on 24 August 2016).

3. The applicant appeared before the Tribunal on 22 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and Persian and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

   Relevant Law

6. 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.

7. A visa may be cancelled under s. 116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r. 2.43 of the Migration Regulations 1994 (“the Regulations”). In the present case, the ground in r. 243 (1)(p)(ii) is relevant. The provision relevantly provides that a visa may be cancelled if the visa holder has been charged with an offence against the law of the Commonwealth, a State, a Territory or any other country.

8. In considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r. 2.43 (1)(p) or (q) the Tribunal must have regard to Direction 63, Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43 (1) (p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

9. The primary considerations are:

   ·the Government’s view that the prescribed grounds for cancellation at r. 2.43(1)(p) and (q) should be applied rigorously; and

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

10. The secondary considerations are:

    ·the impact of a decision to cancel the visa on a family unit

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

11. The Direction states that the primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.

    Does the ground for cancellation exist?

12. The applicant provided the Tribunal with a copy of the primary decision. It indicates that the applicant had been granted a Bridging E visa in [….] The applicant had been charged with the following offences:[1]

    ·Failing oral fluid test within 3 hours of driving           13/12/2016

    ·Criminal damage by fire (Arson 2 charges)              13/12/2016

    ·Resist Emergency worker on duty (2 charges)         13/12/2016

    ·Driving whilst authorisation suspended  13/12/2016

    ·Reckless conduct endangering serious injury          13/12/2016

    ·Intentionally destroy property  31/01/2017

    ·Reckless conduct endanger serious injury               31/01/2017[2]

    [1] Australian Criminal Intelligence Commission, Report_ [the applicant] _dated 20/06/2018, see AAT File.

    [2] These offences were committed in the State of Victoria.

13. To the applicant’s credit, he admitted to having committed these offences and expressed sincere regret that he had caused such grief both to himself and others, due to his addiction at the time to the narcotic (drug) he described to the Tribunal as ‘Ice’. However, the Tribunal explained to the applicant in the course of the hearing, the grounds for cancellation arise once the applicant has been charged with offences, not upon conviction.

14. The Tribunal is satisfied on the basis of that evidence that the applicant has been charged with the offences identified above under the law of the state of Victoria and that he was a holder of a Class WE visa. That gives rise to a cancellation ground under r. 2.43(1)(p)(ii).

15. The Tribunal finds that the ground set out in r. 2.43(1)(p)(ii) is made out. The Tribunal finds that there are grounds for cancelling the visa held by the applicant under s. 116(1)(g) of the Act and r. 2.43(1)(p) of the Regulations.

    Consideration of discretion

    Primary consideration

16. The applicant has been charged with the offences described above. The Tribunal notes the Government’s view that the prescribed grounds for cancellation at r. 2.43(1)(p) and (q) should be applied rigorously.

17. The applicant confirmed in oral evidence (and his Solicitor in her submissions) to the Tribunal that there are no children in Australia who would be affected by the cancellation. The applicant referred to his older brother, who had provided him with support but did not express the view that he older brother (being over 18 years of age) was in any way dependent upon him in any way.

    Secondary consideration

18. The applicant informed the Tribunal he has no family of his own in Australia except for an older brother that had assisted him to come to Australia and had since his arrival in Australia assisted the applicant when he could, though the relationship between the applicant and his brother was at times tenuous because of his brother being considered (in the applicant’s opinion) a ‘father-like’ figure in his life. The applicant stressed his reliance on his brother in difficult times and not the other way around. The Tribunal also has had the opportunity to consider the applicant’s brother’s written statement which was submitted as evidence.[3] The applicant’s parents are both deceased. The Tribunal is not satisfied that the family unit will be affected by the cancellation. The applicant has no relationship with others, being a partner or girlfriend which the Tribunal may take into as having a direct attachment and concern intertwined with the applicant’s future presence in this country.

    [3] see, Statement (signed) by [Mr A] dated 2/3/2022, see Applicant’s submission to the Tribunal, AAT File.

19. The Tribunal listened carefully to the applicant’s explanation as to the ‘circumstances’ which provoked the grounds of cancellation. The applicant described to the Tribunal his association with persons who were habitual takers of drugs and in particular, the dangerous narcotic ‘Ice’. He told of his introduction to this drug by a friend who told him it was a stimulant which would assist him to work better and longer at his work as [an Occupation]. The applicant explained to the Tribunal that what had become a stimulant for work, overtime, became an expensive, as well as a dangerous and destructive habit. Over time, the applicant lost interest in his lucrative work, lost his home and possessions and spiralled himself into the cycle of violence which attached to his name the charges and convictions the Tribunal outlined above.

