2211684 (Migration)

2211684 (Migration) [2022] AATA 2985 (26 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Chelsea Clark
CASE NUMBER:  2211684
MEMBER:Deputy President Justin Owen
DATE:26 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 26 August 2022 at 12:04pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – granted in conjunction with protection visa application, with court appeal in progress – criminal convictions, suspended sentence and immigration detention – discretion to cancel visa – ground for cancellation conceded and expression of remorse – circumstances of offending – mental health – possibility of prolonged or indefinite detention –previous cancellation and reinstatement given no weight – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(g), 189, 198, 359A
Migration Regulations 1994 (Cth), rr 2.43(1)(p)(i), 4.21(2), 4.27; Schedule 4, Public Interest Criterion 4013; Schedule 8, Visa Conditions 8564, 8566
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

This is an application for review of a decision dated 10 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s. 116(1)(g) reg. 2.43(1)(p)(i) on the basis that the applicant had been convicted of an offence against a law of the Commonwealth, State or Territory. The applicant provided the Tribunal with the delegate’s decision record that stated the applicant had recently been convicted of a range of criminal offences including Being Armed/pretending to be Armed in a way that may cause fear; breach of Family Violence Restraining Order; Common Assault in Circumstances of Aggravation or racial Aggravation; Criminal Damage or Destruction of Property x 2 counts; Made a threat to unlawfully do an act – aggravated; and unlawfully assault and thereby did bodily harm with circumstances of aggravation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 August 2022 via MS Teams from [Immigration Detention Centre 1 (IDC 1)] to give evidence and present arguments. The applicant was invited at the hearing to provide post-hearing submissions for the Tribunal’s consideration, which were submitted to the Tribunal on 22 August 2022.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing via telephone from Melbourne.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Procedural Issues
On 12 August 2022 the Tribunal received an application for review of the decision of the delegate to cancel his Subclass 050 (Bridging (General)) visa (“Bridging visa E”). The applicant nominated Miss Chelsea Clark of Legal Aid Victoria as his representative. An email address was provided though no telephone or mobile numbers were supplied. The applicant stated he was at [Detention Centre 1]. He selected “No” to the question as to whether he needed an interpreter in communicating with the Tribunal. The applicant provided a copy of the delegate’s decision record of 10 August 2022 cancelling his visa.
On 12 August 2022 the Tribunal sent a letter to the applicant through his nominated representative acknowledging the application. A copy of the letter was sent to the applicant at [IDC 1] with a request the letter be immediately hand delivered to the applicant. The acknowledgement letter stated it was important the applicant inform the Tribunal of any change of contact details.
On 12 August 2022 the Tribunal, noting the email details of the applicant’s representative appeared to be incorrect, wrote to the applicant requesting correct details. No response was received.
On 15 August 2022 the Tribunal made multiple telephone calls to Legal Aid Victoria and waiting on hold for up to 50 minutes attempting, unsuccessfully, to obtain the correct contact details of the applicant’s nominated representative Miss Clark.
On 15 August 2022 the Tribunal wrote to the applicant at [IDC 1] noting that the email address for his representative was incorrect. The Tribunal provided a change of address form and asked that he provide the representative’s updated contact details by 16 August 2022. The email was sent directly to the Officer in Charge at [IDC 1] with a request the letter be immediately hand delivered to the applicant.
On 15 August 2022 the Tribunal wrote to the applicant at [IDC 1] inviting him to a hearing on 18 August 2022: Reg 4.21(2). The invitation to hearing was sent to the Officer in Charge at [IDC 1] and to the applicant’s representative via the email address the applicant provided for her.
The invitation to the applicant’s representative was returned to sender. [IDC 1] wrote to the Tribunal confirming that the invitation to hearing had been received and hand delivered to the applicant.
The Tribunal contacted [IDC 1] by telephone on the morning of 18 August 2022. Representatives from [IDC 1] and Australian Border Force confirmed the applicant had the invitation to hearing and was aware of the scheduled hearing that day.
The applicant appeared at the hearing at the scheduled time of 12.00pm ([Local] time) via MS Teams. The applicant’s representative Miss Clarke also appeared at the hearing via telephone.
