2207868 (Migration)

[2023] AATA 2191

2207868 (Migration) [2023] AATA 2191 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2207868

MEMBER:Deputy President Justin Owen

DATE:12 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2023 at 10:53am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence – take/detain person in company with the intention to obtain advantage recklessly causing injury – consideration of discretion – seriousness of the conviction – statement of regret – wife’s health and financial status – best interests of the child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

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 27 May 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) reg 2.43(1)(oa) on the basis that the applicant had been convicted of an offence against a law of the Commonwealth, State or Territory (whether or not the applicant held the visa at the time of the conviction and regardless of the penalty imposed (if any)). [In] March 2022, the applicant was convicted at [the] District Court in the State of New South Wales of take/detain person in company with the intention to obtain advantage recklessly causing injury. 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 15 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review.

5. 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

6. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Background to this review

7. The applicant is a [age]-year-old People’s Republic of China national. 

8. As outlined in the delegate’s decision record the applicant provided to the Tribunal, the applicant arrived in Australia as the holder of a Visitor (subclass 600) visa [in] October 2017.  He has not departed Australia since this time. The applicant lodged a Protection (subclass 866) visa application on 19 January 2018. This application was refused by the delegate on 15 April 2019. The applicant lodged an application with the Tribunal for review of the refusal on 30 April 2019. The application remains before the Tribunal at the time of decision. The applicant was granted the Bridging A (subclass 010) visa in association with his Protection (subclass 866) visa application.

9. [In] August 2020, the applicant was arrested by New South Wales Police.  The Tribunal discussed the NSW Police Facts Sheet with the applicant and put the information to him under s 359AA. The applicant and the victim were previously flatmates. The applicant accused the victim of the theft of some $30,000 from his room whilst they were flatmates.  The applicant did not inform the NSW Police of the theft. The victim was subsequently attempting to sell a [business] online. The accused with two other individuals responded to the advertisement and arranged to meet the victim. It was alleged the applicant and two other offenders met the victim at his motor vehicle where the applicant held a knife at the neck of the victim as he sat in the driver’s seat. The applicant demanded the return of his money. The applicant and his two fellow offenders attempted to but were unable to tie the victim’s hands. It was alleged the applicant made the victim record a false confession for stealing the money before the applicant contacted the victim’s parents in PR China in an attempt to have them transfer the money. The victim was also forced to contact his girlfriend to request $30,000 in cash. The victim convinced the applicant that he had cash stored in a [van]. Whilst the applicant searched for the vehicle, the victim escaped from the custody of the two fellow offenders. The victim’s girlfriend was contacted by the applicant by telephone. It was alleged she informed the applicant that the NSW Police had been informed of these events and were now involved. The victim was detained for about three hours and received minor abrasions to his chest and redness to his wrists. [In] August 2020, the applicant attended [a] Police Station where he was arrested and taken into custody.   

10. The applicant stated at the Tribunal’s hearing that he was detained for two months until he received bail. He stated he had a lawyer for his case and pleaded guilty to his charges.   

11. [In] March 2022, the applicant was convicted at [the] District Court in the State of New South Wales of take/detain person in company with the intention to obtain advantage recklessly causing injury.  The applicant was sentenced to an intensive correction order for one year and nine months, commencing [March] 2022 and concluding [December] 2023; supervision by community corrections service treatment programs for one year and nine months, commencing [March] 2022 and concluding [December] 2023; and the applicant was to undertake psychological counselling to deal with his current adjustment disorder as recommended by a doctor for as long as recommended by community corrections. 

    Sections 375A and 376 Certificates

12. At the hearing the Tribunal noted to the applicant that non-disclosure certificates had been issued by the delegate under s 375A and s 376 of the Act.  Copies of the certificates were provided to the applicant. The certificates were translated by the interpreter. The Tribunal notified the applicant that the s 375A certificate concerned a number of folios listed on the Departmental file on the basis that disclosure would be contrary to the public interest because:

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

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

13. The Tribunal stated that it considered the certificate was valid.  The applicant was invited to make submissions on the validity of the certificate and why the material should be released. 

