Kirwa (Migration)

[2023] AATA 697

Kirwa (Migration) [2023] AATA 697 (23 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Newton Kipchirchin Kirwa

REPRESENTATIVE:  Mr Andrew Wun Nam Au

CASE NUMBER:  2111573

HOME AFFAIRS REFERENCE(S):          BCC2021/1144451

MEMBER:Deputy President Justin Owen

DATE:23 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 23 February 2023 at 10:50am

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – granted in conjunction with application for partner visa – criminal convictions, imprisonment fines and good behaviour bond – no response to tribunal’s invitations to comment, no substantive submissions made and consent to decision without hearing – discretion to cancel visa – relationship ceased, partner visa application refused and no application for review – visa would have ceased in any case – separate application for Bridging E visa refused and applicant currently unlawful non-citizen – offences committed at time of job loss, financial pressure, depression, stress medication and alcohol consumption – no treatment sought until after convictions – possible ongoing employment despite claimed job loss – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 359A, 360(2), (3), 375A

Migration Regulations 1994 (Cth), r 2.43(1)(oa), Schedule 2, cl 050.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g), reg 2.43(1)(oa) on the basis that the applicant was convicted of four offences in the State of South Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review.

4. On 2 September 2021 the Tribunal wrote to the applicant through his legal representative and advised them it had received an application for a review of the delegate’s decision to cancel his Subclass 030 (Bridging C) visa. 

5. On 16 January 2023, the Tribunal invited the applicant through his legal representative to attend a hearing via videoconference at the Perth Tribunal Registry to give evidence and present arguments relating to the issues in his case on 2 February 2023 at 11.00am Perth time.  The invitation stated that if the applicant did not attend the scheduled hearing, then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it. 

6. On 1 February 2023, the applicant responded to the invitation to hearing through his representative.  The applicant’s response to hearing selected the box ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. 

7. The Tribunal notes that the applicant has indicated that he has provided consent to the Tribunal to finalise the case without a hearing.  The Tribunal is satisfied that the necessary consent has been given under s 360(2) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.  

8. The Tribunal furthermore notes that the applicant has not made any substantive submissions to the Tribunal in relation to his case since applying for review of the delegate’s decision to cancel his Subclass 030 (Bridging C) visa (beyond administrative matters such as his MR5 form on 23 August 2022, his MR 6 form on 24 August 2022 and an earlier response to hearing form).  The Tribunal wrote to the applicant on 3 February 2023, both in relation to a s 375A certificate on the Departmental file, and inviting him to comment or respond to certain information under s 359A.  No submissions and no response were received from the applicant in relation to the Tribunal’s correspondence. 

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    Background to this review

11. The applicant is a 28-year-old Kenyan national.   

12. As outlined in the delegate’s decision record the applicant provided to the Tribunal, the applicant arrived in Australia as the holder of a Student (subclass 573) visa on 6 February 2016. The applicant did not complete any of the courses he was enrolled in during his three-year Student visa. He has not departed Australia since the expiry of his Student visa. The applicant lodged an application for a Partner (subclass 820/801) visa on 12 April 2019.  He was granted a Subclass 030 (Bridging C) visa in association with this application.  The applicant’s Bridging visa is the matter under review in this case. 

13. On 14 January 2021, the applicant was taken into custody by South Australian Police after a domestic dispute with the sponsor of his Partner visa application. According to the delegate’s decision record the applicant provided the Tribunal, the applicant was then remanded in custody until 4 March 2021 where he was convicted of multiple offences, including assault – worker Police; failure to comply with bail agreement (5 counts); contravene term of intervention order (5 counts); multiple charges of driving with excess blood alcohol; drive under disqualification or suspension; state false details and dishonest dealings with documents – basic offence. 

14. On 24 August 2022, the applicant informed the Tribunal that he had moved to Perth, Western Australia. 

15. The applicant’s Partner visa application was refused by the delegate on 13 October 2022 on the basis his relationship with his sponsor had broken down.  There is no record or evidence before the Tribunal of the applicant lodging an application for review of the refusal by the delegate of his Partner (subclass 820/801) visa.     

    Section 375A Certificate

16. On 3 February 2023, the Tribunal wrote to the applicant through his representative noting a certificate has been issued by the Delegate under s 375A of the Act restricting the Tribunal from disclosing certain information in the Departmental file on the basis that disclosure would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those method. The certificate also restricted the Tribunal from disclosing the information on the basis it may endanger the life or physical safety of a person.

17. The Tribunal wrote that it considered that the certificate contains a valid ground of public interest immunity not to disclose the information. The certificate was also sent to the applicant. The applicant was invited to comment on or make submissions on the validity of the certificate by 17 February 2023. If he was unable to do so by this date, he was informed he could request an extension of time in which to provide comments or a response. No response was received to the invitation. No request for an extension of time was made by the applicant. 