20. The Tribunal accepts the applicant’s evidence that since his detention, he has remained a cooperative detainee and has not caused any issues for the immigration authorities. He has also utilised his time in detention to attempt a course of rehabilitation both concerning ‘anger management’ and in the ‘taking’ and ‘becoming dependent’ on drugs of addiction. The applicant has provided evidence of certificates of Participation in such courses to the Tribunal.[4]

    [4] see all Certificates of Participation, in Applicant’s written submission dated 23.03.2022.

21. With respect to hardship, the applicant informed the Tribunal he cannot return to his country, Iran. The Tribunal is mindful that the cancellation of the bridging visa will not affect the processing of any other application the applicant has made or intends to make. The Tribunal noted that the applicant has an appeal pending with the Federal Circuit Court and is awaiting the hearing date. There is no suggestion that the applicant will be removed from Australia as a result of the cancellation of his bridging visa. However, the applicant has been charged with a series of serious offences and that is the reason for the cancellation proceedings.

22. The Tribunal acknowledges that one of the consequences is that the applicant will remain in immigration detention and such detention may be for a period of time. The Tribunal accepts that the cancellation and the consequent detention may cause hardship to the applicant.

23. With respect to the circumstances of the offences committed, these are serious offences and involved a term of imprisonment. What is particularly of a concern, is that there was a period in the applicant’s life within the community and while waiting for his protection visa to be processed by the authorities, that he offended not only once but numerous times during a very short period. The Tribunal accepts that these offences were committed while the applicant was heavily into drugs, but he had opportunities (as he admitted in his evidence) to seek help but for one reason or the other (best known to the applicant) no real effort was made by him or others close to him at that time to address his drug addiction problem. Instead, the only time the applicant has in reality addressed his afflictions was while in immigration detention (and this has relieved him from a spiral of personal destruction). Indeed, the Tribunal has read the Psychological Risk Assessment dated 21 February 2021, provided (under signature) by [Dr. B] ([Professional position])[5]. In his assessment of the applicant, [Dr B] states the following:

    It is evident from reading the IHMS notes that [the applicant] has at different times reached out for help. He made reference to still attending an NA (Narcotics Anonymous) group on occasion. There is reference to him doing anger management groups. However, [the applicant] is quite negative in terms of psychiatrists and medication, and did not appear to see psychology as particularly helpful in changing the symptoms (although he found the materials from his [Relative] who he says is a psychologist, and the engagement with IHMS useful). Ultimately, he sees that he has to change his behaviour which is actually quite correct. Therefore, his rehabilitation is more based on an individual basis because of lack of benefit he has seen from other programs. I contend that he should continue rehabilitation, especially using a trauma therapy, such as EDMR (Eye Movement Desensitisation and Reprocessing). I believe that further treatment would be necessary to lower risk. Given that he has engaged in psychological therapy in the past. I would be optimistic that would do the EMDR therapy which would lower risk.

    In particular, [the applicant] has only lived in the Australian community for a relatively short time. Of critical importance would be the support and ability to engage in meaningful activities. If things were difficult for him, it increases the risk of reoffending.

    [5] see AAT File, Applicant’s written submission_ Appendix of Documents provided.

24. Addressing the question – whether in your opinion ([Dr B]’s) [the applicant] poses a danger to the Australian community upon release? [Dr B]’s answers the question as follows:

    This is a question which I cannot clearly answer. I am confident that because of his current presentation, the type of philosophies and beliefs which he is developing in regard to managing symptoms and his current absence of substance use, there is some chance that [the applicant] will be able to integrate into Australian society and be no danger. However, for all the reasons explained above, there remains the possibility that there would be a cascading collapse, typically starting with a significant life stress, the use of substances, followed by some type of dramatic reactive situation, typically involving himself or those around him. However, this is difficult to predict with any degree of certainty due to the complex history of trauma and abuse which this man has suffered and due to the fact, he remains in a contained environment.

