2204292 (Migration)

[2022] AATA 1914

2204292 (Migration) [2022] AATA 1914 (1 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204292

MEMBER:Kira Raif

DATE:1 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 070 (Bridging (Removal Pending)) visa.

Statement made on 01 April 2022 at 3:55pm

CATCHWORDS
MIGRATION – cancellation – Bridging R (Class WR) visa – Subclass 070 (Bridging (Removal Pending)) – applicant’s presence in Australia is or maybe a risk to others – criminal conviction – applicant’s ongoing willingness to engage in unlawful conduct and disregard for the law – risk of reoffending remains – cancellation of the visa will not breach Australia’s international obligations – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

CASES
Gong v MIBP (2016) FCCA 561
Tien v MIMA (1998) 89 FCR 80

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 23 September 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 070 (Bridging (Removal Pending)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a national of Iraq (or a stateless person) born in [year]. He was granted the Class WR Bridging R visa on 8 February 2013, following the cancellation of his substantive visa. On 1 September 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) as the delegate formed the view that the applicant’s presence in Australia is or maybe a risk to others. It appears that the applicant did not respond to the NOICC and his visa was cancelled. The applicant was renotified of the cancellation decision in March 2022 and now seeks review of that decision.

3. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 1 April 2022 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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)(e). 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.

6. A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP (2016) FCCA 561, at 41.

7. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s 116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

8. A visa may also be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). At the time the NOICC was issued, the applicant was charged with offences. He has now been convicted of offences and the circumstances are now different to those that existed when the delegate considered the cancellation of the visa. In light of the present circumstances, the Tribunal has formed the view that a more appropriate and relevant provision here is r. 2.43(1)(oa). It provides the following

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

9. The Tribunal wrote to the applicant on 29 March 2022 putting him on notice that this provision may be relevant and relied upon by the Tribunal and the Tribunal invited the applicant and his representative to make submissions on this issue during the hearing.

   Does the ground for cancellation exist?

10. The following information appears in the decision records with respect to the cancellation of the applicant’s Bridging visa and in relation to his substantive visa application. The applicant provided copies of both decision records to the Tribunal.

11. The applicant travelled to Australia as an unauthorised maritime arrival in April 2009 with his family. He was granted a protection visa on 16 July 2009. That  visa was cancelled on 21 January 2013 because, according to the delegate, ‘his claims for protection had been contrived’ and the applicant was issued a Class WR Return Pending bridging visa.

12. On 11 May 2016 the applicant was charged by ACT police with the following offences:

    -Attempted aggravated robbery

    -Sexual assault in the third degree

    -Sexual intercourse without consent (2 counts)

    -Forcible confinements.

13. The delegate formed the view that the applicant had been charged with offences involving violence and sexual violence and therefore he is, or may be, a risk of the safety of the Australian community. The applicant was issued with the NOICC but did not respond to it and his visa was cancelled. The applicant was renotified of the cancellation in March 2022.

14. The applicant provided to the Tribunal a copy of this Tribunal’s decision in relation to his application for a protection visa, which was refused by the delegate on character grounds. That decision confirms that the applicant has been convicted of some offences and outlines the facts relevant to the offending conduct, which are said not to be in dispute. It is stated that in [2017] the applicant was convicted of two offences relating to sexual assault on his partner, which occurred in 2015 and was sentenced to 4 years imprisonment. [Later in] 2017 the applicant was convicted of five offences committed in March and May 2016, having entered the plea of guilty. He was sentenced to 7 years and 11 months imprisonment.

15. The Tribunal dealing with the applicant’s protection visa application sets out in its decision (a copy of which the applicant provided to the present Tribunal) the nature of the applicant’s conduct leading to the convictions. It is summarised below.

16. It is stated that in 2014 the applicant committed a sexual assault against his girlfriend. He initially pleaded not guilty but following the conviction, admitted to the circumstances of the offence which are recorded in [the sentencing] remarks. It is stated that the applicant threatened the victim with a pair of scissors, and threatened to cut off her fingers, demanding that she engaged in anal sexual intercourse with him. The applicant then engaged in anal intercourse with her. The applicant gave evidence at trial that he used illicit drugs at the time and was influenced by his brother.