14. The Tribunal stated at the hearing that it wished to let the applicant know the ‘gist’ of the information that was subject to the s 375A certificate, and put it to him under the relevant provision. The Tribunal noted the folios were largely internal emails between the Police and the delegate concerning his cancellation, illustrating internal processes for processing criminal convictions and cancellations. The Tribunal also noted it included the NSW Police Facts Sheet pertaining to his charge and subsequent conviction. Given the information was adverse, the Tribunal put the information to the applicant under s 359AA at the hearing.   The Tribunal explained the gist of the information in the Fact Sheet and explained the relevance of the material as well as the consequences of the Tribunal relying on the information.  The applicant was invited to comment on or respond to the information. His responses have been taken into account by the Tribunal and incorporated into this decision record. 

15. The Tribunal notified the applicant that the s 376 certificate concerned a number of folios listed on the Departmental file on the basis that the information in the relevant folios had been given in confidence.

16. The Tribunal stated that it considered the certificate was valid.  The Tribunal noted it had a discretion to release the information.  The applicant was invited to make submissions on the validity of the certificate and why the material should be released.

17. The Tribunal determined not to release the information.  The Tribunal stated at the hearing that it wished to let the applicant know the ‘gist’ of the information that was subject to the s 376 certificate, and put it to him under the relevant provision.  The Tribunal noted the folios were largely internal emails between Border Force and the Department concerning his visa cancellation.  The Tribunal also noted there was an internal email from the Department that summarised his charges, summarised the actions that led to his charge and conviction, as well as a summary of his bail conditions.

18. The Tribunal explained the gist of the information in the summary document and explained the relevance of the material as well as the consequences of the Tribunal relying on the information. Given the information was adverse, the Tribunal put the information to the applicant under s 359AA at the hearing. The Tribunal explained the particulars of the information, the relevance of the information and the consequences of the Tribunal relying on the information. The applicant responded at the hearing. His responses have been taken into account by the Tribunal and incorporated into this decision record. 

    Does the ground for cancellation exist?

19. 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 (Cth) (the Regulations). In the present case, the ground in reg 2.43(oa) is relevant.

20. At the hearing, the applicant acknowledged to the Tribunal that he had incurred the convictions summarised in paragraph two. The applicant confirmed to the Tribunal that he had incurred the convictions. In oral evidence to the Tribunal, the applicant confirmed that he had been charged with criminal offences by the NSW Police and convicted. The applicant acknowledged there are prescribed grounds to cancel his visa.   

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

22. 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

23. The evidence before the Tribunal indicates that the applicant arrived in Australia [in] October 2017 on a Visitor visa. At the Tribunal’s hearing, the applicant stated he arrived in Australia to make money. He stated his intention was not to stay in Australia long-term, simply to make some money as there were greater opportunities in Australia. 

24. The applicant claimed to not know the progress of his Protection visa application and review with the Tribunal. 

25. The applicant stated that he now has a wife in Australia and they have purchased a property.  He stated that if he hadn’t committed a crime, he would have been more likely to lodge a Partner visa application sponsored by his wife. 

26. The Tribunal notes the applicant arrived in Australia on a Visitor visa and lodged a Protection visa application. He claims however to the Tribunal that his main reason for arriving in Australia was to make money and he had not intended to stay in Australia long-term. A Visitor visa is a temporary visa with no work rights. Whilst a Protection visa permits the holder to work, it exists for individuals that wish to seek asylum in Australia. The applicant’s statement to the Tribunal suggests his motivations for seeking a Visitor visa initially and a Protection visa subsequently were for reasons other than those he may have put forward to the Department previously. 

27. The Tribunal has considered whether the applicant has a compelling need to travel to or remain in Australia.  The Tribunal does not consider his motivation to make money in Australia is a compelling reason to remain in Australia. If that is his primary purpose for travelling to and remaining in Australia, then he should apply for the requisite business or employment-related visa.

28. The Tribunal has given consideration to the applicant’s outstanding Protection visa review.  Whilst the applicant’s application for a Protection visa was refused by the delegate, the matter remains with the Tribunal for review. The Tribunal notes that should the applicant’s Bridging visa A be cancelled, the applicant may remain in detention in Australia pending the finalisation of his Protection review by the Tribunal, or may otherwise apply for a Bridging visa E to remain in the community whilst his Protection visa remains unresolved.

