2203745 (Migration)

[2022] AATA 1078

2203745 (Migration) [2022] AATA 1078 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203745

MEMBER:SM Justin Owen

DATE:7 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2022 at 1:01pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – applicant convicted of several offences – mental health issues – extensive criminal detention and immigration detention – ongoing medical treatment – access to quality health care – family support – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 195, 198, 351, 359
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; 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 30 August 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 010 (Bridging A) 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)). [In] March 2014 the applicant was convicted at [Court 1] in the State of Victoria of [a first offence]. The victim of the offence was the applicant’s then wife. 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 22 March 2022 to give evidence and present arguments.

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 Fijian national.  A memorandum from the Department of Home Affairs provided by the applicant to the Tribunal provides a useful summary of his migration visa history and immigration detention history up until September 2020. 

7. After arriving in Australia [in] September 2012 as the holder of a Prospective Marriage (subclass 300) visa, on 13 February 2013 the applicant lodged an application for a Combined Partner (subclass 820/801) visa and was granted an associated Bridging A (subclass 010) visa (BVA).  On 10 May 2013 the applicant was granted a Partner (Temporary)(subclass 820) visa. 

8. [In] March 2014 the applicant was convicted at [Court 1] in the State of Victoria of [the first offence]  The conviction pertains to events that occurred [in] February 2013.    

9. On 17 August 2015 the applicant’s sponsor formally advised the Department that she wished to withdraw her sponsorship as her relationship with the applicant had broken down.  In November 2015 the applicant was charged with [a second offence].  On 19 April 2016 the delegate advised the applicant that the sponsor had withdrawn support and provided him with the opportunity to supply additional information. 

10. After receiving information from the applicant, on 2 August 2016, the Department confirmed with the applicant’s sponsor the relationship had ended in 2015 and she and the applicant were no longer in a relationship.  The applicant’s Partner (Residence) (subclass 801) visa was refused that day.

11. The applicant subsequently sought review at a differently-constituted Tribunal on 12 August 2016. 

12. [In] August 2016 the Victorian Police advised the Department that the applicant had been convicted of [the first offence] ([in] March 2014) and received a 12-month good behaviour bond.  The Department was also advised by the Victorian Police that there were two outstanding charges for [a third offence] and [the second offence] committed by the [applicant]. Those matters were listed for mentions at [Court 1] on [specified dates in] October 2016 respectively. 

13. On 21 September 2016 the applicant’s Bridging visa A was cancelled under s. 116 of the Act due to his 2014 criminal conviction. The cancellation of this Bridging visa is the subject of this review. Whilst a notification of cancellation letter was sent to the applicant on 21 September 2016 by the Department, the Department subsequently assessed this case and found the applicant had not in fact been correctly notified of this decision. The Department renotified the applicant on 8 March 2022. The applicant subsequently applied for review of the cancellation of his Bridging visa A with the Tribunal on 9 March 2022.

14. The history of the applicant’s whereabouts between the cancellation of his BVA by the delegate on 21 September 2016 and the current day is relevant. Despite the cancellation of his Bridging visa A, the applicant initially remained in the community as the holder of a Bridging visa E (BVE). On 17 March 2017 however, the applicant’s BVE was cancelled under s. 116 of the Act after he was charged with [a fourth offence], [the third offence], and [a fifth offence]. He was initially remanded in custody before being convicted of all charges [in] May 2017 and sentenced to [a term of] imprisonment.

15. [In] June 2017 the applicant was released from criminal custody, detained under s. 189(1) of the Act, and transferred to immigration detention in Melbourne.  He has remained in immigration detention continually since this time. 

16. In August 2017 a differently constituted Tribunal affirmed the delegate’s decision to refuse his Partner (Residence) (subclass 801) visa refusal.  The applicant applied for judicial review, with the Federal Circuit Court dismissing the matter [in] September 2018, the Federal Court dismissing the matter [in] April 2019, and the High Court dismissing the matter [in] September 2019. 

17. Less than a week later the applicant sought voluntary removal from Australia before withdrawing his request on 25 October 2019. 

18. The applicant lodged an application for a Medical Treatment (subclass 602) visa on 4 November 2019 that was refused on 21 November 2019.  The applicant sought review of the delegate’s decision with a differently-constituted Tribunal on 26 November 2019.  The Tribunal affirmed the delegate’s decision on 19 March 2020.

19. The applicant subsequently sought Ministerial Intervention under s. 351 of the Act on [a day in] June 2020, but his case was found not to meet the guidelines for referral to the Minister on [that day].  

    On 25 January 2022 the applicant applied for a Protection (subclass 866) visa.  This was refused by the delegate on 28 February 2022.  The applicant has subsequently lodged the delegate’s decision refusing his Protection application for review with the Tribunal. 

    Information provided to the Tribunal

20. A substantial amount of evidence and submissions was lodged by the applicant in this case. A significant amount of evidence is from the applicant’s previous Partner visa application and review. Though the Tribunal has not expressly referred to each and every piece of evidence or submission lodged, the Tribunal has had regard to all the material evidence and submissions, prior to drafting this decision.

21. The applicant submitted the following documents to the Department that were not provided to the Tribunal:

    ·LEAP Victoria Police criminal record report for the applicant listing criminal charges and court outcome dated [in] July 2016;

    ·Letter prepared by [Psychologist A], Clinical Psychologist at [Agency 1] dated 13 August 2016;

    ·Ambulance Victoria invoice for transport of the applicant to [Hospital 1] [in] June 2016;

    ·Applicant’s Ambulance Victoria Membership letter and card, paid for [in] July 2016;

    ·Screenshot of a Facebook call log;

    ·Certificate of Compliance signed by [two named officers from Agency 2], dated 8 February 2015;

    ·Applicant’s complete patient record from [Medical Centre 1] as of 7 September 2016;

    ·Financial documents:

    o[Bank]k statement in applicant’s name;

    oCash Advance Repayment Schedule for the applicant dated 19 January 2016;

    oLoan contract between the applicant and [Business 1] dated 29 January 2016, unsigned;

    oLetter from [Business 1] addressed to the applicant dated 29 January 2016;

    oCash Advance Repayment Schedule for the applicant dated 1 September 2015;

    oLoan contract between the applicant and [Business 1] signed 1 September 2015; and

    oJoint credit statement from [Business 2] in the applicant’s and [Partner A’s] names dated 8 December 2015.

