2204377 (Migration)

[2022] AATA 1456

2204377 (Migration) [2022] AATA 1456 (4 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204377

MEMBER:Kate Millar

DATE:4 April 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 04 April 2022 at 2:55pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for review of refusal of protection visa – risk to Australian community, in particular women – criminal charges and convictions – imprisonment and immigration detention – other charges dropped – mental and physical health affected by attack in prison and protective custody – no health records provided – treatment, rehabilitation and educational courses, and participation in religious and artistic groups – discretion to cancel visa – guarded prospects for rehabilitation – care for sister’s children – financial support for family in home country – possibility of applying for another subclass bridging visa or lengthy detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA, 367
Migration Regulations 1994 (Cth), r 4.27

CASES
Gong v MIBP [2016] FCCA 561
MICMSMA v Parata [2021] FCAFC 46

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. [The applicant] is a citizen of Papua New Guinea who came to Australia on a tourist visa in March 2016.  He subsequently applied for a protection visa which was refused by a delegate of the Minister, and he is waiting for his application for a review of this decision to be heard.

2. As his protection visa application was not finally determined, [the applicant] was granted a Subclass 010 (Bridging A) visa on 10 June 2016. 

3. On 23 March 2017, [the applicant] was charged with assault with intent to commit a sexual offence, stalking, unlawful assault, and sexual assault.  As a result, on 9 May 2017 a delegate of the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs cancelled his bridging visa on the basis that he is or may be a risk to the health, safety or good order of the Australian community, or a segment of the Australian community.

4. The notification of the delegate’s decision was defective because the notification of the decision did not specify whether [the applicant] could seek review under Part 5 or Part 7 of the Act as required by s 127(2)(b) of the Migration Act 1958 (the Act).[1]

   [1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46

5. [The applicant] was notified a second time of the cancellation of his visa on 24 March 2022, and he applied for a review of this decision.  Under s 367 of the Act, and reg 4.27 of the Migration Regulations 1994 (the Regulations), the Tribunal must make a decision on the review and notify [the applicant] of the decision within seven days from when the application for review was received by the Tribunal. 

6. [The applicant] appeared before the Tribunal on 1 April 2022 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from [Ms A] and [Mr B].

7. 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

8. This is an application for review of a decision dated 9 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s visa under s 116 of the Act.

9. 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. The delegate cancelled the visa under s 116(1)(e) on the basis that [the applicant] had been charged with certain offences and is or may be a risk to the health and safety or good order of the, or a segment of the Australian community. The issue is whether this ground for cancellation is made out, and if so, 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?

10. 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.[2]

    [2] Gong v MIBP [2016] FCCA 561, at [41]

11. The notice of intention to cancel [the applicant]’s visa states that on 23 March 2017 [the applicant] was charged with assault with intent to commit sexual violence, stalk another person, unlawful assault and sexual assault.  The charges are stated to relate to an incident that occurred with a member of the community at [a] Train Station.

12. [The applicant] has since been found guilty and sentenced in the [court] for one count of common assault and one count of assault with intent to commit a sexual offence and sentenced to five years’ imprisonment.[3]

    [3] [Source redacted]

13. The facts are described by [the Judge][4] as follows:

    The victim in this matter was a young woman.  She was new to Melbourne and did not really understand the train system, and accidentally ended up at [a] railway station after the trains returning to Melbourne had stopped.  Thus she was alone at the station waiting for the first train, which was not until 5 am. You approached her at about 2:15 am and started talking to her.  She found you strange and did not like the way you were talking, so moved away. You followed her and would not leave her alone. She returned to sitting on a bench, and you sat next to her and stroked her back. She told you to leave her alone and got up and walked away.  You continued to follow her. CCTV footage from the railway station shows her moving away from you and you following her on a number of occasions around [the] railway station.

