2212473 (Migration)
[2022] AATA 3343
•19 September 2022
2212473 (Migration) [2022] AATA 3343 (19 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Bethany Rose
CASE NUMBER: 2212473
MEMBER:James Lambie
DATE:19 September 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 19 September 2022 at 4:21pm
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – granted in conjunction with application for protection visa – criminal charges and convictions – breach of intervention order and other offences – imprisonment and other penalties – discretion to cancel visa – ground for cancellation conceded – long period of immigration detention, assault, mental health and treatment, alcohol and drug use – grounds for protection, non-refoulement and possibility of indefinite detention – finely balanced factors and considerable hesitation – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 198, 359A
Migration Regulations 1994 (Cth), r 2.43(1)(p)(ii)
CASES
ACH15 v MIBP [2015] FCCA 1250
MICMSMA v Parata [2021] FCAFC 46
Swan v MHA [2019] FCCA 702Any 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 25 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) on the basis that a prescribed ground existed, namely that the applicant had been charged with an offence under the law of [State 1], being a ground prescribed in reg 2.43 (1)(p)(ii). 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 6 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. There were extensive post-hearing submissions, discussed further below. To allow for consideration of these submissions, the time for the Tribunal to make its decision was extended to 19 September 2022.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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?
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(1)(p)(ii) is relevant.
The delegate’s Notice of intention to consider cancellation (‘NOICC’), dated February 2018[1], stated:
Information has been received by the Department from [State 1] Police that, on 7 February 2018, you were charged with the criminal offences of breach intervention order and assault. Based upon this, it appears that ground may exist for cancelling your WE-050 Bridging Visa under s 116(1)(g), Reg 2.43(1)(p)(ii).
[1] It would seem that the original notification of the decision was defective for failing to conform with all of the requirements of s 127 (see MICMSMA v Parata [2021] FCAFC 46).
By summons dated 26 August 2022 to [State 1] Police, the Tribunal sought the applicant’s criminal history, summaries of charges, charge sheets and court outcomes. A response to the summons was supplied on 29 August 2022 and provided to the applicant and his representatives under cover of a letter pursuant to s 359A on the same date.
The criminal history supplied by [State 1] Police disclosed the following charges and convictions:
Date
Charge
Outcome
7 August 2017
Intentionally cause injury; recklessly cause injury
Dismissed
25 September 2017
False imprisonment; make threat to kill; unlawful assault; assault with weapon (on 26 March 2017)
Convicted; 150 hours community service; 12 month supervision order; treatment and rehabilitation order
17 July 2018
Contravene community correction order
Proven
17 July 2018
Contravene family violence intervention order (on 7 February 2018)
Convicted; 30 days imprisonment
[The applicant]’s representatives submitted that there was
an error of significance in the … NOICC and the cancellation decision which is currently the subject of this review, being that the delegate erroneously asserts that [the applicant] was charged with assault in relation to the 7 February 2018 offending. While allegations were made to the police, no assault charge was ever made or proven. The assault was improperly relied upon, and it is difficult to ascertain whether, had the delegate not made this error, [the applicant] would have been exposed to the cancellation and detention that followed.
