2300726 (Migration)

[2023] AATA 2222

2300726 (Migration) [2023] AATA 2222 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2300726

MEMBER:R. Skaros

DATE:1 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 February 2023 at 10:45am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with an offence – unlawful assault – threat to kill – damage to property – assaulting a police officer – consideration of discretion – Direction No.63 – the government’s view – best interests of any children – impact on the family unit – degree of hardship – circumstances in which the non-compliance arose – possible consequences of cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 December 2017 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).

2. The applicant is a [age]-year-old a citizen of Iran. He travelled to Australia by boat as an unauthorised maritime arrival in February 2013. He was granted a Bridging E visa on 14 November 2016 which was valid until 20 August 2017. While holding that visa, in January 2017, the applicant was charged with several offences by Victoria police. In July 2017, he was formally warned by the Department regarding his conduct.

3. On 26 August 2017, the applicant was granted a further Bridging E visa. The delegate cancelled that visa under s 116(1)(g) of the Act on the basis that the applicant had been charged with further offences. The applicant attempted to apply for review of that decision on 12 January 2018, however the Tribunal (differently constituted) found it did not have jurisdiction to conduct a review. On 19 January 2023, the applicant was renotified of the decision to cancel the Bridging E visa as the Department considered the initial notification to be defective. The applicant applied for review on 20 January 2023, and the Tribunal is satisfied that it has jurisdiction to conduct a review in respect of that decision. The applicant provided a copy of the Notice of Intention to Consider Cancellation (NOICC) (Form 1099) and a copy of the delegate’s decision record to the Tribunal.

4. The applicant appeared before the Tribunal on 30 January 2023 by video from the Melbourne immigration detention facility to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A], who appeared by video from her home. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The Tribunal has before it a copy of the Department’s file which includes a certificate issued under s 376 of the Act. Prior to the hearing, the Tribunal sent a copy of the certificate to the applicant. At the hearing, the Tribunal informed the applicant of the existence of the certificate and explained that it was in relation to information, being the name of a person, contained in the Incident Report documents as the delegate who issued the certificate considered that disclosure of the person’s name may make them a potential target of violence. The Tribunal noted that as the named person was known to him, and as he was aware that statements had been made to the authorities by this person, it did not have concerns about disclosing to him that his partner, [Ms A], was the named person. The Tribunal also disclosed to the applicant, using the procedure in s. 359AA, information in the Incident Report relevant to issues in the review.

6. When asked if he had any issues with the validity of the certificate, the applicant said he agreed that it was valid.

7. The information that the Department wished to withhold from the applicant, as indicated by the s 376 certificate, was the identity of the applicant’s partner who had provided details to the applicant’s case manager about the applicant’s conduct and incidents which the applicant’s partner had also reported to police. The Tribunal is satisfied that the certificate provides a valid reason for keeping the information confidential, however, in the circumstances of this case, the Tribunal considered it appropriate to disclose the information to the applicant as it was relevant to several issues the Tribunal must consider.

8. Prior to the hearing, the Tribunal received a detailed statement, dated 26 January 2023, from the applicant. The Tribunal has relevantly considered the claims and evidence made in that statement further below.

9. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

10. 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

11. 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?

12. 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. It provides that a visa may be cancelled, in the case of a holder of a Bridging E visa, if the Minister is satisfied that the holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.

13. The delegate’s decision record referred to an attachment which detailed the offences that the applicant had been charged with. The applicant did not provide a copy of that attachment. In his statement, the applicant referred to some of the incidents which led to the charges but did not provide details of the charges. At the hearing, the applicant could not recall all the offences he had been charged with prior to the issuing of the NOICC. Using the procedure of s.359AA, the Tribunal particularised the offences with which the applicant had been charged, including the following:

    ·January 2017 -  3x unlawful assault, make threat to kill intending fear and criminal damage.

    ·August 2017 – possess a controlled weapon without excuse.

    ·November 2017 - make threat to kill – intending fear.

    ·December 2017 – make threat to kill, commit an indictable offence whilst on bail, recklessly cause injury and assault a police officer.

14. The applicant did not dispute the information put to him and proceeded to give evidence regarding the circumstances which led to him being charged. The applicant also provided details of the outcome of some of the charges. The Tribunal has had regard to the applicant’s evidence as part of its consideration of the discretion further below.

