2218914 (Migration)

[2023] AATA 322

2218914 (Migration) [2023] AATA 322 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  2218914

MEMBER:Wayne Pennell

DATE:4 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 04 January 2023 at 11:12am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of several offences – best interests of the Australian child – non-refoulement obligations – separation from family – balance of primary considerations – decision under review affirmed    

LEGISLATION

Family Law Act 1975 (Cth), s 60CA
Migration Act 1958, ss 36, 116, 127, 140, 499; Ministerial Direction 63
Migration Regulations 1994, r 2.43

CASES

ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FACFC 46

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for a review of a decision dated 20 December 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under section 116 of the Migration Act 1958 (Cth) (‘the Act’).

2. The delegate cancelled the visa under section 116(1)(g) of the Act on the basis that the applicant had been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was originally notified and provided with a notice of cancellation of his Bridging Visa on 6 October 2015, however the original notification was defective for failing to conform with the requirements of the Act,[1] and the notification was subsequently issued to the applicant on 20 December 2022. 

   [1]Migration Act 1958 (Cth), s 127; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FACFC 46.

4. The applicant appeared before the Tribunal on 30 December 2022 by video link to give evidence and present arguments. At the time of the hearing, he was in the [named] Detention Centre.  The applicant confirmed that he was comfortable participating in the hearing by video. 

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and Persian and English languages and the applicant was represented in relation to the review, with his representative also appearing by video link.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   consideration of Claims and evidence

7. Under section 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 section 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?

8. A visa may be cancelled under section 116(1)(g) of the Act 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 regulation 2.43 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

9. In the present case, the ground in regulation 2.43(p)(i) is relevant as the applicant has been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country.

10. The delegate’s notice of intention to consider cancellation dated 20 December 2022 provided that information had been received from the New South Wales Police which showed that the applicant had been charged and convicted of multiple offences. 

11. Those offences were:

    (1)The applicant was apprehended by police [in] March 2015 and charged with unlicenced driving of a motor vehicle.  He was convicted of this offence in the [Court 1] [in] April 2015.

    (2)The applicant was apprehended by police [later in] March 2015 and charged with three offences; namely produce an altered drivers licence, unlicensed driving of a vehicle and drive an unregistered vehicle.  He was convicted of those offences in the [Court 1] [in] April 2015.

    (3)[Later in] March 2015, a witness heard his neighbour’s home security intruder alarm being activated at around 11:45am.  The applicant was seen running from the neighbour’s property.  The witness and another neighbour got into a vehicle and searched the neighbourhood and located the applicant.  They apprehended him and held him until the police arrived.  When the police inspected the neighbour’s premises they found the fly screen had been removed from a window and the window had been opened.  Police also found that at the rear of the premises the sliding screen door and the sliding glass door had both been lifted off their tracks.  When interviewed by the police, the applicant said that he only went to that house to visit a friend.  He had met his friend about six months earlier.  Before he went to the house he had tried telephoning his friend, but his friend would not answer his phone.  Being worried about his friend, he went to his friend’s house.  The applicant claimed that he did not try to enter the house, all he did was knock on the front door and the side gate just before hearing the security alarm sounding.  He was convicted of this offence in the [Court 1] [in] September 2015

    (4)The applicant was apprehended by police [in] June 2015 and charged with unlicenced driving of a motor vehicle.  He was convicted of this offence in the [Court 1] [in] September 2015.

    (5)[In] July 2015, the applicant failed to appear in [Court 1] and warrants were issued for his arrest for failing to appear in court and breaching the conditions of his bail.  [Later in] July 2015 he was apprehended and arrested by police on those warrants.

    (6)In the early hours of [a day in] August 2015, the applicant and another person committed an aggravated break and enter of a dwelling.  They had travelled to the home of the victim, with whom the applicant and his accomplice were acquainted.  The victim was asleep in his home at the time of the offence.  The lock on the back door of the house was broken, so to secure the door, the victim used a chair and [items] to wedge it closed.  At about 4:00am, the victim was woken from his sleep by noises from the back door. 