The applicant’s representative Miss Clark stated she had just become aware of the hearing after being contacted on her mobile telephone by the applicant. She stated she was at home in isolation with COVID-19 and requested an adjournment. The Tribunal noted its staff had made considerable attempts to obtain her contact details through the applicant and through Legal Aid Victoria. The Tribunal, noting Reg. 4.27 and the prescribed period of making a decision within 7 working days after the application for review was received, stated that the scheduled hearing would continue. The Tribunal furthermore notes it had requested the applicant, via correspondence sent to [IDC 1] to be hand delivered to him, provide updated contact details for his representative. The fact the applicant had his representative’s mobile telephone number and was able to contact his representative just prior to the hearing suggests he had access to updated contact information for his representative and failed to provide such information to the Tribunal prior to his hearing, despite the Tribunal’s request. The applicant has stated through his representative that he had no access to his email from 10 August 2022 for seven days. The Tribunal would note that the applicant was able however to lodge his application for review on 12 August 2022. The Tribunal would furthermore note that the applicant, having received correspondence from the Tribunal by hand at [IDC 1], could have passed on any updated contact details for his representative to the Tribunal through the IDC staff.
The Tribunal at the hearing granted a short adjournment for the applicant and his representative to discuss the matter. The Tribunal stated that it would proceed with the hearing, but it would welcome any written submissions the applicant and his representative wished to make post-hearing and take those into account.
The applicant’s representative subsequently submitted written submissions including a statement from the applicant, and the applicant’s aunt on 22 August 2022.
The Tribunal is satisfied that the applicant was properly invited to a hearing. The Tribunal is satisfied that the applicant was provided a meaningful opportunity to give evidence and present arguments relating to the determinative issues in this matter.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
The applicant provided the Tribunal a copy of the delegate’s Notice of Intention to Consider Cancellation (NOICC) of his Bridging visa. The notice states the applicant was granted a WE-050 Bridging visa on 14 December 2017. The information before the Tribunal suggests the visa was granted in conjunction with his Protection visa application. The applicant confirmed his Protection visa application is still to be determined, and is currently before the Federal Circuit and Family Court of Australia in October 2022. The Tribunal is satisfied that the applicant was the holder of a Subclass 050 (Bridging (General)) visa.
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(p)(i) is relevant.
The applicant confirmed that he had been convicted of the charges laid by the [State 1] Police and summarised on paragraph 2, though he disputed there had been a breach of a Family Violence Restraining Order. The applicant in his oral testimony confirmed that the ground for the cancellation of his visa existed. The Tribunal notes that, according to the delegate’s decision record, the applicant also did not dispute the grounds for cancellation of his visa in his interview with the delegate on 10 August 2022. The applicant also conceded that the ground existed to cancel his visa through his representative’s written submission of 22 August 2022. The Tribunal is satisfied that the applicant has been convicted of the offences identified above under the law of the State of [State 1].
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. The Tribunal is satisfied that the ground as set out in reg. 2.43(p)(i) is made out. 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
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q) (the Direction), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and it specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary considerations and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
Primary considerations
The Tribunal notes that the applicant was convicted on 10 August 2022 of a range of criminal offences that include the committing of acts of violence towards his ex-partner. The applicant discussed the convictions, and the events leading to the convictions, at the Tribunal’s hearing. The applicant has made post-hearing written submissions. The Tribunal has taken into account the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation.
The Tribunal asked the applicant at hearing whether he has any children, either in Australia or offshore. The applicant confirmed he has no children. The Tribunal finds that there are no children under the age of 18 in Australia who would be affected by the cancellation. The Tribunal weighs this consideration neither in favour nor against cancellation.
Secondary considerations
The Tribunal has considered the impact a decision to cancel his visa will have on the family unit. The applicant stated he had an aunt and an uncle plus their children living in Melbourne. He stated that cancellation of his visa would have no particular impact on their lives. The applicant stated he has no other family members in Australia. The Tribunal accepts the applicant may have some sort of ongoing contact with his aunt, and notes the statement his aunt has made to the Tribunal post-hearing offering to pay for his journey to Melbourne and provide him with accommodation. The Tribunal accepts the applicant’s statement that the cancellation of his Bridging visa would have no particular impact on the family unit, with the applicant in [State 1] and his aunt and uncle in Melbourne. The Tribunal acknowledges the post-hearing offer of his aunt to provide support to the applicant, but is not satisfied that cancellation of his visa will have any particular impact upon his family unit. On the evidence before it, the Tribunal weights this consideration in favour of cancellation.
