Sood (Migration)

[2021] AATA 1723

Sood (Migration) [2021] AATA 1723 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Sood

CASE NUMBER:  2102268

HOME AFFAIRS REFERENCE(S):          BCC2020/2106319

MEMBER:Kira Raif

DATE:18 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 18 May 2021 at 11:52am

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – application for substantive visa in progress – criminal convictions – discretion to cancel visa – expression of remorse and early guilty plea – completion of drug rehabilitation program – trial pending for breach of intervention order – non-violent arguments with wife over drug use – other previous convictions – hardship to wife in Australia and family in home country while applicant in immigration detention and unable to work – risk of further relapse and reoffending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 22 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in August 1987. He was granted the Bridging B visa (BVB) on 13 September 2019. On 26 October 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there may be a ground for cancelling his visa under s.116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 22 February 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lloyd, a DASA program manager, and the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (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:  

   (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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been granted the Bridging B visa on 13 September 2019 in association with a Business visa application that has not been finally determined. It is stated that the Department received information that on 10 July 2019 the applicant had been convicted of the following offences by the NT Alice Springs Local Court:

Driver with prohibited drug in blood	Disqualification 3 months; fine $300
Driver with prohibited drug in blood	Disqualification 3 months, fine $500
Stand a vehicle, other than a goods vehicle, in a loading zone	Convicted, aggregate with Count 1
Failure to produce a licence on request	Convicted, aggregate with Count 1

1. In his submission to the Tribunal of 10 May 2021 the applicant confirms that he had been convicted of offences and he also referred to the Domestic Violence orders issued in relation to him and a charge of breaching that order, which is yet to be heard. (He claims another charge was withdrawn.) The applicant concedes in his response to the NOICC and his submission to the Tribunal that there is a ground for cancelling his visa.

2. Having regard to the evidence contained in the primary decision record, the Tribunal finds that the applicant has been convicted of offences in the Northern Territory. The Tribunal finds that the applicant was a holder of a Bridging B visa, which is a temporary visa other than a Bridging Subclass 050 and Subclass 051 visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a territory. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

3. 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

4. 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

5. In his response to the NOICC the applicant states that the purpose of his stay in Australia is to be with his wife and create better opportunities for his family. The applicant refers to his employment in Australia and his involvement in community and sporting activities and he provided a number of documents in support of these claims. In his submission to the Tribunal the applicant also refers to being an active member of the community and his involvement in sport. The Tribunal acknowledges that the applicant had engaged in these activities but the Tribunal does not consider the purpose of the applicant’s travel and stay in Australia is to engage in community activities and sport.

6. The applicant told the Tribunal that he came to Australia in order to support his family. The applicant states that his father passed away many years ago and his mother relies on him for financial support as there are no other siblings. The applicant states that it is hard to find work in India and another concern is that he and his wife belong to different castes and it was hard for them in India. The applicant states that he would not have the same opportunities in India.

7. The Tribunal accepts the applicant’s evidence but the Tribunal is mindful that the visa in question is a bridging visa only, it is not a visa that is designed to enable residence in Australia. The Tribunal is of the view that the purpose of a bridging visa is only to enable the visa holder to remain in Australia while awaiting the outcome of an application for a substantive visa. While the applicant refers to his employment and settlement in Australia and his contribution to, and involvement in, the community and his desire to live in Australia and support his family, the applicant has not been granted a permanent visa to remain in Australia and a Bridging B visa does not permit such residence.

8. The Tribunal acknowledges that the applicant’s application for the substantive visa has not yet been finally determined and as such, the applicant is fulfilling the purpose of his bridging  visa and of his stay in Australia. The Tribunal acknowledges that the presence of his wife in Australia, and the ongoing application for the substantive visa may constitute a compelling need for the applicant to remain in Australia. The Tribunal notes, however, that there is no suggestion that the applicant would be removed from Australia before his substantial visa application has been finally determined. The applicant will be able to continue to remain in Australia irrespective of whether he continues to hold a Bridging B visa. The Tribunal acknowledges that unless he is granted another visa, the applicant may remain in detention if his visa is cancelled and, if so, he will be unable to work and support his family. These issues are addressed in more detail below.  