22. The applicant submitted a substantial range of evidence to the Tribunal prior to the Tribunal’s hearing including the following:

    ·A copy of the Department’s Decision Record dated 21 September 2016;

    ·A copy of the applicant’s Bridging E visa documentation granted on 5 October 2016;

    ·Applicant’s statutory declaration declared on 9 September 2016, previously provided to the Department;

    ·Applicant’s Statement of Identity by Australian Border Force dated [in] March 2021;

    ·A copy of the Applicant’s birth certificate;

    ·Email correspondence from [Partner A] to [name], the applicant’s new partner, dated 26 September 2016;

    ·Variation of [an order from Court 1] dated 17 March 2016. The applicant has titled this submission [an indication that this order had been withdrawn], previously provided to the Department;

    ·[An order from Court 1] dated 16 November 2015, expiring 16 November 2017. [Partner A][Details deleted], previously provided to the Department;

    ·Statement made by [Partner A] at [a named] Police Station dated 5 April 2016 [details deleted], previously provided to the Department;

    ·Certified extract from [Court 1] indicating the [withdrawal of an order], dated [in] October 2017. The applicant in the matters was the applicant and the respondent was [Partner A];

    ·Application and summons for [a court] order dated [in] September 2016. The applicant for the order was the applicant and the respondent is [Partner A];

    ·Applicant’s statutory declaration declared on 4 February 2022;

    ·Applicant’s hospital records from [Hospital 1] Emergency Department [in] June 2016 obtained through a Freedom of Information request to [a named agency] granted on 11 February 2019. The applicant’s hospital records indicate he was transported to hospital by ambulance service and presented with [symptoms] after an [an incident];

    ·Statement titled ‘Statutory of Declaration’ made by the applicant, undated;

    ·Travel itinerary for [a period in] January 2016 for [Partner A], [two family members] and the applicant, previously provided to the Department;

    ·Correspondence from the Department dated [in] April 2020 indicating the applicant has a Commonwealth debt of $26,328.00 in Litigation fees;

    ·Applicant’s statutory declaration declared on 18 January 2022;

    ·Applicant’s [bank] statement from 3 March 2016 – 2 September 2016 with highlighted transactions;

    ·Applicant’s statutory declaration titled ‘Statutory Declaration of Commonwealth – My Medical History’ declared on 6 March 2022;

    ·Statement from [Migration Agents 1] to the Tribunal dated 24 July 2017 regarding the applicant and [Partner A’s] relationship and [details deleted];

    ·Copy of the applicant and [Partner A’s] marriage certificate issued [in] August 2016, previously provided to the Department;

    ·Statement from Corrections Victoria confirming that the applicant’s term of imprisonment commenced on [date] and ended [in] June 2017, undated;

    ·Applicant’s National Police History Check issued [in] January 2015;

    ·Report prepared by [a named officer] for [Agency 3] dated [in] December 2020 regarding the applicant’s treatment whilst in detention and the injury he sustained whilst in Detention on Christmas Island;

    ·Applicant’s Mental Health Treatment Plan from [Medical Centre 1] dated [in] July 2016;

    ·Letter prepared by [Psychologist A], Clinical Psychologist at [Agency 1] dated 13 January 2017;

    ·Applicant’s medical records from International Health and Medical Services dated [in] September 2017;

    ·Applicant’s Certificate of Attendance for attending [Course 1] dated 15 August 2017;

    ·Applicant’s Certificate of Attendance for attending [Course 2] dated 18 August 2017;

    ·Applicant’s Certificate of Attendance for attending [Course 3] dated 15 August 2017;

    ·Applicant’s Trade Certificate from [Fiji] dated [date];

    ·Applicant’s Certificate of Course Completion for Completing [Course 4] dated 20 February 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 5] dated 26 February 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 6] dated 2 March 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 7] dated 20 February 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 8] dated 23 February 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 9] dated [in] March 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 10] dated 7 March 2021;

    ·Applicant’s Certificate of Course Completion for Completing [Course 8] dated 19 February 2021;

    ·Department’s response to [Agency 3] dated [in] September 2020;

    ·Written correspondence from [Migration Agents 1] dated 28 September 2016 regarding the applicant’s Bridging Visa E application;

    ·Written correspondence from [Migration Agents 1] to the Department dated 13 September 2016, previously submitted to the Department;

    ·Photos of the applicant, [Partner A] and family/friends;

    ·Medical imaging report from [Hospital 2] regarding the applicant’s back injury dated [in] February 2022;

    ·Summary of the applicant’s medical appointment provided by [Officer A] of [Hospital 2] dated 23 February 2022;

    ·MRI scan of applicant’s lumbar spine taken [in] February 2022 showing significant abnormalities;

    ·Email correspondence from the applicant to the Tribunal dated 19 March 2022 with a number of submissions including duplicate submissions previously submitted to the Tribunal;

    ·A copy of the applicant’s Fijian passport;

    ·A copy of an invitation to attend a fundraising event hosted by the applicant and his wife [in] December 2015, previously submitted to the Department;

    ·Bond Receipt from the Residential Tenancies Bond Authority naming the applicant and [Partner A] as tenants, dated [in] July 2015, previously submitted to the Department;

    ·A copy of the Department’s Decision Record dated 2 August 2016 for the applicant’s Partner visa application;

    ·Email correspondence from the applicant to the Tribunal dated 20 March 2022 with a number of submissions including duplicate submissions previously submitted to the Tribunal;

    ·Correspondence from the applicant to the Department accompanied by a copy of travel itinerary for [a period between] April 2016 [and] May 2016 for the applicant, [Partner A] and [a family member], previously provided to the Department;

    ·Victoria Police Preliminary Brief – Statement made by [Officer B] dated [in] August 2016 listing the applicant as the accused and [Partner A] as the victim;

    ·Charge – Sheet and Summons signed by [Officer B] listing the applicant as the person charged for [the third offence], dated [in] September 2016;