    The applicant and his accomplice entered the victim’s home; and they were both wearing rubber gloves and the applicant’s accomplice was armed with a knife.  As disguises, the applicant wore a balaclava, and his accomplice wore a [mask].  The applicant’s accomplice brandished the knife at the victim and stabbed him in the [body], causing a cut, and threatened to cut the victim in pieces. 

    The victim was pushed onto a bed by the applicant’s accomplice and the applicant searched the premises and took possession of anything he considered to be of value.  This included [an item] as well as various other items.  The victim recognised the applicant’s voice, and he was able to remove the applicant’s balaclava and recognise his face.  The applicant and his accomplice were later arrested, charged and convicted with the offence of aggravated burglary.

12. At the time the applicant was issued with the original notification of cancellation of his visa on 6 October 2015, the serious criminal charge of aggravated break and enter of a dwelling had not yet been finalised in the court.  Subsequently, the applicant and his accomplice pleaded not guilty in [Court 2]. 

13. The applicant told the Tribunal that there were two trials, the first resulting in a hung jury and the second resulted in a guilty verdict and he was sentenced to [period] imprisonment.  He was to be released on parole after serving [period] years.  After being paroled, he was taken to the [named] Detention Centre [in] May 2020.        

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(g) exists. Because that ground does not require a mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Applicant’s circumstances

15. The applicant was born in Iran.  He is now aged [age].  His parents, as well as his [specified family members] live in Iran.  He has another sister who lives in [Country 1].  When he finished school, he attained a  [qualification] as an [occupation 1].  For a short time of about two to three years, he worked [in this job] in Iran.

16. The applicant told the Tribunal that he left Iran because he had problems with the Iranian government about the freedom issues in Iran.  He was not happy at home, and he quarrelled with the government about the lack of freedom, and he was forced to leave.  He claimed that after he left Iran, he was told that in his absence, the government charged him with four offences and convicted him to be sentenced to [period] jail, and after his sentence he would be executed.  The conviction was in connection to his relationship with [friends of specified nationalities]; and he also encouraged other young Christians to leave Islam.  He also claimed that he was involved in some protests.  The Tribunal recognises that there are protection issues raised by the applicant, however they are matters which should be addressed in any protection application should they applicant choose to make such an application.     

17. Although unable to recall the exact date, the applicant claimed that he travelled to Australia sometime in 2012 or 2013.  Initially, he flew from Iran to Indonesia.  He stayed in Indonesia for a short time before boarding a refugee boat to Australia.  After about two to three days in the boat, he saw debris floating in the ocean including pieces of wood, clothing and orange safety jackets.  He thought this was the remnants of another refugee boat which had broken apart and sunk.  He was aware that at the time he left Indonesia, his boat was [among other refugee boats] to leave.  He knew that one boat had about 70 to 80 people on board, and he was told by a friend who was in one of the other boats that the remnants he saw floating was from a refugee boat that sank.  The Australian Navy intercepted the boat the applicant was in, and he, along with the other refugees were taken to Christmas Island.  He remained on Christmas Island for [period], during which time he applied for a Protection visa.  He was then taken to [city] where he stayed for a further 80 to 90 days.  He told the Tribunal that he was granted with a Bridging visa before being taken to Brisbane. 

18. He claimed that he did not hear from the Department about his Protection visa until he was in detention at the [named] Detention Centre in 2016.  He then made another application for a Protection visa, and he believes that this visa was granted to him in 2017, and the visa was to expire after five years.

19. In regard to his criminal behaviour, the applicant told the Tribunal that in regard to the aggravated break and enter offence, there were two trials held in a higher court; the first trial concluded with a hung jury.  In the second trial, the jury was deadlocked, and the presiding judge gave a direction to the jury.  The jury then returned a guilty verdict. 

20. He went on to tell the Tribunal that he was then sentenced to [period] imprisonment, with a parole release date after he had served [period].  At some point during his sentence, the applicant was transferred to the [named] Correctional Complex.  The applicant thought that he was there for about eighteen months.  Since his release on parole [in] May 2020, he has been detained in the [named] Detention Centre. 

21. When asked by the Tribunal about the other offences he committed, the applicant said that he had been arrested three times previously and pleaded guilty to those offences, although he did not recall the specific facts or the types of offences he was charged with.  He offered that the court placed him on a good behaviour bond because he was new to Australia, and he did not know the rules.