   The extent of compliance with visa conditions

9. The primary decision record indicates that the applicant’s previously held visa was cancelled and the cancellation set aside by the Tribunal. The applicant explained that his previous visa was cancelled because of his criminal convictions and not due to the non-compliance with visa conditions. There is no evidence of any non-compliance with visa conditions.

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

10. The applicant states in his evidence to the delegate that significant hardship would be caused too him and his wife if his visa is changed from a BVB to a Bridging visa E (BVE) as he may lose the right to work. The applicant provided to the Tribunal evidence of having provided financial support to his family in India and he told the Tribunal that his mother is fully reliant on him financially as he has no siblings. The Tribunal accepts that the applicant had provided financial support to his mother and that it may no longer be available if the applicant’s visa is cancelled and he is unable to work as a result. The Tribunal accepts that significant financial hardship may be caused to the applicant and his family if his visa is cancelled and if the applicant is unable to work.

11. In his evidence to the Tribunal the applicant states that he had made two applications for Bridging E visas and both had been refused and he has been taken into immigration detention. The Tribunal acknowledges that if the applicant is not granted another visa, he may be an unlawful non-citizen and subject to mandatory detention. That  is, the applicant may be detained for a lengthy period while awaiting the outcome of his application for the substantive visa and the Tribunal accepts that this may also cause considerable hardship to the applicant and his family.

12. The applicant refers to the treatment he has undertaken and provided several statements outlining the treatment and his abstinence from drugs. The applicant states that if his visa is cancelled and if he is required to return to India, he may be affected by drugs and he will not have access to any support services. The Tribunal does not consider there is any possibility that the applicant will be required to leave Australia as a result of his visa being cancelled before his application for a substantive visa is finally determined. (The Tribunal is of the view that this would have been well known to the applicant’s representative.)  The Tribunal is also of the view that if the applicant remains in detention, he may have access to telehealth or other services that are available by telephone and other electronic means, such as online courses, even if he cannot access his usual support in the same way he did before his detention.

13. The applicant states that his wife sought counselling from the Drug and Alcohol Services Australia and research shows that rehabilitation programs are more effective when they involve families. The applicant refers to the country information concerning the use of drugs in his home state in Punjab and states that if his visa is cancelled and he has to return to India, his wife would not travel with him and there would be a greater chance of relapse. As noted above, the Tribunal does not accept the applicant would be required to leave Australia before his substantive visa application will be finally determined. The Tribunal is also of the view that both the applicant and his partner can continue with the rehabilitation programs irrespective of the applicant’s visa status, even if the programs available may be of different nature.

14. The applicant’s spouse provided in response to the NOICC a statement referring to her relationship with the applicant and the support they provide to each other. She outlined her connections to Australia. In his written submission to the Tribunal the applicant states that they married “out of caste” and his wife has been abandoned by her family and he is the only support that she has. Ms Kaur repeated that in her oral evidence, stating that she has no support from her family and has been reliant on the applicant. Ms Kaur spoke about the hardship she has experienced following the applicant’s detention. She states there was never any violence between them and she has always been supportive of the applicant. The Tribunal is prepared to accept that despite the existence of the DVO, the applicant and his partner continue to be in a spousal relationship and may provide comfort and support to each other but in the Tribunal’s view, that can continue whether or not the applicant is the holder of the Bridging B visa and even if the applicant is to remain in detention. That is, the Tribunal does not consider that the provision of emotional comfort and support would cease if the applicant’s visa is cancelled, although the Tribunal acknowledges that the applicant may be unable to provide physical support, including with the family’s dog breeding business, if he remains in detention as a result of his visa being cancelled.