    ·Copies of the Crime Scene Log and field interview regarding the applicant’s [third offence], reported [in] June 2016;

    ·Report obtained by [Officer B] titled ‘Accused – Priors for Court’;

    ·Transaction details from [a named] Bank regarding a payment from the applicant to a bank account for the sum of $1516.00 on 23 December 2015. The applicant has titled this submission ‘Paid Rent’;

    ·Annotated photos of the applicant with family and friends, previously provided to the Department;

    ·Certificate of Car Insurance naming the applicant and [Partner A] as the insured parties. Insurance certificate dated 14 April 2016;

    ·Certificate of Car Insurance naming the applicant as the insured party. Insurance certificate dated 12 May 2015;

    ·Email correspondence from the applicant to the Tribunal dated 19 March 2022 with a number of submissions including duplicates of submissions previously provided to the Tribunal;

    ·Email correspondence from the applicant to the Tribunal dated 22 March 2022 with a number of submissions including duplicates of submissions previously provided to the Tribunal;

    ·Email correspondence from the applicant to the Department dated 19 April 2016 containing the applicant’s response to the Department’s invitation to comment on adverse information;

    ·Email correspondence from the applicant to the Tribunal dated 22 March 2022 with a number of submissions including duplicates of submissions previously provided to the Tribunal;

    ·Report from the Physiotherapy Department at [Hospital 2] dated 9 July;

    ·Applicant’s discharge summary from [Hospital 2] dated 13 July 2018.The applicant has titled this submission ‘First Spinal Surgery [date]’;

    ·Copy of the applicant’s operation report from [Hospital 2] for the applicant’ [specified] operation [in] July 2018;

    ·Copy of the applicant’s imaging results from a spine MRI conducted on 3 July 2018;

    ·Copy of the applicant’s imaging results from a chest x-ray conducted on 8 July 2018;

    ·Applicant’s discharge summary from [Hospital 2] dated [in] October 2020. The applicant has titled this submission ‘Second Spinal Surgery on [date]’;

    ·Copy of the applicant’s operation report from [Hospital 2] for the applicant’s [specified] operation [in] October 2020;

    ·Applicant’s discharge summary from [Hospital 2] dated [in] July 2021. The applicant has titled this submission ‘Third Lower Back Spinal Surgery on [date]’;

    ·Copy of the applicant’s inpatient admission report from [Health Service 1], Christmas Island dated [in] December 2017 following the applicant’s fall on Christmas Island Detention Centre;

    ·Copy of the applicant’s medical discharge summary from [Health Service 1], Christmas Island dated [in] January 2018;

    ·Copy of the applicant’s operation report form [Hospital 2] for the applicant’s [specified] operation [in] December 2021;

    ·Copy of the applicant’s discharge summary from [Hospital 2] dated [in] January 2022;

    ·Copy of the applicant’s medical imaging report from [Hospital 2] dated [in] February 2022;

    ·Applicant’s clinical records from International Health and Medical Services from 23 November 2021 – 25 November 2021 detailing the applicant’s mental health consultation;

    ·Report from [an] Occupational Therapist at [Hospital 2] dated [in] November 2021;

    ·[Details deleted];

    ·Applicant’s discharge summary from [Hospital 3] dated [in] October 2020;

    ·Applicant’s discharge summary from [Hospital 4] dated [in] August 2021;

    ·A copy of the Department’s invitation to the applicant to comment on adverse information received by the Department: change in relationship status, addressed to the applicant on 19 April 2016; and

    ·A copy of the applicant’s Bridging visa E documentation granted to the applicant on 13 October 2016.

    Section 375A Certificate

1. At the conclusion of the hearing the Tribunal noted to the applicant that a non-disclosure certificate had been issued by the delegate under s. 375A of the Act.  A copy of the certificate had been provided to the applicant.  The Tribunal notified the applicant that the certificate concerned documents and information in the Departmental file where disclosure would be contrary to the public interest because:

   it discloses, or enables a person to ascertain the existence or identity of, a confidential source of information; and

   it discloses lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

2. The Tribunal stated that it considered the first reason the Department provided to be valid, and the certificate was valid.  The applicant was invited to make submissions on the validity of the certificate and why the material should be released.  He declined to do so.

3. The Tribunal stated at hearing that it wished to let the applicant know the ‘gist’ of the information that was subject to the s. 375A certificate.  The Tribunal explained the material consisted of internal documents between Victorian Police and the Department concerning the applicant’s conviction [in] March 2014 of [the first offence].  The material also noted the applicant had two outstanding charges for [the third offence] and [the second offence]. 

4. The Tribunal also informed the applicant the information included an allegation made to Australian Border Force in 2016 that he had been involved in multiple [offences] over the past 12 months and was on bail until [October] 2016 for an incident that occurred [in] July 2016.  Furthermore, the applicant had another charge pending for [the second offence] [in] June 2016, whilst he had been convicted in relation to an event [in] February 2013 for [the first offence].

5. Given the information was adverse, the Tribunal put the information to the applicant under s. 359AA at the hearing.  The Tribunal explained the particulars of the information, the relevance of the information and the consequences of the Tribunal relying on the information.  The applicant was also invited to give comments on or respond to the adverse information put to him under s. 359AA at the hearing or in writing.

6. The applicant elected to respond at the hearing.  The applicant stated that he had only pleaded guilty on the advice of his [Agency 4] counsel, and did so as he didn’t wish to be in gaol. The applicant’s other oral comments or response to the invitation have been taken into account by the Tribunal in its various deliberations throughout the decision record.  

   Does the ground for cancellation exist?

7. 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(1)(oa) is relevant.

8. At the hearing the Tribunal noted that the decision record the applicant supplied, stated that the applicant had acknowledged in his submissions to the delegate that he had been convicted in [Court 1] [in] March 2014, and this conviction gave rise to a prescribed ground for the cancellation of his visa.  In oral evidence to the Tribunal the applicant confirmed that he had been convicted of a criminal offence [in] March 2014.  The applicant has furthermore provided evidence both in writing and orally that he was subsequently convicted of further offences of [the fourth offence], [the third offence], and [the fifth offence] [in] May 2017 where he was sentenced to [a term of] imprisonment. 