    At one point you grabbed her and attempted to hold her arm. This can be seen on the CCTV footage. Although you pleaded not guilty to this offence, your counsel effectively conceded to the jury that it was proven.  The victim broke free when you attempted to grab her, and can be seen trying to wave for help in front of the CCTV cameras. At one point she threw her mobile phone at you in an attempt to stop you following her. She then made her way to the foyer area and went to a payphone to call 000, but dropped the payphone as you advanced. You then placed her mobile phone on the ground and she retrieved it. She used her phone to call emergency services and was able to speak to them briefly.

    You continued to follow her and cornered her, grabbed her and threw her to the ground.  You got on top of her and said things like, “Just take it”. You tried to pull down her pants and she was trying to fight you off.  She was screaming so you put your hand over her face at one point to muffle her. She said it looked like you were trying to undo your own zipper.

    [4] at [2] to [4]

14. [The Judge] states [the applicant] denied the offending to police and at trial claimed that the victim was attacking him and all he was doing was restraining her, then they both fell down and the police came.  She states that this was a serious example of assault with intent to commit a sexual offence for the following reasons:

    ·     It was opportunistic and brazen;

    ·     Your conduct in the lead up to the assault was persistent. You continually followed the victim, even after she had asked you to leave her alone and physically distanced herself;

    ·     The victim was alone and vulnerable. It was the early hours of the morning and the railway station was deserted;

    ·     The attack occurred in a public place and the victim was a stranger to you;

    ·     The assault on the victim when she was thrown to the ground was forceful;

    ·     The sexual offence you were intending to commit was penile-vaginal rape which is a very serious offence.[5]

    [5] at [11]

15. [The Judge] said the victim gave evidence that she thought she was going to die, that he was too strong, and she was praying for the police to come.  At the time of the offending, [the Judge] noted [the applicant] had drunk excessively and was intoxicated.[6]

    [6] at [22]

16. [The Judge] also noted [the applicant] denied during a jury trail that he had committed the offences.  She further found his prospects of rehabilitation were somewhat guarded as he persisted with his version of events.[7]

    [7] at [29]

17. The decision of [the Judge] includes her remarks on [the applicant]’s mental health.  [The Judge] did not accept much of the report of the psychologist because the psychologist accepted the factual foundation that [the applicant] was merely attempting to calm the victim who became angry with him.  This was inconsistent with the jury’s verdict.  [The Judge] accepts [the applicant] suffers from PTSD and has suffered from some positive psychotic symptoms in custody including persecutory delusions, guardedness, mistrust and suspicion.  These symptoms worsened as a result of an attack on [the applicant] in prison in which he was stabbed several times with [an Implement]. [The applicant] was moved to another prison and placed in protective custody following this attack.   He was prescribed medication to treat the anxiety and depression he suffered since the attack. 

18. It was submitted on [the applicant]’s behalf that [the Judge] is not a psychologist, and accepted [the applicant] suffered PTSD and psychotic symptoms, and that some reliance could be placed on the report of the psychologist.  The Tribunal does not consider this is the case where, as stated by [the Judge], the psychologist accepted his explanation for the offence and used it as the factual foundation for much of the report.[8]

    [8] at[26]

19. [The Judge] found [the applicant]’s prospects of rehabilitation to be somewhat guarded as he persisted with his version of events.[9]

    [9] at [29]

20. [The applicant] provided certificates and information about courses he has undertaken while he was in prison.  These include:

    ·     Certificate 1 in [Subject 1]

    ·     Studies towards a Certificate II in [Subject 2] – finished

    ·     Prison Legal Education & Assistance Project “Migration Law: Visa Cancellations”, “Court Readiness Program”

    ·     Course in Christian studies in 2019 including “Baptism next”, “You can Live Forever” ”Great Truths of the Bible” “Who are you?” “Christ Loved the Church” “New testament Survey” “Journey through the Bible” “Gospel of Matthew” “The Life and Prophecy of Daniel” “Roan Part 1”

    ·     Participation in [a specified] Group in 2017

    ·     Certificate of Participation dated 13 July 2017 “Coping with Change”, “Managing Worry”, “Managing Sleep”, “Managing Loss”, “Managing Emotions”

    ·     24-hour Drug and Alcohol Program (24 January 2018)

    ·     [A named university]: [specified subjects]

    ·     Participation in the [Indigenous Arts] in prison and the community.