The criminal history material does not disclose whether [the applicant] was originally charged with assault in respect of the events of 7 February 2018, although it appears from the police report that that charge, among others, may have been considered. It is also not clear from the Department file upon what basis the assault charge was mentioned in the NOICC. However, [the applicant]’s representative very properly conceded at the hearing that the offence of breaching the intervention order, with which [the applicant] was charged, was sufficient to enliven the prescribed ground. I consider that there is insufficient evidence before me to be satisfied that [the applicant] was charged with assault in respect of the events of 7 February 2018, but I am satisfied that the charge of the breach of the intervention order was made and that it subsequently proceeded to the imposition of a term of imprisonment. That charge, being an offence under the law of [State 1], is sufficient basis for the ground for cancellation to arise. I do not consider that there is any basis upon which to vitiate the NOICC by reason of the nonexistence or withdrawal of an alternative or additional charge.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) by reference to Reg 2.43(1)(p)(ii) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
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), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
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 consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
In addition to the police material mentioned above, the Tribunal had before it the following material submitted by [the applicant]’s representatives:
·their written submissions dated 1 September 2022;
·[the applicant]’s statement dated 1 September 2022;
·a report from [Ms A], Senior Trauma Counsellor, [Organisation 1], dated 29 August 2022;
·a letter of support from [Ms B], Casework Coordinator, Detention Rights Advocacy program, [Organisation 2], dated 31 August 2022;
·a letter from [Mr C], solicitor, [Organisation 2], to Detention Operations, [Immigration Detention Centre], dated 17 December 2021;
·Department of Immigration and Border Protection file note of NOICC interview with [the applicant], dated 31 October 2017;
·psychologist’s progress notes, International Health and Medical Services (IHMS), dated 15 November 20121 and 19 November 2021;
·a medical report from [Dr E], [Medical Centre], dated 8 November 2021;
·a medical report from [Dr E], [Medical Centre], dated 31 October 2017;
·a medico-legal report from [Dr F], consultant psychiatrist, dated 5 September 2017;
·an anxiety checklist dated 31 October 2017;
·a letter from [Mr G], Men’s Behavioural Change Facilitator, [Organisation 3], dated 8 November 2017;
·Psychological Support Program SME Management Plans, IHMS, dated 19 December 2021 and 12 August 2022;
·a medical referral, IHMS, dated 15 November 2021;
·a radiology request, IHMS, dated 15 November 2021;
·a letter from the WA Department of Health dated 15 November 2021;
·an incident report, IHMS, dated 10 November 2021;
·a letter to [the applicant] from Eastern Health, dated 11 September 2018;
·a risk assessment report, IHMS, dated 16 November 2021;
·a psychologist’s clinical report, IHMS, dated 5 August 2022;
·clinical records of [Dr H], psychiatrist, IHMS, dated 18 August 2022;
·decision of the Immigration Assessment Authority of 8 May 2018;
·“Stigma Barriers of Mental Health in Iran: a Qualitative Study by Stakeholders of Mental Health”, Iranian Journal of Psychiatry, 12(3): 163-171, July 2017
·Iran 2021 Human Rights Report, United States Department of State;
·DFAT Country Information Report: Iran, Department of Foreign Affairs and Trade, 14 April 2020 (‘the DFAT Report’);
·“Only a matter of time before someone is killed in immigration detention”, The Guardian, 4 September 2022
I have read and taken into account all of this material, as well as the material on Department file [Number], a copy of which is also in the possession of [the applicant]’s representatives.
The background to this matter is helpfully summarised in [the applicant]’s representatives’ written submissions. Those submissions note that [the applicant] is an Iranian national of Kurdish ethnicity, who first arrived in Australia [in] June 2013. In 2015, [the applicant] commenced a relationship with [Ms I]. On 6 March 2017, [the applicant] lodged an application for a temporary protection visa and was granted a Bridging E visa on 14 March 2017. The submission proceeds:
On 26 March 2017, [the applicant] was charged with a number of offences including false imprisonment, make threats to kill, intentionally cause injury, recklessly cause injury, and three counts of assault with weapon.
On 25 September 2017, he was convicted of false imprisonment, make threats to kill and three counts of assault with weapon. The intentionally and recklessly cause injury charges were both dismissed. He was sentenced to a Community Corrections Order (CCO) for period of 12 months.
On 5 December 2017, an intervention order (IVO) was also made with [the applicant]’s then partner [Ms I] was the affected family member.
On 13 December 2017, a decision was made to not cancel his Bridging E visa following a NOICC.
On 7 February 2018, [the applicant] breached the CCO and IVO. He was remanded in police custody and on 17 July 2018 was sentenced to 30 days’ imprisonment.
On 15 February 2018, [the applicant]’s Bridging E visa was cancelled under section 116(1)(g) on the basis that there were prescribed grounds for cancelling his visa under reg 2.43(1)(p)(ii). He was then transferred to immigration detention and has now remained in the immigration detention network for more than four years. He is presently detained at the [Immigration Detention Centre] and has been for more than two years.
The submission summarised [the applicant]’s claims in respect of his fearing harm if returned to Iran as:
a)His actual and imputed political opinion as anti-regime;
b)His Kurdish ethnicity;
c)His religion being that he is a Christian convert or apostate from Islam, or alternatively being considered a non-practising Shia;
d)A failed asylum seeker and/or returnee from the West;
e)A male survivor or sexual assault; and
f)Someone with a serious mental illness.
The submission also details [the applicant]’s claims in respect of his mental health and the effect of being in immigration detention.
These matters are also encompassed in [the applicant]’s direct evidence and the material accompanying the submission.