29. The Tribunal has considered the applicant’s submissions concerning his wife.  The applicant provided the Tribunal with no documentary or corroborative evidence concerning his wife or the property he claims they purchased. The applicant briefly noted at the hearing he and his wife had previously considered a Partner visa but had not done anything due to his criminal conviction. The Tribunal notes Partner visa applications are exempt from the s 48 bar in relation to visa cancellations. The Tribunal of course recognises the three-year exclusion period if a person has previously had their visa cancelled under Public Interest Criteria (PIC) 4013, and the subsequent need the applicant would have to seek a waiver of the Criteria to pursue an application onshore.  Nevertheless the applicant, and his wife as sponsor, may still potentially be able to pursue such an application, on the basis of a successful waiver of PIC 4013 for compassionate or compelling circumstances, should they so desire.  

30. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa. 

    The extent of compliance with visa conditions

31. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the prescribed grounds of the applicant’s criminal convictions and the delegate being satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. The Tribunal notes that there are no conditions attached to the applicant’s Bridging visa. There is no evidence or suggestion that the applicant was non-compliant with conditions attached to the previous temporary visas he held in Australia. 

32. The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

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

33. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging visa A be cancelled.

34. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside. He stated that quite simply, he wants to remain in Australia and be with, and care for, his wife.  He stated “not much else” when questioned by the Tribunal as to hardship imposed specifically upon himself. The Tribunal is satisfied that the cancellation of the applicant’s Bridging visa A will impose some hardship upon the applicant. 

35. The applicant made a number of claims concerning hardship in relation to his wife. The Tribunal notes that the applicant made no written submissions to it as part of the review process. He listed no witnesses and has provided no information about his wife other than a claim he is married, they have purchased a property together, and wish to have children.  For the purposes of this review, the Tribunal has accepted that the applicant has been factual in relation to these matters. 

36. The applicant stated he and his wife wish to have children and simply wish to have a normal life together. He claims his wife has had several miscarriages, including one where his wife lost consciousness. The Tribunal accepts that the applicant and his wife wish to have a family together, and they have faced challenges in achieving this goal. The Tribunal notes however that the applicant and his wife are not precluded from continuing to try for a child together if his Bridging visa A were to remain cancelled. If the applicant’s visa is cancelled, he retains the ability to apply for a Bridging visa E to remain in the community. The applicant has a current Protection application that has not been finalised. The Tribunal considers the chances of him being compelled to immediately depart Australia should his Bridging visa A remain cancelled in such circumstances are remote. Even if he were to depart Australia, his wife can choose to depart Australia and spend time with him should she (and the applicant) determine to do so, noting the applicant’s claim his wife already has an Australian citizen child of her own aged eight to nine years of age. The Tribunal does not accept the desire of the applicant’s wife to have a child represents a significant hardship to the parties should his visa be cancelled. The Tribunal accepts their ability to conceive may be adversely impacted should the applicant be required to depart Australia but notes his wife can either relocate to PR China or travel to visit the applicant on a temporary basis. 

37. The applicant stated that he and his wife have purchased a home together. Again, the applicant has provided no corroborative evidence to illustrate this purchase, or the mortgage he claims exists over the property. The applicant stated that there is a $5,000 a month mortgage over the property. He states his mother-in-law is also residing at the property. The applicant has claimed he is working seven days a week, 12 hours a day with two [jobs]. He claims his wife will be unable to pay the mortgage should his Bridging visa A remain cancelled.

38. The Tribunal has considered the hardship that may be caused to the applicant’s wife and her family in relation to their property should his visa remain cancelled. The Tribunal accepts there would be some hardship to his wife and her family. The Tribunal again however notes that the applicant would be able to apply for a Bridging visa E to remain in the community, should his visa be cancelled. He would subsequently be able to seek work rights so he can continue to generate income to contribute to the paying of the mortgage. The applicant’s wife can seek the assistance of other family members. The Tribunal would also note that the applicant, together with his wife, determined to purchase a property together – with a substantial mortgage – when the applicant had no guarantee of Australian permanent residency. The applicant stated at the Tribunal’s hearing that the purchase of the property (in the name of his wife) settled [in] September 2022, a period after the cancellation by the Department of his Bridging visa and a time when the applicant had no confirmation whatsoever that he would be allowed to remain in Australia. That is a risk that they determined to take in the circumstances. The Tribunal is of the opinion that, should the applicant’s wife be unable to meet the obligations of the mortgage, then other options can be explored such as either renting the property out and obtaining a property more affordable, or disposing of the property on the market. The applicant’s wife is the [Position 1] of a [business] according to the applicant and is already in full-time gainful employment. The Tribunal accepts that all those scenarios may be stressful for the applicant, his wife and her family. The Tribunal accepts it generates hardship for the applicant’s wife, her family and indeed the applicant. The Tribunal does not however consider the hardship is either unfair or onerous.