22. In regard to the circumstances of his personal life, the applicant married his wife in 2014.[2]  For the purpose of protecting her identity, she is referred to by the pseudonym NN.  NN was born in Iran.  When she was aged about [age], her parents immigrated from Iran to [Country 2], and then to Australia.  The applicant said that his wife is now an Australian citizen.  They have two children and for the purpose of protecting their identities, they are referred to by the pseudonyms TA and TB.  The applicant’s oldest son, TA, is aged [age] and [at school].  His youngest son, TB who was born during the time that the applicant was serving his sentence is now aged [age].  When asked by the Tribunal if his wife and children visited him when he was in custody; he said his wife and children visited him a couple of times and he asked his wife not to bring the children to see him again whilst he was in prison.

    [2]Applicant’s marriage certificate as provided by the applicant and outlined in paragraph 17(b) of the Tribunal’s decision.   

23. When asked what impact he thought any cancellation of his visa would have on his family unit, he said that the offences he committed took place before his children were born and his children do not know that he was in prison.  He now realises that he has parental responsibilities, and he needs to be there for his children for both their emotional and financial support.  He said that his worst punishment was not being able to spend time with his children and he was not there to witness them growing up.  He would like another opportunity because he completed courses in prison which helped him appreciate how to become a better father for his children.  In regard to those courses, he provided no probative or tangible evidence to support his claims about completing those courses in prison. 

24. The applicant claimed that his wife was sick, and she looked after her sick mother, as well as their children.  The Tribunal accepts that his wife would be caring for their children, however the Tribunal finds no evidence that she was ‘sick’ or that she is her mother’s carer.  The Tribunal recognises that the applicant produced to the Tribunal a letter from a medical practitioner which outlines that his wife’s mother has medical issues associated with her back and those injuries were attributable to her obesity.[3]  She remains under the care of a neurosurgeon and treated by medication and physiotherapy.  Her mobility is restricted, and she uses an electric mobility scooter.  Notwithstanding the assessment provided in the medical practitioner’s letter, there is no evidence that she requires care, or that she cannot care for herself; and there is no suggestion within the medical report of the applicant’s wife being her mother’s carer. 

    [3]Letter dated 27 October 2022 from [Doctor A] of the [Health Service 1] addressed to “To Whom It May Concern”.

25. When assessing the applicant’s evidence about his relationship with his wife and their two children, he provided a certificate of marriage showing that they were married [in] July 2014.  The Tribunal accepts that he married his wife on that date, and also accepts that they have two children.  The Tribunal particularly notes that there was no evidence provided to the Tribunal by the applicant’s wife about her relationship with the applicant, and nor did she give evidence at the hearing.  The Tribunal is of the view that there was scant evidence they are still in a relationship, or that she and their children will reunite with the applicant in the future.  Notwithstanding those observations, when carefully assessing the applicant’s evidence about the sparse contact he had with his wife and children during the term of his imprisonment and detention, and in the absence of evidence to the contrary, the Tribunal is prepared to give him the benefit of any doubt and accept that he and his wife are still in a marital relationship.    

26. In regard to his children, save for a birth certificate, the applicant provided very little evidence about his youngest child, TB.  In respect to his oldest child TA, the applicant provided paediatric reports relating to this child.  The reports revealed that in 2019, TA was diagnosed with having a [condition] which required speech therapy and occupational therapy.  Although the initial 2019 medical assessment was that he had autism, a more recent specialist assessment shows that that he does not fall within the autism spectrum.  The initial 2019 assessment did reveal that TA had a moderate intellectual disability, and it appears from the most recent 2022 medical assessment that he has appropriately adjusted to his condition through the use of speech therapy and occupational therapy, both of which have had a positive impact upon him.  The applicant told the Tribunal that TA could not speak, however that does not appear to be the assessment of the paediatric specialist.  The Tribunal further notes that the paediatric specialist’s report suggests that TA “often wakes up crying for his father who is currently in a detention centre”.