[The applicant]’s statement contains details of his mental health, his criminal offending, the rehabilitation programs he has undertaken, his experience of immigration detention, his fear of returning to Iran and his future plans.
At the hearing on 6 September 2022, after discussion of some preliminary matters I took [the applicant] to his statement of 1 September 2022. I told him that, in addition to considering the remorse he had expressed about his offending, I wished to understand the circumstances in which the offending behaviour had arisen. I noted that, at paragraph 10 of his statement, he had referred to some issues with his family back in Iran as circumstances relevant to his offending. The statement says:
The end of 2016 through to 2018 was a very challenging period for me. In addition to my ongoing, and at that time untreated, mental health conditions there were a number of other things happening in my life which left me feeling that I had no control. In late 2016, my brother-in-law in Iran died unexpectedly of a heart attack. In around March 2017, just a few days before my criminal offending against [Ms I], my nephew in Iran died of cancer. I was devastated having lost two of my family members in such a short period of time, particularly because I have also suffered the loss of my father and brother. It was also really hard being isolated from my family here in Australia.
I asked [the applicant] why these events had apparently been raised for the first time in this application. I indicated that, for example, they had not been mentioned in his statutory declaration to the Department of 9 November 2017 and asked if there was any reason why not. He said that nobody had asked him about it. When pressed on this, he said his “mental situation was horrible” at the time and that he may have forgotten to mention it. He said that others did know about it, including his friends and [Ms I], and they all knew he was grieving at the time. I put it to him that [Ms I], in her statutory declaration of 9 November 2017, and [Ms I]’s daughter, in her letter of support. also failed to mention these matters. He said that these documents were prepared by his lawyers, who did not ask him about this. He did not know why [Ms I] and her daughter had failed to mention it. I also noted that his psychiatrist’s clinical notes also make no mention of these events, and put it to [the applicant] that, should I determine that his evidence on this matter is unreliable, or of recent invention, it may affect my findings on his related claims as to remorse and circumstances beyond his control, and may also affect my assessment of his credibility generally.
This line of questioning and the caution I gave to [the applicant] were the subject of post-hearing submissions by [the applicant]’s representatives as indicating a reasonable apprehension of bias and stressing the caution with which a credibility must be made. I do not accept that the questions, or the way they were put, give rise to a reasonable apprehension of bias. Evidence of this nature arising at this late stage, unattested in other evidence where (in the case of the psychiatric reports) it may have diagnostic value or (in the case of the statutory declarations and letter of support) it may have had persuasive benefits in earlier proceedings, must necessarily raise questions and merits a satisfactory explanation. However, I do accept that the assessment of credibility is an exercise requiring caution and must be undertaken taking into account all of the evidence before me.
I turned to the issue of the degree of hardship that may be caused by the cancellation of the visa, including continued immigration detention and the prospect of being returned to Iran. [the applicant] described his difficulty in obtaining appropriate medication and psychiatric treatment, which only improved when he was moved to Brisbane in 2018. He said that he had been assaulted ten times in detention for no reason, such that he never feels safe and feels exhausted and unable to cope. I took [the applicant] to [Dr H]’s clinical notes, which contain details of his medication and personal history, as well as a cumulative mental health history narrative over the period 13 April 2018 to 28 July 2022. It is current to 18 August 2022. I suggested to [the applicant] that these notes indicated that his account of an assault was to the effect that it arose from a dispute over dealing in Suboxone (an opiate). The relevant clinical note is dated 19 November 2021 and reads:
Reported that he was the victim of an indecent assault about 1 week ago. He reported that he was forcibly stripped and physically searched by others who believed he had drugs on his person. Threatened with being stabbed. Has been feeling very afraid since this happened. Has had nightmares almost every night since it occurred. Feeling very anxious all the time. Acknowledged that a “friend” had encouraged him to hold and distribute suboxone for them in the past and that he went along with this because they promised to buy him clothes …
In response to my question as to whether he wished to say anything about that, [the applicant] said that he felt sorry. I indicated that if there was some evidence that his conflict with other detainees arose from dealing in opiates, I may have questions about how much credence I gave to his complaint about being assaulted for no reason. He said that it happened just once and that he had been truthful with his psychiatrist. He said that, before being [in detention], he had never had an issue with drugs or dealing, but that he had been introduced to it by a friend.
