2203700 (Migration) - [2022] AATA 1267

2203700 (Migration) [2022] AATA 1267 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2203700
MEMBER:James Lambie
DATE:7 April 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 07 April 2022 at 10:13am
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant charged with an offence – Unauthorised Maritime Arrival – charges withdrawn or dismissed – criminal charges after cancellation notification – best interests of any children – emotional hardship – stateless – decision under review affirmed
LEGISLATION
Marriage Act, 1961, s 95
Migration Act 1958, ss 116, 140, 189, 499, 501; Ministerial Direction 63
Migration Regulations 1994, Schedule 8 Condition 8564; rr 2.23, 2.43
CASES
Cheryala v MIBP [2018] FCAFC 43
Fattah v MIBP [2018] FCCA 2010
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

This is an application for review of a decision dated 5 October 2016 made by a delegate of the Minister for Immigration and Border Protection (the Department) to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) of the Act using Regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 (the Regulations) on the basis that the delegate was satisfied that there existed a prescribed ground for cancelling the applicant’s visa because the applicant had been charged with an offence against a law of the Commonwealth, a State, a Territory, or another country. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [a named witness]. The Tribunal hearing was conducted with the assistance of an interpreter in the [Ethnicity 1] and English languages.
The applicant was represented in relation to the review.
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
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. In the present case, the ground in reg 2.43(1)(p)(ii) is relevant.
The applicant is [an age]-year-old stateless individual who arrived by boat to Australia. He was granted a bridging visa on 20 October 2015 which was cancelled on 5 October 2016.
The applicant was convicted and sentenced to [a term of] imprisonment [in] November 2016 for marrying a person who was not of marriageable age.
The applicant was initially charged with sexual penetration of a minor however this charge was later dropped in April 2017.
During the sentencing hearing the Court ordered that the applicant be released after serving 12 months on the condition that the applicant gave an undertaking to be of good behaviour for 6 months. The amount for the undertaking was set by the Court to be $[amount] which was due and payable if the order was breached.
There is no evidence in front of the Tribunal that the applicant breached the order. The applicant was released in and around October 2017 from prison into Immigration Detention at [a named Detention Centre] (the detention centre). The applicant continues to be in detention centre till date.
The applicant’s submissions to the Tribunal included:
·    A report from the Australian Criminal Intelligence Commission (ACIC) dated 27 July 2020; and
·    A copy of the sentencing record; and
·    A copy of a risk assessment and psychiatric report dated 23 April 2021; and
·    Submissions from the applicant’s representative dated 24 March 2022; and
·    A copy of the email outlining the date of withdrawal of the two original charges; and
·    A copy of statement by the applicant dated 16 November 2020;
·    Post-Hearing submissions received on 29 March 2020 which includes a statement from the applicant’s representative and a copy of the charge sheet by Victoria Police dated [in] November 2016.
In his statement the applicant has submitted that he pleaded guilty and was convicted and sentenced for marrying an underage person [in] September 2017. The applicant has claimed that this is the first time he has been in such a situation.
The applicant submitted that he does not wish to make any excuses and he regrets what he did.
The applicant submits that he first met the victim when he came to Melbourne through the victim’s mother who the applicant had previously met in [Country 1].
The applicant submits that he moved into share a house with the victim’s mother, the victim and her siblings in about April or May 2016. The applicant further explained that at this time the victim’s mother was separated from her partner against whom she had an Intervention Order which did not stop her partner from constantly contacting the victim’s mother.
The applicant submits that the victim’s mother wanted the applicant to protect her daughter from her stepfather and suggested to the applicant that he should marry the victim.
The applicant submits that in his culture a person’s date of birth does not have much significance. The applicant further submits that most of [Ethnicity 1] people are illiterate and hence do not record or write down their date(s) of birth. The applicant also submits that in [Ethnicity 1] culture people often marry at a young age.
The applicant submits that it was his intention to protect the victim by marrying her and this way he could also have a place to live which would prevent the victim’s stepfather from coming to the house and attacking the victim and her family.