27. When asked by the Tribunal of what he considered the hardship his children may experience if his visa was cancelled, the applicant said that his family needs him a lot.  He repeated the comments from the medical report about his son waking up crying for his father; and he claimed that should his visa be cancelled; his life will be destroyed.  He wanted another opportunity to be a better father, and if he was deported back to Iran, he would be persecuted and executed.

    Submissions by applicant’s representative

28. The applicant’s representative submitted that the family unit is recognised under international human rights law as the fundamental group unit of society and is entitled to protection and assistance.[4]  The submissions when on to provide that the principle of the best interests of children is an overarching human rights principle that must be respected in all matters including those relating to the child's right to family life.  In all actions concerning children, the best interest of the child shall be a primary consideration.[5]  The best interest principle applies to all children without discrimination, including unaccompanied and separated children at risk outside their country of origin, and to all actions affecting individual children.  Notwithstanding that submission, the Tribunal recognises that the applicant’s children were born in Australia and therefore they are not outside their country of origin.

    [4]The 1948 Universal Declaration of Human Rights (UDHR), Article 16(3); The 1966 International Covenant on Civil and Political Rights, Article 23(1); The 1966 International Covenant on Economic, Social and Cultural Rights, Article 10(1).

    [5]The 1989 Convention on the Rights of the Child, Article 3.

29. The representative went on to submit that the Tribunal should take into consideration Part VII of the Family Law Act 1975 (Cth) in respect to a child's right and Australia's obligation in regard to the 'best interest of the child'. In the Tribunal’s observations, Part VII of the Family Law Act provides for the best interests of a child in the making of parenting orders by the Federal Circuit and Family Court of Australia, and in particular, when deciding whether to make a particular parenting order in relation to a child, regard must be given to the paramount consideration of what is in the best interests of the child.[6]  In that regard, it is the Tribunal’s view that those submissions do not assist the Tribunal in its findings in regard to the applicant’s matter.

    [6]Family Law Act 1975 (Cth), s 60CA.

1. It was also submitted that the Tribunal should consider the non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in not forcibly returning the applicant to a place where he will be at risk. 

2. Similar to the Tribunal’s findings in respect to the submissions relating to the best interests of a child as provided in the Family Law Act, the Tribunal does not find the submissions relating to the Tribunal’s non-refoulement obligations helpful in reaching a decision in this matter because the term non-refoulement obligations includes obligations undertaken by Australia pursuant to certain international treaties, and it is confined to the protection obligations to which section 36(2) of the Act refers.[7] 

   [7]Ibrahim v Minister for Home Affairs [2019] FCAFC 89, [103].

3. The applicant’s matter involves a cancellation of his Bridging visa pursuant to the provisions contained within section 116 of the Act; and although the Tribunal recognises and appreciates that there are protection issues claims made by the applicant in respect to his antecedents, those issues relate to an application for a protection visa should the applicant choose to make such an application.

   Consideration of discretion

4. In considering whether the applicant’s visa should be cancelled on the basis of the prescribed grounds in regulation 2.43(1)(p)(i) of the Regulations, 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 section 499 of the Act (‘the Minister’s Direction No. 63’). 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 applicant’s visa should be cancelled.

5. The primary considerations are:

   ·the Government’s view that the prescribed grounds for cancellation at regulation 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.

6. 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.

7. The Minister’s Direction No. 63 provides that the 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 given 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’.

8. The Tribunal had before it the following material provided by the applicant’s representative:

   (a)Representative’s written submissions dated 30 December 2022;

   (b)Marriage certificate showing that the applicant married NN [in] July 2014;

   (c)Paediatric reports relating to the applicant’s child, TA.  The paediatric reports (10 pages) provide an opinion on TA for the period of 2020 – 2022.

   (d)Birth certificate for the applicant’s second (and youngest) child, TB;

   (e)Medical report from the [Health Service 1] relating to the health of the applicant’s mother-in-law.

9. The Tribunal has given careful and lengthy consideration to the contents of all of the documents provided by the applicant as outlined above in paragraph 37(b) – (e) inclusive so far as to his argument that the Tribunal should have regard to the primary consideration as provided for in the Minister’s Direction No. 63. That is, the primary consideration of the best interests of children under the age of 18 in Australia who would be affected by the cancellation of the applicant’s visa. Outlined later in these reasons is the Tribunal’s considerations and determination in respect to those documents and their contents.