1. The Tribunal has considered the broader issue as to the financial hardship the applicant’s wife (and family) may face should his Bridging visa A be cancelled.

2. In relation to financial hardship imposed on the applicant’s wife through the cancellation of the applicant’s Bridging visa, the Tribunal accepts that there will be a degree of increased financial hardship for the applicant’s wife should the applicant’s visa remain cancelled and he depart Australia. The Tribunal does not consider it unreasonable for a couple or an individual to make certain changes to their spending and lifestyle due to circumstances such as those presented in this review. The Tribunal accepts there will be a degree of increased financial hardship to the applicant’s wife, notwithstanding the applicant’s claim she is currently in full-time employment in a management position. 

3. The Tribunal is not however satisfied on the evidence before it that the applicant is unable to seek gainful employment should he return to PR China. There is no evidence before the Tribunal or claim made that he would be unable to seek gainful employment in PR China.  Financially, the Tribunal notes that even if the applicant does return to PR China should his Bridging visa A remain cancelled, the applicant would be able to seek employment himself and send money to his wife and her family should he so desire.

4. The Tribunal also notes in relation to financial hardship and the applicant that, should the applicant’s Bridging visa A be cancelled, the applicant may be able to apply for a Bridging visa E (as an alternative to detention) to remain in Australia for the finalisation of his Protection visa application that is currently before the Tribunal. If granted, the applicant may be able to apply for work rights on the grounds of financial hardship. 

5. The Tribunal accepts there would be a strong degree of emotional hardship for the applicant and his wife should his visa be cancelled. The Tribunal accepts the testimony of the applicant that there would be emotional hardship should his visa be cancelled and he return to PR China. The Tribunal would note however that the parties can remain in close contact via modern communication and his wife retains the opportunity to travel to PR China and relocate with the applicant if she sees fit, and the applicant has in fact departed offshore. 

6. The Tribunal also notes the applicant’s claim at the hearing that he has his own child who resides in PR China with her grandmother. He stated she is [age] years of age, and he last saw her in October 2017. He states the child’s grandparents provide care for his child, whilst he sends money to his child on a semi-regular basis. The Tribunal accepts the applicant has provided financial support to his child from Australia from time to time. The Tribunal would note that should the applicant’s Bridging visa A be cancelled and he return to PR China, then he would potentially be able to spend more time with his child and provide more support both financial and emotional. The Tribunal considers the hardship the applicant faces in relation to his own child in PR China, should his Bridging visa A be cancelled, is minimal. The Tribunal does not accept that the applicant will be unable to continue supporting his child in PR China should he return if his Bridging visa A remains cancelled. The Tribunal would additionally add that he would have his own support network in PR China with his mother, his sister in Shanghai and his daughter all present.   

7. The Tribunal accepts there is potentially an increased level of hardship to the applicant’s wife in relation to her own family should the applicant be compelled to return to PR China and she decide to follow. The Tribunal however considers this is ultimately a decision to be made by the applicant’s wife (assumingly in conjunction with her own family and the applicant).              

8. The Tribunal has also considered the specific hardship that may be caused to the applicant given he has an outstanding Protection visa review before the Tribunal should his Bridging visa A be cancelled. As discussed earlier in this decision record, the Tribunal notes that should the applicant’s Bridging visa A be cancelled, as an alternative to detention, the applicant may be able to apply for a Bridging visa E that may allow him to remain in Australia pending the finalisation of his Protection visa application. The Tribunal also notes that the applicant may otherwise await the outcome of his Protection visa application whilst in immigration detention. The Tribunal considers any hardship caused by the cancellation of his Bridging visa A to the applicant in relation to his Protection visa application to be limited.    

9. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia. The Tribunal ultimately considers the hardship, whilst certainly an issue for the applicant and his family, to be limited. As stated above when considering the degree of hardship that may be caused to the applicant, the Tribunal does however note that should the applicant’s Bridging visa A be cancelled, as an alternative to detention the applicant may be able to apply for a Bridging visa E.  The grant of a Bridging visa E would allow him to remain in Australia and in the community pending the outcome of his Protection visa review currently before the Tribunal. 