My questions were the subject of post-hearing submissions by [the applicant]’s representatives as indicating a reasonable apprehension of bias and impairment of procedural fairness because they minimised the harm caused by the assault and could be characterised as victim blaming. [The applicant]’s representative later submitted:
… an assault is a serious violation of the bodily integrity and safety of the victim irrespective of the circumstances in which the assault arose. [The applicant]’s detention is a direct result of the cancellation decision under review and assaults that he has suffered in detention must be considered as a secondary consideration under 7(1)(b) of Direction 63, being hardship that has been experienced by [the applicant] as a result of the cancellation.
The comment is all the more concerning for its baselessness. There is no probative evidence before the Tribunal that the sexual assault that [the applicant] was attempting to give evidence about, did in fact arise in the context of [the applicant] dealing drugs.
The submission then cites the clinical note quoted in paragraph 27 above (with the exception of the last sentence) and emphasises that [the applicant]’s assailants believed he had drugs on his person. It proceeds:
While it is conceded that the clinical notes do identify that [the applicant] has made an admission regarding some level of involvement in the movement of drugs in detention, such admissions cannot be used by the Tribunal to minimise or suggest his assault is irrelevant. Or that this particular assault took place in the context of a drug deal. The clinical notes also refer to [the applicant]’s vulnerability, his dependent personality traits, that he is “very easily led and exploited by others” and his fears that other detainees will hurt him if he doesn’t do what they ask. Indeed, the psychiatrist [Dr H] recommends his transfer to [another Location] for treatment of his drug addiction.
In my view, the submission that my questions gave rise to a reasonable apprehension of bias or an impairment of procedural fairness are misconceived. [The applicant]’s evidence in his statement and oral testimony as to the assault was vaguely expressed. He had, however, submitted material in which the incident was expressed with significantly greater particularity as to time, place and context. While he claimed at the hearing that he had been assaulted “for no reason”, he had advanced a likely reason to his psychiatrist. It is necessary in terms of procedural fairness to seek his views as to material submitted on his behalf that may be at variance from his own evidence to the Tribunal. It is also necessary to indicate the effect that evidentiary inconsistencies may have on the assessment of his claims and to seek his comment on that issue which, as indicated in paragraph 28, is what occurred. To say that this indicates a dismissal of the effects of an assault is to second-guess the Tribunal’s use of the evidence in assessing the claims.
I then turned to [the applicant]’s claims to fear harm were he to be returned to Iran. I asked if he maintained his claim (in paragraph 29 of his statement and paragraph 10 of his representatives’ submissions) to be adherent of the Christian faith. He confirmed that he was. I took him to paragraph 4 of his statement, which reads:
Converted to Christianity in 2013 on the advice of a previous lawyer. IAA asked me to provide [proof] of conversion but because I was in detention and I couldn’t provide it.
I asked whether [the applicant] claimed to be a genuine convert or whether it was something he had done on the advice of his lawyer in order to advance his protection application. [The applicant] said that he had converted to Christianity before he had met his then lawyer, who had advised him that his case was so strong that he did not need to include this fact among his claims.
[The applicant]’s representative intervened at this point to submit that the statement contained a serious typographical error. I asked what the error was. The representative submitted that the intended wording was that the lawyer advised that evidence of [the applicant]’s conversion not be put to the IAA. I expressed some scepticism about this to the representative, the subject of a post-hearing submission that it indicated a reasonable apprehension of bias. I have not accepted that submission because it was directed to the representative in the context of the explanation of the error and its intended meaning.
In post-hearing submissions, [the applicant]’s representatives expanded on the explanation:
We refer to a particular line in [the applicant]’s statement at paragraph 4, as identified by the Tribunal which contains a serious drafting error. As the Tribunal would be aware Bridging E visa cancellation matters progress quickly through the Tribunal and, by necessity, [the applicant]’s case was prepared with some haste. Additionally, we are an under-resourced organisation that assist on a pro bono basis. As the Tribunal was informed at the hearing, most regretfully, a version of his statement was provided to both [the applicant] and the Tribunal, containing a draft paragraph 4 with notable errors that did not accurately reflect [the applicant]’s instructions. The fact that it is in draft form can further be seen by a spelling mistake and poor grammar throughout paragraph 4. [The applicant]’s instructions have always been as follows:
a. He converted to Christianity in 2013;
b.On the advice of his previous representative, he did not provide proof to the IAA.