The Tribunal has considered the degree of hardship that may be experienced by the applicant if his visa was cancelled. The Tribunal explained to the applicant in response to his question as to hardship that it could relate to a range of matters, such as financial, psychological, emotional or other hardships. The applicant did not put forward any particular grounds of hardship in his oral submissions. The applicant repeated that he wanted to live in Australia and asked if possible that he receive one more chance to remain.
The applicant’s representative Miss Clark at the hearing stated that the applicant’s mental health was not good. She stated that she didn’t know it was the applicant when he contacted her compared to six months previously, and he was “very depressed”. Miss Clark made a number of claims about [IDC 1] and stated there had been an increase in the number of hardened criminals detained at the facility. Miss Clarke claimed indefinite detention was possible and stated detention should be a matter of last resort. Miss Clark has claimed the hardship the applicant will face by remaining in immigration detention will be considerable. In written submissions post-hearing the applicant’s representative submitted extended immigration detention was deteriorative to the applicant’s mental health and would cause him emotional and psychological hardship. The applicant’s representative referred to a report of the Australian Human Rights Commission that a significant number of people stated they felt unsafe after witnessing and experience physical violence in Australian immigration detention.
In the applicant’s written statement to the Tribunal post-hearing he stated that he wanted to start a business and contribute to the community, having had a business in Melbourne previously. He stated that he had spoken to his aunt and uncle in Melbourne and they wanted him to come and stay with them for a period of time. He stated that if not released from detention it would be “a slow and painful death” for himself mentally as he would remain in detention for an unknown period.
The Tribunal has considered the claims in relation to hardship. There is no medical evidence before the Tribunal concerning the applicant’s mental and psychological health. There is no evidence or claim that the applicant has been receiving treatment for his mental and psychological health. There is no medical evidence before the Tribunal to support any claim that the applicant is depressed, or his mental health will deteriorate should he remain in immigration detention. There is no evidence before the Tribunal to satisfy it that the applicant’s psychological health will deteriorate should he remain in detention. The Tribunal considers the claims the applicant will suffer significant psychological hardship are subjective claims by the applicant and his representative. The Tribunal accepts that the applicant would prefer not to remain in immigration detention. The Tribunal is not however satisfied that the applicant’s mental and psychological health will be harmed, and he will be subject to undue hardship in relation to his mental and psychological health, should his visa remain cancelled and he remains in immigration detention.
The Tribunal accepts the applicant enjoys being in the workforce, and would prefer to be focusing upon his interests in [Industry 1] in the community. The Tribunal accepts he has friends in the [City 1] community. The applicant discussed how he would like to focus again on building his business. The Tribunal accepts the applicant is a diligent worker who is motivated to succeed in business. The Tribunal considers the hardship however to the applicant to be limited. The applicant stated he sold out of the business he previously partly owned. There is no evidence of existing employment obligations. Should the applicant be granted a Protection visa he will be able to recommence his work in [Industry 1] should he so desire. The Tribunal does not consider his being precluded from pursuing employment interests whilst in immigration detention to represent a hardship to the applicant.
The Tribunal has taken into account Miss Clark’s submissions concerning the impact of immigration detention. Immigration detention plays a critical and indeed vital role in maintaining the integrity of Australia’s immigration system. Under the Act, a person that does not hold a visa that is in effect is an unlawful non-citizen. Whilst the Tribunal accepts that remaining in immigration detention can cause a degree of hardship, it does not consider it to be either unfair or punitive in relation to the applicant’s case. He was released from remand in August 2022 and placed into immigration detention. He has been convicted of a range of criminal offences that have involved violence. The Tribunal notes that visa holders are required not to breach the conditions of their visa which, in the applicant’s case, includes not engaging in criminal behaviour. The Tribunal does not consider Miss Clark’s submissions concerning Australia’s immigration detention system have illustrated the imposition of onerous or oppressive hardship to the applicant through his remaining in immigration detention.