9. The Tribunal notes the applicant does not agree with the events concerning his former sponsor that led to his charges and subsequent criminal convictions.  The relevant reg. 2.43(1)(oa) however makes it clear that the conviction of the offence itself against the law of the Commonwealth, a State or Territory is enough to ground the cancellation.  

10. 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

11. 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

12. The evidence before the Tribunal indicates that the applicant arrived in Australia in September 2012 as the holder of a Prospective Marriage (subclass 300) visa, prior to lodging an application for a Combined Partner (subclass 820/801) visa in February 2013 and being granted a Partner (Temporary)(subclass 820) visa in May 2013.  The original purpose of the applicant’s travel to and stay in Australia was for the purposes of his Partner visa and his spousal relationship with the sponsor. 

13. That relationship has ended, and the applicant has subsequently been unsuccessful in seeking judicial review of the matter, on the basis he could still be granted a Partner visa on [another basis].  The applicant conceded at the hearing that the purpose of his stay in Australia was no longer for the purpose of a Partner visa, nor [for any litigation]. 

14. The applicant was unsuccessful in his application to the Department for a Medical Treatment visa.  A differently-constituted Tribunal affirmed the delegate’s refusal.  As discussed elsewhere in this decision, the applicant has undergone three major operations on his spine whilst in immigration detention.  The applicant states he is due to undergo further spinal surgery in Perth.  He has also undergone other significant surgery in recent years. 

15. The applicant stated he has also applied for a Protection visa.  The applicant submitted his submissions for his Protection visa application to the Tribunal.  The application was refused in February 2022.  The applicant has applied for review with the Tribunal.  At the time of decision, the case had only just been constituted to a Member. 

16. The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia was not in contravention of the purposes for the grant of the visa.   

17. The Tribunal has considered whether the applicant has a compelling need to travel to or remain in Australia.  The Tribunal notes the applicant travelled to Australia with the purpose of lodging a Partner visa application.  The applicant concedes that his relationship with his sponsor has ended and he has exhausted all avenues of judicial review to be granted the visa on [any basis]. 

18. The Tribunal notes the applicant’s claims that his ongoing medical treatment remains a compelling reason for him to remain in Australia.  The Tribunal accepts that the applicant has undergone some serious and significant surgery whilst in immigration detention.  The evidence suggests he is due to undergo further treatment for lower back injuries, he claims, are the result of an accident which occurred whilst in immigration detention on Christmas Island.  Without debating the matter of culpability for the applicant’s medical conditions that require surgery, the Tribunal gives some limited weight in the applicant’s favour that his remaining surgery and treatment is a compelling – albeit temporary – reason why he needs to remain in Australia.  

19. The Tribunal has also given consideration to the applicant’s outstanding Protection visa review.  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.

20. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder 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

21. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the prescribed grounds of the applicant’s criminal conviction 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. 

22. Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. 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.

24. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside.  The applicant has claimed returning to Fiji would cause him hardship. The Tribunal is satisfied that the cancellation of the applicant’s Bridging Visa A will impose some hardship upon the applicant. 

25. Understandably given the applicant’s medical condition, the applicant has submitted that the current state of his health – and his need for ongoing medical assistance including further medical operations and procedures – will mean that he will face extensive medical hardship should his Bridging visa be cancelled. 

26. The applicant submitted that he suffered a serious lower back injury when he fell whilst in immigration detention on Christmas Island [in] December 2017.  The applicant has submitted extensive medical information to the Tribunal, as listed previously in this decision record pertaining to the injuries he claims to have suffered as a result of this fall and subsequent medical treatment that he has undertaken.  At the Tribunal’s hearing the applicant stated he had undergone significant lower back surgeries to his back after being transferred to Perth as a result of his injuries on [specified days in] July 2018, [October] 2020 and [July] 2021.  He foreshadowed a further fourth round of surgery on his back.  The Tribunal notes the applicant also underwent surgery on his neck [in] December 2021 that required hospitalisation.  The Tribunal has noted especially the evidence provided from the last 12 months from health professionals in Perth that have been involved in the management of the applicant’s medical procedures and pain management. 

27. Whilst the circumstances concerning the events as to [December] 2017 remain contested (noting the Department’s correspondence of 20 September 2020 that the applicant provided to the Tribunal), the Tribunal does accept that the applicant suffers from serious lower back issues that impact upon his quality of life.  The Tribunal notes the Department’s evidence, as provided by the applicant, that the applicant “has a documented history of spinal disease prior to his arrival in immigration detention” which includes undergoing lumbar laminectomy surgery in 2003 and his reporting of pain and numbness prior to his fall in December 2017.  The Tribunal discussed this at the hearing with the applicant who conceded he had undergone laminectomy surgery in 2003 due to a [specified] injury, and he had reported mild lower back pain and symptoms prior to his fall in December 2017.  Nevertheless, the evidence of multiple operations, the applicant’s need for ongoing significant pain relief and the impact on his mobility that has led to the appointment of his own carer all suggest to the Tribunal that the applicant’s health – and his ability to obtain such support in Fiji – indicate the applicant will face hardship in relation to his physical health should his visa be cancelled. 

28. The Tribunal has considered if this hardship in relation to his physical health can be mitigated should he return to Fiji.  The Tribunal notes that the applicant has access to the Fijian public health system should he return home.  The applicant responded that the quality of care available is of an inferior quality to Australia and that people with means in Fiji travel to India if they require any significant surgery or medical procedures.  He stated he had no faith in the Fijian public system as both his parents had died whilst being treated in this system.  He stated that he will only receive $100 a month in welfare from the Fijian authorities and he will be unable to survive. 

