2218927 (Migration)

2218927 (Migration) [2023] AATA 2225 (18 January 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  2218927
MEMBER:Karen Vernon
DATE OF DECISION:  18 January 2023
DATE CORRIGENDUM
SIGNED:20 January 2023
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

Amendment to be made to a date included in the decision in paragraph 88. The date that is incorrect is “13 January 2018”. The date should read “13 January 2023”.
Karen Vernon
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2218927
MEMBER:Karen Vernon
DATE:18 January 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 18 January 2023 at 6:05pm
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence – take and drive a conveyance without consent of the owner – consideration of discretion – the Government’s view – charges withdrawn and dismissed – convicted of other criminal offences – drug addiction – lengthy period of immigration detention – support to live in the community – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW), s 154A
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
MICMSMA v Parata [2021] FCAFC 46
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 July 2015 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (Act).
The applicant is a [age] year old Iranian national who arrived in Australia by boat without a visa [in] July 2013. On 4 September 2013 the applicant was granted a Subclass 050 (Bridging (General)) visa (bridging visa) expiring on 4 September 2014.
On 18 March 2015 the applicant was granted a further bridging visa, which is the visa that was subsequently cancelled, and is the subject of this review.
On 22 May 2015, the applicant was arrested by New South Wales police and charged with take and drive a conveyance without consent of the owner.
Cancellation of visa
On 3 July 2015 the applicant was issued with a notice of intention to consider cancellation of his bridging visa under s 116(1)(g) of the Act (NOICC), based on evidence that the applicant had been charged with an offence contrary to the laws of New South Wales. The NOICC invited the applicant to attend an interview on 20 July 2015 to answer why the applicant’s visa should not be cancelled. The applicant did not respond to the NOICC and did not attend the interview.
On 21 July 2015, the delegate cancelled the bridging visa under s 116(1)(g) of the Act on the ground that the applicant had been charged with an offence against the laws of a State, being a prescribed ground for cancelling a visa pursuant to Regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) (Regulations), and as such a ground for cancellation exists (Cancellation decision).
The applicant was notified of the Cancellation decision on 21 July 2015. The applicant did not seek review of the Cancellation decision at that time. Following the decision in MICMSMA vParata [2021] FCAFC 46, the notification of the Cancellation decision was assessed as incorrect, and the applicant was re-notified of the Cancellation decision on 21 December 2022.
On 21 December 2022, the applicant applied to the Tribunal for a review of the Cancellation decision.
ISSUES FOR DETERMINATION
The issues in the present case are:
a.whether the ground for cancellation exists; and
b.if so, whether the applicant’s visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
The applicant is the youngest of [number] children. His mother is still alive, however his father died in 2015. He went to school until the age of 14 and then went to work, alternating between working on the family farm for 6 months of the year followed by working in Tehran for 6 months of the year, mostly in [specified] businesses. He did this for almost 9 years before coming to Australia.
Together with 3 friends from Iran, the applicant flew to [Country 1] in 2013, and after 2 months they travelled to Christmas Island by boat. Upon arrival, the group spent 2 weeks in immigration detention on Christmas Island before being transferred to Darwin for 2 weeks. After the applicant was granted a bridging visa he travelled to Sydney, where he lived with 2 of his friends. He visited Melbourne for 2 months but didn’t like it, so returned to Sydney, however he found it hard to get work. He worked on a farm in Adelaide for 6 months before returning to Sydney and working as a [Occupation 1] from 2014 until his arrest on 22 May 2015. He was unemployed after his arrest in May 2015.
The applicant has never married and has no children. His mother and siblings, who live in Iran, are all married with families of their own. He has a very good relationship with all his family members, and he remains in contact with them.
Criminal history
On 22 May 2015, the applicant was arrested by New South Wales police and charged with taking and driving a conveyance without consent of the owner under the Crimes Act 1900 (NSW).
According to [the] Local Court records, on 27 July 2015 the charge of taking and driving a motor vehicle without the consent of the owner was withdrawn and dismissed.