The Tribunal has also considered the specific hardship that may be caused to the applicant given he has an outstanding Protection visa review application, should his visa remain cancelled. The Tribunal notes however that the applicant will be able to remain in Australia to allow the review and finalisation of his of Protection application which is currently before the Federal Circuit and Family Court and is scheduled for final hearing [in] October 2022. The Tribunal notes that the applicant will be able to continue his participation in the review concerning his previously refused Protection application whilst in immigration detention. The applicant has stated that finalisation of the process could take months or years and there is no guarantee on what the decision might be. The Tribunal has taken these delays into account, and it notes the lengthy process has come about through the applicant judicially challenging decisions of the Minister and the Immigration Assessment Authority, as of course is his right. Cancellation of his visa will not impact his ability to seek judicial resolution of his Protection visa application. The Tribunal considers any hardship caused by the cancellation of his visa to the applicant in relation to his Protection visa review, and the claims he wishes to make as part of that review, to be limited.
On the basis of all the evidence before the Tribunal, the Tribunal is satisfied that the cancellation of the applicant’s visa, and the fact he will remain in immigration detention until his Protection visa review is finalised, a process that has gone on now for some years, will impose some limited hardship upon the applicant. As discussed above, however, the Tribunal does not consider the hardship in the circumstances to be significant or onerous.
In relation to the degree of hardship that may be caused, the Tribunal weighs this factor slightly against cancelling the visa.
The Tribunal has considered the circumstances in which the ground for cancellation arose. The applicant discussed his convictions at the hearing. He has claimed that the convictions largely relate to an interaction involving his former partner. He stated the conviction for being armed/pretending to be armed in a way that may cause fear was due to the fact he had all of his possessions in his motor vehicle and a kitchen knife was discovered by the [Police]. He claimed the convictions relating to the damage and destruction of property were the result of the breaking of a glass door and a mirror. The applicant claimed the breach of Family Violence Restraining Order pertained to another matter. The applicant stated that after his arrest by the [Police] he was detained due to the fact he was COVID-19 positive and did not have a permanent place of residence. He stated he was taken to the city Watch House and remanded in custody for over three months at [named] Prison. He obtained legal representation through Legal Aid after a claimed period of six weeks. He was sentenced to one year and four months imprisonment, suspended for 16 months. He stated that after he was sentenced officers from Australian Border Force detained him.
The applicant expanded upon the circumstances on his written statement as well as his representative’s submission post-hearing. He stated his ex-partner was 20 years older than him and he had been living at her house for a few weeks, but had not moved all his belongings there. He claimed that he had been at work that day and came home to find his then-partner crying and the house was a mess. He stated they got into an argument. He admitted throwing a coffee cup against a glass door and breaking a glass mirror. He stated that he slapped his partner on the shoulder.
The applicant stated at the hearing he had pleaded guilty to the charges and stated to the Tribunal that he was very sorry for his behaviour. The applicant stated in response to the Tribunal’s questions that he never had any criminal convictions or charges in either Australia or in Iran. In his written statement he stated that he was concerned that if he did not plead guilty he might be kept in gaol for one to two years. He stated he pleaded guilty as he wanted to take full responsibility for his actions. The applicant repeated his remorse for his behaviour. The applicant stated he wanted to make good choices about his future. To that end, the applicant submitted post-hearing that to ensure he did not reoffend he had cut ties with his former partner; had initiated plans to relocate to Melbourne to live with his family; he would obtain the emotional, financial and psychological support of his aunt and uncle; and would get employment as [an occupation] and open his own business, having previous experience in this area of endeavour.
