2302765 (Migration)

[2024] AATA 2289

2302765 (Migration) [2024] AATA 2289 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2302765

MEMBER:Michael Ison

DATE:09 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 09 May 2024 at 4:53pm

CATCHWORDS 
MIGRATION – Cancellation – Subclass 010 (Bridging A ) visa – criminal conviction – applicant has been convicted of over 30 criminal offences in [deleted] – holds a Bridging E visa which will not be affected by the decision of the Tribunal in this review – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 362, 375
Migration Regulations 1994, r 2.43, Schedule 2

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 17 February 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr [A], who is a [age]-year-old national of India. [Mr A] is referred to as the applicant in these reasons for decision.

3. The applicant first arrived in Australia on [date] March 2016 as the holder of a Student (Subclass 573) visa as a member of the family unit of his [wife], who was the primary visa holder.

4. The applicant has not departed Australia since his first arrival and has held, in order of grant, the following visas in his time in Australia:

   ·September 2018 – Bridging A (Subclass 010) visa with condition 8104 attached;

   ·October 2018 – Student (Subclass 500) visa as a dependent of his wife with conditions 8104, 8201, 8501 and 8516 attached;

   ·September 2019 – Bridging A visa with condition 8105 attached;

   ·December 2019 – Temporary Graduate (Subclass 485) visa as a dependent of his wife with condition 8501 attached;

   ·June 2021 – Bridging A visa with no conditions attached;

   ·March 2023 – Bridging E (Subclass 050) visa with no conditions attached;

   ·June 2023 - Bridging E visa with conditions 8207, 8506 and 8564 attached;

   ·October 2023 - Bridging E visa with no conditions attached; and

   ·February 2024 - Bridging E (Subclass 050) visa with conditions 8101, 8207, 8506 and 8564 attached.

5. The applicant continues to hold the Bridging E visa granted to him in February 2024.

6. In June 2021 the applicant applied for a Student (Subclass 500) visa with his wife [and] [age]-year-old daughter [as] secondary applicants as members of the applicant’s family unit. It was at the time of that application that the applicant, [his wife] and their daughter were granted Bridging A visas. It is the cancellation of the applicant’s Bridging A visa granted at that time that is the subject of this review.

7. The applicant’s relevant Bridging A visa was cancelled on 17 February 2023 and since then he has held a series of Bridging E visas. The Bridging A visas of the applicant’s wife and daughter were not affected by the cancellation of the applicant’s Bridging A visa.

8. The applicant and [his wife] told the Tribunal their applications for Student visas were refused in December 2023 and they have not sought a review of that decision.

9. On 14 December 2023 the applicant applied for a Protection visa with his wife and daughter as secondary applicants as members of the applicant’s family unit. Those applications have not been determined by the Minister or a delegate of the Minister at the date of this decision.

   The primary decision of a delegate of the Minister

10. The applicant provided the Tribunal with a copy of the primary decision.

11. The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) on the basis that the applicant has been convicted of criminal offences in [deleted]. The delegate found this meant there was a statutory ground for the cancellation of the applicant’s visa and the discretionary considerations that weighed in support of the cancellation of the applicant’s visa outweighed the discretionary considerations that weighed against the cancellation of his visa.

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

    First Tribunal hearing

13. The applicant was invited to appear before the Tribunal on 27 March 2024 but did not appear at the time and place on the invitation. On 27 March 2024 the Tribunal dismissed the applicant’s review under s 362B(1A)(b) of the Act with a right for the applicant to seek reinstatement of his review within two weeks.

14. On 9 April 2024 the applicant emailed the Tribunal seeking reinstatement of his review and provided a medical certificate stating the applicant had a medical condition on the day of the scheduled Tribunal hearing. The Tribunal reinstated the applicant’s review.

    Second Tribunal hearing following reinstatement of the applicant’s review

15. The applicant appeared before the Tribunal on 8 May 2024 to give evidence and present arguments, in person. The Tribunal also received oral evidence from [his wife], the applicant’s wife. The applicant was not represented during this review.

16. At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant that it would seek submissions from the applicant toward the end of the Tribunal hearing on any matter the applicant considered relevant to the applicant’s review.  

    Pre-hearing submissions

17. The applicant provided a one-page typed statement and a receipt for an application for an updated National Police Certificate prior to the Tribunal hearing.