18. The Tribunal noted in its correspondence that a wide range of folios subject to the s375A certificate contained information largely already in the delegate’s decision record provided to the Tribunal.  These included:

    • ADD2021/4934928 – Copy of the Interim Intervention Order in relation to the applicant’s former sponsor;
    • CLD2021/24928601 – Summary of the applicant’s charges from the Courts Administration Authority;
    • ADD2021/4935148 – The applicant’s criminal records including convictions and term of imprisonment from the Department for Correctional Services;
    • CLD2021/15898660 – The applicant’s criminal records including convictions and term of imprisonment from the Department for Correctional Services;
    • ADD2021/4935094 – Correspondence from Australian Border Force (ABF) regarding the applicant’s finalised criminal matters;
    • CLD2021/17467920 – Department correspondence discussing the draft Notice of Intention to cancel the applicant’s visa (NOICC) and his email to the Department indicating he would like to voluntarily cancel his ongoing Partner visa application and his Bridging visa C;
    • CLD2021/17487569 – Department correspondence discussing the draft NOICC and the applicant’s email to the Department indicating the applicant would like to voluntarily cancel his ongoing Partner visa application and his Bridging visa C;
    • CLD2021/20988447 – Correspondence between Department and ABF regarding the applicant’s Interim Intervention Order;
    • CLD2021/19271149 – Delegate’s inquiry into status of the applicant’s Partner visa application, when it was likely to be finalised, the parties’ relationship breakdown and his NOICC response; and
    • CLD2021/19488613 – Correspondence between Department colleagues regarding the applicant’s Partner visa application, when it is likely to be finalised, the parties’ relationship breakdown for the purposes of assessing the applicant’s current Bridging visa cancellation.

19. The Tribunal noted that whilst information in these folios may be relevant to the review, the Tribunal noted that this information was already contained in the delegate’s decision the applicant provided the Tribunal. Whilst the Tribunal consequently did not put this information to the applicant under s 359A, the Tribunal nevertheless invited the applicant to comment on or respond to any matters from the above portfolios should he have so desired. The applicant did not respond to the correspondence. No submissions have been received.    

20. The Tribunal also noted in its correspondence the existence of folio ADD2021/4934751, which was an anonymous dob-in report that the applicant was forcing his wife (the sponsor of his Partner visa application) to continue with the visa process. The dob-in stated the applicant had been physically and verbally abusive towards his sponsor and threatened her on multiple occasions, leading to the intervention of the Police.  

21. The Tribunal put this to the applicant under s 359A. The Tribunal stated the information was relevant as it suggested the applicant was not in a genuine Partner relationship with his sponsor. The Tribunal stated the information was also relevant because it suggests he may have engaged in threatening and indeed criminal behaviour in relation to his former partner.  The Tribunal also put to the applicant that the information was relevant to the credibility of his evidence, and his claim that he was in a genuine and ongoing spousal relationship with his sponsor. 

22. The Tribunal explained in writing that the consequences of the Tribunal relying on this information were that the Tribunal may, in weighing up the considerations, and reasons his visa should not be cancelled, weigh matters such as the circumstances in which the ground for cancellation arose; and the extent of his compliance with visa conditions in favour of cancelling his visa. The Tribunal furthermore noted the consequences of the Tribunal relying on this information are that it may find the applicant’s evidence is not credible, and he was not a credible witness of truth.   

23. The applicant was invited to give comments on or respond to the above information in writing by 17 February 2023. The applicant again failed to respond to the Tribunal’s invitation. He did not request an extension of time. The Tribunal has taken into account this information in its deliberations as discussed elsewhere in this decision record. 

    Does the ground for cancellation exist?

24. 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 (Cth) (the Regulations). In the present case, the ground in reg 2.43(oa) is relevant.

25. According to the delegate’s decision record the applicant supplied the Tribunal, the cancellation arose from the charging and conviction of the applicant with multiple criminal offences in the State of South Australia. The applicant was convicted of driving with a blood alcohol level over the prescribed legal limit on two separate occasions, contravening terms of a domestic violence intervention order on multiple occasions, failing to comply with bail agreements and assaulting police. South Australian Police also advised the Department that the applicant was taken into custody on 14 January 2021 following a domestic dispute. The applicant was held on remand until he was convicted on 4 March 2021 in the Adelaide Magistrates’ Court and sentenced to four months, 28 days imprisonment. The applicant also received multiple pecuniary penalties and a bond to be of good behaviour upon release from prison.

26. In his NOICC response, the applicant accepted that the ground for cancellation exists under s 116(1)(g). He claims however there were extenuating circumstances beyond his control that led to his offending and the prescribed grounds for the cancellation arising. The Tribunal notes that the charging and criminal conviction of the applicant are prescribed grounds for the cancellation of the applicant’s visa under s 116(1)(g). The Tribunal has taken his submissions concerning extenuating circumstances beyond his control into account as part of its consideration of discretion as to whether the visa should be cancelled.

27. For the reasons above, the Tribunal is satisfied that the ground for cancellation in s 116(g) 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

28. 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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

29. The applicant arrived in Australia on 6 February 2016 as the holder of a Student (subclass 573) visa. The applicant’s NOICC response dated 4 July 2021 states that after completing his studies, the applicant married an Australian citizen, Ms Greta James Ngalya and applied for a Partner visa.