17. The decision record refers to another incident which occurred in late 2015 involving the applicant’s girlfriend. It is stated that she asked the applicant repeatedly for the code to his phone, which he refused and threatened  her. It is stated that the applicant dragged her from the room to the outside of the house by her hair, causing pain and injury

18. The decision record also describes the offending that took place in 2016, when the applicant is a said to have been a daily drug user. It involved entering the premises of a sex worker with intention of robbing her, having sexual intercourse without consent with another person, while in company of two others, and issuing threats. The decision refers to another incident in which the applicant and another person had made arrangements to rob a sex worker and the applicant drove that person to and from the victim’s premises. In oral evidence to the present Tribunal the applicant agrees that the description of events in the previous Tribunal decision is accurate and correct.

19. The applicant provided to the Tribunal a Relapse Prevention Plan in which he outlines his future plans and ways to avoid repeat of offending behaviour. The applicant provided a character reference [confirming] that he has been active in religious activities and a kind and supportive person. The Tribunal is prepared to accept that  the writer genuinely holds these views. The applicant provided evidence of his employment during incarceration and the Tribunal accepts that evidence.

20. The Tribunal places weight on the fact that the offences are multiple and occurred over a period of some years. The initial assault against his partner was serious conduct involving sexual intercourse without consent. The second incident relating to his partner occurred several months later. The applicant had shown a complete disregard for the victim’s welfare (and apparently stated at his trial that she enjoyed the intercourse, according to the information in the protection visa decision) and a lack of empathy. He has shown the same disregard for the welfare of others when engaged in sexual assault against the sex worker. The Tribunal has formed the view that  at least prior to his incarceration, the applicant had no insight into his behaviour.

21. The applicant told the Tribunal that he has changed since his detention and has done a lot of courses. He has done a sexual offenders course and is no longer using drugs and has not been using drugs since November 2020. The applicant states that he is now focussing on his religion and training and keeps his mind clear. What he has done had changed his life and his family’s life and he does not want to put his family through that again. The applicant states that there are drugs available in detention but he has distanced himself from these temptations and has surrounded himself with the right people and would not want to go back to what he did before.

22. The applicant told the Tribunal he had completed anger management course, drug and alcohol course, sex offender course which ran for eight months, and other courses, as well as educational courses. The applicant referred to his employment while in prison. He states that there are no appropriate programs in [detention centre] but he has been in contact with his mother and sister who have been supportive of him. He states that if he is released from detention, he intends to continue with counselling and support programs but he has not yet made inquiries or arrangements about engaging in such programs in the future.

23. The sentencing remarks show that the applicant blamed his elder brother as a bad influence. The applicant told the Tribunal that he still has contact with his brother but he decided he does not want to be near him. The applicant states that his brother is likely to be released from jail in a couple of months and he may also be placed in immigration detention if his visa is cancelled. If his brother is released into the community, he does not believe his brother would stay with their mother as there is not enough room for them. The Tribunal acknowledges the applicant’s evidence, but also notes the applicant’s evidence about his close family ties in Australia and his statement that he is a ‘family person’. The Tribunal is not satisfied that the applicant will have no contact with his brother and that he will be entirely removed from his brother’s influence in the future. The representative submits that the brother is likely to be removed from Australia and there is no chance that both brothers will be in the community however, the Tribunal is of the view that  once both the applicant and his brother are out of criminal detention, there will be greater opportunities for them to establish contact and for the applicant’s brother to exert influence on the applicant again.

24. The Tribunal acknowledges that the applicant had completed a number of programs while in detention, although it is also noteworthy that he refused to attend, or failed to complete a number of other programs, which is noted in his pre-release report. Thus, in February 2017 the applicant refused to attend an anger management program and he also failed to attend a Readiness program as recently as in July 2021. The applicant told the Tribunal that he did not attend some programs earlier in his detention before he decided to change but the records indicate that  he also failed to attend some programs later in the period of his detention.