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

    The circumstances in which the ground for cancellation arose

11. The cancellation arose from the conviction of the applicant of a criminal offence in the State of New South Wales. The applicant was convicted at [the] District Court in the State of New South Wales of take/detain person in company with the intention to obtain advantage recklessly causing injury.

12. The Tribunal gives some weight to the applicant’s general acceptance of responsibility for his actions and his statement of remorse at the Tribunal’s hearing. The Tribunal also notes the applicant has not been involved in any further incidents that have required the involvement of the Police. The Tribunal recognises that the Court did not see fit to incarcerate the applicant following his conviction.  

13. The Tribunal gives greater weight however to the fact the applicant has nevertheless been convicted of what it considers is a significant offence. The Tribunal considers the extreme fear the applicant (and his accomplices) must have caused his victim, in holding a knife to his throat and detaining him, is significant.  

14. The Tribunal discussed the NSW Police Facts Sheet outlining the events that led to the criminal conviction in some detail with the applicant at the hearing. The Tribunal put the Fact Sheet and other related NSW Police, Border Force and Department correspondence (which was covered by a Departmental certificate) to the applicant under s 359AA at the hearing.  An internal email from the Department that summarised the applicant’s charges, as well as the actions and events that led to the applicant’s charge and conviction was also discussed with the applicant. These documents were covered by a s 376 certificate. The Tribunal put the information to the applicant again under the relevant s 359AA provisions. 

15. As the Department’s email stated, the applicant and the victim used to live together. During this time, $30,000 (the Tribunal notes it has variously been described in evidence as $30,000 and $35,000) belonging to the applicant had allegedly gone missing. The applicant formed the belief that the victim had stolen the cash. The applicant lured the victim to a location by replying to an online advertisement posted by the victim, and making arrangements to meet anonymously. When the victim arrived in his business van, the applicant and two co-offenders entered the rear of the van. The applicant held a knife to the victim’s neck, and the victim was dragged into the rear cabin. The applicant bound the victim’s hands and placed a plastic bag over his head. It is claimed the applicant stated “You have to admit you stole $35,000 from me. You have two options, either admit on record you stole the money and give it back or I’ll make sure you end up dead”. The applicant attempted to contact the victim’s parents in PR China and also the victim’s girlfriend in Australia to attempt to have money transferred to him. The victim was able to convince the applicant that he had money in a car in another location. When the applicant left, the victim was able to escape from the two co-offenders. The victim was detained for a period of about three hours, and received minor abrasions to his chest and redness to his wrists. The Tribunal explained the relevance of the information and the consequences of the Tribunal relying on the information.

16. The applicant provided the Tribunal with his own version of the events that led to his criminal conviction. In his oral testimony at the Tribunal’s hearing, the applicant also made a range of comments concerning the victim, who the Tribunal notes is his former flatmate. He discussed living with the victim during the pandemic and stated he had even bought him a cake for his birthday, as well as talking to the victim about his smoking at their apartment and asking him to cease. He claimed in July the victim had informed him that he intended to move out: and around then had stolen his money. He claims on 23 July he discovered his money had been stolen from his unlocked bedroom whilst he was in the bathroom. He stated he was certain the victim had stolen the money. The applicant stated that he did not inform the NSW Police as he did not want the victim to go to gaol. The applicant claims the victim admitted taking the money and stated he would return it in a few days, ostensibly after selling his courier business. The applicant claims at this point the victim moved out of their shared residence and he could not be located. The applicant claims his friends then contacted him, which led to the meeting at his motor vehicle. The applicant denied pulling the plastic bag over the victim’s head or using a knife. He claims he was unaware that the Police had been called, and a day or two later he was contacted by NSW Police and asked to attend the police station. At this point he was arrested and detained for two months. The applicant claims when he went to Court, he learned that the victim had cheated and lied to a number of people. He claims the victim scammed two more people out of $100,000 which was reported in local Chinese media. In response to the Tribunal’s questions as to why he did not go to the Police if the victim had in fact taken his monies, the applicant stated that he thought the Police would be unable to retrieve his money. In response to the Tribunal’s query as to why he was keeping such a large amount of money in cash hidden in his bedroom, the applicant claimed it was because he was planning to purchase a motor vehicle.       

