2203768 (Migration)

[2022] AATA 1927

2203768 (Migration) [2022] AATA 1927 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203768

MEMBER:Denis Dragovic

DATE OF ORAL DECISION:  22 April 2022

DATE OF WRITTEN STATEMENT:         27 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 27 May 2022 at 3:00pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – granted in conjunction with appeal to Federal Circuit and Family Court – criminal charges – immigration detention – ground for cancellation conceded – discretion to cancel visa – lengthy detention – recent relationship considered as de facto – mental health and treatment – partner’s family and social support – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 189
Migration Regulations 1994 (Cth), r 2.43

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) regulation 2.43(p)(ii) on the basis that the applicant had been charged and as such grounds for cancellation existed. In discharging the delegate’s discretionary powers, they found that the reasons not to cancel the visa did not out weight the reasons to cancel his visa. 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 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. At the conclusion of the hearing, I made an oral decision without reasons to set aside the decision under review and substitute a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

5. Following are the reasons for that decision.

   PROCEDURAL BACKGROUND

6. The procedural background to this case was usefully summarised in a submission of the applicant’s representative:

   [The applicant] arrived in Australia by boat at Christmas Island [in] June 2013 as an illegal maritime arrival, who was subsequently detained under s 189. [The applicant] was subsequently transferred onshore in June 2013, where he was detained again under s 189(1). Following a s 195A Ministerial Intervention (MI) application, he was granted a Temporary Humanitarian Stay (subclass 449) visa and Bridging visa E in August 2013. [The applicant] has been allowed numerous bar lifts and Bridging visa grants since this time, which will not be repeated for brevity. He was also notified of a s 46A bar lift and invited to apply for a Temporary Protection Visa (TPV)/Safe Haven Enterprise Visa (SHEV), and he subsequently made an application for a SHEV on 9 June 2017.

   On 13 March 2018, [the applicant] was refused a SHEV by a delegate of the Department of Home Affairs (the Department). This decision was later affirmed by the Immigration Assessment Authority (IAA) on 6 June 2018 (the first IAA decision). On 5 November 2018, a Court remitted the matter for reconsideration by the IAA. The IAA made a subsequent decision on 3 December 2018 (the second IAA decision), which was again remitted by a Court on 16 March 2021. On 27 April 2021, the IAA made another decision to affirm the decision to refuse [the applicant] a Protection visa (the third IAA decision). [The applicant] has a judicial review application before the Federal Circuit and Family Court of Australia (FCFCOA) in respect of the third decision of the IAA. Victoria Legal Aid is currently representing him in relation to his judicial review application.

   Between September to November 2016, [the applicant] was charged with a number of criminal offences. Subsequently, on 15 November 2016, the Department notified [the applicant] of their intention to cancel his visa granted on 10 June 2016. During an interview on that same date, a decision was made to cancel [the applicant]’s Bridging E (subclass 050) visa under s 116(1)(g) of the Migration Act 1958 (Cth) (the visa cancellation decision). [The applicant]’s visa was cancelled on the grounds that the Minister was satisfied that [the applicant] “has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.” A delegate of the Department considered that this was not outweighed by any reasons for not cancelling [the applicant]’s visa. On 23 October 2017, [the applicant] was detained under s 189(1) of the Migration Act 1958 (Cth) and he has been detained since this time.

   Following a decision of the High Court, [the applicant] was renotified of his visa cancellation on 15 March 2022 as the Department assessed that [the applicant] was not correctly notified of the cancellation decision in 2016. [The applicant] applied for review of the decision to cancel his Bridging E (subclass 050) visa before the Administrative Appeals Tribunal (AAT).

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). 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?

8. 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(p)(ii) is relevant and states, ‘has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country’.

9. The applicant conceded that he had been charged with offences in 2016. Specifically, according to the charge sheets accompanying the delegate’s notice of intention to consider cancellation he had been charged with Attempted Burglary, Theft of Motor Vehicle, Handle/Receive/Retention of Stolen Goods, possession of various illegal drugs, Deal Property Suspected Proceed of Crime ($515) and Going Equipped to Steal/Cheat.

10. As the applicant had conceded that he had been charged the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) Regulation 2.43(p)(ii) 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.

    The law pertaining to the consideration of discretion

11. 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.

12. The primary considerations of the Direction 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.

13. 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.

14. 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’.