25. The applicant provided to the Tribunal a copy of his pre-release [report]. It shows that there had been multiple incidents throughout the applicant’s detention when the applicant failed to comply with the rules governing the behaviour at the corrections centre. In May 2016 he tested positive for drugs and later refused to provide a sample on multiple occasions. He also tested positive for drugs in March 2019. Significantly there were also multiple incidents of ‘misconduct’ through the period of the applicant’s imprisonment. He was found to have prohibited items in August 2016, May 2017 and June 2017 and there is a reference to assault on another detainee in November 2016.  In the Tribunal’s view, the applicant’s failure to comply with the rules of the detention centre, and his apparent ongoing use of drugs as recently as in March 2019 (he told the Tribunal he stopped using drugs in November 2020), some years after his first detention, may be indicative of the applicant’s ongoing willingness to engage in unlawful conduct and disregard for the law.

26. It is highly significant, in the Tribunal’s view, that the parole report has assessed the applicant as having a medium – low risk of general reoffending and above average risk of sexual reoffending. The applicant told the Tribunal that he does not believe the information in the pre-release parole report to be true because he has changed. He states that the biggest problem for him was drugs, which led him to do what he did and he did not ‘use his brain properly’ but now he is more mature. He also loves his mother and sisters. The Tribunal acknowledges that evidence but is also of the view that the writer of the report had taken all these factors into account when forming the view about the risk of reoffending.

27. The Tribunal acknowledges the various documents and oral evidence provided by the applicant to the Tribunal and the applicant’s undertaking to change his conduct and not to engage in criminal behaviour in the future. At present, the Tribunal does not consider the applicant’s evidence persuasive. This is because the applicant’s evidence (including the evidence set out in the Tribunal’s decision relating to his protection visa) is that the applicant was in the past a heavy drug user and that he had been influenced by his elder brother. The applicant was not subject to these influences (or at least not to the same extent) while he had spent several years in detention. The applicant’s evidence to the Tribunal is that drugs were readily available in detention but he stopped using in late 2020 but even if that  is the case, the Tribunal is of the view that  drugs and other bad influences will be more readily available to the applicant in the community than in prison. while the applicant claims he will not engage in the same conduct again, that resolve has not been tested in the community due to the applicant’s lengthy detention first in prison and later in an immigration facility. That is, the applicant has not had the opportunity to establish his resolve to avoid bad influences and bad behaviour. He has not satisfied the Tribunal that he will in fact comply with his own resolutions.

28. The Tribunal has formed the view, having regard to the applicant’s general circumstances, his past history, the rehabilitation and the time spent in incarceration and other circumstances that the risk of reoffending remains, even if that risk is now lower than it may have been previously (whether because the applicant has reformed, or if he is no longer a drug user or because he is more capable of avoiding bad influence). The Tribunal places significant weight on the risk assessment noted in the pre-release parole report. That assessment does indicate that the risk of reoffending remains and it is not insignificant (being medium – low for general offending and above average for sexual offending).

29. The Tribunal considers the nature of the past offences to be extremely serious. These involved violence and sexual assault against his former partner and others. It also included threats of violence towards others. The applicant acknowledges long-term drug use and the Tribunal is mindful that on his own evidence, he only stopped using drugs as recently as in November 2020. In the Tribunal’s view, even if the risk of reoffending is low (and the Tribunal does not consider it to be non-existent), the potential for serious harm to others arising from the possible reoffending means, in the Tribunal’s view that the risk to the community remains.

30. The Tribunal is also mindful that for s. 116(1)(e) to be engaged, it is sufficient to find that the applicant ‘may’ be a risk to others, not that he is. That is a low threshold and a mere possibility of future serious offending, or offending causing harm to others, would in the Tribunal’s view, be sufficient to find that the applicant may be a risk.