2016 criminal convictions
According to the applicant’s criminal conviction history and [the] Local Court records:
a.[in] March 2016 the applicant was convicted in [the] Local Court of possessing a prohibited drug, namely methylamphetamine, and fined $400;
b.[in] April 2016 the applicant was convicted in [the] Local Court of:
i.possessing a prohibited drug, namely methylamphetamine, and fined $500;
ii.entering inclosed lands not prescribed premises without lawful excuse, and fined $200.
2018 criminal conviction
According to the police records, and the sentencing decision in [case], [in] March 2016, the applicant was charged with wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act1900 (NSW). He was taken into custody and spent time in corrective services detention at [a] prison before being transferred to [Immigration] Detention Centre in August 2016.
The applicant’s first trial in 2018 on the wounding charge resulted in the jury being unable to reach a verdict and he was ordered to be retried. Subsequently, the applicant pleaded guilty to the lesser charge of reckless wounding under s 35(4) of the Crimes Act 1900.
[In] December 2018, the applicant was convicted in [the] District Court of reckless wounding and sentenced to 21 months’ imprisonment with a non-parole period of 13 months.
According to the sentencing remarks of Judge Williams in [case citation], reckless wounding carries a maximum penalty of 7 years imprisonment with a standard non-period of 3 years, which are both important yardsticks in sentencing [2] and noted that it was conceded by counsel that a term of imprisonment was warranted by the circumstances of the case [4].
In terms of the circumstances of the offence, the sentencing Judge stated that the agreed facts were that the offender [the applicant] is a refugee from Iran who was living in [Suburb 1] in the bedroom of a house, with the victim and one other person staying in other rooms. The offender was trying to get into one of the other occupant’s bedrooms making a noise which woke up the victim. There was an altercation between the victim and the offender. The victim put his hand on the offender’s back to guide him away and then the offender then punched the victim with his right hand and the victim punched him back. They each punched each other a couple more times and then the offender drew a knife from his back or his pocket. The victim stopped punching him and the offender hit him in the back of the head and neck while holding the knife in a closed fist. The knife penetrated the victim’s shoulder. The victim was treated for a one-centimetre-long wound penetrating the epidermis and dermis of his left shoulder blade and for a five millimetre graze to the right side of his neck: [case citation].
Protection visa
On 20 April 2017, the applicant applied for a Safe Haven Enterprise visa (SHEV). The SHEV was refused on 28 August 2017. The applicant sought review of the refusal.
On 30 October 2017, the Immigration Assessment Authority (IAA) remitted the decision to the Department for reconsideration with a direction that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran there was a real risk that the applicant would suffer significant harm, which is the criteria for complementary protection under s 36(2)(aa) of the Act.
On 19 January 2021, a delegate of the Minister for Home Affairs refused the SHEV application, determining that:
a.in accordance with the remittal and direction of the IAA, the applicant satisfied the criteria in s 36(2)(aa) of the Act;
b.the applicant was ineligible for a protection visa pursuant to s 36(1C) of the Act, having found that the applicant had been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community, and therefore does not satisfy the criteria in s 36(2)(aa) of the Act,
(Protection visa decision).
The applicant appealed the Protection visa decision to the Tribunal on 30 January 2021. On 1 April 2021, the applicant’s appeal to the Tribunal was dismissed for non-payment of fees.
Request for Ministerial intervention
The applicant applied for Ministerial Intervention on 15 September 2021. On 3 March 2022 the applicant was informed that his application for intervention was not referred to the Minister.
On 20 December 2022, the applicant again applied for Ministerial Intervention. This intervention application remains ongoing as at the date of this decision.
PROCEEDINGS IN THE TRIBUNAL
The applicant applied for review of the Cancellation decision within the prescribed period in accordance with the requirements of s 127 of the Act.
The applicant appeared before the Tribunal on 3 January 2023 by video from [the Immigration] Detention Centre to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Persian language. He was not represented at the hearing. No witnesses were called with the applicant claiming he was unaware that he could seek to call witnesses on his behalf, and that he would have wanted to do so had he known. The applicant did not provide the Tribunal with any documents during the hearing.