30. As the delegate’s decision record the applicant provided illustrates, the Provider Registration and International Student Managements System (PRISMS) records show that the applicant was enrolled in some courses of study between 2016 and 2018 during the validity of his Student visa. These records demonstrate however that he failed to complete any course during the validity of his Student visa. The delegate determined the applicant did not fulfill his primary purpose of stay in Australia whilst holding a Student visa.

31. According to the applicant’s NOICC response, remaining in Australia with his wife whilst awaiting the outcome of his Partner visa application was the claimed purpose of the applicant’s stay in Australia. He claimed he needed to remain in Australia to provide financial, moral and psychological support to his wife who suffers from mental health issues. The NOICC response relied heavily on the fact that the applicant remained married to an Australian citizen wife.

32. This purpose of stay however was contrary to the applicant’s correspondence to the Department dated 19 June 2021 when he stated he would like to cancel his Partner visa application and the Bridging visa C he held at the time.

33. The applicant’s purpose of stay, to remain in Australia to be with his wife, is also contrary to Departmental records that indicate the applicant’s Partner visa application was refused by the Department on 13 October 2022 and suggest his sponsoring partner withdrew her sponsorship of the application following the breakdown of the applicant and his sponsoring partner’s relationship.  The Tribunal holds significant concerns as to the applicant’s behaviour towards his former partner, noting in the delegate’s decision record the information that South Australian Police charged the applicant for contravening the terms of an Interim Intervention Order issued in respect of him on at least five occasions. 

34. The Tribunal put the information to the applicant concerning the refusal of his Partner visa application in writing under s 359A on 3 February 2023. The Tribunal noted that according to the Departmental ICSE records, the applicant’s application for a Partner visa was refused by the delegate on 13 October 2022 on the basis the relationship has broken down. The records furthermore showed that the applicant’s application for a Bridging visa E following the refusal of his Partner visa was also refused on 21 October 2022 because the applicant failed to attend the Bridging visa interview (and therefore failed to satisfy the requirements in cl 050.222).

35. The Tribunal furthermore noted that the ICSE records and Tribunal records furthermore did not illustrate any application for review by the Tribunal of the refusal of either visa. The Tribunal also noted in its s 359A correspondence that records also illustrated that the applicant was currently an unlawful non-citizen.

36. The applicant did not comment on or respond to the Tribunal’s correspondence. 

37. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has a compelling need or purpose to remain in Australia.  The purpose of the applicant’s stay in Australia is not for the purposes of his marriage and a Partner visa application – that application has been refused on the basis the sponsoring partner withdrew her sponsorship on the basis of the breakdown of the relationship. The Tribunal furthermore notes the applicant’s failure to successfully complete any course whilst he previously was the holder of a Student visa. There is no satisfactory purpose before the Tribunal as to why the applicant has a compelling need to remain in Australia. 

38. On the evidence before it concerning the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor heavily in favour of cancelling the visa. 

    The extent of compliance with visa conditions

39. The decision record the applicant provided the Tribunal notes that Departmental records indicate that the applicant breached his Student visa conditions on multiple occasions. This was because of his failure to maintain enrolment in a registered course of study during the validity of that Student visa between 2016 and 2019. Condition 8202 states the visa holder must be enrolled in a full-time registered course. The applicant’s last enrolment however was cancelled on 27 June 2018. The applicant did not enrol with any other education provider thereafter. The applicant subsequently failed to comply with visa condition 8202 for a period of at least nine months up until his Student visa expired. The Tribunal is not satisfied the applicant complied with the visa conditions for his previous Student visa. The Tribunal considers the breach of his conditions to be considerable. 

1. The Tribunal furthermore notes the applicant is currently an unlawful non-citizen. As was put to the applicant in writing on 3 February 2023 under s 359A, the applicant’s application for a Bridging visa E, following the refusal of his Partner visa application, was refused on 21 October 2022. 

2. The applicant’s Bridging visa E application was refused because he failed to satisfy the requirements in cl 050.222 in Schedule 2 of the Regulations and subcls 050.222(2), (3) and (4) do not apply. Cl 050.222 states that the applicant must be interviewed by an authorised officer. On 19 October 2022, an interview was scheduled for the applicant at the Department of Home Affairs office in West Perth, Western Australia. The applicant did not attend the interview at the scheduled time. The interview was rescheduled to a later time on 19 October 2021. The applicant did not attend that rescheduled interview. 

3. The Tribunal considers the applicant illustrates a disturbing willingness to disregard any responsibilities he has to Australia’s migration system and a contempt for Australia’s visa processes. The applicant has not complied with visa conditions on a number of occasions.  This disregard has now manifested itself with the applicant now an unlawful non-citizen.     

4. The Tribunal weighs this factor in favour of cancelling the visa. 

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship

5. The Tribunal notes that the applicant has not provided it with any new information as to the degree of hardship that may be caused either to himself or his family since applying for review of his visa cancellation. 

6. In the applicant’s NOICC response, it is claimed that the applicant and his wife suffer from anxiety and depression, and if the applicant’s visa were to be cancelled, and the applicant were forced to depart Australia, the parties would be separated and that separation would cause ‘trauma and mental health problems’ for both parties. Both parties would also suffer significant financial, psychological and emotional hardship. It is contended the applicant’s wife ‘will have to leave Australia and become homeless in a foreign land and a burden to public funding in Australia’. If the applicant’s wife were to leave Australia, ‘she may not be able to take up employment opportunities which will be available if she remained in Australia’.