15. For the purposes of determining whether the ground of cancellation exists, the Tribunal is satisfied that the applicant, who was the holder of a Bridging E visa, had been charged with various offences against a law of the state of Victoria.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and 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

17. 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.

18. 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.

19. 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.

20. 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.

21. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and any additional relevant matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    Primary considerations

    The government’s view

22. The government’s view is that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in cl 6 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] The Tribunal is mindful that it 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.[3]

    [1] Clause 6(1)(a) of Direction No 63.

    [2] ACH15 v MIBP [2015] FCCA 1250 at [28]–[31].

    [3] ACH15 v MIBP [2015] FCCA 1250 at [33].

23. In this case, the applicant has been charged with numerous offences, including unlawful assault, threat to kill, damage to property, committing an indictable offence whilst on bail, causing injury and assaulting a police officer, some of which he has been convicted and received a custodial sentence. In his statement, the applicant said he had been sentenced to a total of 16 months imprisonment, with a non-parole period of 10 months, after he and [Ms A] were seen arguing and yelling at each other outside [named accommodation] and the police were called. When asked which offences the conviction related to, the applicant said threats to kill, damage to property and assaulting a police officer. When asked if he was referring to the December 2017 charges, the applicant indicated he was. The applicant also gave evidence that in 2018, which was after his visa had been cancelled, he was charged with breaching a contravention order for which he received two months imprisonment with one month to be served concurrently. He said he was in prison at the time, and it related to phone calls between himself and [Ms A] during which he used swear words.

24. The Tribunal has considered the circumstances which led to the visa being cancelled further below. In relation to the government’s view, the Tribunal considers that the offences for which the applicant has been charged, in respect of each instance of non-compliance, weigh strongly in favour of cancelling the applicant’s visa.

    The best interests of any children

25. The applicant is not the father of any children who are under 18 years of age. When asked if there were any children in Australia who may be affected by the cancellation of his visa, he said his sister’s children. The applicant gave evidence that he has a sister in Australia who is married with [number] children. He said he and his sister’s children like each other and have a good relationship. His sister calls him every fortnight, including by video, and he gets to speak to the children. They are waiting for him to get out of detention. They visited him in detention on his birthday (in 2020 or 2021) and took him a cake.

26. The Tribunal accepts that the applicant has a good relationship with his sister’s children, that they look forward to his release from detention and that he speaks with them fortnightly when his sister calls him. The Tribunal accepts that it is in the children’s best interest to maintain contact with their uncle. The Tribunal considers, however, that the children can continue to have regular contact with the applicant, as they have been doing, via phone/video calls even if his visa remains cancelled. While it may not be of the same quality and nature as in-person contact, the Tribunal nevertheless considers that the phone/video communication can still be meaningful. The Tribunal gives some weight to this consideration in favour of not cancelling the visa.

    Secondary considerations

    The impact of a decision to cancel the visa on the family unit

27. The applicant gave evidence that he is still in a relationship with [Ms A]. The history of the relationship was set out in the applicant’s statement. He said they met in early 2014 via an online dating site, after which they started seeing each other. They started living together in December 2014. They lived together in various locations and shared living expenses. He worked on and off as a [Occupation 1] while [Ms A] worked in [Industry 1]. The applicant and [Ms A] moved into [named accommodation], but they were later informed that he was not permitted to live there. Consequently, the applicant became homeless. [Ms A] continued to support the applicant while he was living on the streets, including visiting him, taking food to him and staying with him. When the applicant was in prison, [Ms A] visited him about three times a week. She also continued to financially support him. After he was released from prison, he was transferred to Immigration detention. 

28. At the hearing, the applicant gave evidence that [Ms A] continues to visit him regularly in detention and that she financially supports him. He said [Ms A] has been waiting for over six years for him to get out of detention. He said if the law does not allow them to be together then they will remain separated, and he will not be able to support [Ms A].