The Tribunal has considered the applicant’s oral and written submissions. The evidence before the Tribunal is that the applicant has been convicted of a number of serious criminal charges, including those of assault. He pleaded guilty to these charges. He had the benefit, according to the applicant, of legal representation. There is no suggestion that the applicant’s behaviour that led to his offending was beyond his control. The applicant has submitted that his behaviour was out of character. The Tribunal notes his expressions of regret and remorse for his behaviour and has taken these into account. The Tribunal notes however in Direction No. 63 that the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens that have the privilege of remaining in the Australian community and do not hold a substantive visa. There is a clear expectation by the Government and the Australian community more generally that Bridging E visa holders comply with the law. The Tribunal has taken into account the applicant received a suspended sentence of 16 months, rather than a period of imprisonment, and his repeated statements of remorse. The Tribunal has also noted that the applicant did spend several months remanded in custody in the [State 1] corrective services system before his case went before the Courts. The Tribunal however ultimately considers the convictions, which involved the commission of acts of violence, are serious. The Tribunal has taken into account all the evidence before it concerning the circumstances in which the ground for cancellation arose and it weighs this factor strongly in favour of cancelling the visa.
The Tribunal has considered the possible consequences of cancellation of the applicant’s visa, including whether the cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulment obligations.
In his post-hearing submissions the applicant states the Tribunal affirming the delegate’s decision will lead to the applicant becoming an unlawful non-citizen remaining in mandatory detention. The applicant submits he will be unable to make a valid application for a further Bridging visa until a final decision is made on his Protection visa application. The applicant’s submissions state that whilst the applicant’s Protection proceedings are scheduled for October, there is no guarantee as to how long a decision will take or what the decision will be. The applicant has submitted that there is no utility for the applicant to remain in detention whilst his Protection visa is assessed, a period the applicant has submitted could potentially amount to years in detention and the possibility of indefinite detention. The hardship such prolonged detention may potentially have upon the applicant was also emphasised.
The Tribunal has considered the applicant’s submissions. The Tribunal notes the applicant is currently in immigration detention and has been since August 2022. The applicant was granted his Bridging visa E in 2017 on the basis of his Protection visa application. That application has already journeyed to IAA, the (then) Federal Circuit Court and the Federal Court. It is currently before the Federal Circuit and Family Court with a hearing scheduled in October this year.
The Tribunal acknowledges that the applicant will become an unlawful non-citizen if his visa is cancelled. He will therefore remain in detention under s. 189(1) and faces removal under s. 198 of the Act if he does not voluntarily depart Australia (s. 198(1)), although his deportation will also depend on the final determination on his Protection visa application that is currently under judicial review (ss. 198(5) and 198(5A)). The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled. The applicant will also be subject to a s. 48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.
The Tribunal notes that the applicant’s Protection matter is currently before the Federal Circuit and Family Court and listed for final hearing [in] October 2022. His Protection visa application review remains unaffected by the cancellation of his Bridging visa. He retains the ability to obtain ongoing representation from his representative Legal Aid Victoria and Miss Clark. The legal consequences of the cancellation specific to the applicant are that he is likely to remain in immigration detention upon cancellation pending the resolution of his Protection visa application before the Court. The Tribunal acknowledges the Protection matter has been active for some five years, and it may take some further time before the matter is resolved in the Court. The Tribunal has taken this potential ongoing delay in finalising the application into account when considering possible consequences of cancellation of the applicant’s Bridging visa. The Tribunal has considered the potential impact ongoing detention may have upon the applicant. The Tribunal acknowledges it is a considerable time but in the circumstances does not consider this to be unreasonable, noting he has only been placed in immigration detention a few weeks ago. The Tribunal also notes that remaining in the community as a non-citizen who has been convicted of criminal behaviour and does not hold a substantive visa is a privilege and not a right. There is no suggestion the applicant will not be able to remain in Australia and finalise his Protection visa review which has a final hearing scheduled in under two months, acknowledging a final outcome may take further time. On the evidence before it, the Tribunal weighs the consideration of the possible consequences of cancellation of the applicant’s visa – including the fact the applicant is liable for detention under s. 189 and removal under s. 198 – neither in favour nor against cancelling the visa.
In relation to any other matter considered relevant, the Tribunal has considered a number of matters.
The Tribunal considered the purpose of the applicant’s travel to Australia. The applicant has submitted that the Tribunal should consider the applicant’s purpose of stay in broad terms, having regard to the immediate legal, and the indirect personal, purposes the Bridging visa serves. The Tribunal on the evidence before it accepts that the purpose of the applicant’s stay in Australia is to have his claims for a Protection visa considered. These claims have manifested themselves with his lodgement of a Protection visa application in 2017.