21. [The applicant] said he had attended other courses, but they either did not issue certificates, or were in the possessions he sought to have transferred from prison.  He said [the] Prison had declared his belongings excess property without his consent. 

22. [The applicant] said he had done the Better Life Program while in the remand centre for sexual offenders.  This was one session per week.  [The applicant] could not recall how long it went for but thought somewhere between 3–6 months. On being asked what he learned from this program, he said most things that happened came from the beginning of his life and stem from when he was young, and he learned strategies to cope and manage emotions.  He said his mother looked after other people and he was denied love, which is why he feels that he still needs love.  He said he learned he needs to be aware of his needs.  [The applicant] said he learned that respect starts with yourself.  He learned he needs to look after himself and be aware of what is happening in your mind.  He said he learned to deal with it and seek help. 

23. In regard to drug and alcohol, he said he did a lot of other courses.  He said he learned not to consume materials that are poisonous, and the most important thing is to fix yourself so you can help others, and he needs to keep clean and healthy so that he can help his family and friends.

24. In regard to his mental health, he said he suffered a brain injury and he forgets things, which is why he can’t recall what he learned from the courses he attended.  He has olanzapine at night to help with flashbacks from when he was attacked in prison.  He said before he was attacked his IQ was better.  He also takes anti-psychotic medications. 

25. [The applicant] said the medications help him think more clearly and he is not as paranoid and anxious. 

26. [The applicant]’s sister [Ms A] and his cousin [Mr B] said they considered [the applicant] was thinking more clearly now that he is on medication, and that mental health services would be available in the community if he is released from immigration detention. [Ms A] said [the applicant] has suffered a lot of trauma and that in their culture they did not seek help with mental illness.  She thought he was drinking as a coping skill, and now he is on medication he has improved.  [Ms A] said she had sought information on his mental health, but did not know his current diagnosis or treatment, but thought he was getting appropriate treatment now.  [Mr B] said he can arrange work for [the applicant] at his workplace.  They both said there is a large and supportive community if [the applicant] is released from immigration detention, and that they considered [the applicant] was rehabilitated after his time in prison.  

27. Information contained in a police check dated 12 November 2018 was put to [the applicant] at the hearing under s 359AA of the Act.  [The applicant] and his representative were also provided with a copy of the police check before the hearing and he was advised that the Tribunal intended to ask him about his other charges.  [The applicant] was provided with an adjournment to speak to his representative prior to giving his response to information put to him under s.359AA of the Act. 

28. In addition to the charges from the index offences, other charges are contained in the police check.  The first series of these offences is dated 27 March 2017, four days after the index offences.  These charges are:

    Assault Police officer (Crimes Act)
    Resist Police Officer (Crimes Act)
    Commit indictable offence whilst on Bail
    Resist police officer (Summary)
    Assault Police Officer (Summary)

29. Information on the Department file contained in an email from Victoria Police was also put to [the applicant] under s 359AA of the Act.  This information was that [the applicant] was released on bail after being processed for the charges on 23 March 2017, but that his bail was revoked on 27 March 2017 after he was again located at [the] train station in a drunken condition and again harassing women “although there do not appear to be any charges resulting from his behaviour on that day”. 

30. The police check records further charges on 28 June 2017 of unlawful assault and stalk another person (Crimes Act).  These charges were also put to [the applicant] for comment under s 359AA of the Act.

31. [The applicant] said that the first series of charges were laid against him after he had been drinking with a group of people, and his phone was stolen.  He got into a fight about retrieving his phone.  The charges against him were dropped.

32. The other set of charges relate to him meeting up with a woman and a man at the train station.  [The applicant] said he was lost and wanted to follow them so they could tell him where to get off the train.  On getting off the train he was met by police as the woman was drunk or sleepy and he was helping her.  He said these charges were also dropped. 