7. A letter from General Practitioner Dr Senthil Govindasamy of EBM Family Medical Practice and dated 6 July 2021 was also submitted to the delegate that states that the applicant ‘suffers from severe mental health conditions including depression and anxiety. Due to the complications of his depression and anxiety, he was admitted in hospital and he receives community support for his care.’

8. In the applicant’s statutory declaration dated 1 July 2021, the applicant stated that he would like to remain in Australia because he has friends and most of his support in Australia. The applicant has been in Australia for approximately 7 years. He states if he were forced to leave Australia, he would be mentally and emotionally affected. The applicant also stated that he works in aged care.

9. Ms Greta James Ngalya, the wife of the applicant, stated in her statutory declaration dated 1 July 2021 that she was still married to the applicant and relied on him for moral and financial support. If his visa were cancelled and he were forced to leave Australia, she would be negatively affected and it would hinder her ability to be a productive member of society.

10. The Tribunal has considered the claims of hardship that have been submitted. 

11. The Tribunal again notes that the relationship between the applicant and the sponsor of his Partner visa has ended. The applicant’s Partner visa application was refused by the Department on 13 October 2022, suggesting his wife withdrew her sponsorship of the application following the breakdown of the relationship. As stated previously, the Tribunal holds significant concerns as to the applicant’s behaviour towards his former partner, noting in the delegate’s decision record the information that South Australian Police charged the applicant for contravening the terms of an Interim Intervention Order issued in respect of him on at least five occasions. Cancellation of the applicant’s visa will not cause separation between the applicant and his former sponsor: they are already separated. The Tribunal in fact received correspondence from the applicant’s sponsor and wife on 31 August 2022 stating she was in fact the applicant’s ex-wife (and unable to attend a hearing).  The Tribunal does not subsequently accept that the cancellation of the applicant’s visa will cause the applicant and sponsor’s relationship any damage and any hardship. The Tribunal does not accept the applicant’s wife’s claim on 1 July 2021 – that she relies on the applicant for moral and financial support – is still valid given the withdrawal of her sponsorship and the end of the relationship. The Tribunal does not accept that cancellation of the applicant’s visa will negatively affect the applicant’s former sponsor and wife and hinder her ability to be a productive member of society.  

12. The applicant’s former sponsor, his wife, will also not have to depart Australia and face the challenges the applicant and his wife articulated previously. The Tribunal does not consider the cancellation of the applicant’s visa will cause the applicant’s former sponsor and wife hardship. The Tribunal does note the applicant’s claim that his wife suffers from anxiety and depression. There is no independent medical evidence to support this claim. If this is however the case, the applicant’s former sponsor as an Australian citizen can avail herself of a range of healthcare services through Medicare and the public health system in Australia.  The Tribunal is not satisfied the applicant’s former sponsor and wife will face any discernible hardship by the cancellation of the applicant’s visa.

13. The Tribunal has also noted the claims by the applicant’s spouse that cancellation of the applicant’s visa would cause her financial hardship due to her reliance on the applicant as the sole income earner. Given their relationship has ended, there is no evidence that the applicant’s wife continues to live with the applicant, and her ability as an Australian citizen to obtain income support through Centrelink (the Tribunal notes the applicant’s NOICC references the applicant’s wife was already in receipt of Centrelink support), the Tribunal is not satisfied the applicant’s wife and former sponsor will face any financial hardship from the cancellation of the applicant’s visa. Similarly, the Tribunal gives the earlier claim of hardship on the basis the applicant’s wife would be denied employment opportunities in Australia should she be compelled to depart for Kenya no weight. The Tribunal notes that the relationship with the applicant has ended and there is no reason for her to depart to Kenya with her former partner.       

14. In relation to hardship and the applicant, the Tribunal notes his claims that he suffers from mental health issues. In his NOICC response, the applicant states that he lost his job after the COVID-19 pandemic and subsequently faced financial pressures as he was unable to provide financial assistance to his wife. In the NOICC response, it was stated the applicant suffered from mental breakdowns, was taking stress medication and was hanging out with friends who consumed alcohol. It was contended this impacted negatively on the applicant’s overall thinking capacity, which was further compounded by the applicant’s stress and depression. 

15. The Tribunal has taken into account the correspondence from a GP, Dr Senthil Govindasamy of EBM Family Medical Practice dated 6 July 2021, that the applicant ‘suffers from severe mental health conditions including depression and anxiety. Due to the complications of his depression and anxiety, he was admitted in hospital and he receives community support for his care’. 

16. The Tribunal gives the claims made concerning the applicant’s purported mental health issues little weight. Dr Govindasamy’s correspondence, a letter of four lines, provides no information as to what he bases his findings on. The Tribunal gives his correspondence limited weight. The Tribunal notes the correspondence from Uniting Communities also dated 6 July 2021 that states the applicant has been engaged with their “New ROADS” programme for people with substance abuse and co-morbid health issues since May 2021. There is no evidence before the Tribunal as to the applicant’s treatment or diagnosis. 