The Tribunal accepts on the evidence before it that the purpose of the applicant staying in Australia as the holder of a Bridging visa E is for his Protection visa application and subsequent appeal to be determined judicially and finalised. The Tribunal accepts he has a compelling reason to remain in Australia whilst this is determined. The Tribunal weighs this consideration against cancelling the visa.
The Tribunal has considered the extent of the applicant’s compliance with his visa conditions. The Tribunal notes that the applicant has conceded that he breached conditions 8564 (“not engage in criminal behaviour”) and 8566 (“not breach code of behaviour”). The applicant stated to the Tribunal his regret and remorse for these breaches and stated he would comply with all conditions in the future. The applicant has submitted that prior to his convictions he had always been compliant with his visa conditions.
The applicant also made submissions in relation to a previous cancellation of an earlier Bridging visa E he held in 2015. The Tribunal wrote to the applicant under s. 359A noting his previous Bridging visa E visa was cancelled by the delegate on 30 July 2015 under s. 116(1)(g) of the Act after he was issued with an NOICC of his Bridging visa because he had been charged under Victorian law. This was subsequently affirmed by the Tribunal. The applicant explained in response to the Tribunal’s correspondence that this cancellation was the result of being incorrectly charged by the Victorian Police in 2015. He submitted that on the day of the trial the prosecution sought to withdraw the charge, but the Magistrate instead dismissed the charge. The Tribunal acknowledges the Court outcome supplied by the applicant confirming this. The applicant stated that his Bridging visa remained cancelled however until the Minister exercised a personal discretion to grant him a further Bridging visa. The Tribunal accepts the applicant’s explanation on this matter and gives it no adverse weight.
The applicant has submitted that his plans to move in with his aunt and uncle in Melbourne and seek employment in Victoria are also germane to the consideration of the applicant’s compliance with visa conditions. The Tribunal does not accept this claim. The Tribunal notes that the applicant made no comment about any intention to depart [City 1] and move in with his aunt and uncle at the Tribunal’s hearings. The Tribunal does not consider these to be concrete plans as has been characterised in his written submission, rather this has been determined after the Tribunal’s hearing. The Tribunal furthermore does not consider the applicant’s claimed future plans are relevant to the specific consideration of the extent of his compliance with visa conditions.
The Tribunal has considered the evidence before it in relation to the extent of the applicant’s compliance with visa conditions. The Tribunal acknowledges his statements of remorse and gives them some positive weight. The Tribunal also accepts the applicant’s submissions concerning the dismissed charges from 2015 and gives them no adverse weight. The Tribunal accepts that the applicant has not breached any conditions other than 8564 and 8566 to which he has admitted. The Tribunal weights this consideration slightly against cancelling the applicant’s visa.
The Tribunal has considered the past and present behaviour of the applicant towards the Department. On the evidence before the Tribunal the applicant has actively engaged in the cancellation consideration process. The Tribunal notes he has been an active participant in the review process. On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa.
The applicant confirmed at the hearing there are no dependent visa holders as part of his visa. The Tribunal therefore finds that there will be no consequential cancellations under s. 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour of, nor against cancelling the applicant’s visa.
The Tribunal has considered whether any international obligations, including non-refoulement, would be breached as a result of the cancellation of the applicant’s visa.
At the hearing the applicant did not make any detailed claims directly relevant to his Protection visa application that is before the Court. In his written statement post-hearing the applicant however did state that he held the same fears of going back to Iran as he did when arriving in Australia. He stated he loved his mother and missed her but was unable to return to Iran to see her as it was not safe. The applicant stated that if he were to return to Iran, he did not know what might happen to him at the hands of the Iranian government. He stated there were other harms he could face apart from death.
The Tribunal notes the applicant’s submission. At the time of decision, the applicant’s Protection matter is still before the Federal Circuit and Family Court for a final hearing in October 2022. The cancellation of the applicant’s visa would not prevent the applicant from awaiting the outcome of his Protection visa review currently before the Court. The Tribunal notes that his eligibility for Protection is a review and assessment that is separate to this review pertaining to the applicant’s Bridging visa. The cancellation of his Bridging visa will not impact the processing of and judicial review of his separate Protection visa application. In relation to Australia’s international obligations, the Tribunal weighs the matter neither in favour nor against cancelling the visa.