25. Observing this considered assessment of [Dr B] of the applicant, it is clear that the certainties of maintaining his stability of character and function if released into the community is not a given certainty. [Dr B] makes it clear, that some crisis (“life stress”) may trigger, as he described it, “a cascading collapse” and this assessment is a concern for the Tribunal. Moreover, the applicant has come to the Tribunal seeking his Bridging visa’s reinstatement without providing any commitment or plan to manage his problems if released into the community. Indeed, no current assessment of his psychological state of mind was provided to the Tribunal. The applicant may have the support of a brother and a friend as he admitted to the Tribunal, but he also told the Tribunal that he felt a hesitation on occasion to approach his ‘father-like brother’ for help, but the applicant has provided no evidence of seeking professional help and consultation on a regular basis (if he was) released into the community. That assurance is not there. Moreover, the [B] report provided to the Tribunal was penned on 21 February 2021 no current assessment of the applicant was provided. This lack of assurances on behalf of the applicant concerning his dealings at some future date with the demons that upset him the past returning causes the Tribunal concern. That concern is enough to conclude that the applicant is best to remain in immigration detention until and when his Protection visa matter is considered and determined by the Federal Circuit Court. The Tribunal notes that the applicant’s case is scheduled for hearing [in] June 2022.

26. The applicant claims to have been cooperative with the authorities while in immigration confinement. The Tribunal accepts that evidence.

27. The Tribunal has considered the totality of the circumstances. The Tribunal has found that the applicant held a bridging visa and had been charged with offences under the law of the State of Victoria, therefore grounds exist for cancelling his visa. No children and no family unit would be affected by the cancellation. The Tribunal accepts that the applicant while in confinement has made an effort to relieve himself from the damaging influences of narcotics and has also educated himself through a sustained and consistent attendance of various courses discussing how he should better handle his personal anger, but the Tribunal cannot ignore the existence of the applicant’s violent past which resulted in him being charged and convicted with very serious offences and placed in jeopardy the lives of others within the community. The considerations in [Dr B]’s report, the Tribunal referred to above indicates in clear terms that no expert in psychology can ‘clearly answer’ the question whether the applicant posses a danger to the wider community – if released. The applicant has not provided to the Tribunal a series of definite engagements that would be ongoing (if released) which would continue to provide him with professional assistance for whatever reason he might require that assistance. The Tribunal noted the comments of [Dr B] that “there remains some possibility that there would be a cascading collapse” which the applicant difficult to handle and might return to his drug-influenced past and without any assistance (as he has had while confined) might cause injury to himself and others in the community. The applicant reassured the Tribunal that would not be the case, but if it were the case, what was the fail-safe system in place? None was offered to the Tribunal to consider except the assurances by the applicant’s sibling (in a written statement) and by his friend (in a written statement).

28. The Tribunal accepts that some hardship will be caused to the applicant as a result of the cancellation, most significantly because he will remain in confinement. The Tribunal accepts that the applicant would prefer not to remain confined in an immigration detention centre.

29. Against these considerations, the Tribunal noted that the applicant has been charged with serious offences. The Tribunal acknowledges the comments of the applicant’s lawyer and her written submissions that the applicant (as he now is) is no real concern to the community, if he is released and the Tribunal also acknowledges the comments made by the applicant that his anger is managed and that he is aware of the consequences of uncontrollable anger influenced by narcotics. However, as encouraging as these pronouncements might be (and they are) the professional advice tendered as evidence in these proceedings does not provide any real assurance that the past will not return or that there are in place ‘fail-safe’ avenues of immediate assistance (if required) for the applicant, nor is the Tribunal convinced that the applicant (on his own) would pursue those avenues of assistance when faced with a personal crisis – when in the community.

    Consideration of the Certificate and Notification regarding the disclosure of certain information to the Administrative Appeal Tribunal under s. 375A of the Migration Act 1958.

30. Tribunal noted that a Certificate had been issued pursuant to s. 375A of the Act by the Department in this matter.

31. The Certificate attached to Compliance Client Interviews in TRIM reference number(s) [Number 1] and [Number 2] of file number [Number 3].

32. On 23 March 2022 the Tribunal wrote to the applicant’s legal counsel making it known that the Department had issued the said Certificate pursuant to s.375A of the Act and it related to the non-disclosure lawful methods for preventing, detecting and investigating breaches of the law and the Tribunal sought the applicant’s comments.

1. On the 25 March 2022 the applicant’s legal counsel responded by email to the Tribunal’s invitation to comment but the opportunity to provide comment was declined.

2. The Tribunal noted the contents of the Certificate issued and the applicant’s response.

3. The Tribunal considers the Certificate validly issued in the name of the Minister’s delegate, [Mr C], the delegate of the Secretary of the Department of Home Affairs.

4. However, the Certificate does not in any manner provide any material evidence relevant or specific and which might otherwise impact on the issues discussed by the Tribunal at the hearing of this matter but relates to procedures and methods the Department and it officials utilise in order to investigate breaches or evasions of the law in general.

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

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

   Peter Vlahos
   Member