15. In his submission to the Tribunal the applicant refers to the dog breeding business that he and his partner started in April 2020, stating that due to her work commitments, the spouse has little time to manage the business and requires his daily involvement. The applicant told the Tribunal that he has spent a lot of money to set up that business and his wife does not have the familiarity with all aspects of its operations. The Tribunal accepts that evidence and, as noted above, accepts that the applicant may be unable to contribute to that business and derive an income if he remains in detention. The Tribunal accepts the applicant’s evidence that his wife needs his support which would be unavailable if he cannot work. The Tribunal accepts that this may cause hardship to the applicant and his family.

16. The applicant told the Tribunal that they had borrowed money for the Tribunal hearings and it would hard for them financially if he cannot work and he would find it hard to concentrate on his Tribunal case. The Tribunal accepts that evidence.

17. The applicant refers to the significant pressure his wife is facing while he is in detention and cannot work. The Tribunal accepts that evidence.

18. In oral evidence the applicant states that his mother has a medical condition and has been relying on him financially. The applicant states that he is the only source of income for his mother. The Tribunal accepts that evidence and acknowledges the evidence of financial support the applicant had provided to his mother in the past. The applicant told the Tribunal that since he had not able to work, his wife has provided financial support to his mother. The Tribunal accepts that if the visa is cancelled and the applicant is not granted another visa with permission to work, this would cause significant financial hardship to the family.

19. Overall, the Tribunal accepts that significant hardship would be caused to the applicant and his family if the visa is cancelled, including financial hardship.

    Circumstances in which ground of cancellation arose

20. The ground for cancellation arises because the applicant has been convicted of offences in NT and had been a holder of a temporary visa. The applicant explains in his evidence to the delegate and the supporting documentation that due to his ‘disconnectedness’ after arriving in Australia, and his connections to other drug users, he became addicted to drugs. The applicant explains that he is committed to not using drugs and has completed various programs, evidence of which he presented to the delegate and the Tribunal. There are several statements of support, as well as character references and oral evidence Mr Lloyd before the Tribunal.

21. In his evidence to the Tribunal the applicant states that the offences occurred when he relapsed into drug use and that he was previously charged with drug driving in 2016. He received treatment in 2016 based on medication and became drug free. The applicant told the Tribunal that at the time he was given medication and believed it would help and did not look for another treatment. The applicant refers to being involved in an accident in August 2018 which resulted in burns to 8% of his body and states that he had been prescribed medication to manage the pain and he became dependent upon one of the medications. In November 2018 he met a drug user and started using methamphetamines again. The applicant refers to research about the likelihood of relapse, stating that this can been seen as a circumstance beyond his control which led to the offending. The applicant told the Tribunal that DASA explained to him how drugs work and what impact drugs have and helped him understand the repercussions of using drugs. The applicant states that in 2016 he was given medication but he did not complete a rehabilitation program, which he has done since. The Tribunal is mindful that on his own evidence, the applicant told the previous Tribunal in relation to the cancellation of his earlier held visa that  he had completed a rehabilitation program and was drug-free. Even if the applicant now believes the earlier program was inadequate, the Tribunal does not accept that the applicant did not understand the significant of using drugs and the repercussions for it. The Tribunal does not consider that the ground for cancellation arises because of circumstances beyond the applicant’s control.

22. The Tribunal acknowledges the applicant’s description of the events that led to his offending and that there is no evidence that the applicant continues to use drugs at present or has done so recently. The Tribunal is prepared to accept that the applicant completed a more comprehensive program in 2019 than he did in 2016 and found it more effective. The applicant’s evidence is that in the past it was not a proper rehabilitation program but he has now completed proper treatment and has been supported by DASA. In his submission to the Tribunal of 17 May 2021 the applicant provided more details of the rehabilitation program he had completed in 2016 and the circumstances of his relapse. Importantly, the applicant refers to the professional assessment undertaken at the time he completed the first set of programs in 2016 which indicated that he had effectively avoided the use of drugs and was capable of managing his addiction. That has not happened, despite the programs completed by the applicant and the professional assessment completed at that time.