17. There is very limited evidence before the Tribunal that the applicant is receiving, or has ever received, any ongoing professional medical treatment for any psychological issues. There is no evidence before the Tribunal of any treatment or any referral for specialist medical care beyond Uniting Communities. There is no evidence of any treatment received by the applicant beyond July 2021 and the limited correspondence received from Dr Govindasamy and Uniting Communities. The Tribunal is not satisfied, on the evidence before it, that the applicant is suffering from ‘severe mental health conditions’ as has been claimed and gives the claims of increased psychological hardship, should his visa be cancelled, little positive weight. 

18. The Tribunal would furthermore note that there is contention as to whether the applicant in fact did lose his job – leading to mental health issues it is claimed – after the COVID-19 pandemic as is claimed in his NOICC. The claim in the NOICC response dated 4 July 2021 that the applicant lost his job after the COVID-19 pandemic contradicts a statutory declaration from Ms Rebecca Mae Tahitahi dated 7 July 2021, in which she states the applicant ‘has really improved his productivity in the society as he works in aged care and works with compassionate and he is really caring’ [sic]. The Tribunal furthermore notes the applicant in his statutory declaration dated 1 July 2021 states that he works in aged care.  The Tribunal notes this was a major employment sector during the COVID-19 pandemic.  The Tribunal subsequently gives limited weight to any claim that the applicant’s loss of employment led to significant mental health issues – and consequently increased mental, emotional and psychological hardship should his visa be cancelled.  

19. If the Tribunal was wrong, and the applicant was suffering from severe mental health conditions, there is no evidence before the Tribunal to suggest the applicant would not be able to obtain the requisite treatment should he return to Kenya. Whilst the Tribunal accepts that the availability of universal medical treatment is superior in Australia, the Tribunal is not satisfied that the applicant is unable to access treatment in Kenya.  As the delegate noted, the Kenyan Government through the Ministry of Health has developed a Mental Health Policy as part of improving the provision of mental health services. The Tribunal gives the claims of increased psychological hardship, and the lack of adequate support in Kenya, limited weight in favour of the applicant. 

20. The Tribunal notes the applicant at the time of decision has been in Australia for some seven years.  Whilst there is very little evidence of the applicant establishing social ties whilst in Australia, the Tribunal accepts that it is likely he has generated some friends and acquaintances whilst in Australia for such a period, and separation from them will cause some hardship, noting he remains able to remain in contact through various forms of modern electronic and telephonic communication. The Tribunal gives this limited positive weight in favour of the applicant.        

21. There is no evidence the applicant has any other immediate family in Australia who may be impacted by the visa cancellation.  The Tribunal finds there will be no hardship to any of the applicant’s immediate family should the applicant’s visa be cancelled. 

22. Importantly, the issue of hardship also needs to be considered in the context of the applicant’s current visa status.  The applicant was granted the Bridging C (subclass 030) visa – the cancellation of which is the subject of this review – on the basis of his application for a Partner visa. 

23. As the Tribunal put to the applicant under s 359A, the applicant’s substantive Partner visa application was refused by the delegate on 13 October 2022. Given that the applicant’s Partner visa has already been finalised by the Department (and there is no evidence of any review of the decision), and over 35 days has elapsed since the delegate’s decision, the applicant’s Bridging C (subclass 030) visa would have ceased at this time. The applicant’s Bridging C (subclass 030) visa ceased by operation of Schedule 2, 35 days after this date.  In other words, even if the Tribunal essentially overturned the delegate’s cancellation of the applicant’s Bridging C (subclass 030) visa, it still would have ceased 35 days after the refusal of his Partner visa application on 13 October 2022.  

24. The Tribunal furthermore notes Departmental policy for s 116 cancellations, like that of the applicant, states that if a s 116 cancellation decision is set aside by a Tribunal, ‘the s 116 cancellation is operative until the date of the Tribunal’s decision and is set aside only after this date’.

25. On this basis, the Tribunal finds the hardship caused to the applicant by the cancellation of his Bridging C (subclass 030) visa is extremely limited. The applicant’s Bridging C (subclass 030) visa expired anyway 35 days, by the operation of Schedule 2, after the refusal of his substantive Partner visa application on 13 October 2022.

26. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia. The Tribunal considers there is no hardship in relation to the applicant’s former sponsor and wife. The Tribunal acknowledges very limited hardship to the applicant based upon any links he may have to the Australian community. The Tribunal considers any hardship in relation to his emotional and mental health, on the evidence before the Tribunal, to be limited. The Tribunal acknowledges the applicant has at some point worked in the aged care sector and accepts there may be some limited financial hardship should he return to Kenya and seek employment there.  

27. The Tribunal notes however that the applicant’s Bridging C (subclass 030) visa, even if the Tribunal were to find it should not be cancelled, ceased anyway 35 days after his Partner visa application was refused on 13 October 2022. In such circumstances, the Tribunal does not accept that the applicant faces hardship from the cancellation of his Bridging C (subclass 030) visa. That hardship exists despite the cancellation: it exists as a result of the refusal of his substantive Partner visa application on 13 October 2022 and his Bridging C (subclass 030) visa subsequently expiring 35 days later.  