29. The Tribunal accepts that the quality of health care in Fiji may be of an inferior quality generally to the Australian system.  The access to the public system for elective surgery may have similar limitations.  The applicant discussed the extensive medical services he currently receives: physiotherapy, hydrotherapy, psychology, psychiatry and a range of other ongoing medical support.  He has a carer.  The Tribunal accepts the applicant is receiving excellent medical support through the ongoing support of the Australian Government.  The Tribunal does not however accept on the evidence before it that cancelling the applicant’s visa means the applicant will be unable to receive the practical and ongoing support he needs in Fiji through the public system.  Whilst the delivery of services may not be as either extensive or the same quality as Australia, the Tribunal does not accept the claim that the Fijian public health system is unable to assist the applicant.  The Tribunal notes that “Public health care is free or at very low cost for all persons in the country” (The Fijian Islands Health System Review, Asia Pacific Observatory on Health Systems and Practices).  The Tribunal accepts the quantum and quality of those services may increase the hardship he will face in relation to his health.  The Tribunal does not however accept this hardship is unreasonable.   

30. The applicant claims both in his oral testimony and in writing that Fijian health authorities have informed him that he will be unable to undergo the fourth planned surgery on his lower back he requires as he has already undergone three procedures in Australia.  The Tribunal finds the claim unusual and notes there is nothing that has been submitted to the Tribunal in this review to confirm such a definitive and unequivocal statement in the form of formal correspondence from a surgeon or relevant hospital administrator.  In such circumstances, the Tribunal gives the claim very limited weight.  The Tribunal, whilst accepting that there will be increased physical hardship for the applicant should his visa be cancelled in relation to future surgery, does not accept the claim that the applicant will be essentially excluded from the Fijian public health system and precluded from future treatment of his lower back issues. 

31. The Tribunal has carefully considered the applicant’s submissions concerning his lower back injuries and the treatment he requires, as well as his claims about the limitations of the public health system and his inability to access the private health system. The Tribunal accepts that the potential for the applicant to obtain the surgery and treatment (including various medications) he requires is greater in Australia than in Fiji through the public system.  Whilst he has no employment, significant Commonwealth debt and no obvious evidence of savings, he claims to have some support from his sister in Australia.   The Tribunal accepts there is a greater possibility of him receiving the treatment he desires (and the evidence suggests requires) in Australia than Fiji.  For that reason, the Tribunal accepts that cancellation of his Bridging visa – and the impact on his ability to access such treatment for his lower back should he depart Australia – will impose hardship on the applicant. 

32. The Tribunal has considered the applicant’s evidence in relation to his mental health in relation to hardship.  The applicant stated he was mentally unwell.  He discussed the pain he had suffered as a result of his injuries – and from what he states was sub-standard [care] whilst in detention – and the impact that has had on his mental state.  He stated at the Tribunal’s hearing it would be better to end his life than return to Fiji in such a situation.  The applicant stated that he saw a psychologist and psychiatrist about every fortnight.  There is evidence before the Tribunal of a previous Mental Health Plan.

33. At hearing the applicant discussed the hardship he claims to face in relation to his mental health.  The applicant has been in immigration detention for a significant period of time, a period the Tribunal accepts has been challenging especially whilst also attempting to manage his lower back injuries.  The applicant discussed his previous relationship with his former sponsor, the claims she made against him, and his arrest and ultimate incarceration in the NSW penal system.  These events individually and collectively have all, it is claimed, had a corrosive impact on the applicant’s mental health.  The applicant stated at the hearing that if he had his time over again, he would never have departed Fiji and followed his former spouse and sponsor of his Partner visa. 

34. The Tribunal has considered the applicant’s claims in regard to his mental health.  The Tribunal accepts that the applicant’s mental health has been challenged by the events of the last decade both individually and collectively.  At the time of decision, the applicant has been in either criminal detention or immigration detention for over 5 years.  For almost all that time he has, the evidence suggests, been in considerable pain and discomfort despite the extensive and encompassing medical treatment provided to him by the Commonwealth.  At hearing the applicant discussed his former sponsor’s alleged behaviour and treatment towards him that he claims generated a further corrosive impact upon his mental well-being.  [Details deleted].

35. The Tribunal accepts that the applicant faces ongoing challenges in relation to his mental health.  Whilst accepting that through remaining in Australia the applicant will be able to access generally superior and ongoing professional support for his mental health than if he were to return to Fiji, the Tribunal does not accept that the provision of such support is not available in Fiji.  The Tribunal notes mental health services are available in Fiji, including through the public health system:   The Tribunal also notes he will be closer to his brother who may also be able to provide him with emotional strength and support his mental health from the perspective of a family member.  The Tribunal accepts the applicant has an ongoing need for support in relation to his mental and psychological health and subsequently considers, in relation to his mental health, that cancellation of his Bridging visa may cause some increased hardship.                

36. 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 A be cancelled.  The Tribunal notes however that should the applicant’s Bridging Visa A be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa E that may allow him to remain in Australia pending the finalisation of his  review by the Tribunal. The Tribunal also notes that the applicant may otherwise be able to continue his participation in the review concerning the refusal of his Protection application whilst continuing to remain in immigration detention. The Tribunal considers any hardship to the applicant caused by the cancellation of his Bridging visa A in relation to his Protection visa review to be limited.    

1. The Tribunal discussed with the applicant his family members and any hardship that might be caused to them.  He stated that his parents are both deceased, whilst he has a brother in Fiji and a sister in Australia.  The Tribunal has considered the hardship that his siblings may face should his visa remain cancelled.  The applicant stated his brother is in a financially challenged position, working as a fisherman and caring for his own family on his own small property.  He stated that his brother was quite simply unable to provide him with the practical and financial assistance he would require should he return to Fiji in his current state of health.  He has submitted it would be challenging and in fact unfair to put such expectations on his brother to take on the role of his de facto carer.  The Tribunal has considered the applicant’s submissions.  The Tribunal accepts that the applicant’s brother may feel compelled to provide the applicant with practical and ongoing support should his Bridging visa be cancelled, and he return to Fiji.  The Tribunal notes however that the applicant is a Fijian national and is entitled to support from the Fijian Government’s Social Welfare Services as well as health care through the Fijian public health system.  Whilst neither is of the quality of the services and support available in Australia, the Tribunal does not consider the applicant’s potential return to Fiji will result in the applicant’s brother taking responsibility for the care and support of the applicant. 