Questions remain as to how this “drafting error” came about and how the intended wording of the relevant sentences can be squared with what was produced to the Tribunal.
I asked [the applicant] about the details of his conversion. I noted that none of the records of his clinical consultations make any mention of his religious faith, other than to note that he described himself as agnostic. [The applicant] said that he converted to Christianity in 2013 when he was living in Brisbane, at the encouragement of a friend. He said he was baptised in a church in the [Suburb 1] area, and that he attended the church for about two years. In response to my question, he said the friend’s name was [Mr J]. He did not have a witness statement from him. I noted that he had mentioned his conversion to Christianity to the delegate and had offered to provide some documentary evidence and had failed to do so. I further noted that he had been represented at this interview.
I asked [the applicant] for further details of the Church. He said it was [a specified Church]. He provided some very basic details about its beliefs. He said that he had continued to attend services after moving to Melbourne in 2015, at a church in [Suburb 2]. He said that [Ms I] was opposed to his membership of the Church and demanded that he choose her or the Church. He said he chose her. I asked if this was anywhere in his previous evidence. He said that this was the first time he had disclosed that detail.
I asked if he had reached out to the Church while he was in detention. He said that he had tried to, but was told by the Church that it was unable to help.
I asked [the applicant] about his claims that the Iranian government had become aware of his membership of the Church. He said that, when he was attending the Church, he met a student from Iran. He said he was suspicious of him because students obtain government support to undertake studies in Australia. He said he had also shared on [Social media] his membership of the Church, so that he had friends who knew of it. He said he had since removed this from his account. I indicated that he had previously undertaken to provide details of his Church membership and failed to do so. I also noted that the claims about [Social media] had not been raised before. He said that he had said as much as he could, but that he was telling the truth.
I asked [the applicant] if there was any chance that he may reoffend if he was released back into the community. He said that he is now seeing his counsellor and psychiatrist regularly and that there was “zero” chance of reoffending. He said his plans were to get a job, go home, and go back to work the next day. I suggested to him he had been given a second chance, both by the Department and the Court in relation to his offending but had offended anyway. I asked if that might show a propensity to reoffend and also asked if the indications of a chemical dependence might exacerbate that risk. He said that his counsellor and his case worker would help with getting him into a drug and alcohol course, which he would seek to continue to ensure he does not use dugs while he was in the community. I suggested to him that his psychiatrist noted an ongoing opioid problem. He said that he had seen his counsellor and his psychiatrist about this and he was placed on a program, which he acknowledged he had quit. He said that he had back pain, for which his prescribed medication was inadequate, which is why he had to use suboxone. He added that he did not use it every day. I noted that the clinical notes indicated that he had not been consistent on this issue with his psychiatrist. He said he was sorry for everything and he wanted to start a new life.
At the representative’s request, I asked [the applicant] about the adverse consequences of remaining in immigration detention. He said that he has anxiety and depression, and has nightmares. He said that when awoken by a nightmare he has to turn on the light and check his room before he can go back to sleep. He said that he sometimes goes 10 days without a shower for fear that someone will attack him. He said that he had called Lifeline five times over the previous eight weeks.
The representative sought to reiterate that [the applicant] had been in immigration detention for a significant time: he has very serious mental health conditions that are not being adequately treated and he is suffering for trauma associated with detention. She said that the next step for [the applicant] is to look at all possible options, including ministerial intervention, but that the Tribunal was requested to release [the applicant] into the community. She asked the Tribunal to note that [the applicant]’s mental health conditions are being exacerbated by detention at [Location] and that his psychologist has recommended he moved to [another Location]. She said that this was not a request for him to remain permanently in the community but to reinstate the Bridging E visa on the basis of the adverse conditions of his detention. She said that, even if the cancellation decision is affirmed, there is no guarantee that removal proceedings commencing, so that the legal consequences may well be indefinite detention. He would not be able to lodge any further Bridging E visa application if the cancellation is affirmed and he would therefore remain in detention while other matters, such as legal proceedings in respect of non-refoulement, or a request for ministerial intervention, are pursued. She submitted that, given the complexity of [the applicant]’s circumstances, the impact of continuing detention and the risk of breaching non-refoulement obligations should weigh heavily in favour of reinstating the visa.
The primary considerations
As noted in paragraph 15 above, 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.