17. The applicant stated he had pleaded guilty to the charges and had a private lawyer assist him. He stated that he had been remanded in custody for two months until he was finally bailed on a $40,000 bond.

18. The applicant claimed in November 2021, the victim stated that if the applicant gave him $40,000 then the case would be dismissed and essentially the charges would be dropped.  The applicant claims his wife reported the telephone call and the offer to the Police. The applicant stated his lawyer had informed him the victim was still lying to Police. The applicant also stated that the Police Fact Sheet the Tribunal had referred to was an earlier version of what was agreed to, and the victim was not in fact injured from the events that led to the applicant’s arrest and conviction.

19. The Tribunal has considered the circumstances in which the ground for cancellation arose and the applicant’s evidence. 

20. The Tribunal notes the applicant’s claims concerning the victim and his allegations about the victim being involved in a range of financial impropriety. These have been provided presumably to undermine the veracity of the claims of the victim and his general credibility.  There is no evidence before the Tribunal to support these claims, and the Tribunal gives them no weight.  The Tribunal instead notes that the facts are that the applicant was charged with take/detain person in company with the intention to obtain advantage recklessly causing injury. He pleaded guilty to the charge and was convicted. He had legal representation when entering his plea. The Tribunal accepts that the applicant may have had an adverse relationship with his former flatmate. The Tribunal cannot comment on whether there was money missing or not. Whatever the situation, that does not justify or mitigate detaining someone and threatening them unless they provide a significant sum of money. The applicant had every opportunity to report the said incident to the NSW Police if his monies were in fact stolen. He chose not to do so and instead, as he himself has made clear, determined to take the law into his own hands.

21. The Tribunal put the relevant documents before it in relation to his convictions, and the circumstances leading to these convictions, to the applicant under the relevant provision.  The Tribunal notes his dispute as to his actions causing the victim injury, using a knife or pulling a plastic bag over the head of the victim. The Tribunal has noted the applicant’s claims but puts greater weight on the conviction itself and the documentation before the Tribunal in relation to the events that led to his charge and conviction.         

22. The Tribunal also notes, when considering the applicant’s conviction and sentencing, that in response to the Tribunal’s question the applicant stated he had not in fact undertaken the psychological counselling that was listed as part of his sentence, counselling that was meant to assist him deal with a “current adjustment disorder”. The Tribunal notes that this counselling was meant to be undertaken as recommended by the doctor, for as long as recommended by Community Corrections. There is nothing before the Tribunal as to the recommendations of Community Corrections, though the Tribunal notes that there is no evidence or claim that the applicant has in fact undertaken any psychological counselling as foreshadowed in his sentencing.   

23. The Tribunal has carefully considered the applicant’s detailed oral explanation of events, as well as the documentation before it concerning his conviction. The Tribunal does not however consider such circumstances mitigates or excuses the applicant’s behaviour. This is not an acceptable form of behaviour.  

24. The applicant has explained to the Tribunal the background to the convictions and his recollection of events. Having taken all the evidence into account the Tribunal weighs the circumstances in which the ground for the cancellation arose heavily in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

25. The Tribunal has considered the past and present behaviour of the applicant towards the Department. The decision record the applicant provided states the applicant responded to the NOICC and has actively engaged in the cancellation consideration process. On the evidence before it, the Tribunal weighs this factor slightly against cancelling the visa. 

    Whether there would be consequential cancellations under s 140

26. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa. The Tribunal therefore finds that there will be no consequential cancellations under s 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa. 

    Mandatory legal consequences of a decision to cancel the visa

27. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. He will also be subject to a s 48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal notes that the applicant currently has an application for review before the Tribunal in relation to his refused Protection visa application. Should the applicant’s Bridging visa A be cancelled, the applicant may be able to apply for a Bridging visa E that may allow the applicant to remain in Australia until his Protection review is finalised by the Tribunal. The legal consequences of the cancellation specific to the applicant is that he is likely to be removed to Immigration Detention upon cancellation unless another visa – the Bridging visa E allows him to stay for or pending the resolution of his Protection review before the Tribunal. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

    International obligations – non-refoulment

28. As outlined in the decision record the applicant previously supplied the Tribunal, the applicant lodged a Permanent Protection (subclass 866) visa application on 19 January 2018. On 15 April 2019 the applicant was found not to be a refugee by the delegate. The applicant subsequently appealed to the Tribunal on 30 April 2019. At the time of decision, that matter is still before the Tribunal. 