33. As [the applicant] states the charges against him were dropped, and other is no current police check to indicate otherwise, little can be drawn from these other charges.  However, as this ground includes whether  might be a risk to the Australian community, the existence of charges of a similar nature against [the applicant] within a short period of the index offences does not ameliorate the concern about his potential risk to the community, and in particular women in the community. 

34. [The applicant] says he will abstain from alcohol and will continue his medication in the community.  He has the support of his sister [Ms A] if he is released from immigration detention.  As he served his full sentence, he is not subject to any supervision or parole on his release.   

35. [The applicant] has been convicted of a serious offence.  During his time in prison, he was attacked and suffers PTSD and psychotic symptoms.  He says he has an acquired brain injury that prevents him recalling information.  This included what he had learned from the rehabilitation courses he was undertaken. From his description of the rehabilitation he has undertaken and what he had learned and  his inability to recall much of what was covered the Tribunal is not satisfied he has gained sufficiently from these courses that the ground to cancel his visa is no longer established.  His ability to abstain from alcohol and to continue to receive treatment for his mental health unsupervised is untested in the community. 

36. As a result, the Tribunal finds [the applicant] may be a risk to the health and safety of the Australian community, and in particular women in the Australian community, and that the ground for cancellation in s 116(1)(e) 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

37. 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

38. [The applicant] arrived in Australia on a tourist visa.  He applied for a protection visa and held a Subclass 010 visa pending the final determination of his protection visa application.  His protection visa application was refused, and he has applied to the Tribunal for a review of this decision.  As [the applicant] has applied for a protection visa which is not finally determined, he will remain in Australia until this occurs.

39. If the decision to cancel [the applicant]’s bridging visa is set aside, he will no longer be an unlawful non-citizen and will be released into the community.  Consistent with the tenor of this consideration, the Tribunal has considered if he has a compelling need to remain in the Australian community with a bridging visa, rather than in immigration detention until his protection visa application is finally determined. 

40. [The applicant] suffers from PTSD and psychotic symptoms.  No health records were before the Tribunal, and [the applicant] said this formed part of the material that has not been released to him from [the] Prison.  The Tribunal does not have the advantage of any information about his diagnosis, treatment and prognosis, and no independent information on the effect of being in immigration detention on his mental health. 

41. If the visa is cancelled, [the applicant] will remain in immigration detention until his application for a protection visa is finalised.  The sentencing remarks of [the Judge] state that due to [the applicant]’s PTSD and positive psychotic symptoms that a sentence of imprisonment will weigh more heavily on him than it would on a prisoner of normal health, and his symptoms have worsened in custody as a result of being attacked.[10]  The Tribunal infers that a period in immigration detention will also weigh more heavily on [the applicant] than on a person who is of normal health.

    [10] at [34]

1. His sister [Ms A] states she needs him at home to help her care for her three children.  [Ms A] is a registered nurse and has three children who are, [age], [age] and [age] old.  Her partner is in Papua New Guinea, and she states he will come to Australia when he can travel here as his travel has been limited by COVID.  Her partner has applied for a visa to come to Australia.  [Ms A] says that when [the applicant] was living with her, he helped with cleaning and taking the children to school.  She says that while he has been in prison and immigration detention it has been stressful for her and her children as they are emotionally attached to [the applicant].

2. The Tribunal accepts it is stressful for [Ms A], and that it would be of benefit to her if [the applicant] were released from immigration detention, however does not find this a compelling need that favours setting aside the cancellation of his visa. 

   The extent of compliance with visa conditions

3. There is no information before the Tribunal to show that [the applicant] has been other than compliant with the conditions of his visa. 