    Post-hearing submissions

18. At the time of this decision, the Tribunal has not received any post-hearing submissions from the applicant.

    Section 375A certificate

19. The Department file includes a certificate issued under s 375A of the Act on 3 March 2023. The Tribunal handed the applicant a copy of the certificate at the hearing and also handed the applicant a one-page document prepared by the Tribunal explaining the purpose and effect of the certificate and summarising the material particulars of the 15 documents on the Department file the certificate applies to.

20. The Tribunal asked the applicant if he had any questions or comments about the certificate or the documents it applies to. The applicant did not. The Tribunal is satisfied the certificate has been validly executed, identifies relevant public interest reasons against the release of the information in the documents and therefore binds the Tribunal. The applicant has not applied to the Tribunal for a copy of the Department file.

    Disclosure of information during the hearing in accordance with the procedure set out in s 359AA of the Act

21. The Department file contained information that is potentially adverse to the applicant that was not provided to the Tribunal or the Department by the applicant.

22. In accordance with the procedure set out in s 359AA of the Act, the Tribunal read and also handed the applicant a copy of the following (emphasis in the original):

    359AA adverse information

    I need to share some information with you that is on the Department file that you have not provided to the Tribunal. I will give you an opportunity to respond to or comment on this information before I form a view about it.

    The particulars of the information are the details in the police brief of evidence about some of your offending.

    Your 5 March 2021 convictions related to the theft of goods from a supermarket.

    Your 15 April 2021 convictions related to the theft of $55 of goods from a supermarket.

    Your 29 April 2021 convictions related to the theft of $360 worth of goods from a supermarket.

    Your 21 June 2021 convictions related to the theft of $240 worth of electrical goods from a supermarket.

    Your 1 March 2022 convictions related to you driving a vehicle erratically whilst unlicensed, admitting you were using your hand-held mobile phone while driving and being found in possession of both methylamphetamine known as ice and heroin.

    Your 1 June 2022 convictions related to the theft of $2,527.45 of goods from a supermarket.

    Your 8 July 2022 convictions related to the theft of $558 of goods from a supermarket.

    At the time of these offences the police allege you were on five separate counts of bail arising from previous matters and your conditions of bail included not attending the supermarkets you attended to commit further offences.

    Information from the Department indicates that on 22 December 2023 you were convicted of further offences of theft, commit indictable offence whilst on bail, contravene conduct condition of bail and driving whilst disqualified and were sentenced to 166 days imprisonment. You were released from prison on 5 February 2024, so your sentence included time you were held on remand.

    This information is relevant to your review because it confirms you have been convicted of over 30 criminal offences in [deleted], which establishes there is a ground to cancel your visa.

    This information is also relevant to the Tribunal’s consideration of the discretion whether to cancel your visa or not, in particular the consideration of the circumstances in which cancellation arose and whether there were any extenuating circumstances beyond your control.

    Do you understand the relevance of the information to your review?

    If the Tribunal relies on the information it has shared with you it could form the view that you are addicted to illegal drugs, your repeat offending including repeat breaching of bail conditions indicates you have little regard for Australian law and the circumstances of your offending indicate there were no extenuating circumstances beyond your control that has led to the grounds for the cancellation of your Bridging A visa existing. If the Tribunal makes these findings it could lead the Tribunal to give the consideration of the circumstances in which the cancellation of your visa arose great weight in favour of cancellation.

    This would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

    Do you understand the consequences for your review if the Tribunal relies on the information it has shared with you?

    Shortly I am going to invite you to comment on or respond to the information I have shared with you, but you do not have to do so straight away. If you would like additional time to consider the information before commenting upon it or responding to it.

    Would you like additional time to consider the information?

23. The applicant indicated at the relevant times that he understood the relevance of the information the Tribunal shared with him to his review and also understood the consequences for his review if the Tribunal relied on the information. The applicant did not seek additional time to consider the information the Tribunal shared with him before responding to or commenting upon that information, as detailed below.

    Tribunal decision

24. The Tribunal has had regard to the oral evidence of the applicant and [his wife] and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a Notice of Intention to Consider Cancellation of a visa (NOICC) dated 13 December 2022 and the applicant’s response to the NOICC on 26 January 2023 and 3 February 2023 which included a two-page typed response.

25. 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

26. 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) and reg 2.43(1)(oa). 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?

    s 116(1)(g) - prescribed ground

27. 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 Regulations.