During the hearing, the applicant denied any knowledge of his 2016 convictions and denied he had pleaded guilty to the 2018 conviction, claiming he had pleaded guilty to assault only. As the Tribunal did not have any documents at that stage regarding the applicant’s 2016 and 2018 convictions apart from the information in the protection visa decision and having regard to the applicant’s request to call witnesses on his behalf, the Tribunal obtained the applicant’s consent on 4 January 2023 to extend the time for conducting the review of the cancellation decision until 18 January 2023. This allowed the Tribunal to obtain documents and arrange for witnesses to be give evidence at a further hearing.
On 13 January 2023, a further hearing was held by video. The applicant was again unrepresented but assisted by an interpreter. Documents obtained by the Tribunal under summons from NSW police and [the] Local Court were put to the applicant. The applicant requested two witnesses be called to give evidence on his behalf about his character and his support in the community. One of the nominated witnesses, [Mr A], was a person whose protection visa had been cancelled on character grounds, and who was an unlawful non-citizen according to Department records. I declined to call [Mr A] to give evidence on the grounds that his evidence was unlikely to assist me in determining the issues on the review.
I received oral evidence by telephone from [Mr B], a friend of the applicant who came to Australia from Iran in 2011 and obtained a protection visa in 2014, and now lives in Australia.
RELEVANT LEGISLATION
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.
If satisfied that a 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) 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 reg 2.43 of the Regulations. Regulation 2.43(1)(p)(ii) provides that there is ground for cancellation if the visa holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.
As stated in the NOICC, on 22 May 2015 the applicant was charged with take and drive conveyance without consent of owner, which is an offence under s 154a(1)(A) of the Crimes Act 1900 (NSW). The evidence relied upon was a Facts Sheet issued by the NSW Police.
The Cancellation decision referred to “the NSW Police Facts Sheet stating that the applicant was charged with an offence under the Crimes Act 1900, section 61.” The section of the Crimes Act 1900 (NSW) referred to in the NOICC and the Cancellation decision are different, however, the basis of the evidence in both the NOICC and the Cancellation decision is the NSW Police Facts Sheet. The NSW Police Facts Sheet, contained in the Department’s records provided to the Tribunal, refers to a charge contrary to s 154a(1)(A) of the Crimes Act 1900 (NSW). I am satisfied that the reference in the Cancellation decision to “section 61” is an administrative error, and the correct reference is “s 154a(1)(A)” as per the NOICC.
At the hearing, the applicant agreed that he was charged by NSW Police with taking and driving a conveyance without consent of the owner on 22 May 2015.
On the evidence, I find that at the time his bridging visa was cancelled:
a.the applicant had been charged with an offence against the laws of a State; and
b.the ground for cancellation of the visa in s 116(1)(g) and reg 2.43(1)(p)(ii) exists.
As that ground does not require mandatory cancellation of the visa under s 116(3) of the Act, the Tribunal must proceed to consider whether the visa should be cancelled.
SHOULD THE VISA BE CANCELLED?
Relevant considerations
In considering whether a Bridging E visa should be cancelled on 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 (Direction). The 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 Direction states that:
a.primary considerations should generally be given greater weight than any secondary considerations;
b.one primary consideration may outweigh the other primary consideration; and
c.information from independent and authoritative sources should generally be given greater weight than information from other sources.
The primary and secondary considerations in the Direction are established in the context of guiding principles which are set out in clauses 4.2 and 4.3, including:
4.2(1) The Government is committed to ensuring that non-citizens given the privilege of living in the Australian community on Bridging E visas 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. The principles below are of critical importance in furthering that objective.
4.3(3) 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. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.
4.3(5) … [W]here Bridging E visa holders are charged with the commission of a criminal offence or otherwise suspected of engaging in criminal behaviour or being a security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
4.3(6) The person's individual circumstances, including the seriousness of the actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
Primary considerations
The primary considerations are:
(a)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
(b)the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The Government’s view
It is specified in the Direction that the Australian Government has a low tolerance for criminal behaviour from people who are in the community on a temporary basis. I have taken account of the Government's view that the prescribed grounds for cancellation at reg 2.43(1)(p) should result in every instance of non-compliance being considered for cancellation.
The criminal charge the subject of the Cancellation decision was subsequently withdrawn and dismissed by the court [in] July 2015. However, the applicant admitted that between 2016 and 2018, he had been convicted of four criminal offences, the last of which resulted in a sentence of 21 months’ imprisonment.