It was submitted on [the applicant]’s behalf that the prescribed grounds have been applied rigorously, in that:
on the basis of charges alone, over 3 years ago, [the applicant]’s visa was cancelled, leading to his prolonged detention.
It was submitted, therefore, that the requirement to consider the non-compliance for cancellation has already occurred and this consideration should accordingly be given neutral weight or only limited regard.
This submission, in my view, is too narrow a construction of the direction. To accept it would deprive the direction that primary considerations should generally be given greater weight than any secondary considerations of any content. It is, of course, relevant to the consideration of [the applicant]’s application that his detention followed the delegate’s cancellation decision, and this is discussed below. I accept that the rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] That is, while the delegate should apply the ground rigorously at the preliminary step of determining whether it is appropriate to consider whether to cancel the applicant’s visa, the Tribunal does not have to apply the ground of cancellation in reg 2.43(1)(p) “rigorously” in the exercise of its discretion.[3] I must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[4]
[2] ACH15 v MIBP [2015] FCCA 1250 at [28]–[31]
[3] Swan v MHA [2019] FCCA 702 at [61]–[84].
[4] ACH15 v MIBP [2015] FCCA 1250 at [33]. See also obiter comments in CGG15 v MIBP [2016] FCCA 219 at [32] on the need to engage with the government’s view in cl 6.1.
I therefore consider that, while I do not approach the existence of the prescribed ground as, in effect, a presumption in favour of cancellation, its existence is a significant factor that must be weighed against all of the considerations in favour of non-cancellation. It is a matter to which I give considerable weight.
In relation to the second primary consideration, the best interests of any children under the age of 18 in Australia who would be affected by the cancellation, it was submitted on behalf of [the applicant] that:
Despite having a demonstrably strong and father-like relationship with [Ms I’s] children, [the applicant] has not had contact with them in some three years. Notwithstanding this, it can be seen from [the applicant]’s response to the first NOICC and the Department’s subsequent decision not to cancel, that the cancellation decision, at the time, was likely to have had a detrimental impact on Australian citizen children. We accepted that with the passage of time and the loss of contact, that the impact of cancellation on [Ms I’s] children has diminished, but this is hardly surprising, given [the applicant]’s prolonged and remote immigration detention, and the trauma he has suffered: this fact should not further disadvantage him, given the effect it has had on his relationship.
Further, a decision to affirm the cancellation deprives the children, and [the applicant], the opportunity of resuming this important relationship in the future.
[The applicant]’s statement of 1 September 2022 is entirely silent on this factor. He has expressed no regret in relation to the effect of his offending on the children and has indicated no attempt to maintain contact with them, nor any intention to resume contact. There is no mention in his clinical records of any concern for their welfare. In these circumstances, I can give this consideration no weight.
The secondary considerations
The impact of a decision to cancel the visa on the family unit (such as whether the cancellation will result in the temporary separation of a family unit)
The applicant’s representatives conceded that this consideration is not relevant. I accord no weight to it.
The degree of hardship that may be experienced by the visa holder if their visa is cancelled
It was submitted on behalf of [the applicant] that:
The degree of hardship currently being suffered by [the applicant] in immigration detention cannot be understated. His protracted time in immigration detention has been unquestionably devastating, particularly for a survivor of trauma and torture from Iran, including the tragic fact that he has been subjected to a sexual assault while being held in administrative detention by the Australian government. The system has fundamentally failed [the applicant] and there is no justification for his continued detention in the circumstances. Intervention is required.
The serious psychological, physical and emotional impact of immigration detention in [the applicant] must weigh heavily, and indeed determinatively, in favour of reinstatement of his Bridging E visa.
In his statement, [the applicant] says that he has been diagnosed with PTSD, anxiety, depression and number of other mental health conditions. I note from his clinical reports that he has been prescribed Escitalopram (an antidepressant for major depressive disorder and generalised anxiety disorder), Mirtazapine (an antidepressant for depression complicated by anxiety or insomnia), Prazosin (a blocker medication used for nightmares related to PTSD) and Olanzapine (primarily used to treat schizophrenia and bipolar disorder). [The applicant] also told me at the hearing of the fear and anxiety he says that remaining in detention has caused him.