The applicant in his post-hearing submissions has raised under “Other relevant matters” the principle of proportionality, which the applicant states, has a significant role to play in this case. The applicant through his representative has submitted that the “self-evident purpose” of s. 116(1)(g) and reg 2.43(p)(i) is the protection of the Australian community from criminal conduct. The applicant’s representative submits that the risk of the applicant reoffending “appears to be very low” and the “serious harm” cancellation would cause him exceeds what is necessary to achieve that purpose.
The Tribunal, having considered all the evidence before it, does not accept the contention that cancellation of the visa will cause the applicant “serious harm”. The Tribunal considers there will be some hardship but it to be limited rather than something that will cause, in the evidence of any corroborative evidence, “serious harm”. The Tribunal notes the claim of the applicant’s representative that the risk of the applicant to the community appears to be very low but ultimately considers such a claim to be speculative rather than based on evidence. On the evidence before the Tribunal, the applicant has been convicted of a number of criminal offences directed towards his ex-girlfriend that included common assault and criminal damage. The Tribunal considers the criminal behaviour of the applicant that led to his convictions was objectively serious.
The Tribunal has also noted the principles of the Direction that states Bridging visa E holders “who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging visa E while they await the resolution of their immigration status”: the Direction, 4.3(5). The person’s individual circumstances, and the seriousness of their actual behaviour, and any mitigating circumstances are also relevant: the Direction, 4.5 (6). The Tribunal has taken into account the individual circumstances of the applicant as the holder of a Bridging visa waiting in [City 1] for the resolution of his Protection visa application before the Court. The Tribunal considers the applicant’s behaviour that led to his criminal convictions to be objectively serious in that it involved common assault directed towards his former girlfriend. The Tribunal does not consider there to be any particularly mitigating circumstances beyond the applicant’s repeated statements of remorse for his previous behaviour, which the Tribunal has given some positive weight to. The Tribunal ultimately considers cancellation of the applicant’s visa is a proportionate response to the applicant’s actions, having taken into account all of the evidence and submissions before it. The Tribunal would also again note that his Protection visa application is scheduled for a final hearing in less than two months.

The applicant’s representative has also raised Australia’s obligation under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) not to subject anyone to arbitrary detention. The applicant’s representative has submitted that according to the United Nations’ Human Rights Committee, “arbitrary detention” includes detention that, although lawful under domestic law, is unjust or disproportionate. The applicant submits that subjecting the applicant to ongoing detention, without any statutory oversight, in circumstances where he does not pose a risk to the Australian community, amounts to arbitrary detention in breach of the Commonwealth’s international obligations.
The Tribunal does not accept the applicant’s continued immigration detention represents a breach of the ICCPR. The Tribunal is of the firm view that the applicant’s ongoing detention represents the adherence to the Act and the Regulations rather than a breach of any of Australia’s international obligations. The applicant retains the right to make arrangements and depart Australia. As he is an unlawful non-citizen, an individual the Tribunal notes has been convicted whilst in Australia of multiple criminal offences, he remains in immigration detention. In such circumstances the Tribunal does not accept the applicant’s ongoing detention, whilst undoubtedly frustrating to the applicant, represents a breach of the Commonwealth’s international obligations. Rather than return to Iran, the applicant has determined to exercise his rights to lodge a Protection visa application and undertake judicial review of the decisions made by the Minister that were not in his favour. The Tribunal has considered the “other relevant” matters submitted by the applicant and weighs them neither in favour nor against cancelling the visa.
S.359A invitation
At the Tribunal’s hearing of 18 August 2022 the applicant was asked whether he had any earlier transgressions with the police either in Australia or Iran in relation to either convictions or charges. He responded that he had never had any convictions or any charges, stating that “no charges in my life”. Later in the hearing the applicant was asked whether he had any previous visas cancelled. He stated “no” before his representative Miss Clark reminded him that he had a Bridging visa cancelled in 2015.