2. In relation to his sister, the Tribunal accepts that the applicant maintains communication with his sister who has moved around a range of locations in Eastern Australia.  The applicant stated that he would live with her should he be granted a Bridging visa and return to the community.  The Tribunal notes that his sister will still be able to remain in close communication with the applicant in Fiji, as she has done now for some years whilst he has been in Western Australia.  The Tribunal considers the applicant’s sister can continue to provide him with emotional support despite not being located together with the applicant.  The Tribunal notes the applicant’s sister can choose to visit the applicant in Fiji as she sees fit.  The Tribunal has considered the evidence before it pertaining to any hardship the applicant’s family, namely his siblings, will face should his visa be cancelled.  The Tribunal is not satisfied that there will be any significant hardship imposed on either the applicant’s brother or sister if the visa is cancelled.  

3. The Tribunal has considered any hardship that might be imposed in relation to the applicant and his relationship with other family and friends.  The applicant stated at the Tribunal’s hearing that he has no partner or wife.  The applicant said the children from his first marriage reside in [Country 1] and he has not seen them since 2013.  The Tribunal does not consider cancellation of the applicant’s visa will cause any hardship in relation to the applicant in relation to other family members and friends. 

4. The Tribunal discussed financial hardship.  He is a qualified [occupation 1] who also previously worked as a driver.  He stated that he would be unable to acquire employment in Fiji due to his injuries.  He stated that he no longer had any assets in either Australia or Fiji after his [settlement] proceedings.  The applicant said he owes the Commonwealth over $19,000, debts generated as a result of multiple unsuccessful visa applications and attempts at judicial review.  He has other debts to others as outlined in the delegate’s decision.  He claims he is already in dire financial hardship.  The Tribunal notes the applicant’s claim that he will be unable to source employment in Fiji.  The Tribunal accepts that the applicant’s current injuries have an adverse impact on his ability to secure employment in Fiji.  Whilst such a claim in itself is speculative, the Tribunal does accept as a reasonable proposition that the applicant’s injuries will challenge him to return to some of his previous areas of employment.  The Tribunal notes nevertheless that Fiji does provide a social safety net through universal financial support for the disabled disabilitybenefits/#:~:text=The%20Fijian%20Government%20has%20a,as%20many%20as%206000%20beneficiaries  as well as unemployment income support.   The applicant stated he has received limited financial support from his sister previously. There is no reason before the Tribunal that suggests such support cannot continue to be provided from offshore by his sister should she so desire.  The Tribunal considers in such circumstances that cancellation of the applicant’s visa will cause him some financial hardship, though it does note he has now obviously not been in employment for over five years.    

5. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia.  The Tribunal accepts the applicant continues to face medical challenges and difficulties in relation to his lower back injuries.  He has undergone extensive and ongoing treatment in Australia for these injuries for over four years.  The Tribunal accepts he requires further surgery, with Australia a favoured venue both from the perspective of the quality and availability of health care and cost.  The Tribunal accepts there will be some financial hardship should his visa be cancelled, but some of those challenges can be mitigated through government support in Fiji and offshore support from his sister if she so desires. The Tribunal recognises the ongoing psychological and mental health treatment the applicant has received in Australia and accepts there may be increased hardship in this area should the applicant’s visa be cancelled. As stated above when considering the degree of hardship that may be caused to the applicant across a range of areas, the Tribunal also has noted that should the applicant’s Bridging Visa A be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging Visa E that may allow him to remain in Australia pending the finalisation of his Protection review by the Tribunal. 

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

   The circumstances in which the ground for cancellation arose

7. [In] March 2014 the applicant was convicted of [the first offence] and received a 12-month good behaviour bond.  The circumstances that led to the charge and conviction of the applicant provided the ground for the cancellation of the applicant’s visa. 

8. The applicant made extensive verbal and written submissions as to the circumstances surrounding his charges and subsequent convictions for these criminal offences. 

9. At the Tribunal’s hearing the applicant discussed the circumstances that led to his [March] 2014 conviction at [Court 1].  At the time of the delegate’s decision this was the only conviction recorded.  The conviction relates to events that occurred [in] February 2013. [Details deleted.] 

10. The applicant states that his wife attended Court with him in relation to the Police charge in March 2014.  The applicant stated he pleaded guilty on the advice of his [Agency 4] lawyer.  The [charge] was dismissed with the applicant agreeing to comply with an undertaking of a good behaviour bond for a year, as well as [another condition]. 

11. The sentence imposed by the Court was to adjourn the matter for a year with the applicant giving an undertaking to be of good behaviour and [another condition].  The applicant successfully [met this condition], and the Tribunal notes the various documentation provided attesting to [this condition]. 

12. The Tribunal notes the applicant’s claims in his previous submissions that the conviction and sentencing was at the “light” side of the sentencing spectrum.  The Tribunal accepts [the evidence in this regard].  The Tribunal notes the applicant successfully completed the 12-month bond programme as required by the Court.  The Tribunal takes all this into account and gives requisite weight in the applicant’s favour.  The Tribunal however notes that the conviction was grounded in [specified events].  It is not the role of the Tribunal to relitigate the matter.  The evidence before the Tribunal is that there was [a specified incident].  The Tribunal accepts [that] the sentence was relatively “light” considering what penalties were available to the Court, and the Tribunal gives some positive weight to the applicant for successfully completing the requirements of the bond.  The Tribunal nevertheless notes that the evidence remains [of a serious incident], which grounds the cancellation of the visa.  The Tribunal has further concerns due to evidence that the applicant has provided the Tribunal from post the delegate’s decision.    

13. The applicant spent considerable time at the Tribunal’s hearing discussing [his] relationship with his wife, then the sponsor of his Partner visa application.  He explained an unhappy life.  [Details deleted.]  He stated that after 4 or 5 months of a good relationship she turned on him.  He claimed his wife [threatened] to send him back to [Fiji] .  The Tribunal asked the applicant why she allegedly behaved in such a fashion.  The applicant claimed it was [greed].  The applicant’s statutory declaration of 9 September 2016 provides considerable detail about his relationship with his then wife after his March 2014 conviction until the cancellation of his Bridging visa.  He stated that [he was] charged with [the second offence and] the case listed for mention [in] October 2016.  [Details deleted.] 