28. In relation to the degree of hardship that may be caused to the applicant, the Tribunal considers the hardship he faces arises ultimately whether the Tribunal either affirms or sets aside the cancellation. For this reason, the Tribunal weighs this factor neither in favour nor against cancelling the visa.   

    Circumstances in which ground of cancellation arose.

29. The ground for the cancellation arose from the charging and conviction of the applicant with multiple criminal offences in the State of South Australia. The applicant was convicted of driving with a blood alcohol level over the prescribed legal limit on two separate occasions, contravening terms of a domestic violence intervention order on multiple occasions, failing to comply with bail agreements and assaulting police. South Australia Police also advised the Department that the applicant was taken into custody on 14 January 2021 following a domestic dispute. The applicant was held on remand until he was convicted on 4 March 2021 in the Adelaide Magistrates’ Court and sentenced to four months, 28 days imprisonment. The applicant also received multiple pecuniary penalties and a bond to be of good behaviour upon release from prison.

30. The applicant accepts that the ground for cancellation exists, however in his NOICC response, states there were extenuating circumstances beyond his control that led to the prescribed cancellation ground arising, namely that his inadvertent excessive alcohol consumption impaired his capacity to think correctly, and led to his offending behaviour.

31. The applicant through his NOICC response states that he lost his job after the COVID-19 pandemic and subsequently faced financial pressures as he was unable to provide financial assistance to his wife. In the NOICC response, it was stated the applicant suffered from mental breakdowns, was taking stress medication and was hanging out with friends who consumed alcohol. It is contended this impacted negatively on the applicant’s overall thinking capacity, which was further compounded by the applicant’s stress and depression.  

32. The Tribunal notes that the claim in the NOICC response dated 4 July 2021 that the applicant lost his job after the COVID-19 pandemic contradicts a statutory declaration the applicant has provided from Ms Rebecca Mae Tahitahi dated 7 July 2021, in which she states the applicant ‘has really improved his productivity in the society as he works in aged care and works with compassionate and he is really caring’ [sic]. The Tribunal furthermore notes that the applicant himself contradicts his NOICC response in his own statutory declaration dated 1 July 2021 where he states he works in aged care. The Tribunal notes that aged care was (and remains) an employment sector in strong demand during the COVID-19 pandemic.

33. In his statutory declaration dated 1 July 2021, the applicant stated that he is ‘remorseful and apologetic [for] my actions when I was drunk, I have taken the opportunity to undergo alcohol counselling and have been to rehab for my alcoholism’.

34. The Tribunal has considered the circumstances in which the ground for cancellation arose and the applicant’s evidence previously tendered.  Again, the Tribunal notes no new evidence was provided to the Tribunal since applying for review.   

35. The applicant has claimed the circumstances in which the ground for cancellation arose were essentially outside of his control, due to intoxication and issues with alcohol that led him to make poor decisions and offend. The applicant has furthermore claimed his consumption of alcohol whilst taking stress medication has impacted upon his thinking and essentially his culpability for his anti-social and criminal behaviour. 

36. The Tribunal has considered the applicant’s explanation for the circumstances that led to the ground for cancellation arising.  

37. In relation to the submissions concerning the consumption of alcohol, and the applicant’s claims that his culpability was reduced due to his consumption, the Tribunal does not accept the applicant’s claim. The Tribunal notes that the applicant has been convicted of multiple criminal offences that occurred over a period of months. There is no satisfactory evidence that the applicant sought any professional treatment for any issues he claims with alcohol consumption until after his convictions. Even if the Tribunal were to accept the applicant did have challenges with excess consumption of alcohol, there is no evidence before the Tribunal that the applicant was in fact not responsible for his actions. The Tribunal notes that the applicant has committed a range of crimes over many months. The applicant made a conscious decision to continue to consume alcohol despite the purported impact consumption had upon his behaviour, and his ability to control his behaviour. The Tribunal has taken into account the limited medical evidence submitted and the correspondence from Uniting Communities as well as his claims to undertake counselling at Alcoholics Anonymous. The Tribunal does not, in the circumstances of this case, accept the applicant’s consumption of alcohol obviates or mitigates his criminal behaviour that provides the ground for the cancellation of his visa. The Tribunal is of the firm opinion the applicant retained the ability to control and limit the amount of alcohol he chose to consume.   

1. The Tribunal has considered the claims of financial hardship after claiming he lost his job due to the COVID-19 pandemic. Employment loss, and subsequent financial hardship, was not an uncommon factor of the COVID-19 pandemic that led to significant challenges for many individuals. Many thousands of jobs were lost: the applicant was not alone in dealing with such a challenge. The challenges and stress of job loss and financial hardship do not in any way, in the Tribunal’s opinion, mitigate or adequately excuse the applicant’s delinquent and criminal behaviour in this case. Repeated unlawful behaviour such as assaulting Police, failing to comply with bail agreement on multiple occasions and drink driving are symptomatic more of a disregard for Australian law and the community, rather than a legitimate explanation of, and excuse for, the applicant’s behaviour. The Tribunal gives the applicant’s claims of financial hardship as mitigating his criminal behaviour no positive weight. 