The Tribunal subsequently wrote to the applicant under s. 359A that day noting that his previous Bridging visa E was cancelled by the delegate on 30 July 2015 under s 116(1)(g) of the Act after he was issued with a Notice of Intent to Consider Cancellation (NOICC) of his Bridging visa because he had been charged under Victorian law. The Tribunal noted that in the decision record of a previously-constituted Tribunal on 7 August 2015, the record stated “Information indicates that in July 2015 the applicant was charged with the offence of indecent assault. The Charge Sheet provided by the Victorian Police to the Department states that on 17 July 2015 the accused assaulted the victim in indecent circumstances while being aware she was not consenting or might not be consenting, while not giving thought to whether the person is consenting or not”. The applicant was provided the relevance and consequences of the Tribunal relying on this information and invited him to comment on or respond.
[IDC 1] failed to provide the invitation to the applicant on 18 August 2022. The Tribunal subsequently issued a new invitation on 22 August 2022 with a new date for the applicant to comment on or respond to the information.
The applicant responded in writing that the charge was dismissed, with the prosecution seeking to withdraw the charge, and refusing to prosecute it further. The applicant provided the Order made by the Magistrates’ Court of Victoria on 8 March 2016 dismissing the case. In the applicant’s post-hearing submission it was submitted that the applicant should never have been charged with the offence, an offence that led him to being detained for a year. The applicant has submitted that, as far as he is concerned, the charge does not exist as it should never have existed.
In his personal written statement to the Tribunal of 22 August 2022 the applicant stated he did not know why he did not mention this at the Tribunal’s hearing of 18 August 2022. He said it was a false charge and he was incorrectly accused.
The Tribunal has considered the applicant’s response. The Tribunal notes the charge was dismissed by the Magistrate and places no adverse weight on the charge and the Tribunal’s decision record of 7 August 2015. The Tribunal accepts the applicant had no previous convictions. In relation to the Tribunal’s questions as to whether the applicant had previously been charged with criminal offences, the Tribunal notes the applicant’s response at hearing – which was a clear and unequivocal “no” – differs significantly from that of the reality that he was in fact charged in 2015 with some serious offences. The applicant’s representative has submitted that as far as the applicant is concerned, the charge does not exist “as it should never have existed”. The Tribunal does not necessarily accept this claim. Clearly the Victorian Police considered at some point the evidence was strong enough to ground the laying of criminal charges: the charges subsequently did exist at some point. The Tribunal’s questioning furthermore referred specifically to charges, not only criminal convictions. The Tribunal nevertheless has not placed any adverse weight on this matter for the purposes of this review, as the Tribunal considers it at least possible that the applicant was confused between the differentiation between a charge and a conviction. The Tribunal furthermore has not made an adverse finding in relation to the applicant’s credibility on the basis of his testimony on this particular issue.
Conclusion
The ground to cancel the applicant’s visa is found in his convictions of August 2022. The Tribunal considers these criminal convictions, which involved his ex-partner and included common assault are objectively serious matters, in spite of the Magistrate ultimately declining to sentence the applicant to a period of imprisonment.
The applicant has made strong and repeated statements of remorse for his actions. He has conceded that he made mistakes and will make no further. He states his behaviour was essentially out of character and he did not “know what came over [him]” on the day he was charged. He has submitted a plan to return to Melbourne and live with his aunt and uncle whilst seeking work. The Tribunal notes the statement of his aunt who states she and her husband will pay the applicant’s airfare. The Tribunal acknowledges and accepts these submissions. The Tribunal also acknowledges the applicant’s considerable qualifications and his good employment record previously in [Industry 1].
The Tribunal is also aware of the challenges immigration detention can generate. The Tribunal acknowledges the applicant’s statement that he was already in immigration detention for a year as the result of the 2015 criminal charges that were ultimately dismissed by the Court. The Tribunal also acknowledges his concerns as to long-term or even indefinite detention, though notes his matter is before the Federal Circuit and Family Court for a final hearing in under two months.
Such considerations however are ultimately outweighed by the applicant’s criminal convictions, which includes common assault, and his violent and destructive behaviour directed towards his former girlfriend. The Tribunal notes the primary consideration that the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p)(i) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation. The circumstances and nature of the convictions are such that the Tribunal considers the visa should be cancelled.
The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both individually and cumulatively.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
decision
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Justin Owen
Deputy President

[2022] AATA 2985

26 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Remedies

Statutory Construction