10. The Tribunal has also given careful consideration to the submissions proved by the applicant’s legal representative.       

    Relevant primary and secondary considerations - other relevant factors

11. Under the provisions of the Act, the applicant’s visa may be cancelled if the Tribunal is satisfied that a prescribed ground for cancelling that visa applies to the applicant.[8] 

    [8]Migration Act 1958 (Cth), s 116(1)(g).  The prescribed grounds are set out in the Migration Regulations 1994, r 2.43(1)(p) or (q).

12. The Government is committed to ensuring that the applicant, being a non-citizen and given the privilege of living in the Australian community on a Bridging visa, should behave in a manner that is in accordance with Australian laws and which respects Australia’s community values and standards of democracy, multiculturalism, respect, inclusion, cohesion, tolerance, and cooperation. 

13. All non-citizens residing in the community are expected to abide by the law.  The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa.  It is a privilege and not a right for the applicant to be allowed to live in the community while his immigration status is being resolved. 

14. People who are holders of Bridging visas, such as the applicant, who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging visa while they await the resolution of their immigration status.

15. Notwithstanding those provisions just outlined, the applicant’s individual circumstances, including the seriousness of his actual or alleged behaviour, and any mitigating circumstances are all considerations in the context of determining whether his visa should be cancelled.[9] 

    [9]The Minister’s Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q); Clause 4.3(3).

16. In deciding whether to cancel the applicant’s visa under the prescribed grounds of the Regulations,[10] a primary consideration by the Tribunal is the Government’s view that the prescribed grounds should be applied rigorously in every instance of non-compliance.[11]  Guidance is provided to the Tribunal by the Court’s findings in ACH15 v Minister for Immigration and Border Protection where the Court determined that the rigour referred to in Clause 6 of the Minister’s Direction No. 63 is addressed solely in the question of whether consideration should be given to cancelling the visa; it is not saying that the power to cancel the visa should be exercised rigorously.[12]  Consequently, the Tribunal is mindful that it must take the Government’s view into consideration as part of the matters to be given weight in exercising that discretion, instead of simply following that view.[13]

    [10]Migration Regulations 1994, r 2.43(1)(p)(i).

    [11]The Minister’s Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q); Clause 6(1).

    [12]ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250, [28] – [31].

    [13]ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250, [33].

17. The Minister’s Direction No. 63 provides for primary and secondary considerations. Irrespective of the seriousness of any of the offences the applicant was convicted of, when exercising its discretion under the provisions of section 116(1) of the Act, the Tribunal may consider the seriousness of the offences as a secondary consideration. Notwithstanding that, both primary and secondary considerations must be taken into account, where relevant, in determining whether the applicant’s visa should be cancelled.

18. In assessing the evidence, and applying the discretion afforded under the Act, the primary consideration should generally be given greater weight than any secondary consideration; and one primary consideration may outweigh the other primary consideration.

    Primary considerations

19. In respect to the primary considerations as they apply to the assessment of the evidence in the applicant’s case, there is consideration to be given to the facts and features surrounding the circumstances as to why the applicant was notified of the notice of cancellation of his visa.  Because the applicant has two young children under the age of eighteen who are living in Australia and they would be affected by any cancellation, there is also consideration required with respect to their best interests. 

20. The Tribunal finds that the applicant has two children under the age of eighteen years of age who live in Australia.  Those children currently live with their mother whilst the applicant is in detention.  The Tribunal also finds that the applicant is married to the mother of the children, and she is his wife.  Tribunal further finds that for a vast majority of the life of his eldest child, and for all of the life of his youngest child, the applicant has been in either prison serving a term of imprisonment or detained in an immigration detention facility.  The Tribunal also recognises and acknowledges that the applicant’s eldest child has a moderate intellectual disability, however he is otherwise a healthy child.  The Tribunal accepts that notwithstanding the applicant has been in custody or in detention since late 2015, his wife has appropriately managed all medical or other allied health appointments for the children; and the children have been provided with opportunities to be educated, grow and learn under the care of their mother. 