The applicant submits that [an Agency 1] official visited him and the victim’s mother at their house and advised that the applicant can no longer stay in the same house as the victim. The applicant submits that he did not know anything about [Agency 1] and believed this to be a trick by the victim’s stepfather. The applicant also submits that the victim’s mother was seen to be arguing with the [Agency 1] official because she did not want the applicant to move out.
The applicant submits that on the same day the victim’s stepfather called the victim’s mother to advise that the Intervention Order which was in place was withdrawn which the applicant submits upset both the victim and her mother.
The applicant submits that he was emotionally conflicted because the victim’s mother insisted on the applicant staying with them and marrying her daughter.
The applicant submits that he agreed to marry the victim but first requested to speak to the Imam. The applicant accepts in his statement that this was a mistake which led him to commit the offence which he was later charged with.
The applicant submits that he, the victim and the victim’s mother spoke to the Imam about what the [Agency 1] official told them and also about the situation with the victim’s stepfather.
The applicant submits that the Imam advised that he could get married religiously and also agreed to officiate this ceremony. The applicant submits that the religious marriage ceremony took place [in] September 2016.
The applicant submits that he was arrested in October 2016 and while he was in custody his bridging visa was cancelled.
The applicant submits that after being in prison for about 12 months he was sentenced to 18 months of imprisonment however he was made to sever 12 months and then was released into immigration detention on the basis that he conducts himself in good manner for 6 months.
The applicant submits that he feels really sad when he thinks and speaks about this and also states that at the time he did not know what impact it could have on a child to marry at a young age. The applicant submits that he has learnt this now and regrets his actions which ruined his life.
The applicant submits that in the time he spent in jail and now in detention he has understood that the victim was underage and the law in Australia does not allow a person to marry an underage person. The applicant further submits that in Australia all laws need to be followed so that the community is protected and in future if he is not sure what the law is he will seek advice from a lawyer.
The applicant submits that he is no longer in contact with the victim or the victim’s mother and he has no intentions to contact them in future.
The applicant submits that in prison he attended English language classes but did not participate in other programs to learn about the law as he did not think they were designed for non-English speakers.
The applicant submits that since 2017 he has been in detention and he is suffering there as he is always full of worry, stress and feels sad when he thinks about his future.
The applicant submits that he does not have a country to go back to and if he is denied a visa in Australia, he will have to spend his entire life in immigration detention which would have devastating effect on him.
The applicant has explained that he has tried to avoid trouble in detention and has involved himself in productive activities. The applicant also submits that he prays 5 times a day and tries to speak English and mix with other people. The applicant submits that he has maintained a friendly and brotherly attitude towards the detention officers and other detainees.
The applicant submits that if he is granted a visa he will be very happy and will try to find a job and improve his English. The applicant also submits that he will learn more about Australian values and culture and will keeping looking for work until he secures a job. The applicant also submits that he would work to better himself and the community and also pay taxes.
The applicant submits that if he is given a visa, he will go to Melbourne and stay with his friends who live in [a town]. The applicant submits that his friends have offered to help the applicant get a job in the factory they work. The applicant has explained that he has a relative in Sydney who is supportive and has offered the applicant to get work. The applicant submits that he is more than happy to do farming jobs in regional areas as well.
The applicant submits that because he is stateless, he needs to stay in Australia and show the community and God that he is a good person. The applicant has also submitted that he would eventually like to buy a property and will always obey Australian rules and regulations.
The applicant concludes his submission by stating that he is asking for forgiveness for his crimes, and he guarantees that nothing like this will happen again in future and that he is hoping the Australian government will grant him a protection visa. The applicant reinstates the fact that he is stateless and if he is denied a protection visa, he will spend his entire life in immigration detention.
Grounds for cancellation
At the outset of the hearing, the applicant’s representative submitted that the power to cancel the visa no longer existed, because the charge forming the basis of the delegate’s decision, sexual penetration of a minor, was withdrawn [in] April 2017. It was put to the Tribunal that:
As the Tribunal is exercising de novo powers, if by the time the matter comes before, there are no longer any criminal charges, the basis of the cancellation no longer exists … The fact that he has been convicted of a related offence is irrelevant. [The applicant] was convicted of an offence under the Marriage Act. Therefore, in our submission, the power to cancel under subr.2.43(1)(p)(ii) is not enlivened.