15. By the Department having cancelled the visa and on appeal the case being heard by this Tribunal, the first primary consideration has been met, in that the Department and Tribunal have in this instance of non-compliance considered the applicant’s situation for cancellation.

16. The applicant does not have any children and as such the second primary consideration carries no weight.

    Secondary Considerations: Evidence and consideration of whether to cancel the visa

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

17. He said that [Ms A] is his partner and they intend to get married. [Ms A] did not appear at the hearing based upon the advice of the representative. The representative explained that the detention centre had a policy requiring detainees to isolate for five days after being in the community for reasons of managing COVID. The representative was concerned about the applicant’s mental health and the consequences of five days in isolation. As such she advised against [Ms A] attending so as to minimise the number of people he is exposed to and in turn hope that he will not be required to self-isolate.

18. Based upon this reasoning I place no weight on [Ms A]’s absence from the hearing and instead arranged to have her called upon to provide evidence by telephone.

19. Regarding the relationship, in [Ms A]’s written submission she wrote:

    I met [the applicant] in 2015, I met him in Melbourne and [Town] through family friends. We have known each other for a long time. We have been friends since 2015 but we lost contact for some of that time after I changed my phone number. We found each other again in 2021 through [Social media].

20. The applicant provided a similar narrative at the hearing explaining that he had first met [Ms A] in 2015 through a girlfriend of one of his friends. He said that their relationship began as a friendship and was inhibited from progressing due to his criminal conduct in 2016. But the friendship transitioned into a relationship in 2021. He explained that he wasn’t allowed to have a phone and SIM in detention until late 2018. By the time the rules had changed he had lost access to his contacts and so he didn’t reconnect with [Ms A] until 2021.

21. [Ms A] provided oral evidence explaining that their relationship began in 2021 through [Social media] and directly over the phone. She explained that she had been four months single at the time when they connected and that since then they haven’t stopped being in contact. She said that her relationship with the applicant has changed her, stating that he made her feel that she is a person and loved. She said that he has opened his heart to her and that she feels comfortable with him.

22. The applicant explained that due to COVID [Ms A] has been unable to visit him until last week. [Ms A] explained that she had applied through the website to visit him as soon as the restrictions were lifted but was rejected the first time and only subsequently allowed.

23. She said that her plans for their future include that she holds a job, though not working every day, so that she has time for him. In a written submission [Ms A] wrote:

    It is very hard for me that [the applicant] is in detention. We miss each other a lot. It is very important for me to be back in the same place as [the applicant], because we have a very good connection and bond. I have never felt this way before in my life. I feel so happy with him.

24. At the hearing [Ms A] said that they speak every day. She said that she helps him keep his routine while for her, she has been medicated most of her life due to depression/anxiety and she suffers a trauma disorder that requires her to see a counsellor. A submission was received from her counsellor that included,

    [Ms A] has a longstanding diagnosis of depression, anxiety and complex post-traumatic stress disorder that she is currently managing well with support in the community. [Ms A] is hoping that her partner [the applicant] would be able to move in with her upon potential release from the Melbourne Immigration Transit Accommodation. This would provide benefits for [Ms A]’s overall mental health and social and emotional well-being and build further on the positive gains and response to support she has had.

25. She explained that she feels that [the applicant] wants to know about how she feels and she believes he understands her. She believes that her own mental health would improve were he to be living with her.

26. They claim to have spoken about having children. At the hearing the applicant said that his father doesn’t have a brother and the applicant has only one brother who doesn’t have children. So, he feels that it is important to continue their family line. He said that if he doesn’t have children he feels as if he ‘is a seed without fruit’. I asked about whether they had considered the circumstance of being married and having children, but then the applicant’s protection visa not being granted and as a result him facing deportation. She said that they would talk about all of those possibilities in the future. The applicant concurred and acknowledged that he hadn’t thought about what could happen was his visa to be denied.

27. [Ms A] submitted that she has ‘also met [the applicant]’s parents over the phone, and they want us to be married because they think it is very healing for [the applicant] to have met someone who really loves him.’ She submitted that she has also spoken to one of [the applicant]’s sisters over the phone.

28. [Ms A]’s father provided a submission in the form of a statutory declaration. He wrote that he met the applicant in 2016 and understands that his daughter is in a relationship with him. He wrote that the family is supportive of the relationship. He said that the applicant’s ongoing detention is affecting his daughter and as such it is affecting him and the whole family. He wrote that [Ms A] has [brothers] and [sisters] and that her situation is affecting each of them.