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

4. In the interview with Department officers, [the applicant] said his sister [Ms A] lives in Australia and he provides physical and financial support for her and her children.  Prior to his imprisonment [the applicant] lived with [Ms A] and assisted her with her children.  [Ms A] said she is a registered nurse and that while [the applicant] is in immigration detention she cannot work as she has to focus on her children.  Her [age]-year-old son plays [Sport 1] and has training five nights a week and games on weekends, and her [age]-year-old daughter plays [Sport 2].  To get to training, her son travels an hour from their home. [Ms A] said her son has ADHD and mental delay and it is hard to get him out of bed.  [Ms A] said she has no time for herself and her children.  [Ms A] is adopted, and her adoptive mother is supportive and assists her, and the community is supportive. 

5. The Tribunal accepts that the ongoing detention of [the applicant] causes some financial hardship to [Ms A], and that she suffers stress due to his detention.  It accepts that it would assist [Ms A] if the decision to cancel [the applicant]’s visa is set aside.

6. The sentencing remarks record that in May 2017 [the applicant] was attacked and stabbed by another prisoner approximately five times with [an implement] .  He was treated at hospital and then for two to three weeks in the prison medical centre.  He was moved to a different prison and was placed in protective custody since.  He has been prescribed medication to treat the depression and anxiety he suffered since.  He suffers from PTSD, and [the applicant] said he has medication to deal with nightmares due to the attack on him in prison.  As noted above, this makes detention more challenging for [the applicant] and causes him hardship above what it would cause a person who had not suffered this attack.

7. [The applicant] said he contracted [an infection] as a result of the attack and he is going to have an operation on his nose because it remains blocked.  He said he has a back injury from the attack as he was kneed in the back. 

8. [The applicant] said that while he was in prison he could work and attend courses, but in immigration detention he cannot work and has less to do.  He attends the courses that are available to him.  As [the applicant], [Mr B] and [Ms A] all said he is a hard worker, the inability to work and lack of activity causes him hardship.  [The applicant] was involved in an indigenous art program in prison and learned to play the [musical instrument] and he wants to pursue these interests and work in Australia. 

9. [The applicant] stated in his previous response, and [Mr B] confirmed, that he provided financial support for his family in Papua New Guinea.  [The applicant] has his parents, stepsiblings and [number of] children in Papua New Guinea.  The Tribunal accepts it will cause his family in Papua New Guinea ongoing financial hardship if he remains in immigration detention and is unable to work. 

   Circumstances in which ground of cancellation arose. 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

10. The decision record provided by [the applicant] states [the applicant] told the officers from the Department that the charges were based on a statement by a person and the police, that he was under the influence of alcohol and someone assaulted him.  He is recorded as stating it was unfair to pursue the cancellation without a trial, that he is not a risk, he is a friendly person who loves the Australian community.  He said if any other information was true this was because he was drunk.  This is consistent with the sentencing remarks which states [the applicant] persisted with his account that the victim became angry with him and threw a bottle at him, and that he was merely attempting to calm her down and when he grabbed her to calm her down, they fell over and he was holding her head as they fell to prevent her hitting the cement.[11]

    [11] [Source deleted].

11. The circumstances in which the ground for cancellation arose were that [the applicant] was charged with offences that indicate that he may be a risk to the health and safety of women in the Australian community.  He was subsequently convicted of these offences. 

    Past and present behaviour of the visa holder towards the Department

12. [The applicant] declined to sign an acknowledgment of the notice of intention to cancel his visa, but there is otherwise no indication he was been other than co-operative.  Given he states he suffers anxiety, PTSD and he would have been understandably uncertain what he was signing, the Tribunal does not consider his refusal to sign weighs against him.   

    Whether there would be consequential cancellations under s 140

13. There are no consequential cancellations that will occur if [the applicant]’s visa is cancelled. 

    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

14. If [the applicant]’s visa is cancelled, he will be an unlawful non-citizen and must be detained under

    
    

    s 198 of the Act.  As he has a protection visa application that has not been finally determined, he must not be removed (s 198(5A) of the Act).  The mandatory legal consequence is therefore that [the applicant] is liable to continued detention. 