Based on the evidence before me, I accept that [the applicant] suffers from several mental health conditions, and that his detention and his uncertainty as to his immigration status are significant stressors which complicate the management of the conditions. I also consider that his conflict with other detainees, including his claims of having been seriously assaulted, constitute a significant additional hardship in the context of detention, the effects of which are likely exacerbated by his mental health condition and substance abuse issues, as well as (for different reasons) those of other detainees. I accept that his substance abuse issues most likely arose while in detention. I have taken into account the media article accompanying the submissions which describe “prison-like” conditions in some immigration detention centres. I accept, and consider highly relevant, that [the applicant] has, at the time of this decision, been in immigration detention for some four years with the likely consequence of detention fatigue further affecting his mental health. I also accept that the severity of [the applicant]’s mental health condition, because at the time it had not been diagnosed, was not brought up before the Departmental delegates or the IAA reviewer and did not factor in their decisions. These are matters to which I give very considerable weight.
The circumstances in which the ground of cancellation arose
[The applicant]’s representatives submitted that:
[The applicant]’s history of trauma and serious mental health conditions are compelling mitigating factors when considering the nature and seriousness of his criminal offending.
[The applicant]’s criminal history should be read together with the information relating to is mental health issues and traumatic upbringing, as they are fundamentally related.
It is accepted that [the applicant]’s criminal history is serious, involving as it does family violence offences. However, it must be emphasised that [the applicant] does not have an extensive criminal history. The sum total of his offences relates to two incidents in an 11-month period. These incidents are isolated and there is no discernible trend in frequency or seriousness …
[The applicant]’s cumulative 12 month CCO indicates the court’s view that his offending was not some of the more serious examples of that offending.
Subsequently, [the applicant] was sentenced to 30 days’ imprisonment for breach of an IVO. The charge of contravene CCO was proven with no sentence imposed. While allegations of assault appear in the police report, no charges were ever pressed by the police.
[The applicant] has six convictions. All of his charges have been dealt with summarily, meaning it was considered appropriate by the Crown for the matters to be heard in the Magistrates’ Court of [State 1].
The Tribunal’s assessment of the objective seriousness of the applicant’s offending should reflect and be consistent with the assessment of the criminal courts … [T]he Tribunal should recognise that the offending, although serious, was limited temporally and in gravity.
Importantly, the Department has grappled with these more serious convictions which were the subject of a NOICC, and on 12 December 2017, a delegate made a decision not to cancel [the applicant]’s visa. While we do not minimise the contravention of a CCO and IVO which gave rise to the second NOICC and subsequent decision which is under review, they are markedly less serious than the first tranche of offences and given the previous convictions did not warrant cancellation, it is difficult to logically hold that the contraventions elevate [the applicant]’s offending such that cancellation is now appropriate. [Emphases in the original.]
I accept the representatives’ concession that [the applicant]’s offending was serious, involving family violence. I accept that the offending was temporally limited, spanning 11 months, while noting that it was brought to a close by the intervention of law enforcement and [the applicant]’s subsequent detention, rather than by any evident act of self-restraint. The fact that he has been convicted of six offences while on a Bridging visa is a significant matter, to which I attach commensurate weight, especially bearing in mind the nature of the offences.
I do not accept the submission that the decision not to cancel the visa on 12 December 2017 is a factor in favour of setting aside the subsequent cancellation. He was counselled as to his conduct and reminded of the relevant code of behaviour, including the possibility of his visa being cancelled for a breach of the code. I cannot accept, in these circumstances, the submission that the previous offending being more serious, that subsequent serious offending should not warrant cancellation. I note that the second tranche of offending attracted a term of actual imprisonment, rather than a CCO.
In his statement, and at the hearing, [the applicant] raised the deaths of two relatives back in Iran in 2016 and 2017 as relevant antecedent events to his offending behaviour. As outlined at paragraphs 25 and 26 above, I find it difficult to accept [the applicant]’s explanation for not raising these matters earlier, or his evidence that these matters were known to others around him. I am not inclined to his accept this aspect of his evidence, which I consider to be an attempt to reduce his responsibility for his offending.
I consider that the circumstances in which the grounds for cancellation arose weigh heavily in favour of cancellation.
The possible consequences of cancellation
In assessing this consideration, I take into account, among other things, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
[The applicant]’s representatives submitted that:
[The applicant] is presently the subject of numerous bars under the Act which prevent him lodging a further substantive visa application. While we acknowledge that the Direction states that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status, in [the applicant]’s case, the consequences of the cancellation may well lead to two plausible legal outcomes: refoulement in breach of Australia’s international obligations, or indefinite detention. These consequences must be genuinely engaged with by the Tribunal and must both weigh heavily in favour of reinstatement.