29. [Mr B] stated that was the applicant not to be released he would be, ‘very concerned about [Ms A]’s welfare. I do not know if [Ms A] would cope with that. I would be very concerned about her mental health and how that would affect her.’

30. In considering the possible impact of a decision to cancel the visa on the family unit I treat the relationship with [Ms A] as a de facto relationship although this is untested in the statutory sense and specifically whether the applicant meets the Migration Act’s criteria of a de facto partner (r.1.12 and s5CB). The relationship is clearly meaningful and whether examined under this secondary consideration as a family unit or alternatively placed under ‘any other matter considered relevant’ as directed in Direction 63, is moot.

31. While the relationship has taken a torturous pathway to where it currently stands, so have many others, many of which have continued on to flourish. That the relationship began while the applicant is in detention is not unique, though, I accepted this only after adopting a cautionary approach with regards to their claims. Overall, I accept that remaining in detention will adversely affect their relationship and it will have a substantial affect upon [Ms A] and her wider family.

    The degree of hardship that may be experienced by the visa holder if his visa is cancelled

32. The applicant has been in immigration detention since 23 October 2017. This is approaching five years, a not insubstantial period of time by any measure.

33. Submissions were made that the applicant’s mental health had severely deteriorated during his period in detention and that it was tenuous. The information included submissions from the detention centre’s health unit showing hardship and the use of various medication as well as a submission by the applicant’s counsellor from [Organisation 1] which included:

    a.[The applicant] has attended a total of 23 90-minute sessions, approximately on a fortnightly basis since this time. All sessions have been via telephone with a Persian interpreter.

    b.[The applicant] suffering long term symptoms consistent with depression and Post Traumatic Stress Disorder (PTSD).1 These symptoms include excessive negative rumination, feelings of hopelessness and helplessness, intrusive thoughts, nightmares, poor short-term memory, panic, and nightmares. He also expresses a lack of motivation and energy and social withdrawal. [The applicant] also shows the memory difficulties (both with long term and short-term recall) that survivors of torture and trauma often exhibit. This may affect his ability to accurately recount chronological autobiographical information.

    c.[The applicant]’s mental health would be improved if released from detention for a multitude of reasons. Firstly, engagement in meaningful activities and connection to people and community will provide meaning and release from the feelings of stagnation and helplessness he has consistently reported. In addition, [the applicant] would be more able to engage in face-to-face counselling sessions without the preoccupation of the detention environment which would allow for more focused trauma processing work to be conducted. Engagement with this would reduce symptom severity and duration and increase overall wellbeing. If [the applicant] is not released from detention his mental health is likely to deteriorate significantly.

34. The applicant has described his situation by way of written submissions as:

    One of the main things about staying in detention is that it has caused me a great deal of stress. I used to be a very active person but now I have put on weight because I cannot stay active, and the stress has caused me to gain weight. I have trouble talking to other people. I have had issues with sleeping, and I have a lot of nightmares, so I try not to sleep. All of this has happened because of the stress of being in detention.

    If I am not given my visa back, I could spend many more years in detention. If I do not get out of detention, this will metaphorically kill my spirit and my future. Even though I will be alive physically, I will be dead metaphorically by remaining in detention. My life will be wasted here.

    At this point in time, my mental health is not in a very good state. I hardly ever leave my room and my roommate brings me food from the kitchen. I leave my room once a day in the morning for my medication and once in the afternoon for my sleeping tablets. If I stay longer in detention, my mental health will deteriorate even further. This situation is very hard for me.

35. In a submission by [Mr C] from [Organisation 2], he wrote that detention has ‘take[n] a big toll on [the applicant]’s mental health’.

36. The applicant’s partner submitted:

    [The applicant] has experienced a lot of mental health issues from being in detention. I get worried about his mental health and health in detention. I even worry about the food he is given in detention, compared to the healthy things I could cook him and the healthy life he could have in the community. I have encouraged him to speak someone like a doctor, psychologist, or a counsellor. I am very glad that he is seeing a counsellor now.

1. In addition to the applicant’s own mental health concerns, the applicant is burdened by the impact his ongoing detention has on his partner’s mental health.

   I also worry about my partner [Ms A]. We are very emotionally dependent on each other, and we are hoping to start a future together. [Ms A]’s mental health will also be impacted if I am not released because she has fears about my uncertain future. This visa cancellation has not just affected me, but her as well. My own worries are one side of things, but I also worry about [Ms A]’s mental and physical wellbeing if I am not released. I have caused [Ms A] a lot of hardship and heartache because I have been in detention.