29. In her evidence to the Tribunal, [Ms A] said she has been in a relationship with the applicant for 10 years. She said the police were involved, but they had a Safe Apprehended Violence Order (AVO) in place. She said the applicant was a loving and caring person and only started having issues when he started using drugs. She said they have been through a lot and have come so far. He has met her children and grandchildren. He gets along with her family, who understand that his behaviour was because of his drug use. She said the applicant worked with her son in law, who was a gardener. [Ms A] said that she has been visiting the applicant every day in detention. She puts money in his account so he can make calls. They talk about their future together. She said she suffers from depression and anxiety. The last 6 years have been the most difficult for her. She fears for the applicant’s safety in detention, as he was physically attacked by another detainee, and she had to call the ambulance to get him some help as the detention centre staff did nothing. [Ms A] said she really needs the applicant home so they can start building their life together.

30. The Tribunal notes that [Ms A’s] evidence was consistent with the applicant’s statement, in which he detailed his future plans with [Ms A], which included living together, sharing household chores, supporting each other, sharing expenses and getting married.

31. The Tribunal accepts the evidence given by the applicant and [Ms A] regarding the history of their relationship. The Tribunal accepts that the applicant and [Ms A] have been in a relationship since 2014 and that they would like to stay together. The Tribunal accepts that if the applicant’s visa is cancelled, he and [Ms A] will remain separated. The Tribunal accepts that the separation has been very difficult for [Ms A] who suffers from anxiety and depression. The Tribunal accepts that cancellation of the applicant’s visa will adversely impact [Ms A]. The Tribunal gives some weight to this consideration in favour of not cancelling the visa.

    The degree of hardship that may be experienced by the visa holder if the visa is cancelled

32. In his statement, the applicant said if his visa is cancelled, he will remain in detention and will not be able to apply for another bridging visa to enable him to leave detention and be with his family in the community. He said he has been in prison and/or detention for a period of over five years and that it has been extremely difficult. He was attacked by another detainee and was taken to [the] Hospital. He suffered major head injuries, including fractured bones around his face and eye socket. He has double vision in his left eye and has lost feeling to [one] side of his face. He misses being with [Ms A] and is worried about her.

33. The applicant stated that his mother and sister miss him and are worried about him. His father passed away when he was in detention and if something happens to his mother while he is in detention it will be very hard for his family. He would like to be in the community to support his sister who is living in Australia without the support of their mother who is in Iran. He said his sister has been struggling since the passing of their father. The applicant also has a brother in Australia. His brother has a partner but does not have any children. His brother does not visit him in detention, but they speak every one to two weeks. His mother is in Iran. He also has another sister in Iran and a sister in [Country 1].

34. The applicant gave evidence that being in detention is becoming harder for him each day. He has high cholesterol, high blood pressure and depression. He spends all day in his room, and he cannot return to Iran. He said his family members are worried about him, he wants to reunite with his family and the people he loves.

35. The Tribunal accepts that if the applicant’s visa is cancelled, he will remain in detention and will continue to experience psychological, emotional, physical, and social hardship. The Tribunal accepts that the applicant has medical issues, including depression, cholesterol, and blood pressure, as well as other physical ailments due to the injuries he sustained from the attack on him whilst in detention. The Tribunal accepts that the applicant would like to be in the community to support his partner and his sister. The Tribunal accepts that the applicant may not be able to apply for a further visa while in detention if his bridging visa is cancelled, and that the continued separation from his family and friends will exacerbate the emotional and psychological hardship he has experienced.

36. The Tribunal gives some weight to the hardship that may be experienced by the applicant in favour of not cancelling the visa.

    The circumstances in which the ground for cancellation arose

37. The ground for cancellation arose when the applicant was charged with criminal offences, several of which he has been convicted. In his statement, the applicant sought to provide his account of the events which led to him being charged. He believes his criminal offending was due to his homelessness, drug addiction and a depression. He said before becoming homeless he was already on medication (since 2014) for depression. While living on the street he did not know where to sleep and could not trust people. He started smoking synthetic cannabis to help with his depression, but it became a bad habit, and he could not manage his life. He became sick and angry at everyone due to his addiction. He was not able to see a psychiatrist or counsellor as he did not have his Medicare card. He was unsure if he lost it or if it expired.

1. He said during the time he was self-medicating for depression, he and [Ms A] sometimes argued with each other. In the first incident, they were arguing, and he broke her [specified] figurine which led to him being charged with damaging property. He said an Intervention Violence Order (IVO) was put in place. He had to complete an anger management course and [Ms A] requested that the IVO be lifted. Subsequently, the IVO was changed to a Safe AVO meaning they could live and be together but could not fight.