23. The Tribunal is prepared to accept that at present, the applicant has a genuine resolve not to use drugs and that he no longer has contact with people who had influenced him in the past. The Tribunal is prepared to accept the applicant’s evidence that he has been drug-free for about two years. However, the applicant’s own evidence is that relapses are common and the likelihood of relapse is quite high. Thus, the fact that the applicant has now completed a rehabilitation program and claims to be drug-free for some time is not a strong indication, in the Tribunal’s view, that the applicant will not relapse in the future. This is particularly so as the applicant did receive treatment in 2016 (even if he claims it was not useful) and had relapsed into drug use. At that  time, the applicant had been convicted of offences and had also experienced the cancellation of his visa, and so he would have recognised the significant repercussions of drug use. The  applicant also had the opportunity to access a proper rehabilitation program, but had not accessed it. Despite these factors and the applicant’s past resolve not to use drugs, he relapsed into the use of drugs only two years later. The Tribunal does not consider that there is no likelihood of the applicant relapsing into using drugs, even if that risk has been significantly minimised since 2016.

1. As for the applicant’s claims that the offending (and the ground for cancellation) occurred due to circumstances beyond his control, as noted above, the Tribunal does not accept that claim. The Tribunal does not accept that the use of drugs is beyond the control of an individual but more significantly in this case, the Tribunal does not consider that the decision to drive a motor vehicle while under the influence of drugs was beyond the applicant’s control. That is, even if drug use can be said to be beyond the control of an individual (and the Tribunal does not agree with that proposition), driving while under influence is not. The Tribunal does not consider that grounds for cancellation arise due to circumstances beyond the applicant’s control.

   Past and present behaviour of the visa holder towards the department

2. Nothing adverse is known about the applicant’s behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

3. There would be no persons affected by the consequential cancellation.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

4. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. (The Tribunal considers there is little or no likelihood of the applicant being removed before his application for the substantive visa is finally determined.) The applicant’s evidence to the Tribunal is that he had twice applied for Bridging E visas and these had been refused. Although the Tribunal is of the view that the refusal of the BVEs may have resulted from the applicant’s convictions, rather than the cancellation of the present visa, the Tribunal acknowledges that if the applicant is not granted another visa, he may be subjected to lengthy detention before his substantive visa application is finally determined. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period if he is to make an application for a visa offshore and very limited types of visas he may be able to apply onshore.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

5. There are no children who would be affected by the cancellation of the visa.

6. With respect to Australia’s non-refoulement obligations, the applicant states that he has spent 8 years in Australia. With respect to the length of the applicant’s residence in Australia and his absence from India, the Tribunal does not consider that these matters fall within the refugee convention or the complementary protection obligations and give rise to Australia’s protection obligations. The applicant states that there is high crime in society and he had been shot once by a friend who was jealous and there is a risk to his life. In his submission to the Tribunal of 17 May 2021 the applicant through his representative submits that he does not have any claims that raise the non-refoulement obligations.

7. The Tribunal found the applicant’s claims to be vague and lacking details and on the evidence before it, the Tribunal is not satisfied that these give rise to Australia’s protection obligations. Most importantly, the Tribunal is mindful that the cancellation of the present Bridging visa will not result in the applicant being removed from Australia, while he has an outstanding application for a substantive visa that has not been finally determined. That is, the cancellation of the visa will not result in the breach of Australia’s non-refoulement obligations. For the same reason, the Tribunal finds that the cancellation of this visa will not lead to the applicant’s removal or departure from Australia and the breach of the family unity principles.

   Any other relevant matters

8. The applicant claims in his evidence to the delegate and his submission to the Tribunal of 1 May 2021 that he is remorseful for his conduct and has taken responsibility for his actions, he pleaded guilty at the earliest opportunity and sought help. The applicant explained to the Tribunal that he had completed a full rehabilitation program, had been discharged from hospital and continues to receive support from DASA. The Tribunal accepts that evidence.