28. In the present case, the ground in reg 2.43(1)(oa) is relevant which provides:

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

29. The applicant did not contest that there is a ground for the cancellation of his visa.

30. The primary decision records in summary form that the applicant has been convicted of the criminal offences in [deleted] set out in Attachment One to this decision. During the Tribunal hearing the applicant confirmed that he was convicted in the Magistrates’ Court of [deleted] on 22 December 2023 of further offences of theft, commit indictable offence whilst on bail, contravene conduct condition of bail and driving whilst disqualified from doing so with a sentence of 166 days imprisonment imposed, which the applicant has served in full.

31. The Tribunal finds that the applicant has been convicted of over 30 criminal offences in [deleted] in September 2022 and December 2023 for offences committed in March, April, May, June and July of 2021 and March, June and July of 2022 and on other dates unknown to the Tribunal.

32. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) 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

33. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has 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’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

34. The applicant arrived in Australia in 2016 to accompany his wife as an international student. Since then, the applicant and his wife have pursued lawful pathways to obtain permanent residency in Australia. However, based on the oral evidence of both the applicant and [his wife], they have not been successful in obtaining permanent residency in Australia.

35. The applicant told the Tribunal he obtained a [qualification] and then commenced his own business, employing up to six workers prior to the emergence of the COVID-19 global pandemic. The applicant’s evidence is the effect of government responses to the COVID-19 global pandemic was devastating to his business and his family as the applicant had to close his [business] and [his wife] lost her employment. The applicant’s evidence is that he had no criminal matters or convictions prior to the COVID-19 global pandemic and the Tribunal accepts that evidence.

36. In his response to the NOICC the applicant said he also had a motor vehicle accident when he was uninsured, and the costs associated with that accident drained the savings he and his wife had accumulated. The applicant provided photos of his damaged vehicle. The applicant claims this added to the financial stress he and his wife were under, which the Tribunal accepts.

37. The Tribunal also accepts that the applicant wishes to remain in Australia to pursue obtaining permanent residence with his wife and daughter.

38. For present purposes, the Tribunal finds that the purpose for which the applicant was granted the Bridging A visa – to allow the determination of his application for a Student visa – no longer exists as that visa application has been finally determined.

39. In December 2023 the applicant applied for a Protection visa. The applicant claims it is unsafe for him and his family to return to India. The applicant told the Tribunal he has a younger brother who has been charged with murder in India and is currently being held in prison waiting for his trial. The applicant told the Tribunal his brother had a girlfriend in India who was forced by her family to marry another man and it is alleged his brother murdered his girlfriend’s husband. As a result of those allegations, the applicant claims the family of the deceased man have told his family in India that if the applicant ever returns to India or his brother is ever released from prison, they will be killed in retaliation for the loss they have caused that family.

40. The Tribunal does not know when the alleged murder was committed or when the applicant’s brother’s trial in India is likely to commence.

41. However, as the applicant has lodged an application for a Protection visa and that application has not been finally determined the Tribunal finds that the applicant has a compelling reason to remain in Australia.

42. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.

    The extent of the applicant’s compliance with their visa conditions

43. There is no information before the Tribunal to indicate the applicant has ever been found to have breached any condition attached to any of the nine visas he has held.

44. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

45. The applicant claims that cancellation of his Bridging A visa will cause him and [his wife] emotional hardship and them and their respective family members financial hardship.

46. The applicant’s evidence is he and his family are supported financially by his parents in India and by [his wife]’s brothers, one of whom lives in Melbourne and is married with a young daughter and the other of whom lives in [Country 1] where he has been financially successful and is their main financial supporter. The applicant also has a sister in [Country 1].

47. The applicant told the Tribunal if his Bridging A visa is not cancelled then he will have the right to work in Australia which will alleviate their present financial difficulties and the need for family members to financially support them. The difficulty for the applicant is that the pending decision on the substantive visa for which the Bridging A visa was granted, has now been made and finally determined with a refusal. This means even if the Tribunal finds the applicant’s Bridging A visa should not be cancelled it will not be reinstated to the applicant because the purpose of that Bridging A visa – a pending decision on the applicant’s Student visa application – no longer exists.

48. The applicant also has the right to apply for a Bridging E visa without a condition attached restricting his work rights in Australia pending the resolution of his application for a Protection visa.

1. The Tribunal obtained records in relation to the applicant from the Department’s internal database known as the Integrated Client Services Environment or ICSE. The applicant’s ICSE record includes the following case note in relation to the Bridging E visa granted to the applicant in February 2024:

   [Mr A] stated that he would need to work to feed his family, however ABF officer [name deleted by the Tribunal] informed [Mr A] that condition 8101 (No Work) will be imposed on this bridging visa, but if he wants to work while in Australia, he can apply for a permission to work separately and that would be assessment (sic) later.