I find that this consideration must weigh in favour of cancelling the applicant’s visa.
Best interests of the children
The applicant does not have any children. It is not suggested that the best interests of a child under 18 years who is in Australia will be affected by the decision.
I find that this primary consideration does not apply.
Secondary considerations
The secondary considerations are:
(a)the impact of a decision to cancel the visa on the family unit, including whether it will result in the temporary separation of a family unit;
(b)the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
(c)the circumstances in which the ground for cancellation arose;
(d)the possible consequences of cancellation; and
(e)any other matter considered relevant.
Impact of the decision to cancel the visa on the family unit
The applicant gave evidence that he is not in a personal relationship with any other person and does not have any children. His immediate family all live in Iran, and he is in regular contact with them by telephone as the applicant said there is no internet connection in his hometown.

Apart from his mother who is retired and lives independently, all the applicant’s siblings are married with their own families. The applicant did not indicate that he was responsible for providing financial or other support to any of them.
If his visa remains cancelled, the applicant will remain in immigration detention. The applicant’s contact with his immediate family by telephone would occur regardless of whether he is in immigration detention.
I find that cancellation of the applicant’s visa will not have an impact on the applicant’s family unit or result in the temporary separation of a family unit. I find this consideration has neutral weight in exercising the discretion to cancel the bridging visa.
Degree of hardship that may be experienced by the visa holder if the visa is cancelled
The decision to cancel the applicant’s visa does not itself lead to deportation from Australia, nor does it automatically lead to indefinite detention. However, the applicant will remain in immigration detention until he is either granted a visa or removed from Australia.
The applicant did not provide any specific evidence of any hardship he was suffering or would suffer by being detained, except that he would not be able to get on with his plans to make a better life for himself in Australia.
He has no family in Australia who are suffering from seeing him detained and being deprived of his presence in their lives. He did not complain of any physical or mental illness associated with his detention, however he expressed feelings of frustration at the length of his detention, and general despondency at life in detention where sometimes there are things to do and other times there is nothing. When asked what impact the detention had made on his health, he said he had learned a lot of things he might not have learned on the outside, but he had learned to appreciate freedom. He repeatedly mentioned that he had been in immigration detention for 7 years and he wanted another chance to start a life in Australia.
The sentencing judge in [case citation] at [9] - [11] referred to a psychiatrist’s report which was not adopted or tested but was also not contested by the prosecution. According to that report, which was not available to the Tribunal, the applicant:
a.had claimed his mental state had been weak at the time of his offending due to drug use, his isolation and the situation that he had left behind in Iran where he felt scared and targeted by police; he had nothing to go back to in Iran and although he had told the psychologist in a previous interview a year ago that he intended to return to Iran, the circumstances had changed because the government had confiscated his family’s land and assets and the government was targeting not only Kurdish people but young people generally and he was fearful of ongoing prosecution if he returned to Iran;
b.had been taking Seroquel and his psychotic medication and had been on a Methadone treatment program. He was diagnosed as having a substance use disorder and he was intoxicated with crystal methamphetamine at the time of the alleged offending. He also described psychotic symptoms of a major depressive disorder according to the psychiatrist and he remains vulnerable to a relapse of illness particularly when exposed to significant stressors. He has been under regular monthly review by a psychiatrist while in detention.
c.had experienced social isolation and adversity since arriving in Australia as a refugee and suffered from depression and that had been compounded by drug dependence and psychotic symptoms so that his lifestyle appeared to be chaotic. His accommodation was unstable at the time of his arrest and not surprisingly, the psychiatrist recommended that he would benefit from ongoing treatment, monitoring of his mood disturbance and any re-emergence of symptoms of psychosis and medication prescribed accordingly.
The delegate in the Protection visa decision referred to the following documents which were not available to the Tribunal:
a.a report from International Health and Medical Services dated 2 May 2019, outlining the applicant as having several diagnosed mental health conditions for which he missed numerous treatment appointments, anger management issues and a drug problem between 2018 and 2019;
b.a s 57 letter sent to the applicant outlining his history of substance abuse, self-removal from the methadone program, use of illegal drugs whilst in immigration detention, non-compliance with treatment programs and requesting the applicant to provide responses and supporting documentation.