9. The applicant presented several statements in support of his claims, as well as character references. The applicant claims that his offences were not violent or sexual and were not significant and there is a low risk of reoffending. The applicant outlined the rehabilitation programs he had undertaken. He states that the nature of the penalty indicates that his offending was at the lower range of seriousness. The Tribunal considers driving while under the influence of drugs to be a serious offence which could have led to significant harm to others. The Tribunal also places weight on the fact that, as noted in the primary decision, the applicant had previously been convicted of multiple other offences (which include breaches of the DVO) and while these do not form the basis of the cancellation, these are relevant in considering the applicant’s overall conduct. The applicant previously claimed in relation to the cancellation of another visa that he was no longer using drugs and that he had reformed. However, he now claims he had relapsed into drug use, resulting in the present convictions. The Tribunal considers the applicant’s past breaches of the law relevant and, importantly, the Tribunal rejects the applicant’s argument that the most recent offending was not serious. While it is the convictions that give rise to the ground for cancellation, the Tribunal is of the view that het entirety of the applicant’s conduct, including his past breaches of the law, may be relevant in determining whether or not his visa should be cancelled.

10. In his written submission to the Tribunal the applicant states that in August 2020 he was arrested and charged with aggravated assault (which was later withdrawn) and a breach of the National Intervention Order, for which the hearing will be held in June 2021. The applicant notes that the DVO expired in February 2021. The applicant outlined the offences prior to the cancellation of the visa as follows

Offence date	Charge	Result
28/03/16	Breach of bail (late reporting to the police station)	Convicted without penalty Victims Levy 150
31/03/16	Engage in conduct contravening DVO	Convicted without penalty Victims Levy 150
02/06/16	·     Drive motor vehicle while unlicensed ·     Drive unregistered motor vehicle ·     Drive uninsured motor vehicle ·     Drive with prohibited drug in blood Possess methamphetamine in public place	All charges aggregated and proved without proceeding to conviction. Fine $700 Victims levy 600 Proved without proceeding to conviction. Released Good behaviour bond $1000 / 14 months
16/06/16	Engage in conduct that contravenes DVO Breach of bail	Convicted, sentenced to 1 month. Victims levy 150 Convicted. Fine $200. Victims levy 150

1. The applicant notes that the above charges had been provided to the Tribunal in a previous case and the Tribunal made the decision to set aside the cancellation of the applicant’s business visa. The Tribunal acknowledges that this is so, however, the Tribunal must consider this case on its own merits (and notably, there are more convictions since the earlier Tribunal decision) and determine for itself what weight to give to each consideration.

2. In oral evidence, the applicant states that he had never been violent but he and his partner had arguments over his use of drugs and the neighbours called the police over the arguments. The applicant states that the breaches of the DVO occurred because his wife did not understand there could be no contact between them and he had nowhere else to stay. The applicant’s evidence is supported by the evidence of Ms Kaur. However, the applicant also told the Tribunal that they knew there could be no contact but the had no other option. The applicant’s evidence suggests he knew he was breaching the law and did so intentionally.

3. The applicant submits that the cancellation of the visa would result in another punishment and he had already been punished by the court. The Tribunal does not accept that submission, as the cancellation of the visa deals only with the applicant’s immigration status and is not concerned with his criminal conduct or his otherwise compliance with the legal norms. It is not a form of punishment but an administrative process.

4. The applicant refers to his residence in Australia and states that he and his wife consider Australia as their home. The applicant refers to his sporting activities, his business and other involvement in the community. The Tribunal accepts that  evidence but as noted elsewhere, the Tribunal notes that the applicant has not been granted a permanent visa to remain in Australia and the visa in question is a temporary visa only the purpose of which is to allow the applicant to remain in Australia while his application for a substantive visa is being considered. It cannot be said that the applicant’s links to Australia or his desire to remain in Australia or other factors justify the applicant maintaining his Bridging B visa for an indefinite period of time to enable residence in Australia. That is not the purpose of a Bridging B visa.