29. At the Tribunal’s hearing, the applicant was invited to discuss his Protection application and raise any information pertaining to his claim. The applicant was invited to make submissions as to any international obligations that may be impacted by the cancellation of his Bridging visa. He declined to do so.   

30. The Tribunal notes that the cancellation of the applicant’s Bridging visa A would not prevent the applicant from awaiting the outcome of his Protection visa review currently before the Tribunal. The Tribunal notes that his eligibility for Protection is a review and assessment by the Tribunal that is separate to this review pertaining to the applicant’s current Bridging visa. The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

    The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

31. The Tribunal accepts the applicant does have a child but notes that child is not in Australia, and rather resides with their family in PR China. Given these facts, the cancellation of the applicant’s visa will not result in either a separation of the family unit or the separation of the child from either parent given the family unit has already been separated. 

32. The applicant in his oral testimony stated his wife had an Australian citizen child of eight or nine years of age from a previous relationship. No further information has been provided concerning the child. The applicant has made no written submissions despite previously being invited to do so by the Tribunal’s hearing invitation. The Tribunal does note that the applicant engaged representation in this case. The applicant nevertheless provided little insight into his relationship with the child. For the purposes of this review, the Tribunal accepts that the applicant’s wife has a child from a previous relationship. There is no evidence or claim however that suggests the applicant has any significant role or involvement with the child. His role with the child is in fact not clear. Cancellation of the visa will not lead to the child being separated from their mother, acknowledging that it may lead to separation from the applicant. The Tribunal has nevertheless weighed the child of the applicant’s wife as a primary consideration in its determination, but in the circumstances weighs this factor only moderately against cancelling the visa. 

    Conclusion

1. The Tribunal has weighed the primary and secondary considerations. In this case, the Tribunal has considered the seriousness of the applicant’s conviction and his statement of regret for the actions that led to his conviction. The Tribunal has also taken into consideration the claims he has made concerning his wife’s health and financial status – albeit with no corroborative evidence – and his concerns for leaving her behind in Australia should he be compelled to depart offshore. The Tribunal has had regard to his claims as to the hardship he and his claimed partner will face should his visa be cancelled. The Tribunal has treated the claimed child of his wife as a primary consideration and weighed that moderately against cancelling the applicant’s visa. 

2. However, the Tribunal considered these factors were considerably outweighed by the other considerations. The Tribunal notes that the Commonwealth Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis and do not hold a substantive visa. The Tribunal is particularly concerned with behaviour that involved utilising subterfuge to detain someone unlawfully, threaten them with grave violence and intimidate them with a dangerous weapon. The Tribunal can only conclude the events must have been terrifying for the victim. The Tribunal acknowledges the applicant contends that the behaviour of the victim, who he claims stole a substantial amount of money from him, motivated him to undertake such anti-social and criminal actions. That to be honest is of limited relevance and does not in the Tribunal’s mind mitigate the seriousness of the applicant’s behaviour. The Tribunal does not consider the applicant’s behaviour was either acceptable or excusable in any way regardless of the claimed circumstances. If he had a genuine issue with the theft of his money, then he should have referred the matter to the NSW Police Force who could take the actions necessary.   

3. The Tribunal furthermore notes that should the visa be cancelled, the applicant may be able to apply for a Bridging visa E that may allow him to remain in Australia until his Protection review is finalised as an alternative to detention. In such circumstances he would be able to remain in the community, seek work rights on his visa, and remain with his wife.      

4. The Tribunal notes the consideration pertaining to the best interests of the child.  The Tribunal has treated the best interests of the child, in relation to the claimed child of the applicant’s wife, as a primary consideration.  The Tribunal notes the applicant has provided little insight into his wife’s claimed child.  The Tribunal has in such circumstances, whilst acknowledging the child as a primary consideration, has weighed it moderately against cancelling the applicant’s visa. The Tribunal considers this primary consideration is outweighed by the cumulative effect of the other considerations, such as the nature of the conviction, the circumstances of the events that led to his conviction, and the purpose of his travel to and stay in Australia.  Ultimately, having weighed all the considerations, the Tribunal considers the visa should be cancelled.  The Tribunal has carefully considered the applicant’s evidence and his explanations both singularly and cumulatively.   

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

   DECISION

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

   Justin Owen
   Deputy President