Despite this information about historical mental health issues, during the hearing, the applicant did not provide any medical or other independent reports on his past or current health or mental health issues. When I asked, the applicant said he has no current health or mental health issues. His only current treatment is a methadone program he has been participating in for the last 3 to 4 years for his drug addiction, which involved monthly injections. If he is released from detention, he says he will be assisted to access a methadone program in the community. The applicant stated that he started taking drugs for the first time in 2014 after he came to Australia. Although he claimed he did not know why he started taking drugs, he said that around that time he was not in a good situation mentally, he had no support and did not have a stable place to live or stable employment. This accords with the reports referred to above.
When I asked if he would be likely to resume using drugs if he were to be released to live in the community, the applicant said he would not do so now because he has changed and is not the same person as he was then. He admitted he had used illegal drugs in immigration detention in the early stages but claimed he had not done so since he had entered the methadone program. When I raised with him the contrary information in the s 57 letter referred to in Protection visa decision about him removing himself from the methadone program and resuming illegal drug use in 2019, he admitted he had done that in the early days of the program because he was having difficulty coping with the program and he returned to drug use as he had tried exercise, but he was in pain. I accept the applicant’s explanation.
In the absence of any evidence to the contrary, I find that the applicant’s only current health issue is his drug addiction, which is being treated through a methadone program.
If his visa remains cancelled, the applicant will not be able to apply for a further bridging visa: clause 1305(3)(g) of Schedule 1 to the Regulations. He will remain in immigration detention until he is either granted a visa or removed from Australia. There is no evidence before me to enable me to determine the length of that detention, however I accept that it may be of some duration.
The applicant has been involuntarily detained either in custodial imprisonment or immigration detention continuously since 2016. The applicant was a relatively young man of [age] years when he entered detention in 2016, first custodial and then immigration. By contrast, his sentence of imprisonment for reckless wounding in 2018 was 21 months with a non-parole period of 13 months.
Although when asked, the applicant did not provide any medical information that his health, mental health and well-being were being adversely affected by the length of his detention, I accept that having been detained for almost 7 years is likely to have a negative impact on the applicant’s general mental health and well-being, and this weighs against cancelling his visa.
I find that the cancellation of the applicant's visa would cause him hardship, including emotional, psychological, and financial hardship. Cancellation of his visa would extend the applicant's stay in immigration detention and isolation from his family and friends and could mean that his plan to build a better life for himself in Australia may not be achieved unless he obtains another visa. Having said that, he has not developed deep ties in the local community due to the length of his detention since his arrival. The prospect of having to return to Iran, even though his whole family still lives there, is something that the applicant says he fears.
I consider the greatest hardship facing the applicant if his visa is cancelled is how long he will remain in immigration detention, and the impact that may have on his overall health and wellbeing.
While I acknowledge the applicant has been in detention for a lengthy period, I am bound by the Direction, and in particular the principle in cl. 4.3(5) that 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 while they await resolution of their immigration status.
Overall, I consider the degree of hardship that may be experienced by the applicant weighs moderately significantly against cancelling the bridging visa.
Circumstances in which the ground for cancellation arose
The ground for cancellation arose in the context of the applicant being charged with a criminal offence on 22 May 2015, the evidence for which was contained in the NSW Police Facts Sheet attached to the NOICC.
During the hearing on 3 January 2023 the applicant claimed that he did not know what had happened to the criminal charge of take and drive a conveyance without consent of the owner. He said that he never heard about it again after he was granted bail.
Although it seemed unlikely that the 2015 charge remained unresolved as of 3 January 2023, I nonetheless informed the applicant that he did not have to answer my questions about this charge if to do so might incriminate himself, but if he chose to answer, anything he said may be used against him in any court proceedings about the charge. The applicant informed me that he understood that he did not have to answer my questions.
The applicant denied taking or driving the vehicle. He said that another person had asked his co-accused to look after the vehicle whilst that person went to prison, and they would collect it later. The applicant and the co-accused were sitting in the stationary vehicle drinking beer when police knocked on the window. The accused says he was seated in the back seat and his co-accused was in the front seat. According to the NSW Police Facts Sheet, the accused was in the driver’s seat and the co-accused was in the passenger seat.