Removal
I accept that to affirm the cancellation decision would be that [the applicant] would be liable for removal to Iran pursuant to s 198 of the Act.
It was submitted on [the applicant]’s behalf that his removal would amount to refoulement, on the basis of the claims already considered (and rejected) by the IAA, and that:
given the serious mental health conditions that [the applicant] faces and the inadequate treatment available in Iran, coupled with the serious social stigma for people with mental health conditions, a return to Iran would be intolerable for [the applicant]. [The applicant] is also likely to face societal discrimination on the basis of his Kurdish ethnicity and religion. The cumulative effect of these matters would make life, for someone with his particular vulnerabilities, intolerable. Any return to such circumstances would constitute cruel and inhuman treatment and given his very real risk of suicide it could further result in the deprivation of his life. All of which would breach Australia’s non-refoulement obligations.
In support of this submission, the representatives cited the DFAT report which states that:
The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person.[5]
[5] DFAT Report, p15
I have also had regard to the article in the Iranian Journal of Psychiatry (see paragraph 18 above), which reported that
Many people who access mental services usually do not seek treatment to avoid the consequences of stigma and label of mental illness… People with severe mental disorders are subjected to discrimination in everyday life situations such as housing, education, and jobs. Many studies indicate that people in the United States and Western countries are willing to subscribe stigmatizing attitudes towards mental illness.
Nothing is before the Tribunal to allow me to assess whether the stigma is more pronounced or pernicious in Iran than elsewhere in the world, or to satisfy me that it amounts to a well-founded fear of harm for a Convention reason, or to entitle [the applicant] to complementary protection, or how it invokes another non-refoulement obligation.
The additional non-refoulement claim relates to [the applicant]’s claimed conversion to the [faith]. With the post-hearing submission was a copy of a baptism certificate issued by the [Suburb congregation] of the [Church] and dated 22 December 2013. If [the applicant] genuinely converted, that appears to have been a matter of brief duration, for which he did not evince any detailed claims at the hearing and the evidence for which is slight. To his clinicians he described himself as Shia or agnostic. While it was claimed on his behalf that the fact of the baptism would render him an apostate under Iranian criminal or Sharia law, there is nothing to satisfy me that the mere existence of the certificate in Australia would expose him to any sanction. The evidence before me does not satisfy me that [the applicant] has an adverse profile with the Iranian government in terms of religion and the country information[6] is that non-practising Iranian Muslims face a low risk of official and societal discrimination, while apostasy charges are primarily attached to proselytization which, on [the applicant]’s self-identification to others as not religious or agnostic, he is most unlikely to engage in.
[6] DFAT Report, pp 36-37
For these reasons, I cannot be satisfied that [the applicant]’s religious beliefs, however they might be described, invoke any non- refoulement obligations.
Finally, [the applicant]’s representatives submitted that:
Even if the Tribunal is not willing to accept that non-refoulement obligations are owed to [the applicant], it must grapple with the fact that indefinite detention remains a plausible legal consequence of the cancellation given Iran’s long standing policy of not accepting involuntary returns. The most recent DFAT report confirms this. While Iran and Australia signed a Memorandum of Understanding on Consular Matters in which Iran has agreed to facilitate the returns of Iranians who have exhausted all legal and administrative avenues to regularise their immigration status in Australia, this agreement only applies to Iranians who arrived in Australia after March 2018. [The applicant] is therefore excluded and we understand will not voluntarily return to Iran. Indeed, we understand that removal procedures were commenced at some point in 2021, but removal was not affected.
I accept this submission and give it significant weight.
Conclusion
I have given this application careful and lengthy consideration and have found that the factors in favour of and against cancellation are very finely balanced. The only applicable primary consideration, that of the application of the prescribed grounds, and the secondary consideration of the circumstances in which the ground for cancellation arose, I have found to weigh strongly in favour of cancellation. Against cancellation, I have given very considerable weight to the hardship that [the applicant] has endured in detention for almost four years, the severity of his mental health conditions, the prospect of his detention continuing indefinitely. I have given limited weight to his claims of rehabilitation. I have also given some weight to the fact that the restoration of his visa would allow for the exploration of his limited options and would be subject to conditions.
In these circumstances, although not without considerable hesitation, I am persuaded that the preferable decision is in favour of the application.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
James Lambie
Senior Member
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