15. In looking to whether [the applicant] could apply for another bridging visa, the only bridging visa for which he could apply is a bridging Visa E as he is in immigration detention.  As [the applicant]’s visa will be cancelled under s 116(1)(e), the bar placed on application by people who have had a visa cancelled under s 116(1)(p) or (q), and in particular due a conviction for a criminal offence, does not apply (Schedule 1 Item (3) of the Regulations). 

16. Any application for a further bridging visa will fall to be determined on its merits, including whether he will comply with the conditions of his visa.  Any application for a bridging visa may also be refused under s 501 of the Act because [the applicant] does not meet the character test as he has a substantial criminal record as defined in s 501(6) and (7). 

17. While he can apply for a further bridging visa, there are considerable hurdles to it being granted.  This is, however, a matter for a future decision maker, and is to some degree speculative.  There remains a real possibility he will remain in detention for a lengthy period until his application for a protection visa is finally determined.  This means that careful attention must be paid to the circumstances of his case, and the effect of prolonged detention as described in the consideration of the hardship it will cause to him if his visa is cancelled.

    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

18. [The applicant] has a nephew who is [age] years old and a niece who is [age] years old.  He has another niece who is [age] months of age, however due to his incarceration he has had little contact with his youngest niece.

19. [Ms A] states he provides considerable support to her son who has ADHD and a learning disability.  She said her son respects [the applicant] and they speak frequently.  When he was living with her, [the applicant] would assist by taking the children to school, doing housework and assisting financially. 

20. [The applicant] said he needs to be released so he can be a role model for his nephew and support them. 

21. [The applicant] maintains contact by phone with his niece and nephew and can continue to do so while in detention.  He remains in contact with their father but says their father travels to visit them only infrequently.

22. [Ms A] has a new partner who will come to Australia when he can travel.  Her adoptive mother assists her, as do members of the community.

23. [The applicant] plays a significant role in the lives of his nephew and nieces, and will provide emotional, financial and practical support to them if his visa is not cancelled.  It is in the best interests of his nieces and nephew that his visa is not cancelled.  The weight attributed to this factor is influenced by the five years in which he has been absent, in the context of having arrived in Australia [in] March 2016 and being incarcerated from March 2017 and his ability to maintain contact with the older children and provide them with emotional support by electronic means.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

24. A bridging visa is a temporary visa, however [the applicant] states his sisters, his half-brother and his cousins are in Australia, and there is a community of people who are closely or remotely related in which he lives.

    Any other relevant matters

25. [The applicant] served his full sentence of imprisonment.  His records show he was denied parole on 25 May 2021, and [the applicant] said this was because he was a deportee. 

26. [The applicant], [Ms A] and [Mr B] all submitted [the applicant] has done his time for the offences, is rehabilitated and deserves a second chance.  He is stated to be a hard worker who wants to contribute to the community by working, studying and continuing his art and playing his [musical instrument].  He connected with a group of Australia, New Zealand and Papua New Guinea indigenous people in prison, and they performed a [presentation] on Anzac Day.  He wants to continue the study he started in prison at [University] to a degree level. 

    CONCLUSION

27. If [the applicant]’s visa remains cancelled, he potentially faces a lengthy period of detention until his protection visa application is finally determined.  As a person who suffers from PTSD and psychotic symptoms, and as he likes to work, this causes him considerable hardship.  His sister wants him to be released so he can help her care for her children and assist her financially.  It is in the best interests of his nieces and his nephew not to cancel his visa.

28. [The applicant] has participated in some rehabilitation programs, however says he has difficulty recalling information due to an acquired brain injury.  His ability to abstain from alcohol and comply with treatment for his mental health is not tested and he is not subject to supervision on his release.

29. [The applicant] has been convicted of a serious offence.  The Tribunal considers he may be a risk to the health and safety of the Australian community, and specifically women in Australia if the decision to cancel his visa is set aside.  The Tribunal does not consider this risk is outweighed by factors that indicate his visa should not be cancelled. 

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

    DECISION

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