The Tribunal indicated that it doubted the correctness of this submission, it not being suggested that the applicant had not been charged with the original offence, nor subsequently with the Marriage Act offence. There is nothing in the language of r.2.43(1)(p)(ii) that requires the continuing subsistence of a criminal charge in its original form: the prescribed ground is satisfied once the event of the laying of the charge has occurred. However, the withdrawal or dismissal of the charge or the fact of an acquittal would be matters of high relevance and weight in the exercise of the discretion, and Ministerial Direction 63 is to this effect. In this case, it is also highly relevant that a substituted charge was laid, and that the applicant was convicted of it.
In submissions dated 24 March 2022, but lodged after the hearing (on 29 March 2022), it was put on behalf of the applicant:
In our submission, because the Tribunal conducts de novo review of cases, as a matter of logic, the charge or charges must be outstanding at the time the matter comes before the Tribunal for the Tribunal to entertain a visa cancellation under r.2.42(1)(p)(ii).
The language of the relevant legislation supports this proposition … Subregulations 2.43(1)(p)(iii)-(v) list a number of alternative situations; all are in the present tense [recital of the subparagraphs omitted] …
We also note that other subsections of s.116 explicitly provide that a visa may be cancelled for actions or events that occurred “whenever” in the past [recital of s.116(1AB) omitted] …
If the Tribunal’s putative interpretation of the provision – as suggested during the course of the hearing – is correct, a person can have their visa cancelled in relation to a criminal charge withdrawn or dismissed decades earlier. The power could be enlivened by any criminal charges, no matter how old or how minor, and no matter whether the charges were withdrawn or dismissed later. This would clearly be an irrational outcome …
In our submission, the reason why the power in r.2.43(p)(i) [sic] related only to holders of Bridging Visa E (‘BVE’) is because a BVE is virtually the least beneficial type of visa someone in Australia can hold and their visa should be able to be cancelled quickly as soon as they are charged with an offence. The provision does not apply to holders of any other types of bridging or substantive visa. If one was to look at the full range of visas available to non-citizens, from permanent visas to bridging visas, the BE is only one step away from being unlawful …
In our submission, r.2.43(1)(p)(ii) can have a devastating impact on someone’s life – and [the applicant] is an example of just such a situation – and for that reason it must be interpreted narrowly. Parliament could not have intended that under s.501 a person would not ordinarily have their visa cancelled or refused on the basis of pending criminal charges; and a person would not have their visa refused or cancelled if they were acquitted or charges were withdrawn, but under s.116 and r.2.43(1)(p)(ii) any charge, no matter how minor, from any time in the past, including charges withdrawn or dismissed, could form the basis of a visa cancellation.
In our submission, r.2.43(1)(p)(ii) refers exclusively to current charges at the time of the decision of the Department and on review at the time of the Tribunal’s decision.
In my view, the submissions are misconceived. There is no ambiguity in the language of r.2.23(1)(p)(ii) that permits the Tribunal to import a temporal element into the clause “has been charged with an offence …”. The language used allows the Minister to cancel a BVE on the basis of a criminal charge whether or not the charge is later altered or proceeds to conviction (or proceeds to conviction of an alternative charge), during the course of the decision-making process, including review before the Tribunal. The interpretation urged on behalf of the applicant could require the withdrawal of a cancellation decision, and its reconsideration, at multiple stages of the criminal process. The reach of the provision to charges that are withdrawn, dismissed or result in an acquittal is recognised and dealt with by Ministerial Direction 63. The comparison with s.501 is not apposite, in part for the reasons identified in the submissions themselves.
In coming to this conclusion, I have had regard to the decision of the Full Court of the Federal Court in Cheryala v MIBP [2018] FCAFC 43 and, in particular, to paragraph 41. The Court noted that “[w]ithout any limitation as to time, the “charge” which could lead to a person’s visa being cancelled could well relate to conduct, either within Australia or overseas, of considerable antiquity.” The Court found that r.2.43(1)(p)(ii), it seems including its temporal breadth, was not beyond power. It found (at 43) that the power to impose conditions upon the grant of approval to remain in the country – which necessarily, in my view, includes the power to cancel – to be a broad one. Accordingly, no ambiguity or absurdity arises from the plain words of the regulation. A similar conclusion was reached in Fattah v MIBP [2018] FCCA 2010.