31. Having regard to all these factors, the Tribunal has formed the view that there remains a risk that the applicant will reoffend again. In particular, there remains a risk that ht applicant will engage in sexual offending, which is a very serious type of offending capable of causing great harm to others. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the community. The Tribunal finds that there are grounds for cancelling his visa under s. 116(1)(e) of the Act.

32. Further, as noted above, the Tribunal has formed the view that s. 116(1)(g) and r. 2.43(1)(oa) are also relevant here. The applicant has been convicted of offences. It is not in dispute that he held a Subclass 070 Bridging R visa, which is not a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa. He had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa) and this ground is completely independent from the ground identified in s. 116(1)(e).

1. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116 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

2. 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

3. The applicant entered Australia to seek a protection and, as noted in the primary decision, he was initially granted the protection visa but that visa was subsequently cancelled under s. 140 of the Act. The applicant told the Tribunal that he was born in [Country 1] and lived in [Country 1] and [Country 2] and has never lived in Iraq. He has been in Australia for 13 years (5,5 of these in prison). He states that he is used to life in Australia and all his family are in Australia. He wants to be close to his family and get their support. The Tribunal accepts that evidence.

4. The applicant states that he had no contact with his father for many years and now he has electronic contact with him as his father is getting older. The applicant states that his father lives in [Country 2] and has a visa to stay there but he cannot get the visa to any other country.

5. The Tribunal acknowledges that the applicant has been found to be owed protection obligations and cannot be removed to another country. (There is a claim that the applicant may be considered stateless). The applicant claims that he has spent the majority of his life in Australia and has his immediate family here. The Tribunal accepts that the presence of all his family in Australia, as well as the applicant’s settlement in Australia and potential inability to travel to any other country, may constitute compelling reasons for the applicant to remain in Australia.

   The extent of compliance with visa conditions

6. There is no evidence of any non-compliance with visa conditions.

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

7. The applicant’s immediate family, including mother and siblings, are in Australia. The applicant told the Tribunal that he lost a lot of his time, all of his 20’s incarcerated and he wants to ‘start his life’. Should the cancellation of the visa result in the applicant having to depart Australia, the Tribunal acknowledges that this may cause him to be separated from his family and the Tribunal accepts that this would cause hardship to the applicant. The Tribunal accepts that if the applicant chooses to live Australia and is able to, he would have nowhere to live, is unlikely to have any support overseas (he claims he cannot live in [Country 2] where his father lives) and that it may take him time to obtain gainful employment. All these matters will cause considerable hardship to the applicant and his family.

8. Also significantly, the applicant may not be able to return to Iraq if there is a finding that he is owed protection. Even if the applicant was eligible to seek other visas, including Bridging visas, there can be no guarantee of visa grant and in light of the related visa decisions and the cancellations of the applicant’s various visas and his criminal convictions, the Tribunal acknowledges that there is a real likelihood that the applicant may not be granted another visa. That is, the cancellation of the present visa may mean that the applicant will remain in detention for a lengthy, or even indefinite period. The applicant states that lengthy detention would affect his mental state. The Tribunal accepts that evidence. The Tribunal accepts that the consequences of the cancellation of the present visa would cause significant hardship to the applicant and his family.

9. The representative submits that the applicant has the option of voluntarily returning to Iraq. He has been found to be a refugee by the Department and cannot be returned involuntarily. Evidence before the Tribunal is that the applicant has approached the Embassy of Iraq but has not been recognised as an Iraqi national so at present, he is not able to voluntarily return to Iraq. As noted above, the Tribunal acknowledges that  if the applicant is unable to enter any other country, there is a real prospect of indefinite detention. The Tribunal accepts this would cause significant hardship to the applicant.

10. The applicant told the Tribunal that he wants to ‘get on’ with his life, get married and have children and create a life. He states that  he wants to be a second chances and prove to himself and his family that he has turned his life around. He states that he would be depressed if he cannot go anywhere. The Tribunal generally accepts that significant hardship may be caused by the cancellation of the visa.

    Circumstances in which ground of cancellation arose.