2. The applicant said the next incident of criminal offending occurred during this time when he was homeless. He recalls feeling paranoid and thought [Ms A] had his medication in her purse and did not want to give it to him. The Safe AVO was still in place, and they were seen arguing and yelling at each other outside [named accommodation]. The police were called, and he was arrested. He was sentenced to a total of 16 months imprisonment, with a non-parole period of 10 months. He said [Ms A] later told him that she did not want to press charges and was pressured to give a statement.

3. The applicant said that during 2018, while he was in prison, the police had a search warrant and were listening to his calls in prison. He used some swear words during two calls with [Ms A], on 4 February 2018 and 28 August 2018, for which he was charged with contravening the intervention order that was in place. He pled guilty and believes these were the charges that led to his Bridging E visa being cancelled. The applicant was sentenced to two months imprisonment, with one month to be served concurrently. In May 2019, after serving his prison sentence, including the parole period, the applicant was transferred to Immigration detention (MITA).

4. The applicant said he regrets his previous offences and is sorry for his actions. He said [Ms A] has supported him while he has been in prison and detention. They love each other and he regrets using aggressive language towards her on the phone. When he was in prison, he was still struggling with drug addiction issues and depression. He was not getting support for his mental health and addiction. He requested to go on methadone but was advised by the prison GP that it would be difficult to come off it. He thought he would get out of prison and get help in the community, so decided not to go on the methadone program at that time. After he was transferred to Immigration detention, and realised he was not getting out soon, he requested to go on methadone, though that took two years for to be approved after [Ms A] contacted the Ombudsman.

5. The applicant said during the time of his offences, he was struggling with anger management issues relating to his addiction and withdrawal symptoms. He believes his withdrawal symptoms contributed to using aggressive language on the phone with [Ms A] during the calls. He said he no longer uses illicit drugs and is currently being treated via injections. He went into prison in 2017 and was not placed on methadone until early 2021. The applicant said he feels like a completely different person, he feels calm and able to think clearly and reflects on his behaviour and manages his emotions.

6. At the hearing, the Tribunal informed the applicant that it did not have the police facts sheets relating to the offences with which he had been charged, but it had several incident reports, an early criminal history report and other information on the Department’s file relating to some of the incidents and charges, which it would particularise for him using the procedure in s 359AA. It also put to the applicant other information before it, as recorded in the cancellation decision, which indicated he had been formally warned by the Department, following the first lot of charges, that any further charges would result in his visa being cancelled.

7. The applicant’s June 2017 criminal history report indicates that in May 2017 (in respect of the offences of unlawful assault (recklessly cause injury x3) and criminal damage/intent to damage and destroy, the Court issued, without conviction, a 12 month community corrections order and required the applicant to attend several drug rehabilitation and men’s behaviour programs. The incident report, dated September 2016, stated that information received by the applicant’s case manager, suggests that the applicant had physically, financially and emotionally abused his partner ([Ms A]) since the start of 2016. It stated that the applicant had been using the drug Ice, grabbed [Ms A] around the throat, left marks on her neck and physically attacked her. It states that [Ms A] had been financially supporting the applicant, and that when he took her bank card to withdraw some money, he withdrew all the money she had in her account.  It states that the applicant had isolated her from her family and friends, including deleting contacts from her phone and that her adult children and grandchildren did not visit her because of the applicant’s behaviour. He had threatened he would get his mother to put a curse on her.

8. In a subsequent incident report, which included similar allegations, it was noted that the incident had been reported to the police. Relevantly, the Tribunal explained to the applicant that the information may be relevant to the circumstances which led to him being charged with the offences. It also noted that the conduct, which the Tribunal considered to be serious, weighs in favour of his visa being cancelled.

9. In his response, the applicant said on the day of the first incident (in 2016), they had an argument. He was on drugs and had depression, which he still suffers from. He was working on a [specified] job with [Ms A’s] son in law and after they returned home, it was said that the lady of the house was interested in him, which was not the case. He said [Ms A] asked him if they were friends and he told her they were not. An argument ensued and she pushed him, and he could not help himself and retaliated. He said it was during this incident (2016) that he broke the [specified] statue. He said he is sorry for his actions.