2. Nearing five years in detention has clearly had a toll on the applicant’s mental health and physical health. This has been confirmed by friends and specialists. Remaining in detention for a further indeterminate period will further exacerbate this situation. It is clear from the evidence by experts but also the oral evidence that this deterioration would be precipitous. The applicant is not in a steady albeit deteriorated mental state but rather  continues to deteriorate. The representative’s willingness to forego the benefit of having [Ms A] appear in person and to see her boyfriend for fear of the possible impact upon the applicant were he to spend five days in isolation is not lost on me. Overall, the applicant’s deteriorated physical and mental health is of great concern.

   Circumstances in which ground of cancellation arose.

3. The applicant acknowledges the mistakes he has made in the past and expressed remorse at the hearing. He said that he is ashamed of his circumstances such that only his parents know of his detention and they are hiding it from the rest of the family.

4. The applicant expressed remorse for his criminal activity that subsequently led to his visa being cancelled. The applicant has claimed that this activity was driven by his homelessness, falling in with the wrong crowd and subsequent drug use.

5. At the hearing the applicant said that when he arrived in Australia the authorities provided limited support. He said that he received $400 fortnightly. Initially, this was enough as he could share the rent with a number of other asylum seekers but as others started to leave in their own direction the money wasn’t enough to pay rent. He said that subsequently he slowly started hanging out with bad friends. He said that in Iran he didn’t even smoke a cigarette yet in Australia he became addicted to drugs.

6. The applicant’s plight, ultimately, arose through choices that he made which many others before him, in similar circumstances, did not make. I find that he is the author of his own circumstances.

   Other considerations

7. The applicant has described his rehabilitation efforts and plans to ensure that he will not follow the same path as before. At the hearing he said that his plans for the future do not include any criminal offending. He added that he has experienced six years of extreme hardship (referring to his criminal and visa related detentions) and is going to stay true to himself and will definitely comply with his visa conditions in the future.

8. Specifically, through submissions and verbally at the hearing the applicant listed the following as measures that he has taken or he would undertake to prevent any regression:

   ·The applicant has cut ties with his former friends who were negative influences on his behaviour and introduced him to drugs and crime.

   ·The applicant is not using illicit drugs. He is taking methadone and has been trying to reduce his dependency on methadone over time.

   ·The applicant has the emotional, financial, and psychological support of his de facto partner [Ms A]. He intends to live with [Ms A] upon release from detention.

   ·The applicant has described having friends in the community who are supportive of his desire to change his lifestyle. He also has the support of [Ms A]’s large and close-knit family.

   ·The applicant has plans to be employed by his friend [Mr D] upon release.

   ·The applicant also has plans to eventually resume his historical trade as [an Occupation], and also intends on starting his own business eventually.

   ·The applicant has committed to continuing to access treatment for his mental health through [Organisation 1] and his counsellor [Ms E] and any other programs that will be beneficial to his mental health or rehabilitation.

9. The Tribunal has received submissions regarding the support he will receive including:

   a.[Mr D]: ‘I have been the source of much of [the applicant]’s financial support through this difficult time. He is a man of good character, good faith, and much generosity and with his skills as [an Occupation], will be able to actively contribute to the [industry] upon release, otherwise he has a job waiting at my company as mentioned previously. [The applicant] will be starting automatically at my [business] and will be supporting him financially from the start.’

   b.[Ms A]: ‘If [the applicant] is released, I am willing to support him for as long as needed. I already support [the applicant] a lot. I wake him up early to get his medication, I try to keep him motivated while he is in detention, and I keep him having a routine. I have been helping [the applicant] with his English. He has spoken to me a lot about what he wants to do when he gets out, he talks to me about his goals, and I know he wants to work. I have also met some his friends who are very supportive of him. If [the applicant] is released, [the applicant] can stay with me at my house, and we can have a home together. Our comfort and healing and support will start when we live together. We have already organised that he can stay with me if he is released.’

   c.[Mr B]: ‘Part of our culture is supporting family. Family is not about being blood-related, it is much deeper than that. If [the applicant] was released, I will help him find a job, I will help him financially and I will give him all the support I can. I will support [the applicant] because of my love for my daughter and I will support [Ms A] no matter what.’

   d.[Mr C]: ‘Through my role in [Organisation 2], I can provide some direct assistance and I am in contact with many services, churches and support groups in Melbourne who are very willing to assist [the applicant] to find accommodation, to provide some financial support, and assistance with training and employment. We can also assist [the applicant] to access any medical and psychological support that he might need.’