14. At the Tribunal’s hearing the applicant stated that his criminal charges of 2016 were the result of both his own trusting naivety combined with the disingenuous behaviour of his then wife.  He claims that, just two weeks after the intervention order was made against him on 16 November 2015 , his wife [contacted him] and she wanted him to return home.  The applicant claimed he believed his wife and moved home: without ever confirming the order had in fact been withdrawn.  The applicant stated at the Tribunal’s hearing that for approximately the next eight months he and his wife lived together in a spousal relationship.  The applicant certainly provided the Tribunal with evidence that the parties travelled with each other to Fiji twice during this period.   He states that his wife contacted the Department to tell them her relationship with him was over the same time they were holidaying [together] in April 2016.  The applicant stated he continued to pay the various bills at their property and simply believed his wife when she stated the intervention order had been withdrawn.  He stated that during this time when there was conflict his wife would threaten his immigration status.  The evidence and claims pertaining to the claimed relationship between the parties is opaque to say the least.  On 26 June 2016 the applicant claimed to have been attacked by his wife.  He stated that whilst receiving treatment in hospital that the Police arrived wanting a statement and subsequently charged him with unlawful assault from the 26 June 2016 event in September 2016.  The applicant claims he returned home again to live with his wife in July 2016.  After a few weeks, on 18 July 2016, he states his wife again called the Police and he was charged with breaching the intervention order. 

15. Post the delegate’s decision, as outlined in submissions the applicant supplied the Tribunal, [in] March 2017 the applicant was charged with [the fourth offence], [the third offence] and [the fifth offence].  The applicant was remanded in custody before being convicted of all charges and sentenced to three months imprisonment [in] May 2017. 

16. The applicant claims that he telephoned his wife in March 2017 only after he had received multiple calls from her: and had only recently agreed to withdraw his own intervention order at his wife’s request.   The applicant’s telephone call to his wife in March 2017 led to the matter being immediately referred to the Police who arrested the applicant.  He was initially remanded in custody before being convicted of all charges.  [The applicant] was sentenced to [a term of] imprisonment.  The Tribunal notes he pleaded guilty to all charges.    

17. The Tribunal acknowledges the circumstances in which the ground for the cancellation arose was his conviction in 2014.  His subsequent behaviour and actions however illustrate that the applicant is a repeat offender, having been convicted now of multiple criminal offences on multiple occasions.  The victim in each of these criminal offences has been his wife. 

18. The Tribunal agrees the evidence surrounding the relationship between the applicant and his wife is somewhat discombobulating.  Despite family violence intervention orders in place, the parties ignored them for many months.  The applicant claims he believed the orders had been withdrawn and he was deliberately “set up” by his former wife to break the law.   He claims he was naïve, and he is the victim of his former wife’s nefarious plan to [incriminate him].  The Tribunal asked the applicant why his wife would seek to do this to him.  He claims it was for financial purposes. Again, it is not the role of the Tribunal to re-litigate accusations of criminal behaviour.  The Tribunal’s role is to consider the circumstances in which the ground for cancellation arose.  The facts on that matter suggest the applicant pleaded guilty and was convicted of [the first offence] in 2014.  He faced allegations of [further offences] in 2016.  In 2017 he again pleaded guilty to charges of [the third offence], [the second offence] and [the fifth offence].  The Tribunal accepts the 2017 convictions and gaoling  occurred post the delegate’s decision.  Nevertheless, on the evidence before the Tribunal, at the time of decision, the applicant’s original 2014 conviction grounding the cancellation – and the circumstances in which the ground occurred – appear to indicate that the applicant ultimately is a repeat offender convicted of serious [offences]. 

19. The Tribunal accepts the applicant’s claims that the relationship with his former wife was not a happy one.  The Tribunal concedes it was a tumultuous relationship with each party making claims against the other.  The Tribunal is obviously unable to examine the veracity of every claim the applicant has made concerning the relationship.  The Tribunal cannot however on the evidence before it accept the applicant’s claim that each criminal charge he faced is the result of a deliberate conspiracy perpetrated by his then wife to “set him up”.  The applicant appeared before the Court on each of these charges.  He pleaded guilty, was convicted and was incarcerated for three months .  The evidence before the Tribunal is that the applicant is a repeat offender [on several charges].  The Tribunal has no sympathy for those found to have committed serious threats of violence towards women as well as engaging in other intimidatory and violent behaviour.  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. 

20. The Tribunal notes if cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.  At the time of the delegate’s decision in 2016, the applicant through his representative noted that given this policy, decision makers must give careful consideration to cancellation in circumstances where family violence is alleged by either party.  The applicant noted that given he was alleging he was the victim of family violence, those claims should be determined by the Tribunal in its consideration of his Partner visa.  The Tribunal notes from correspondence the applicant provided that the applicant’s Partner visa refusal, where his claim to be the victim of family violence, was refused, and had been litigated unsuccessfully through the Courts to the High Court.  The Tribunal asked the applicant if he had any further claim to make in relation to this claim.  He stated he did not.  The Tribunal does not accept on the basis of the applicant’s claims and the evidence before it that he is the victim of family violence. 

21. 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

22. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  On the evidence before the Tribunal the applicant has actively engaged in the cancellation consideration process.  The Tribunal notes he is acting without counsel and has been a diligent, professional and active participant in the review process.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa.

    Whether there would be consequential cancellations under s. 140

23. 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 of, nor against cancelling the applicant’s visa. 

    Mandatory legal consequences

24. The applicant is currently in immigration detention and has been since June 2017.  The applicant was granted his Bridging visa A on 8 May 2013 on the basis of his then Partner visa application.  That Partner visa was refused by the delegate.  The applicant unsuccessfully sought judicial review at the Federal Circuit Court, the Federal Court and the High Court, all of whom dismissed his application.

25. On the evidence before the Tribunal, the applicant’s judicial review application pertaining to the refusal of his Partner visa application was dismissed by the High Court [in] September 2019.  His Bridging visa subsequently would have ceased 28 calendar days after this date.  The applicant confirmed at the Tribunal’s hearing that he had ceased all proceedings in relation to his Partner visa application. 

26. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and will remain in detention under s. 189 and faces removal under s. 198 of the 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 applied for, 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.