21. When assessing the principle that it was not the applicant’s right to live in the community while his immigration status was being resolved, the Tribunal acknowledges and identifies that this was a privilege afforded to him.  The Tribunal has given careful and lengthy consideration to the facts which led to the applicant being notified that his visa had been cancelled. 

22. There is compelling evidence that his criminal behaviour which led to his convictions took place over a prolonged period of five months between March and August 2015, culminating in the more serious of the offences when he committed the aggravated break and enter to a dwelling.

23. The facts relating to his conviction for the offence of an aggravated break and enter to a dwelling show that his criminal behaviour on that occasion is the most serious of all his criminal offending.  This offence was not spontaneous, it was deliberate premeditated criminal conduct clouded with significate forethought and planning by him wearing rubber gloves and disguised with a balaclava.       

24. When considering the seriousness of the applicant’s offending which led to his conviction for the offence of aggravated break and enter a dwelling, the Tribunal finds that the primary consideration in regard to the best interest of his children is overtaken by the application of the prescribed grounds of cancellation as provided for in the Regulations.[14]

    Secondary considerations

    [14]Immigration Regulations 1994 (Cth), r 2.43(1)(p)(i).

25. In respect to the Tribunal’s recent discussion and relevant consideration to the impact upon the applicant’s family unit if a decision was made to cancel his visa, the Tribunal’s finding is that the children currently live with their mother whilst the applicant is in detention.  For almost all of the life of the applicant’s eldest child, the applicant has either been in prison or in an immigration detention facility.  His youngest child was born when the applicant was serving his custodial sentence for his conviction for the aggravated break and enter.  The applicant’s eldest child has a moderate intellectual disability; however, he is otherwise a healthy child. 

26. Notwithstanding the Tribunal accepting that the applicant’s eldest child has woken during the night crying for his father, the Tribunal observes that the applicant has been in custody or in detention since late 2015 and his wife has provided all of the parental needs for the two children, including managing all the medical or other allied health appointments for the children; and they have been provided with opportunities to be educated, grow and learn under the care of their mother.  

27. Earlier in these reasons, the Tribunal outlined the circumstances in which the grounds for the cancellation of the applicant’s visa arose.  Any mitigating factors arising from those circumstances do not favour the applicant, and those factors significantly weigh against him.  He displayed contrition in not accepting his guilt for the role his played in the aggravated break and enter where victim was injured.  Instead, he took his case to a trial, upon which his guilt was established by the jury’s verdict.  In the Tribunal’s view, that displays a distinct lack of remorse and insight into his own behaviour.

28. In respect to the possible consequences of any cancellation of the applicant’s visa, and the degree of hardship that he may experience, the applicant told the Tribunal that if he returned to Iran he would be persecuted and executed.  He claimed that after he left Iran, the government charged him with four offences and convicted him to be sentenced to [period] jail, and after his sentence, he would be executed.  He claimed that this was because of his relationship with [friends of specified nationalities]; and he encouraged other young Christians to leave Islam and he had involved himself in some protests. 

29. These are protection claims that he raised which should be addressed in a protection visa application should he choose to make such an application.  The Tribunal notes that there was no substantiating evidence provided to support the claims, nor was there any explanation that if he was a person of interest to the Iranian government, how was it that he was able to enjoy an uninhibited and lawful departure from Iran when he flew to Indonesia.   

    Conclusion

30. In respect to the factors both for and against cancelling the applicant’s visa, the Tribunal has carefully reflected upon the circumstances of this matter.  The Tribunal is cognisant that the best interests of the applicant’s children is a primary consideration, which, on the applicant’s case, weighs against cancelling the visa.  The Tribunal also notes that, as discussed in these reasons, there are other factors which also weigh against the cancellation of the applicant’s visa.  All of those factors just explained must be carefully balanced against the extent and the gravity and the seriousness of the applicant’s criminal behaviour which led to his arrest, charging, ultimate conviction in a court and the imposition of a lengthy term of imprisonment, all of which heavily weighs in favour of cancelling the applicant’s visa.

31. Considering the circumstances as a whole, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary and the Tribunal concludes that the applicant’s visa should be cancelled.

    decision

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Wayne Pennell
    Senior Member