It was also submitted on behalf of the applicant that Ministerial direction 63 requires the Tribunal to set aside the delegate’s decision. Ministerial direction 63 provides:
5. Prescribed grounds under regulation 2.43(1)(p)
(3)Where a Bridging E visa holder has been charged with an offence(s), but the charge(s) is/are dismissed, cancellation is not appropriate. Similarly, where a Bridging E visa holder has been charged with an offence but has been found by a Court to be not guilty or the charge is otherwise dismissed, cancellation is also not appropriate.
The submissions made on behalf of the applicant are to the effect that the prosecutorial decision to withdraw two of the original charges, viz, sexual penetration of a minor and forced marriage, and proceed with the charge of marrying a person not of marriageable age constitute circumstances to which the Ministerial direction applies. The submission is that:
The Applicant was originally charged with forced marriage … It could be argued that the offence to which the Applicant pleaded guilty in [Court 1] was one that substituted the forced marriage offence. However, the Department of Home Affairs chose not to use the forced marriage charged to cancel the Applicant’s visa.
We strongly disagree with the suggestion that the charges on the basis of which the visa was cancelled are sufficiently similar in nature to support the visa cancellation. The charges constitute a sex offence; the charges to which the Applicant pleaded guilty do not. The offences come from two different statutes, one State, and one Commonwealth. The “cancellation offence “ is not only considered more serious by us, but the sentencing judge [Judge A] – see at paragraph 25 [of the sentencing remarks]. As submitted during the course of the hearing, the two offences are of a completely different nature. The only aspects of the offences that are common are the identity of the perpetrator and victim, and the relevant time.
It is trite to observe that the Tribunal cannot affirm a visa cancellation on the basis of the charge that was withdrawn “just because” the Applicant pleaded guilty to another offence. The Tribunal cannot engage in its own “substitution” of charges. The charge under the Marriage Act had already been laid at the time of the cancellation and it was open to the Department to rely on it – exclusively or in the alternative – to cancel that Applicant’s visa. The Tribunal cannot review an alternative decision which could have been made.

For reasons similar to those given in paragraph 43 and 44 above, I am not persuaded by this submission. It is a historical fact that the applicant was charged with the offence cited in the cancellation decision, thus satisfying the plain words of r.2.43(1)(p)(ii). While it is also clear that that charge did not ultimately proceed, the defendant pleaded guilty to, and was convicted of, an offence available to be charged on the same factual matrix involving, as the submissions accept, the same perpetrator and victim and the same relevant time. In these circumstances, Ministerial direction 63 does not preclude cancellation.
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
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The primary considerations
I have given weight to the Government’s view that the prescribed grounds for cancellation should be applied rigorously, and that the fact of the applicant being charged with a criminal offence has given rise to the cancellation decision under consideration.
There are no children under the age of 18 in Australia who would be affected by the cancellation. This is a matter to which no weight can be given in support of the application.
The secondary considerations
There were no submissions made in respect of the impact of a decision to cancel the visa on the Applicant’s family unit, if any. This is not a matter to which any weight can be given in support of the application.
A decision to cancel the applicant’s visa will result in his continued detention under s.189. This will result in continued emotional and psychological hardship, as well as precluding him from financial and other opportunities that might otherwise have been open to him. It was submitted that the uncertainty surrounding his legal status in Australia is contributing to his fragile mental state, which I accept. I have also considered the report dated 23 April 2021 by [Psychiatrist A], a forensic psychiatrist, tendered in support of the application. [Psychiatrist A] narrates the applicant’s history of ill-treatment and oppression as a [Ethnicity 1] person in [Country 2], as well as his experiences in the community in Australia and in detention. She is of the opinion that the applicant suffers from Post-Traumatic Stress Disorder (PTSD) as a result of his childhood experiences. She also believes that, at the time she assessed him, he was experiencing an episode of depression associated with past trauma and his offending and the consequences of his behaviour. I give considerable weight to this factor in favour of the application.