The documents obtained under summons after the hearing on 3 January 2023 reveal that the 2015 charge was withdrawn and dismissed [in] July 2015 in [the] Local Court. This occurred 6 days after the Cancellation decision was made. As the charge was dismissed, I do not need to consider further the applicant’s version of events. He admitted he was charged at the time his bridging visa was cancelled.
I find that the circumstances in which the ground of cancellation arose weigh moderately in favour of cancelling the bridging visa.
Possible consequences of cancellation
A decision maker is to consider the possible consequences of cancellation, including but not limited to whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status.
As previously observed, the applicant will be unable to apply for a further bridging visa due to the operation of clauses 1305(3)(f) and (g) of Schedule 1 of the Regulations, and he will be detained until he is either granted a visa or removed from Australia. The consequences of a decision to cancel his bridging visa do not include removal in breach of Australia’s non-refoulment obligations, as he will not be removed until his immigration status is finally determined. At present there is evidence that the applicant has applied for Ministerial Intervention under the Act which has not been finalised.
The Act does not authorise or require the removal of a non-citizen from Australia if that person has made a valid application for a protection visa that has been finally determined where in the course of considering the application, a protection finding was made. Under the Act, a ‘protection finding’ is a finding, whether express or implied, made in considering a protection visa that someone meets the refugee or complementary protection criterion.
Where a person is the subject of a protection finding, they cannot be removed from Australia except in the three circumstances set out in s 197C(3)(c) of the Act:
a.the decision finding that the non-citizen engages protection obligations has been set aside;
b.the Minister, or his or her delegate, has made a decision under s 197D(2) that the person is no longer a person in respect of whom any protection finding would be made; or
c.the non-citizen requests voluntary removal.
A protection finding was made in respect of the applicant in the Protection visa decision on 19 January 2021 when he was found to satisfy the complementary protection criteria in s 36(2)(aa) of the Act. This protection finding stands, even though the delegate found that the applicant was ineligible for protection by virtue of s 36(1C) of the Act. The applicant, therefore, is highly unlikely to be removed from Australia except in the very limited circumstances set out in s 197C(3)(c) of the Act.
There is no evidence that the protection finding has been set aside, or that the Minister (or a delegate) has made a decision under s 197D(2) that the applicant is no longer a person in respect of whom any protection finding would be made.
During the hearing, the applicant said he would not return to Iran voluntarily if his bridging visa was cancelled. When asked why he would not or could not return to Iran, he claimed that it would be very dangerous for him to return, he would be in trouble and be arrested at the airport, and he has been involved in putting lots of things in social media. He did not expand on this claim and did not advance any further evidence about it. In any event, as a protection finding has been made in respect of the applicant, it is unnecessary for me to consider any protection claims now or to re-examine the applicant’s past protection claims for the purpose of assessing whether any removal from Australia may be in breach of Australia’s non-refoulement obligations. The applicant’s claims of hardship and the consequences of the applicant’s unlikely removal from Australia have been addressed separately in these reasons.
I find this consideration has little weight against cancelling the bridging visa.
Other considerations
I have 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’.
Criminal Convictions
The applicant was convicted of 4 offences between 2016 and 2018, the details of which have been set out above as the 2016 and 2018 convictions.
Although at the hearing on 3 January 2023 the applicant denied any knowledge of the 2016 convictions, when the NSW police and [the] Local Court records, including the Facts Sheets for each conviction were read to the applicant at the hearing on 13 January 2023, the applicant conceded the convictions were correct and he agreed with the facts as alleged by the police.
Despite insisting at the hearing on 3 January 2023 that he had only pleaded guilty and been convicted of assault on 13 December 2018, not reckless wounding, at the hearing on 13 January 2018, when the facts upon which he had been convicted were again read out to him (as set out in the sentencing remarks referred to previously in these reasons), the applicant admitted those facts were correct, and that he had pleaded guilty to the lesser charge of reckless wounding in lieu of the more serious charge of wounding with intent to commit grievous bodily harm.