5. The applicant refers in his evidence to the Tribunal to the extent of the Covid infections in India and states that he cannot return to his home country in these circumstances and may be subjected to indefinite detention. The Tribunal does not accept that evidence because the cancellation of the BVB does will not result in the applicant being removed from Australia before his substantive visa is finally determined. The Tribunal accepts that if the applicant makes a decision not to return to India and if his visa is cancelled, he may remain in detention unless he is granted a Bridging E visa or another visa, such as the substantive visa. The fact that the applicant had previously had two applications for the BVE refused is not necessary indicative of the fact that the applicant will never be granted a BVE in the future and each application will be considered on its merits. Therefore, the Tribunal does not accept that the applicant will not be granted a BVE. That may be the case, but it is equally possible that he may be granted a BVE in the future. Importantly, the applicant’s application for the substantive visa will be determined. The applicant’s evidence is that the case is presently before the Tribunal and, given the applicant’s detention, he is eligible to seek priority consideration. Should the applicant and his partner be successful in their application, the applicant may be granted a substantive visa and be released from detention. If they are not successful, the applicant will have no visa and may be required to leave Australia as an unlawful non-citizen. In either case, the Tribunal does not consider there is any likelihood of indefinite detention to which the applicant refers.

6. The Tribunal received oral evidence from Mr Lloyd, a program manager at DASA. Mr Lloyd outlined the nature of the treatment and referred to the applicant’s commitment to rehabilitation and his progress. Mr Lloyd indicates that the applicant poses no threat as he has changed. The Tribunal accepts Mr Lloyd genuinely holds these views. The Tribunal has also received oral evidence from the applicant’s spouse who spoke about the applicant being a different person and the programs he has completed. Ms Kaur spoke about the hardship she experiences without the applicant’s help and support, particularly as she has no support from her family. The Tribunal accepts that evidence. Ms Kaur states that there was never violence in their relationship and following the hearing, the applicant presented to the Tribunal evidence concerning the circumstances in which the DVO was issued. The applicant states that in November 2015 the DVO was issued as a standard procedure in relation to women seeking the assistance of a Woman’s refuge. Ms Kaur provided a copy of the declaration she provided in 2016 for the purpose of the DVO variation. The Tribunal acknowledges that the presented evidence does not indicate there was violence in the applicant’s relationship with his partner.

7. In his written submission to the Tribunal of 10 May 2021 the applicant raised a number of other considerations. The applicant states that there is a low risk of reoffending, given his commitment to rehabilitation and genuine remorse for his actions and a determination not to repeat these. The Tribunal gives these factors some weight but is concerned that the applicant had previously expressed remorse and a commitment to rehabilitation and a determination not to engage in criminal or anti-social conduct but had failed in this. On his own evidence, he met another drug addict and relapsed. In his statement the applicant outlined the steps he had taken, such as ‘unfriending’ people who may influence him and refusing addictive medication. The applicant also refers to the psychological report which refers to the applicant not knowing where to seek help but genuinely intending to change, with the support of various services. The Tribunal acknowledges the evidence in the psychological report and is prepared to accept that the applicant has completed the rehabilitation program in 2018, that he is genuinely committed not to re-offend and had sought, and relied on the advice from DASA. However, as noted above, given the applicant’s past conduct the Tribunal is not satisfied such commitment is sufficient to ensure that he will not relapse again and will not commit further offences. The psychologist assessed the applicant as being in a ‘low risk category’. It is not suggested that the risk has been eliminated or is non-existent. Thus, while the Tribunal accepts that at present at least, the applicant is genuinely committed to rehabilitation, the Tribunal does not consider that would be sufficient to ensure that the applicant will not relapse and that his criminal behaviour is not repeated in the future. The Tribunal considers that the risk of reoffending continues to exist, even if that risk is not a significant one.

8. The applicant refers to the length of his residence in Australia, stating that he has developed close ties and views Australia his home and uphold values of eth Australian community. (The Tribunal finds that  statement unpersuasive, given the extent of the applicant’s offending.) the applicant refers to his past employment and involvement in sport. This issue has been addressed above. The Tribunal accepts that the applicant has been living in Australia for over 7 years and may have settled in Australia and considers Australia his home. The Tribunal also accepts that he has family ties to Australia, most notably his partner. However, as the applicant has never been granted a permanent visa, he cannot expect to continue to reside in Australia and continue with the settlement.