I have given careful consideration to the circumstances in which the ground for cancellation arose. The applicant gave evidence that he had lived in [Country 1] from 2004 until 2012. During that time, he became acquainted with the victim’s mother ([Ms A]) After arriving in Australia, he moved to Melbourne in 2013. He met [Ms A] again after she arrived in Melbourne in about early 2014. He moved into a share house with [Ms A] and her children, including the victim ([Ms B]) in about April or May 2016. His evidence was that [Ms A] had separated from her partner, [Ms B’s] stepfather, because the stepfather had sexually assaulted [Ms B]. [Ms A] had obtained an Intervention Order against the stepfather, but he had continued to call her asking to see [Ms B]. The applicant said that [Ms A] has asked him to marry [Ms B], so that he could prevent the stepfather from having any contact with [Ms B]. He said that, in his culture, little regard is given to a person’s age and that it is permissible to marry a female once she enters puberty. He said that, in order to protect [Ms A], he agreed to marry her.
The applicant told the Tribunal that he received a visit from a person who told him he would have to move out of the house. This person, he accepts, was from [Agency 1] but, he says, he did not know it at the time. He thought it was someone sent by the stepfather to trick him into moving out of the house. On, he thinks, the same day, [Ms A] received a call from the stepfather to the effect that the sexual assault charge and Intervention Order had been withdrawn. [Ms A] insisted that the applicant stay and go through with the marriage. He said that he, [Ms A] and [Ms B] sought the advice of his Imam. The Imam advised that he could perform a religious marriage. The ceremony was performed [in] September 2016. He was arrested and charged with sexual penetration of a minor [in] October 2016.
The Tribunal has also considered the sentencing remarks of [Judge A] in [Court 1], delivered [in] September 2017. [Judge A] recounts that, at the relevant time, the applicant was [age] years of age and [Ms B] was [under age]. In June 2016, [Agency 1] was notified in relation to concerns and spoke to the parties, including [Ms B] at her school. These concerns related to the relationship between the applicant and [Ms B], and a possible marriage. [Agency 1] officers also attended at the applicant’s home [in] September 2016 – the day before the marriage – and specifically advised the applicant and [Ms A] that it would be illegal for the applicant to marry [Ms B] by reason of [her] age. These matters were put to the applicant during the hearing. He claimed knowledge of only the second visit. His reason for ignoring it was that described in paragraph 58 above. He said he accepts that this was wrong and that he feels guilty about it.
The Tribunal asked the applicant about his reasons for going through with the marriage. He reiterated that it was in order to protect [Ms B] from her stepfather and was urged by [Ms A]. It was put to the applicant that this would have been highly relevant in the context of his sentencing and could, if properly framed, constitute a defence to the charge. In her sentencing remarks (at paragraph 35), [Judge A] says:
It seems you developed a friendship with the victim. You were aware of some of her personal issues with her family. It seems that you saw yourself as playing some role in her protection, but how that translated to your agreeing to marry her remains unexplained.
The Tribunal indicated that, because his possibly highly mitigatory explanation was not advanced at sentencing, it would need very compelling reasons to accept it for the purposes of this application.
In the post-hearing submissions, the applicant’s representatives took issue with this indication:
Considerable time was spent at the hearing discussing the Applicant’s motives for entering the marriage with [Ms B]. The Applicant pleaded guilty to the charge. The Applicant has been frank with the Tribunal and disclosed the [Court 1] sentencing remarks which are technically not required as part of this merits review process. We cannot see anything in the sentencing remarks to suggest that the contents of the statement prepared by [the applicant’s representative] – and discussed at length at the hearing – somehow contradict the sentencing remarks.
It was further submitted that:
Contrary to the Tribunal’s remarks at the hearing, the offence in s.95 of the Marriage Act to which the Applicant pleaded guilty is at least in part a strict liability offence [emphasis in original].
The disclosure of the sentencing remarks is, of course, a matter for the applicant. The Tribunal notes that the applicant relied on extracts from them in the pre-hearing submissions. That they might also contain material adverse to the application is a risk for his representatives to assess. The Tribunal is charged with assessing the circumstances in which the ground for cancellation arose. It considers it relevant to its assessment of the applicant’s narrative that he has advanced an explanation that he did not advance in his criminal proceedings [at least so far as can be determined from the sentencing remarks], despite the possible value of that explanation to his plea, verdict or sentence. The issue of strict liability in s.95 of the Marriage Act applies only to the whether the victim was in fact of marriageable age.