The applicant’s criminal conduct whilst living in the community after the cancellation of his bridging visa in 2015 included drug offences for which relatively low monetary penalties were imposed, indicating a comparatively low level of seriousness. The quantities of prohibited drugs possessed by the applicant on each offence were 0.2grams and 0.6grams. The applicant gave evidence during the hearing on 13 January 2023 that he was using drugs at the time he committed these offences, he was experiencing mental health issues and did not have the support he needed. The other conviction for being on inclosed land without lawful consent related to the applicant sleeping in a house where the owner had given permission to the applicant and others to do so for a few nights then changed his mind and the police were called to evict the applicant and others. At that time, the applicant gave evidence before me that he did not have a stable job or a permanent abode. The NSW Police Facts Sheet notes the applicant was under the influence of drugs for all 3 of the 2016 convictions.
The 2018 conviction was a violent offence against another person which caused them injury committed on 27 March 2016. The sentencing decision sets out the agreed facts, for which the applicant ultimately conceded. Similarly, the applicant gave evidence that he was under the influence of drugs and was suffering from mental illness at the time of commission of this offence. The custodial nature of the sentence and its length is a reflection that this was a serious offence. The delegate in the Protection visa decision concluded the offence was serious, and I agree with that conclusion.
Having regard to clause 4.3(5) of the Direction, I find that the criminal convictions after the Cancellation decision are a consideration that weighs significantly in favour of cancellation of the bridging visa.
Other matters
The applicant gave evidence that he had lived in Iran from birth until he travelled to Australia via [Country 1] in 2013. When asked why he travelled to Australia in 2013, the applicant said he was seeking a better life as he considered that there was no future for himself in Iran. He made no mention of any reason that had forced him to leave Iran, such as persecution or fear of harm.
I find that the applicant travelled to Australia for the purposes of making a better life for himself. As such I am satisfied that the applicant does not have a compelling need to remain in Australia.
There is no evidence of the applicant’s behaviour towards the Department which could be relevant to this review.
There are no persons who would be affected by mandatory cancellation under s 140 of the Act.
Support to live in the community
The applicant said he still wants to work in Australia as he came here to make a better life for himself. He acknowledges that under the influence of alcohol and drugs he has done certain things he regrets, and he has done things wrong, but he hopes to be provided with an opportunity to make amends and to get on with his life.
[Mr B] who was called to give evidence on behalf of the applicant, gave evidence relevant to the applicant’s future if he were released from detention. [Mr B] is married with a family and has been employed as a [Occupation 2] for 5 to 6 years. He met the applicant in Australia about 8 to 10 years ago and considers him to be a gentle person who is safe to be in the community. Significantly [Mr B] disclaimed any knowledge of the applicant’s criminal convictions. [Mr B] has spoken to his employer, who has run [Business 1] in Melbourne for 8 years, and he has offered to provide the applicant with employment in his business in Melbourne. The applicant does not have qualifications or experience in [Occupation 1], and he last worked as a [Occupation 2] in Sydney in 2016. No letter from [Mr B]’s employer confirming the terms of the offer of employment was provided to the Tribunal.

[Mr B] also gave evidence that he would find accommodation for the applicant. In the absence of confirmation of the offer of employment and details of the proposed accommodation to be provided, I am not persuaded by [Mr B]’s evidence that the applicant will have the support he needs if released into the community.
I find this the offer of employment and accommodation support weighs slightly against cancelling the bridging visa.
CONCLUSION

100. I find that the primary consideration regarding the Government’s view weighs in favour of cancelling the applicant’s bridging visa, and the best interests of children in Australia does not apply. In accordance with cl 5.1(3) of the Direction, primary considerations should generally be given greater weight than any secondary considerations.
101. Of the secondary considerations, the hardship experienced by the applicant and the consequences of cancellation weigh moderately significantly against cancelling the bridging visa.
102. The other matters raised by the applicant, being his future work opportunity and accommodation in the community weigh only slightly against cancelling the bridging visa.
103. The circumstances in which the ground for cancellation arose and the applicant’s criminal convictions in 2016 and 2018 weigh significantly in favour of cancelling the bridging visa, and I find they outweigh the considerations against cancellation.
104. Having regard to the circumstances as a whole, and applying the guidance and principles in the Direction, I have concluded that the applicant’s bridging visa should be cancelled.
DECISION
105. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Karen Vernon
Senior Member

[2023] AATA 2225

18 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Charge