9. The applicant requested the Tribunal to give him another chance, stating that he has reformed. The Tribunal is mindful, however, that the applicant had been given ‘a chance’ previously. His evidence to the Tribunal is that he had previously had a visa cancelled because of his criminal convictions and the cancellation was set aside by the Tribunal. That is, the applicant was well aware of the consequences of his conduct and drug use and convictions and that such actions may result in his visa being cancelled. Yet the applicant ‘relapsed’ and committed further offences. The Tribunal considers it a significant factor that weighs in favour of the cancellation that the applicant had been given an opportunity previously and it had not resulted in the applicant changing his conduct.

10. The representative submits that given the two refusals of the BVEs, the practical repercussions is that the applicant will remain in detention. The Tribunal accepts that  he will, unless the applicant is granted a Bridging visa or the substantive visa is granted. The Tribunal accepts that would cause significant hardship to the applicant and his partner.

11. The Tribunal has found that there are grounds for cancelling the visa because the applicant was a holder of a temporary visa and had been convicted of offences. Overall, the Tribunal accepts that considerable hardship may be caused to the applicant and his family if the visa is cancelled, most notably because it may result in the applicant being detained for a lengthy period before his application for the substantive visa is finalised and because the applicant will be unable to work and support his family overseas and his wife in Australia. The Tribunal accepts the evidence of Ms Kaur and accepts that she relies on the applicant and would find it difficult to manage her daily living and the management of the family business if the applicant was to remain in detention. The Tribunal accepts that the applicant has expressed remorse for his conduct and has committed to rehabilitation and has completed various programs. The Tribunal acknowledges the applicant’s own evidence, and third party statements, indicating that the most recent rehabilitation program has been more effective than the 2016 program, that the applicant is committed to change his behaviour and that he continues to rely on the services of DASA, which may not be available to him in detention. The Tribunal accepts the professional opinion that  the risk of reoffending is low, although the Tribunal has formed the view that such a risk continues to exist. The Tribunal acknowledges the length of time the applicant has spent in Australia and his ties in Australia, including his involvement in cultural, sporting, and other community activities. There are factors why the visa should not be cancelled.

12. However, the Tribunal also places weight on the fact that the visa in question is a temporary visa only and a bridging visa, the purpose of which is not to enable the applicant’s residence in Australia. Its purpose is simply to allow the applicant to await the outcome of the substantive visa application and that application will be unaffected by the cancellation of the present visa. Thus, the Tribunal considers the applicant’s evidence concerning his settlement in Australia and his desire to live in Australia and financially support his family unpersuasive when considered in the context of a bridging visa.

13. The Tribunal acknowledges the applicant’s evidence that the offending was at the lower scale. The Tribunal has had regard to the nature of the penalty, as well as the remarks made during the sentencing. However, the Tribunal is of the view that offending such as drug-affected driving has a high potential of injury to other road users and is very serious. The Tribunal also places weight on the fact that the offences are multiple and occurring over a number of years, despite the applicant’s claimed determination not to re-offend and his past involvement in rehabilitation programs. The Tribunal has formed the view that the risk of reoffending continues to exist, even if it is not a significant risk. In the Tribunal’s view, these factors weigh heavily in favour of the cancellation.

14. Overall, the Tribunal accepts that significant hardship would be caused to the applicant and his family if the visa is cancelled, most notably the loss of employment and income, the difficulty in managing the business, hardship caused to Ms Kaur, loss of financial support to his family overseas and potentially lengthy detention. However, the Tribunal places greater weight on the circumstances in which the ground for cancellation arose, the nature of the offences and the potential risk to others, should the applicant engage in similar conduct again. In the Tribunal’s view, driving while under the influence of drugs is a very serious offence that has the potential of causing irreparable damage, or death, to others. In the Tribunal’s view, such matters outweigh other considerations.

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

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

   Kira Raif
   Senior Member