2. The Tribunal also again notes that there is some contention as to whether the applicant in fact did lose his job – leading to the mental health issues the applicant claims led to his offending behaviour. The applicant’s own statutory declaration dated 1 July 2021 states that he works in aged care. The statutory declaration the applicant provided from Ms Rebecca Mae Tahitahi dated 7 July 2021, states the applicant ‘has really improved his productivity in the society as he works in aged care and works with compassionate and he is really caring’ [sic]. The applicant however claims in his NOICC response that he lost his lost his job after the COVID-19 pandemic. The Tribunal notes the contradictory statements before it.  Whatever the genuine situation was in relation to the applicant’s employment, the Tribunal does not accept that any loss of employment, and subsequent challenge, mitigates the repeated criminal behaviour of the applicant that provided the ground for the cancellation of his visa. 

3. The applicant has claimed through his NOICC that this convictions are all summary offences, and the convictions do not demonstrate he is a threat to the Australian community.  The Tribunal rejects this characterisation of the convictions, which the Tribunal considers are serious and illustrative of a contempt the applicant has for the laws of Australia and the safety of the Australian community. The Tribunal notes the convictions include assault- Police and multiple breaches of an Interim Intervention Order imposed for the protection of his spouse. The multiple driving offences involving the excess consumption of alcohol whilst driving; driving whilst disqualified or suspended; and stating false information. These are serious offences in the opinion of the Tribunal. These convictions illustrate both an arrogant disregard by the applicant for the safety of his fellow motorists and the wider public; disregard for the laws of the country to which he seeks to remain in permanently; and utter contempt for the law with attempts to deceive the authorities. The Tribunal is particularly concerned with the applicant’s multiple breaches of interim intervention orders in place to protect his then sponsor and wife. The applicant is a recidivist who demonstrates a propensity for ongoing criminal behaviour. The Tribunal is of the firm opinion that the applicant, who was released on bail after earlier offending, would have been totally aware of the impact further offending would have upon the status of his visa and his ability to remain in the Australian community.  

4. The Tribunal notes the applicant through his NOICC has cited multiple past Tribunal and Federal Court decisions concerning ‘exceptional circumstances’, and situations where visas were not cancelled due to extenuating circumstances that were beyond the control of the relevant visa holder. The Tribunal has reviewed the cases cited and does not consider the circumstances in those cases are pertinent to the circumstances of the applicant. The applicant’s claimed loss of employment due to the COVID-19 pandemic; his consumption of alcohol; and the financial stress he may have faced are not, in the Tribunal’s opinion, circumstances that are exceptional or even unusual. The challenges of the COVID-19 pandemic were common to most of the community, with many facing stress, thousands losing their employment and facing financial hardship, and many feeling stressed and anxious about their future. The Tribunal does not accept the circumstances in which the ground for cancellation arose are exceptional. The sad reality is that the circumstances in which the ground for cancellation arose in this particular case principally is the applicant’s continued disregard and disrespect for Australian law and the Australian community.      

5. The Tribunal has carefully considered the applicant’s previous submissions to the delegate in relation to the circumstances in which the ground for cancellation arose. The Tribunal does not accept the explanation provided as to the circumstances mitigates or excuses the applicant’s recidivist criminal behaviour.

6. Having taken all the evidence into account, the Tribunal weighs the circumstances in which the ground for the cancellation arose heavily in favour of cancelling the visa. 

   Past and present behaviour of the visa holder towards the Department

7. The Tribunal has considered the past and present behaviour of the applicant towards the Department. The delegate stated there was no adverse information before her to suggest the applicant has demonstrated any adverse behaviour towards the Department. The decision record the applicant provided to the Tribunal indicates the applicant responded to the NOICC.

8. The Tribunal notes that the applicant is an unlawful non-citizen. His application for a Bridging visa E following the refusal of his Partner visa application was refused on 21 October 2022 because he failed to satisfy the requirements in cl 050.222 in Schedule 2 of the Regulations and subcls 050.222(2), (3) and (4) do not apply. Clause 050.222 states that the applicant must be interviewed by an authorised officer. On 19 October 2022, an interview was scheduled for the applicant at the Department of Home Affairs office in West Perth, Western Australia. The applicant did not attend the interview at the scheduled time. The interview was rescheduled to a later time on 19 October 2021. The applicant did not that rescheduled interview.

9. The Tribunal considers the applicant’s failure to engage with the Department and attend his interview is of serious concern. The applicant’s Partner visa had been refused. To remain lawful in the community, the applicant was required to attend the Department as part of the process to obtain a Bridging visa E. Instead, the applicant has not appeared either at the interview or the rescheduled interview. As a result, the applicant is currently an unlawful non-citizen in the Australian community. The applicant’s behaviour here is, in the Tribunal’s opinion, symptomatic of his wider and continuing contempt for Australian law and the Australian community. On the evidence before it, the Tribunal weighs this factor heavily in favour of cancelling the visa. 

   Whether there would be consequential cancellations under s 140

10. There are no dependent visa holders as part of the applicant’s visa. The Tribunal therefore finds that there will be no consequential cancellations under s 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa. 