2. During the Tribunal hearing the applicant appeared unaware of his right to apply for a Bridging E visa without a condition attached restricting his right to work in Australia. The Tribunal indicated to the applicant he should speak to the Department about this or seek immigration advice.

3. [His wife] gave evidence that was consistent with the applicant’s evidence about their family members in Australia and overseas and the financial support they provide. [His wife] told the Tribunal her mother is a widower of many years, is supporting elderly parents and so is not able to provide any financial assistance to [his wife] or the applicant.

4. The applicant told the Tribunal he does not have any known mental health conditions and is not presently taking any medication other than Suboxone. The applicant explained to the Tribunal that one of Suboxone’s active ingredients is buprenorphine which helps fights the symptoms of opioid withdrawal. The applicant told the Tribunal he has not used either heroin or methamphetamine since he was most recently imprisoned and receives a dose of Suboxone from his general practitioner every three weeks.

5. The Tribunal recognises that the applicant has been in Australia since 2016 and has adapted to life here. The applicant’s evidence, confirmed by [his wife] in her oral evidence, is that the applicant and [his wife] have not departed since their arrival.

6. The Tribunal finds that the cancellation of the applicant’s visa will cause the applicant and [his wife] considerable emotional hardship.

7. The Tribunal does not find that the cancellation of the applicant’s visa will also cause the applicant or his family members significant financial hardship because of the Tribunal’s view that even if it decides the applicant’s Bridging A visa should not be cancelled it will not be reinstated and will not re-enliven his right to work in Australia.

8. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa but in the applicant’s specific circumstances the Tribunal gives this consideration only some weight.

   The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

9. The applicant’s extensive criminal history has led to the cancellation of his third Bridging A visa.

10. In response to the information the Tribunal shared with the applicant that is reproduced in paragraph 24 of these reasons, the applicant told the Tribunal he began using heroin once or twice a week as a coping strategy for the physical demands of the [business] he ran prior to the emergence of the COVID-19 global pandemic. The applicant told the Tribunal he did not consider this criminal behaviour, obtained the heroin on his way to work and while he was using heroin, he otherwise remained law abiding because he remained fearful of breaking the law.

11. The applicant told the Tribunal that it was very stressful when the COVID-19 global pandemic emerged and he had to close his business as all its work had disappeared, leaving close to AUD30,000 worth of the applicant’s equipment [at] the time. Shortly after, the applicant’s wife [also] lost her employment.

12. The applicant further told the Tribunal he switched from using heroin to using methamphetamine because it was cheaper than using heroin. The applicant’s evidence is when he began using methamphetamine, he was soon using it every day and that is when he began his criminal offending as he no longer feared the consequences of breaking the law because of his addiction to and use of methamphetamine.

13. The applicant told the Tribunal he initially stole goods from supermarkets to provide for his family but that escalated to stealing goods to sell for cash to fund paying for methamphetamine because of his addiction.

14. The applicant’s evidence is he first began receiving treatment using buprenorphine for his methamphetamine addiction in prison when he was imprisoned in 2023 (for 166 days being released in February 2024), he has not used methamphetamine or heroin since and has not committed any further criminal offences.

15. The Tribunal accepts the applicant’s evidence in relation to his drug use and addiction and the impact of the COVID-19 global pandemic on his and [his wife]’s employment and financial circumstances. The Tribunal finds that these circumstances, including the applicant’s addiction to and use of methamphetamine and related criminal offending, are not extenuating circumstances beyond his control that led to the ground for cancellation of his visa arising.

16. The applicant had choices about how to respond to his financial circumstances during and after the COVID-19 global pandemic as is evident by the ongoing financial support he and [his wife] have been able to arrange in more recent times from family members.

17. The Tribunal views the applicant’s addiction to methamphetamine through the lense of the medical model of addiction which considers addiction to be a disease with biological, neurological, genetic and environmental sources of origin rather than a personal or moral failing on the part of the addicted person. This model recognises the need for ongoing treatment of addiction and the likelihood of one or more relapses back into addicted behaviour by the addicted person.

18. The fact that the applicant chose to commit frequent and repeated criminal offences, in part to fund his drug use, are matters for which the criminal justice system has found he is morally culpable and were not outside of his control, as reflected in his conviction for over 30 criminal offences in [deleted], some of which were not addiction or drug use related.

19. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and in the circumstances set out above the Tribunal gives this consideration great weight.