The applicant and his representatives urged the Tribunal to take into account the applicant’s assertion that there were no sexual relations between the applicant and [Ms B]. The Tribunal accepts that the applicant denies that there were sexual relations and that there has been no Court finding to the contrary.
The applicant’s assertions of the cultural traditions in his home community as to marriageable age were given no weight by the sentencing judge and – respectfully – for the same reasons are given no weight in this application.
In assessing the circumstances in which the grounds for cancellation arose, the Tribunal gives weight to the sentencing remarks. Where the applicant’s evidence varies from the factual summary in the sentencing remarks, the Tribunal prefers the sentencing remarks. The sentencing judge (at paragraphs 15 and 16) found that:
This is a serious offence and serious example of this offence. You clearly knew what you were doing was wrong. The victim was vulnerable due to her age and circumstances, including what you knew in relation to difficulties with her stepfather. You had been warned by [Agency 1].
I am satisfied beyond reasonable doubt for the purposes of sentencing that you at least knew the victim was aged [age] or under.
There is nothing in the evidence or other material to suggest that any of the circumstances in which the ground for cancellation arise were beyond the applicant’s control. Accordingly, the weight I give to this factor, which is significant, is adverse to the application.
I am conscious that cancellation would result in the visa holder being unlawful and liable to continued detention. I am also conscious that the applicant, who, it is claimed, is effectively stateless, would be liable to remain in detention, possibly indefinitely, until his immigration status is resolved. I give very considerable weight to this factor in favour of the application.
Other relevant factors
It was put on behalf of the applicant that he travelled to Australia for the sole purpose of seeking protection. He is, it is claimed, effectively stateless and holds no legal permission to enter any country. It is accepted, for the purposes of this application, that he has a compelling need to remain in Australia. I give weight to this factor in favour of the application.
I have considered the extent of the applicant’s compliance with his visa conditions. It was put on his behalf that he has:
remained in substantial compliance with the conditions attached to his Australian visas. There is no evidence that [the applicant] has failed to comply [with] any visa conditions. However, for the reason that it has been accepted as credible that the applicant is a refugee, and further that he has been found to be at risk a further serious human rights abuses if returned to [Country 2], it is not logically reasonable to attach any adverse weight to any non-compliance in this regard in the event the Tribunal finds as such.
The Tribunal notes that the applicant’s visa contained condition 8564 (not to engage in criminal conduct). However, given that his criminal history is the reason for the cancellation under s.116(1)(g), no additional weight is given to the fact that it may also amount to a breach of the condition. By the same token, no weight in favour of the application can be given to this factor.
The Departmental records indicate that the applicant had been cooperative. I give a degree of weight to this factor in favour of the application.
There is no suggestion that any consequential cancellation under s.140 would occur should the visa be cancelled. No weight is given to this factor.
I have considered whether any international obligations, such as non-refoulement would be breached as a result of the cancellation. There is no suggestion that the applicant’s current status, whether or not his bridging visa is cancelled, exposes him to being returned to [Country 2].
I have also considered the assessment by [Psychiatrist A] and the sentencing judge that the likelihood of the applicant re-offending is very low or ‘negligible’. I give some weight to these assessments in his favour.
Having taken into account all of the primary and secondary considerations, I consider the issuing of the charge and the applicant’s subsequent conviction of a different, but related, charge (as a primary consideration) and the nature of the charge of which he was convicted and the circumstances in which the conduct arose to be matters of very considerable gravity, reflected in the sentencing remarks and the sentence imposed. Against this, I have weighed, in particular, the continuing and possibly indefinite detention, and the hardship this entails for the applicant as very significant matters against the cancellation of the visa. I have also given weight to his prospects for rehabilitation and the low chance of his re-offending. On balance, I am persuaded that the offence (as ultimately dealt with by the Court), which was serious and deliberate and had a minor as its victim, is a matter that outweighs the factors to which I have given favourable consideration.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
James Lambie
Senior Member