    Mandatory legal consequences of a decision to cancel the visa

11. The applicant is already an unlawful non-citizen. The Tribunal notes that the applicant will be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled. The applicant will also be subject to a s 48 bar which will limit his options in applying for further visas in Australia. Depending on the visa for which he may apply, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 because of the cancellation, and may not be granted a temporary visa for three years from this date except in certain circumstances. 

12. The Tribunal again notes that the legal consequences that will flow on from a decision to cancel the applicant’s visa are largely already consequences that the applicant will face.  As the Tribunal has discussed multiple times in this decision record, the applicant’s Bridging C (subclass 030) visa expired anyway 35 days, by the operation of Schedule 2, after the refusal of his substantive Partner visa application on 13 October 2022. The applicant was granted the Bridging C (subclass 030) visa – the matter on review before the Tribunal – because of his substantive visa application. The applicant’s application was refused on 13 October 2022. The applicant’s Bridging C (subclass 030) visa ceased by operation of Schedule 2, 35 days after the refusal by the delegate of his Partner visa application. It so follows that the mandatory legal consequences the applicant faces from the cancellation of his visa, as outlined in paragraphs 61 to 64, are already overwhelmingly consequences he faces even if the Tribunal were to not cancel his visa.

13. The Tribunal furthermore notes that the applicant’s application for a Bridging E visa has already been refused after he failed to attend an interview with the Department as required following the refusal of his substantive Partner visa application. 

14. The Tribunal appreciates that, if the visa was not cancelled, the applicant would no longer face the s 48 bar. 

15. In relation to the mandatory legal consequences that may be caused to the applicant, the Tribunal considers these consequences he faces largely arise whether the Tribunal either affirms or sets aside the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.   

    International obligations – non-refoulment, best interests of the child

16. The applicant is a Kenyan national. The Tribunal is not aware of any international obligations which would be breached as a result of the cancellation. None have been claimed.

17. The applicant has not claimed that he fears returning to his country of origin, or that he would likely suffer harm if he were to return, should his visa be cancelled. Departmental records do not indicate the applicant has lodged any claims for protection.

18. The NOICC response states that the cancellation of the applicant’s visa would have the effect of separating the family unit, that being the applicant and his Australian citizen wife, which would violate Australia’s obligations under the International Convention on Civil and Political Rights. It is noted however from Departmental records, that the relationship between the applicant and his wife has broken down. The Tribunal gives the claim no weight.

19. There is no claim or evidence of the applicant having a child. Given these facts, the cancellation of the applicant’s visa will not result in either a separation of the family unit or the separation of the child from either parent. 

20. The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

    Any other relevant matters

21. In the applicant’s statutory declaration dated 1 July 2021, he states he is remorseful and apologetic for his offending behaviour and is undergoing alcohol counselling and rehabilitation for his alcoholism. He states that he has a good heart for helping other people.

22. The Tribunal has also noted the statutory declaration from Rebecca Mae Tahitahi dated 7 July 2021, who states she has known the applicant for a few years. She states that the applicant regrets his mistakes and is continuing with counselling for his alcoholism. She states the applicant is a productive, compassionate and caring member of society, working in aged care. He contributes much to the community ‘through community activities’, he is a ‘really reformed person’ and ‘will contribute alot to the Australian community’ [sic].

23. The Tribunal also notes the letter from Stacey Tomlinson, Counsellor/Case Manager at Uniting Communities and dated 6 July 2021 states that the applicant has been engaged with their rehabilitation services since May 2021 and continues to engage with their services.

100.   The Tribunal has taken into account this correspondence concerning the applicant’s apparent attempts to improve his life. The Tribunal however also notes the applicant’s failure to engage with the Tribunal review process (he has made no substantive written submissions and declined the hearing on the day prior to its scheduling) and the lack of any evidence of any ongoing actions to improve his life and behaviour since the refusal of his visa some 18 months ago.  The Tribunal weighs this factor neither in favour nor against cancelling the visa.

Conclusion

101.   The Tribunal notes the applicant’s multiple criminal convictions that ground the cancellation of his visa. The Tribunal has carefully considered the evidence before it and the applicant’s submissions on the considerations both individually and cumulatively.  The Tribunal considers the convictions are serious and note the applicant’s repeated adverse interactions with the law.  The Tribunal considers this behaviour illustrates a contempt and disregard for Australia’s laws and the Australian community.  The Tribunal has turned its mind to the considerations and taken into account the applicant’s purported explanations for his delinquent criminal behaviour.  The Tribunal does not accept the challenges the applicant has claimed to face either justifies or mitigates his repeated poor behaviour.  The Tribunal furthermore notes that the applicant was granted the Bridging visa under review on the basis of his Partner visa application.  That substantive application has now been finalised by the Department and refused given the end of the applicant’s relationship with his sponsor.  The applicant’s subsequent failure to attend an interview with the Department in relation to the grant of a Bridging visa E – in order to allow the applicant to remain in the community lawfully – is, in the Tribunal’s opinion, indicative of his contempt for Australia’s laws and Australia’s migration processes.  The Tribunal has taken into account the considerations, given them weight, and is of the strong opinion that the applicant’s visa should be cancelled.      

102.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. 

DECISION

103.   The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Justin Owen
Deputy President