1803868 (Migration)

1803868 (Migration) [2018] AATA 4085 (21 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803868
MEMBER:Justin Owen
DATE:21 August 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 21 August 2018 at 2:19pm

CATCHWORDS
MIGRATION – Cancellation Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – number of criminal offences – first criminal offences – gravity of criminal charges – ceased studies due to father’s illness – separation from wife – desire to return to work – financial assistance to family – ability to obtain bail – wife’s employment status – difficulty to obtain employment in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 499
Migration Regulations 1994 (Cth), r 2.43
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been charged with a number of criminal offences in the State of New South Wales. The charges are: two counts of cultivate prohibited [items] of not less than the large commercial quantity; two counts of abstract, consume or cause to be wasted electricity; and one count of participate in a criminal group. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PRE-HEARING SUBMISSION
The Tribunal received a pre-hearing submission dated 1 May 2018 from the applicant’s representative. The submission stated that the applicant’s visa was cancelled after he was given the opportunity to participate in an interview with the delegate on 7 February 2018. The applicant’s representative stated the applicant did not receive any legal or immigration advice prior to the interview and therefore did not address the relevant considerations. The submission also stated that the applicant made comments to the delegate about the grounds for cancellation not existing. The applicant’s representative wrote that this was not an informed response and indicated the applicant’s lack of knowledge about his rights and responsibilities at the interview.
The written submission concedes, given the charges the applicant is facing, that the delegate has grounds to consider cancellation of the applicant’s visa.
The submission provides the applicant’s immigration history. The submission states that the applicant commenced a relationship in December 2016 with Australian permanent resident [who] arrived in Australia in 2013. The submission states that the parties married [in] May 2017 and lodged a Partner visa application on 19 June 2017.
The submission outlines the relevant offences the applicant was charged with [in] December 2017 and states the applicant intends to make an application for bail to the Supreme Court [in] June 2018. The submission states that if granted bail the applicant would be subject to a wide range of strict bail conditions which are listed (T1, Folio.39-40). The submission states that it understands a primary concern for the Court in granting the applicant bail was that he does not hold a current visa and would become an unlawful non-citizen if released into the community, or would become a burden on the Department of Home Affairs.
The submission confirms the applicant does not have any children whose interests are to be considered in making this decision.
In relation to the impact of cancellation on the family unit, the submission states that the applicant and his wife have been separated since December 2017 and have found the time apart confronting. It has been called a time of great anxiety and stress for both parties but it is the time apart that has been significantly more challenging for them both.
In relation to the degree of hardship to the applicant if the visa is cancelled, the submission states that the applicant is a young man of [years] of age with no prior criminal record either in Australia or overseas. The submission states this is the applicant’s first experience spending time in custody and he and his wife have found it confronting. The applicant has stated to his representative that he is concerned for his safety. The submission states that the applicant wishes to return home to his wife so they can emotionally support each other and work on their future.
In relation to hardship on the applicant if the visa is cancelled, the submission goes on to state that the applicant did not intend to become an unlawful non-citizen and has complied with the conditions of his previous visas. The submission claims the applicant applied for his Partner visa prior to the expiry of his Student visa and has held a valid visa at all times when in the community.
The submission furthermore states that the Australian system of law is based upon a presumption of innocence and it is the right of individuals charged before the Courts to be at liberty whilst their matter is being considered. The submission points out that the applicant has not entered a plea of guilty.
The submission claims that a significant obstacle in consideration of the applicant’s bail application is the fact he does not hold a current valid visa to remain in the Australian community. The submission claims that the applicant’s current denial of bail is not because he is a flight risk or because of the Court’s concern he will not appear before the Court when required. The submission states the applicant has been very responsive in proceeding with his criminal matter as required by the Courts.
The submission points out that it is not the Tribunal’s role to determine the applicant’s guilt of criminal offences. The submission states that by revoking the delegate’s decision to cancel the applicant’s bail, the applicant will be afforded the same rights as other accused persons.
The submission notes Ministerial Direction Number 63. The submission asks the Tribunal to consider that the applicant has not ended a plea of guilty and has not been convicted of a criminal offence. The submission states that whilst the offence may be serious in that it is an indictable offence, the applicant has not been charged with offences of a violent or sexual nature. The submission states that if granted bail the applicant will be subject to very strict bail conditions to protect the Australian community.
The submission raises the Explanatory Statement regarding regulation 2.43(1). The submission notes that in the explanatory statement one of the main concerns for the Government was Bridging Visa E holders who engage in criminal conduct whilst waiting for their Protection visa to be assessed. The applicant’s representative has submitted that the applicant’s accused conduct does not fall within this category. The submission states that the applicant was instead granted a Student visa which involved ‘a thorough assessment’ of his character by the Department before he made a Partner visa application. The submission makes the argument that the applicant held a substantive visa when he applied for the Partner visa. The submission states that the applicant became a holder of a Bridging Visa E as he requested the cancellation of his Student visa due to financial difficulties. This, it is submitted, led to his Bridging Visa A to be cancelled. The submission states that the applicant at no time has remained in the community without holding a valid visa and there was nothing in his visa history to suggest he would not comply with any conditions imposed on him.
The submission states that if the Tribunal affirms the cancellation of the applicant’s Bridging Visa E, the applicant will not be able to make an application for any other Bridging visa whilst his Partner visa is being processed. The submission states that the current processing time for onshore Partner applications is 12 to 18 months and increasing. The submission states that the applicant’s Partner visa application was lodged on 20 June 2017 and will likely not be allocated to a case officer until the end of the year or early 2019. The submission states that without a valid visa the applicant will be required to remain incarcerated whilst his criminal matter is resolved or in immigration detention if his criminal charges are dismissed.