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

20. The applicant participated in the cancellation process in a timely and co-operative manner, including responding to the NOICC.

21. The Tribunal found the applicant to be an open, frank and honest witness. There is no evidence before the Tribunal that the applicant has been untruthful or uncooperative toward the Department or its officers.

22. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

23. The applicant’s wife and daughter hold their own visas which will not be affected by the cancellation of the applicant’s Bridging A visa.

24. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

25. The mandatory legal consequences of a decision to cancel a visa usually include, in the absence of the former visa holder being granted another visa, that they become an unlawful non-citizen and could be detained under s 189 of the Act and in the absence of departing Australia voluntarily could be deported under s 198 of the Act. In those circumstances the former visa holder would also be prevented by s 48 of the Act from applying for other temporary visas while they remained in Australia. After the cancellation of their visa the former visa holder would also be subject to Public Interest Criterion 4013 (PIC 4013) which would result in them being prevented for three years from the date of cancellation from applying for a temporary visa to return to Australia, unless they could establish there were relevant compelling or compassionate or compelling circumstances.

26. The Tribunal finds that none of these consequences will apply to the applicant because he holds a Bridging E visa which will not be affected by the decision of the Tribunal in this review. This means even if the Tribunal in this review affirms the decision under review the applicant will not become an unlawful non-citizen and will not be at risk of being detained or deported.

27. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

28. Australia has obligations created by signing and ratifying international agreements including the Refugees Convention and the Refugees Protocol, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).

29. The obligations those agreements create on Australia relevant to the potential cancellation of the applicant’s visa include, in broad terms:

    ·To ensure someone who is found to be a refugee is not sent back to a country where their life or freedom would be threatened or to somewhere where there are substantial grounds for believing that person would be in danger of being subject to torture. This is known as to not refouler someone;

    ·To make decisions with regard to the best interests of any children as a primary consideration; and

    ·To preserve the integrity of the family unit unless separation is necessary to protect a child from violence, abuse or neglect.

30. A person is considered a child under the CRC if they are below the age of 18 years at the time of this decision. The applicant has one child below the age of 18 years: his daughter in Australia.

31. The applicant told the Tribunal that it is in the best interests of his daughter to be in Australia with the applicant and [his wife] for her safety given the threats they have been subject to if they return to India.

32. The applicant also told the Tribunal that he and his family cannot return to India for the reasons set out in paragraph 41 of these reasons.

33. As the applicant has applied for a Protection visa in which his wife and daughter are dependent applicants, the Tribunal finds that the applicant’s evidence about his fear of harm if he has to return to India and the best interests of his daughter will be assessed by the Department when assessing their applications for Protection visas. In the meantime, because the applicant holds a Bridging E visa pending the final resolution of his Protection visa application the Tribunal also finds the applicant is not at risk of being indefinitely detained in immigration detention or at risk of being deported from Australia or at risk of being separated from his family unit.

34. As a result of these findings the Tribunal finds that the cancellation of the applicant’s Bridging A visa:

    ·will not cause Australia to be in breach of its obligations to act in the best interests of the applicant’s daughter under the CRC and otherwise;

    ·will not cause Australia to be in breach of its obligations to not refouler the applicant or indefinitely detain the applicant under the Refugees Convention and Protocol or otherwise; and

    ·will not cause the applicant to be separated from his family unit.

35. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

36. The applicant’s Bridging A visa is a temporary visa. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Any other relevant matter

37. [His wife] told the Tribunal she is considering applying for a Student visa to be able to study [in] Australia. [His wife]’s evidence is she already has a [degree] from [a] University in India, for which she expects she will receive some credit if she enrols in a [course]. The Tribunal finds that [His wife]’s future plans in this regard will not be impacted by this review as she holds her own Bridging E visa.

38. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Conclusion

39. The discretionary consideration that weighs in support of the cancellation of the applicant’s Subclass 010 (Bridging A) visa is the circumstances in which the ground for cancellation arose, which the Tribunal has given great weight.

40. The discretionary considerations that weigh against the cancellation of the applicant’s Subclass 010 (Bridging A) visa are:

    ·The purpose of the applicant’s travel to and stay in Australia including that he has a compelling need to remain in Australia (significant weight);

    ·The applicant’s compliance with the conditions attached to the visas he has held (some weight);

    ·The degree of hardship the cancellation of the applicant’s visa would cause the applicant and his family members (some weight); and

    ·The applicant’s past and present behaviour toward the Department (some weight).