27. As the applicant is in detention, the applicant retains the opportunity to apply for a Protection visa (which he has done) or a Bridging visa under s. 195.  Under s. 195A the Minister may grant an applicant a visa if he considers it is in the public interest to do so and the applicant has no outstanding matters seeking review and there are compelling or compassionate circumstances. 

28. The Tribunal notes that the applicant currently has an application for review of the Department’s refusal of a Protection visa before a differently constituted Tribunal. The legal consequences of the cancellation specific to the applicant are that he is likely to remain in immigration detention upon cancellation pending the resolution of his Protection visa application before the Tribunal.  The Tribunal notes the evidence before it suggests the applicant, as is his right, has exhausted multiple avenues of judicial appeal, requests for Ministerial intervention and visa sub classes in an attempt to remain in Australia whilst in immigration detention. On the evidence before it, the Tribunal weighs this factor neither in favour of, nor against cancelling the visa.

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

1. The applicant stated his children live in [Country 1] and he has not seen them since 2013.  He has no children in Australia.  There is no claim before the Tribunal that the best interests of children as a primary consideration would be breached as a result of the cancellation.  

2. The applicant stated in response to the Tribunal’s questions that he had lodged a Protection visa application.  He stated he had only recently done so as he was in pain, had no money and no home in Fiji.

3. At the Tribunal hearing the applicant spoke about his fear of returning to Fiji.  The applicant provided some of his Protection application submissions to the Tribunal, whereby he is claiming the Fijian public health system; the lack of medical assistance for someone with complex medical issues; crime; his brother’s inability to financially support him; claims Fijian hospitals can’t help him with his lower back injury; limited welfare support; and threats made to his brother in Fiji and his sister in Australia  as relevant to his Protection application. 

4. The applicant has directly raised many of those matters in his Bridging visa application which the Tribunal has addressed.  The Tribunal asked the applicant to discuss threats made against his brother and sister.  The applicant provided vague and non-specific claims of threatening telephone calls allegedly made to his siblings concerning himself.  In relation to his concerns about crime, he claimed Fijian Police were lazy and would not investigate matters.   

5. At the time of decision, the applicant’s Protection matter is still before the Tribunal. The cancellation of the applicant’s Bridging Visa A 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.

6. The Tribunal notes that the applicant also provided in the voluminous emails and documents sent in bulk as evidence correspondence from [Agency 3] to the Department where the argument was submitted that the applicant’s continued detention in immigration detention facilities is arbitrary and amounts to a breach of Human Rights under Articles 9(1), 10(1), 17 and 23 of the International Covenant of Civil and Political Rights (ICCPR).

7. The Tribunal does not accept the applicant’s continued immigration detention represents a breach of the ICCPR.   The Tribunal is of the view that the applicant’s ongoing detention represents the adhering to of the legislation contained in the Migration Act and the Regulations rather than a breach of any of Australia’s international obligations.  The applicant retains the right to make arrangements and depart Australia: in fact, as outlined by the evidence he submitted to the Tribunal, he commenced steps to do so in September 2019 requesting voluntary removal from Australia before withdrawing his request some five weeks later.  As he is an unlawful non-citizen, an individual the Tribunal notes has been convicted whilst in Australia of multiple criminal offences, he remains in immigration detention.  In such circumstances the Tribunal does not accept the applicant’s ongoing detention, whilst undoubtedly frustrating to the applicant, represents a breach of the Commonwealth’s international obligations.  Rather than return to Fiji, the applicant has determined to exercise his rights to lodge a number of visa applications and undertake judicial review of the decisions made by the delegate in such areas.

8. In relation to Australia’s international obligations, the Tribunal weighs the matter neither in favour nor against cancelling the visa. 

   Conclusion

9. The review of a Bridging visa originally granted some 9 years ago during the delegate’s consideration of a Partner visa that has during this time been refused and subject to judicial review as far as the High Court has been challenging.  The applicant’s circumstances today are very different from the time of the cancellation of his Bridging visa by the delegate over five and a half years ago.  The applicant’s attempt to claim non-judicial family violence was not successful.  His own health has declined with the injured lower back which has required considerable medical treatment.   The applicant’s ongoing detention since 2017 is unfortunate, yet a consequence of the applicant’s own actions.  He has been convicted of a number of serious [criminal offences]. He pleaded guilty to such charges, regardless of his justification for such a decision today. 

10. The ground to cancel the applicant’s visa is found in the conviction of March 2014.  The fact that the applicant has subsequently been convicted of further, more serious charges that precipitated the applicant being remanded in custody and then gaoled for three months highlights the concerns felt about the applicant’s actions, and his wife’s and her children’s safety.  The Tribunal accepts the relationship was tempestuous and volatile from both parties. 

11. In considering the various considerations, it is the applicant’s health – and his ongoing needs – that weighed strongly in his favour.  The applicant is clearly struggling with his health, being supported by a carer.  He has another major lower back operation planned.  The ability to acquire healthcare and support of a similar quality in Fiji is obviously a concern to him and an issue the Tribunal is acutely aware of.

12. The Tribunal is also aware of the applicant’s mental health challenges.  He has been in immigration detention in considerable and ongoing pain for over four years which may have impacted upon his mental health.  The Tribunal accepts he has been receiving excellent mental health care and support from the public health system in Western Australia. 

13. Such considerations however are ultimately outweighed by the seriousness of the applicant’s convictions and his repeated criminal [behaviour].  The applicant has claimed he is the victim of what is essentially a conspiracy of his former wife that has led to his gaoling and cancellation of his visa.  He has provided an extensive account of what he alleges was an awful time as the spouse of his Partner visa sponsor.  The applicant is an articulate witness.  Ultimately however the Tribunal has determined this case on all the evidence before it.  Whilst the Tribunal has considerable sympathy for the applicant and his health, the nature of the convictions and the circumstances of the events that led to the convictions are such that the Tribunal considers the visa should be cancelled.  The Tribunal accepts that remaining in detention has been draining on the applicant, however the Tribunal notes the applicant receives, and will continue to receive, regular mental health support whilst he remains in detention awaiting the outcome of the review of his Protection visa refusal.   

100.   The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both individually and cumulatively.

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 010 (Bridging A) visa.

Justin Owen
Senior Member