10. The Tribunal noted that following the first lot of charges, in January 2017, which related to the unlawful assaults on [Ms A], he was formally warned by the Department (and counselled) that any further offences would result in his bridging visa being cancelled. The applicant confirmed this was the case, but said his situation was hard, he was living on the street, was addicted to drugs and did not know the law, though he understands this is not an excuse for his behaviour. The applicant said he had never stopped [Ms A] from seeing her family, they all had a good relationship and saw each other regularly.

11. When asked about the charges which led to him being convicted of 16 months of imprisonment, including the non-parole period of 10 months, the applicant said they related to the charges of threatening to kill, damaging property, causing injury, and assaulting a police officer. The Tribunal observed that they appear to be the offences for which he was charged in December 2017, just before cancellation of his visa on 22 December 2017.

12. The Tribunal asked the applicant about the 2018 charges, for which he was convicted to two months imprisonment, as mentioned in his statement. The applicant said his calls were being monitored in prison and he swore while speaking to [Ms A] on the phone. When asked for further details, he said [Ms A’s] father was sick in hospital and she was crying when she was speaking to him on the phone, and he was using some swear words. The Tribunal noted that it was unusual to comfort someone who was upset by swearing at them. The applicant said he was sorry, he did not intend it, he was in prison and still had an addiction.

13. The Tribunal has carefully considered the evidence before it regarding the circumstances which led to the applicant being charged with offences. The Tribunal acknowledges that the applicant was not convicted of all the offences for which he was charged (as listed above), however, he was convicted of some of those offences, the most serious of which resulted in him being sentenced to 16 months of imprisonment, with a non-parole period of 10 months. The Tribunal considers this to be significant.

14. The Tribunal has considered the applicant’s explanation, including that he was homeless, had depression and was addicted to drugs. While this may explain the applicant’s conduct, in the Tribunal’s view it does not excuse it, particularly in circumstances where the applicant was put on notice, via a formal warning in July 2017, that any further charges would lead to his Bridging visa E being cancelled. The Tribunal notes that at the time he received the warning the applicant was the subject of a community corrections order and was required to undergo drug rehabilitation and behaviour management programs. The Tribunal considers that at the time, the applicant could have taken the warning seriously, sought assistance for his addiction and made efforts not to engage in conduct that would result in further charges being laid against him. However, following the warning, the applicant engaged in conduct which led to him being charged with further offences in August 2017, November 2017, and December 2017.

15. The Tribunal does not consider the circumstances in which the ground for cancellation arose were due to the factors beyond the applicant’s control. The Tribunal gives significant weight to this factor in favour of cancelling the applicant’s visa.

    The possible consequences of cancellation

16. In his statement, the applicant said that if his visa remains cancelled, he will not be able to apply for another bridging visa to allow him to leave detention. He claims he cannot be returned to Iran due to his fear of harm, and that he faces the prospect of remaining in detention indefinitely. The applicant said he would also be barred from applying for a further visa due to being an unauthorised maritime arrival. He is also barred from applying for a further protection visa whilst in Australia because he has already made an application for a protection which has been refused.

17. The applicant stated that he intends to lodge a request to the Minister seeking the Minister’s intervention to allow him to lodge a visa onshore so he can be sponsored by his partner, [Ms A], or based on his claims for protection. He said requests to the Minister can take up to three years to be processed. He said if his bridging visa remains cancelled, he will not be able to apply for a bridging visa to allow him to live with family in the community while waiting for the Minister to consider his requests.

18. The Tribunal accepts that as an unauthorised maritime arrival, the applicant has very limited options now that he has exhausted all his appeal options in relation to the refusal of his protection visa application. If the visa is cancelled, the applicant will remain in detention until he either voluntarily departs Australia or is granted another visa. Presently, the applicant is not eligible to make an application for any other visa and will only become eligible to do so if the Minister lifts the bar and permits him to lodge an application onshore. At the time of the hearing, the applicant had not yet made the request to the Minister but indicated an intention to do so. The Tribunal notes that the applicant can still make the request for the Minister to lift the bar whilst he is in immigration detention. The Tribunal acknowledges that this may take a long time to process and, if his bridging visa is cancelled, he will have to remain in detention until the outcome of that request.