11. The grounds for cancellation arose because the Tribunal has formed the view that applicant’s presence in Australia may be a risk to the Australian community. The ground also (or in the alternative) arises because the Tribunal has found that the applicant held a temporary visa and has been convicted of offences.

12. The circumstances of the applicant’s offences are summarised above and are set out in more detail in the Tribunal’s decision relating to the applicant’s protection visa, a copy of which he provided to the Tribunal. These involve violence and threats of violence towards others and sexual offences. The applicant concedes that is contains an accurate description of events.

    Past and present behaviour of the visa holder towards the department

13. The delegate noted when making the decision that the applicant provide contrived claims for protection when arriving in Australia, resulting in the cancellation of his visa. However, the decision record indicates that the applicant was a minor when he arrived in Australia and sought protection and he would have been included in the application made by family members, rather than making his own claims. There is no evidence to indicate that  the applicant made his own claims that were found to be fraudulent. As such, the Tribunal does not consider that any adverse weight can be placed on the circumstances surrounding the initial protection visa application.

    Nothing else is known to the Tribunal that is adverse to the applicant concerning his past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

14. There are no persons whose visas would be subject to consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

15. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. If the applicant cannot be removed from Australia and if he is not granted another visa, the applicant may be subject to lengthy or indefinite detention. If the applicant’s visa is cancelled, he can make an application for another visa in Australia but would be limited in the types of visas he can apply for onshore due the operation of s. 48 (although the Tribunal is mindful that the applicant has very few options of applying onshore, if any, due to the mode of his arrival in Australia). The applicant may be subject to an exclusion period in relation to an offshore visa application. The Tribunal accepts that the consequences to the visa cancellation are significant, particularly if these mean indefinite or even lengthy detention for the applicant.

    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

16. The applicant told the Tribunal that there are no children who would be affected by the cancellation of the visa. The representative submits that the applicant’s two sisters have children with special needs and they hope the applicant could help and act as a role model. The Tribunal is prepared to accept that there are children in the family and a desire to support the children and the broader family. However, nothing before the Tribunal indicates that  the best interests of these children would in any way be affected by the cancellation of the applicant’s visa. There are no statements before the Tribunal from the children’s parents or carers or any others about the applicant’s role in relation to the children and his evidence about his future involvement with the children appears, at present, to be merely aspirational. The Tribunal does not consider that the best interests of any children would be adversely affected by the cancellation of the applicant’s visa.

17. The applicant’s evidence to the Tribunal is that he has been found to be a refugee through another process and cannot be involuntarily removed from Australia. The applicant’s evidence is that he wants to return to Iraq but cannot return there as he is not recognised as an Iraqi national. The applicant’s own evidence is that  he cannot be removed from Australia and the Tribunal thus finds that the cancellation of visa will not result in the applicant being removed in breach of non-refoulement obligations. The applicant’s evidence is that if he is facing indefinite detention, he would wish to return to Iraq voluntarily so that the practical consequence of his visa being cancelled. The Tribunal acknowledges that evidence. However, given the fact that  the applicant will not be involuntarily removed from Australia, the Tribunal does not consider that the cancellation of the visa would result in a breach of Australia’s non-refoulement obligations.

18. The applicant does not have partner or children. He told the Tribunal he has close family relationships  but all his siblings are over the age of 18. The Tribunal does not consider that  family unity obligations would be breached as a result of the cancellation.

19. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

    Any other relevant matters

20. The representative submits that the previous Tribunal made its determination when the applicant had not spent any time in the community and little time had passed since his release. More time has now passed and the applicant has not returned to drug use and has continued with the programs. The representative notes that the applicant had been granted parole and it is significant that the applicant was considered suitable for release into the community and the parole is subject to strict orders which the applicant intends to comply with. the representative submits that should the applicant do anything wrong again, he would be returned to prison which he wants to avoid. The representative notes that the applicant had voluntarily agreed to his participation in rehabilitation and that he is not a hardened criminal, has displayed empathy to his family members and has a good prospect of rehabilitation, which was agreed by the Parole Board granting parole. The representative submits that the possibility of future detention and visa cancellation and the possibility of long incarcerations will act as strong  incentives for the applicant not to repeat his past behaviour.