10. The applicant has exhibited remorse and has identified protective measures he needs to undertake to divert him away from any risk of re-offending. I acknowledge that this is an important first step. Based upon the evidence provided I find that the applicant has strong support networks established and in place were he to leave detention. These networks appear to extend beyond just his relationship but to friendships and professional groups.

    The possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status

11. It is not in dispute that the cancellation of the applicant’s visa leads to the applicant remaining in detention while another process considers the merits of his protection claims. Removal will only be triggered if the applicant’s protection claims are finally determined with no visa being granted. As such I have not turned my mind to the prospect of removal arising from the cancellation of this visa.

12. Instead, I have considered the prospect of indefinite detention. While the appeals process is a lengthy one with numerous possible permutations and combinations that could see the applicant remain in detention for some years to come, an outcome that I have considered above, I find that it is not this decision that could lead to indefinite detention.

13. Rather it is the protection visa decision of the IAA that could lead to such an outcome as the applicant is an Iranian citizen and Iran refuses to accept involuntary returnees if they arrived to Australia prior to March 2018. The Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily. On 19 March 2018 Iran and Australia this changed through the signing of a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia regardless of whether they are voluntary or involuntary. Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough has led to a change of position and noting that the applicant arrived at Australia before March 2018 it is the IAA decision that will ultimately determine whether the applicant faces indefinite detention.

14. As the outcome of this decision influences neither the possibility of removal nor indefinite detention I place no weight on this factor.

    Conclusion

15. In considering the discretionary elements I note that Direction 63 paragraph 4.1(3) states that the purpose of the Direction is to ‘guide decision-makers’. General guidance appears in paragraph 4.2 where it specifically states that ‘the Government is committed to ensuring that non-citizens given the privilege of living in the Australian community on Bridging E visas behave in a manner that is in accordance with Australian laws.’ It then references a series of principles which are of ‘critical importance in furthering that objective.’ Paragraph 4.2(2) explains that the principles ‘provide a framework within which decision-makers should approach their task of deciding whether to cancel a non-citizen’s Bridging E visa’

16. There are six principles in total that are the framework within which decision-makers should approach their task. Relevant to the application of discretion is that the principles note that mandatory detention is the base line and any ability to reside in the community is a privilege and not a right. This privilege is granted with the expectation of non-citizens abiding by the law. The Direction makes a specific reference to this being ‘particularly relevant where the Minister for Immigration and Border Protection has used his personal non delegable power to grant a non-citizen in immigration detention a visa in the public interest,’ as is the case for this applicant.

17. Principle 5 states that those ‘who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.’

18. Importantly, though, Principle (6) states, ‘The person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.’

19. Paragraph 5(1)(1) states, ‘Informed by the Principles in paragraph 4.3, a decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.’

20. As such, in summary, in the application of discretion in this case, it is the consideration of the person’s individual circumstances as mitigating against the expectation that individuals who have been charged or found guilty of criminal behaviour lose their privilege to hold a Bridging E visa that needs to be weighed.

21. In undertaking this endeavour I place considerable weight against the cancellation of the applicant’s visa on the basis of the applicant’s relationship with [Ms A] and the impact that a decision to cancel the visa would have on this relationship and the mental health of [Ms A].

22. I place considerable weight against the cancellation of the visa as continued detention would have a serious impact upon the applicant’s mental health as detailed above.

23. I place limited weight in favour of cancellation for the reasons of the circumstances surrounding his offending. While the applicant identified his homelessness as a contributing factor, I am not swayed that he had lost personal agency and an ability to judge between right and wrong. While his homelessness may have been a contributing factor, it in of itself, was not beyond his control nor were the subsequent decisions he made. That he chose to begin to take drugs is a choice that he has to carry some personal responsibility.

24. In turning my mind to any other considerations not specifically identified in Direction 63, I place some weight against cancelling the applicant’s visa on the support network that the applicant would be surrounded by within the community.

25. I also accept that [Mr B] wants to see his daughter emerge from the challenges she faces and find that the cancellation of the visa would inhibit this occurring and as such has an impact on him.

26. Considering the circumstances as a whole and noting the principles within Direction 63 the Tribunal concludes that the visa should not be cancelled

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Denis Dragovic
    Senior Member