41. The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Subclass 010 (Bridging A) visa are:

    ·Whether cancellation of the applicant’s visa will cause the consequential cancellation of any other visa;

    ·The mandatory legal consequences of cancellation;

    ·Australia’s obligations under international agreements including obligations to act in the best interests of any children as a primary consideration and to not refouler someone who is a refugee;

    ·Whether the applicant’s visa is a permanent visa; and

    ·Any other relevant matter.

42. Considering the circumstances as a whole, the Tribunal considers that the discretionary consideration that weighs in support of the cancellation of the applicant’s Bridging A visa outweighs the discretionary considerations that weigh against the cancellation of that visa. This causes the Tribunal to find that the applicant’s Bridging A visa should be cancelled.

    DECISION

43. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Michael Ison
    Senior Member

    
    

    Attachment One – the applicant’s criminal convictions in [deleted] as summarised in the primary decision.

    (Abbreviations and errors in the original)

Court and Date	Conviction	Outcome/Sentence
Magistrates Court of [deleted] at [deleted] 27/09/2022	THEFT-FROM SHOP (SHOPSTEAL) – [DELETED] - 05/03/2021	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	FAIL TO ANSWER BAIL – [DELETED] - 29/07/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	THEFT-FROM SHOP (SHOPSTEAL) – [DELETED] - 21/03/2021	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHILST ON BAIL – [DELETED] - 21/03/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	THEFT-FROM SHOP (SHOPSTEAL) – [DELETED] - 15/04/2021	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	W/O AUTH/EXCUSE ENTER PRIVATE PLACE – [DELETED] – 15/04/2021	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHILST ON BAIL – [DELETED] – 15/04/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	THEFT – FROM SHOP (SHOPSTEAL) – [DELETED] – 29/04/2021	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.

Attachment One (continued) – the applicant’s criminal convictions in [deleted] as summarised in the primary decision.

Court and Date	Conviction	Outcome/Sentence
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHILST ON BAIL – [DELETED] – 29/04/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	CONTRAVENE A CONDUCT CONDITION OF BAIL – [DELETED] – 29/04/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	CONTRAVENE A CONDUCT CONDITION OF BAIL – [DELETED] – 15/05/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	ATTEMPT TO COMMIT INDICTABLE OFFENCE – [DELETED] – 21/06/2021	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHILST ON BAIL – [DELETED] – 21/06/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	CONTRAVENE A CONDUCT CONDITION OF BAIL – [DELETED] – 21/06/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	CONTRAVENE A CONDUCT CONDITION OF BAIL – [DELETED] – 21/06/2021	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	POSSESS METHYLAMPHETAMINE – [DELETED] - 01/03/2022	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	POSSESS HEROIN – [DELETED] – 01/03/2022	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.

Attachment One (continued) – the applicant’s criminal convictions in [deleted] as summarised in the primary decision.

Court and Date	Conviction	Outcome/Sentence
Magistrates Court of [deleted] at [deleted] 27/09/2022	DEAL PROPERPTY SUSPECTED PROCEED OF CRIME – [DELETED] – 01/03/2022	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	DRIVE MOTAR VEHICLE – IMPAIRED BY DRUG – [DELETED] – 01/03/2022	With conviction, fined $600.00 as part of an aggregate order
Magistrates Court of [deleted] at [deleted] 27/09/2022	UNLICENSED DRIVING – [DELETED] – 01/03/2022	With conviction, fined $600.00 as part of an aggregate order
Magistrates Court of [deleted] at [deleted] 27/09/2022	USE HAND HELD MOBILE PHONE – VEH MOVING – [DELETED] – 01/03/2022	With conviction, fined $600.00 as part of an aggregate order
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHILST ON BAIL – [DELETED] – 01/03/2022	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	THEFT-FROM SHOP (SHOPSTEAL) – [DELETED] – 01/06/2022	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	THEFT-FROM SHOP (SHOPSTEAL) – [DELETED] – 08/07/2022	Convicted and a Community Correction Order for a period of 12 MONTHS. Order commence 27/09/2022. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHISLT ON BAIL – [DELETED] – 01/06/2022	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	COMMIT INDICTABLE OFFENCE WHILST ON BAIL – [DELETED] – 08/07/2022	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence.
Magistrates Court of [deleted] at [deleted] 27/09/2022	CONTRAVENE A CODUCT CONDITION OF BAIL – [DELETED] – 08/07/2022	Convicted and sentenced to an imprisonment term of 58 DAYS. Aggregate sentence