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa both because the applicant was a holder of a temporary visa and had been convicted of an offence and also because the Tribunal has formed the view that  his presence in Australia may be a risk to others.

22. The Tribunal  acknowledges that there are significant factors against the cancellation. Most importantly, the Tribunal acknowledges that the cancellation of the visa may result in the applicant being detained for potentially indefinite period and this may cause extreme hardship to the applicant and his family. The Tribunal acknowledges the applicant’s evidence that he is now more mature and more appreciative of the needs of others and that he will not engage in the same behaviour in the future. For the reasons stated elsewhere, the Tribunal has formed the view that  not sufficient time has passed since the applicant’s claimed cessation of drug use (in late 2020) and there have not been adequate opportunity to test the applicant’s claimed resolve in the general community, due to the applicant’s ongoing detention so the Tribunal does not accept there is no risk of reoffending. Nevertheless, the Tribunal acknowledges the applicant’s evidence, and his claim that he wants to be with his family, support his siblings and nieces and nephews, start his own family and help others.

23. The Tribunal accepts that the applicant has spent the majority of his life in Australia, that  his immediate family is in Australia (although he claims to have re-established contact with his father in [Country 2]) and that it would be extremely difficult for the applicant to live anywhere else, even if he did have the option of leaving Australia. These factors weigh heavily against the cancellation. Again, the Tribunal accepts the hardship that would be caused by the cancellation. The Tribunal has also formed the view that the length of the applicant’s presence in Australia, from the time he was a minor, and the presence of his immediate family in Australia, may constitute compelling reasons for him to remain in Australia.

24. While the Tribunal has formed the view that there are strong reasons for the visa not to be cancelled, the Tribunal is also mindful that the visa in question is not a permanent visa. The visa that has been cancelled is a bridging visa that is granted pending removal. While it may not presently possible or practicable to remove the applicant, that  visa is likely to be long-term but it cannot, in the Tribunal’s view be considered as a permanent visa or a substantive visa that enables permanent stay in Australia. That has never been a purpose or the intention of any bridging visa.

25. The Tribunal has formed the view that the cancellation of the visa will not breach Australia’s international obligations.

26. In the circumstances of this case, the Tribunal decided to place greater weight on other factors such as the circumstances in which the ground for cancellation arises. The offences of which the applicant was convicted are extremely serious and involved violence and sexual violence towards others. the applicant claims he was under the influence of his older brother and of drugs and these influences have now been removed but the Tribunal is not satisfied  that is necessarily the case. His brother remains in Australia, the applicant claims himself to be a family person and whether or not both remain in Australia, there is a real possibility that the applicant will be able to maintain contact and a relationship with his brother in the future, particularly once the brother is released from criminal detention. The applicant’s evidence to  the Tribunal is that he stopped using drugs in late 2020. That is, for several years after his conviction, the applicant continued with the drug use that, he claims, had affected his past behaviour. while the Tribunal acknowledge the applicant’s resolve not to use drugs, and not to be influenced by his brother in the future, the Tribunal considers there is a possibility, however small, that the applicant will again fall under the influence of others that may again lead to criminal or anti-social conduct. In the Tribunal’s view, that possibility cannot be excluded and the parole report itself (which was done after the applicant had stopped the drug use and had completed rehabilitation programs) refers to low to medium risk of general reoffending and above average risk of sexual reoffending. That is, the person who had completed the parole report, and had taken into account the applicant’s circumstances, his rehabilitation, participation in programs and absence of drugs, and the repercussions of reoffending still believed, despite all those factors, that the risk of reoffending remains and that  risk is higher than negligible.

27. The Tribunal has decided that, in the circumstances of this case, to give greater weight to the circumstances in which the grounds for cancellation arose. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

28. The Tribunal affirms the decision to cancel the applicant’s Subclass 070 (Bridging (Removal Pending)) visa.

    Kira Raif
    Senior Member