19. The Tribunal notes that the decision to cancel the applicant’s visa will not necessarily result in him being returned to Iran given he still intends to lodge a request to the Minister to lift the bar to enable him to lodge a further application onshore.

20. The Tribunal accepts that if the visa is cancelled the applicant will likely remain in detention for an indefinite period. The Tribunal considers however that these are the consequences of the legislative provisions and is an outcome foreseen by Direction No. 63 in respect of applicants who have been charged or convicted with an offence. The Tribunal gives little weight to the possible consequences of cancellation in favour of not cancelling the visa.

    Any other matter considered relevant

21. The applicant said he is sorry for his conduct and that he is now getting treatment and, if he is released, he will not commit any further offences. [Ms A] said she does not fear the applicant, she wants him to come home, they have plans to marry, build a house and a life together. She believes he is a low risk of re-offending. She said she speaks to the applicant’s family when he speaks with them on video. She said the applicant’s family needs him. She said the applicant’s father passed away when the applicant was in detention and because it was during COVID-19 restrictions she was unable to be there to support him. She said the applicant has her full support.

22. The Tribunal acknowledges that the applicant has been getting treatment, including methadone injections, whilst in detention and that he has the support of [Ms A]. The Tribunal acknowledges the difficulties experienced by the applicant and [Ms A], some of which have been discussed above, because of the applicant’s prolonged detention and physical separation from family.

23. There is limited evidence before the Tribunal regarding the applicant’s risk of re-offending, though it is prepared to accept that it is now lower than in the past, given he is getting treatment for his drug addiction, which he has indicated was the cause of his offending. The Tribunal gives some weight to these factors in favour of not cancelling the visa.

    Relevant policy considerations

24. The purpose of the applicant’s travel and stay in Australia, and whether he has a compelling need to remain in Australia: In his statement the applicant said he arrived in 2013 as an unauthorised maritime arrival after fleeing from Iran. He was subsequently granted a Temporary Protection (Subclass 785) visa. On 21 September 2017, he applied for a Safe Haven Enterprise (Subclass 790) visa. That application was refused by the Department on 28 August 2018. The applicant applied to the Immigration Assessment Authority (IAA) for review of that decision. However, on 13 November 2018, the IAA affirmed the Department’s decision to refuse to grant the Subclass 790 visa.

25. The applicant applied for judicial review of the IAA decision. [In] June 2020, the Federal Circuit Court dismissed the application. [In] April 2021, the Federal Court of Australia also dismissed the appeal of the decision of the Federal Circuit Court.

26. The applicant said he fears harm for reasons of his Christian faith, his actual or imputed political opinion, his ethnicity, membership of the Bakhtiari family, and his status as a returnee from a Western country if returned to Iran, details of which are set out in his protection visa applications.

27. The Tribunal accepts that the applicant travelled to Australia to seek protection. The applicant’s claims for protection have, however, been assessed and he was found not to be owed protection. He appears to have exhausted his review options in respect of that decision.

28. The applicant has indicated that he intends to make a request to the Minister to lift the bar and enable him to lodge a further application onshore either for a partner visa (on the basis of his relationship with [Ms A]) or a protection visa. As discussed above, the Tribunal considers that the applicant can make such a request whilst he is in detention. For these reasons, the Tribunal gives limited weight to this consideration in favour of not cancelling the visa.

29. The extent of compliance with visa conditions: the delegate’s decision record indicates that the applicant’s Bridging E visa was subject to condition 8564 which required the applicant not to engage in criminal conduct. Some of the offences, for which the applicant was charged and convicted, were committed whilst the applicant was the holder of the Bridging E visa: he has therefore not complied with a condition of his Bridging E visa. The Tribunal gives weight to this consideration in favour of cancelling the visa. 

30. The Tribunal notes that other relevant considerations set out in the policy have already been discussed in some detail above as they overlap with the specified primary and secondary considerations, which the Tribunal must take into account as required by Direction No. 63.

    Conclusion

31. The Tribunal, as guided by Direction No. 63, has carefully considered all the evidence before it and weighed up the consideration for and against cancellation of the applicant’s Bridging E visa. While there are several circumstances which favour non-cancellation of the visa, the Tribunal considered that these were outweighed by the circumstances in favour of cancelling the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    R. Skaros
    Senior Member