The submission stated that the applicant’s matter was listed for a Supreme Court bail application [in] June 2018 and requested a decision by the Tribunal prior to that date.
THE TRIBUNAL HEARING
The applicant appeared before the Tribunal on 15 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal advised the applicant that it was conducting a review of the decision of the Department of Home Affairs to cancel the applicant’s Bridging visa under s.116(1)(g) of the Migration Act because prescribed grounds for the cancellation of the applicant’s visa existed under r.2.43(1)(p). The Tribunal explained to the applicant that the event that triggered the cancellation of his Bridging visa was the fact that he was charged with a number of criminal offences [in] December 2017 in the state of New South Wales. As noted the above, the charges were two counts of cultivate prohibited [items] of not less than the large commercial quantity; two counts of abstract, consume or cause to be wasted electricity; and one count of participate in a criminal group. The Tribunal noted that the review required a determination of whether the grounds for cancellation existed and secondly whether having regard to the relevant Ministerial Directive the visa should be cancelled.
The applicant provided his name and date of birth. The Tribunal asked the applicant about his schooling and at what age he commenced schooling in Vietnam and completed the up to the Australian equivalent of Year Twelve. The Tribunal asked the applicant how he fared academically at school. The applicant stated that he was average at school but was the class captain for three years.
The Tribunal asked the applicant about his Student Visa. The applicant said he arrived in Australia on this visa [in] September 2013. The Tribunal asked what he studied. He said English but he didn’t finish his course. He stated he plans to study [an area]. The Tribunal asked the applicant what was the status of his Student Visa. He replied that it had been cancelled and he had stopped schooling. The Tribunal asked the applicant if the Student Visa was a Higher Education Visa. He agreed it was. The Tribunal asked if he had completed any pertinent higher education courses. He said he had not. The applicant agreed that the visa had been cancelled for non-enrolment. In response to the Tribunal’s questions the applicant said that he had applied for review with the Tribunal of the cancellation and that had led to him holding a Bridging Visa E. He claims his solicitor has told him he has work rights but no study rights.
The applicant said that he had to cease his studies because he had to commence working instead due to his father’s illness. The Tribunal asked if he had asked for a review by the Tribunal of his cancellation. He said he had. The Tribunal noted the applicant’s written submission stated the applicant requested the cancellation of his Student visa. The applicant conceded that this was not the case and the Student visa had in fact been cancelled.
The Tribunal asked the applicant about his family. He said his mother and father were in Vietnam with his two younger brothers aged [age] and [age]. He said that his father was ill with cancer and unable to work. He said that he does not have family in Australia.
The applicant advised the Tribunal about his wife. The Tribunal noted that the applicant originally intended to call his wife as a witness but had informed the Tribunal that she was no longer going to give evidence. The Tribunal again asked him to confirm that she was not giving evidence. He confirmed that was the case. The Tribunal asked the applicant to tell it about his wife. He stated that he met her whilst travelling in [a suburb] around Christmas 2016. He said that she is [an occupation] and works five days a week [where] she earns $[amount] per week. He stated that his wife currently lives in [another] with her parents. The applicant said she also has a younger brother. The applicant said he was living with his wife in [a suburb] at the time he was arrested and incarcerated in December 2017. He said that his wife returned to living with her parents after he was incarcerated.
The Tribunal asked the applicant if he had been working whilst in Australia on his Student visa. He said he had worked in a range of jobs including in [various businesses]. He said his last job was paying him between $[amount] to $[amount] per week.
The applicant said he has never returned to Vietnam since arriving in Australia five years ago.
The Tribunal asked the applicant whether he had previously seen the NSW Police Fact Sheet. He confirmed that he had but wasn’t entirely sure of all the contents due to language difficulties. The applicant said he had had no previous interactions with the NSW Police Force. He said he had been arrested and charged [in] December 2017. He said the matter had been adjourned numerous times and he was due to go to Court again [in] August.
The Tribunal explained to the applicant in detail the risk of self-incrimination and advised the applicant that prior to answering any questions about the current charges that he was not required to provide a response to any question if he felt that the response would incriminate him in any way. The Tribunal asked the applicant whether he wanted an opportunity to contact and speak with his representative about self-incrimination prior to the Tribunal questioning him with regard to the current charges. The Tribunal offered to adjourn the proceedings to enable him to do so. The applicant advised that he did not wish to consult his representative and the questions could proceed.
The Tribunal asked the applicant about the circumstances pertaining to the current charges. The applicant stated that he did not do what he had been charged with. He said that [Address 1] was the property of a friend. He said that this friend had been very good to him in the past and when his father was seriously ill had lent him some money. He said for these reasons he felt a sense of obligation to the friend when he was asked to come to and stay at his house at [Address 1] on the night of [December] 2017. He stated that his friend asked him to put water in the tanks at the property. The applicant said he had visited the property sometime previously when his friend and his friend’s girlfriend lived there. He said at that time the house was normal and did not contain [prohibited items].
The applicant went on to say that he returned to his home [the] next morning where he met another friend [Mr A]. He stated to the Tribunal his friend [Mr A] asked him to travel with him to breakfast [where] they visited [a store]. He said they then went to see a friend of [Mr A] at [Address 2]. He said he was a passenger in Mr Nguyen’s motor vehicle. The Tribunal asked the applicant why he ran away when the NSW Police knocked on the door. He said someone said ‘Run!’ so he did so. The applicant denies ever knowing of the [prohibited items] found at [Address 2]. He said he only knew of them when he arrived.
The applicant stated that he was questioned by the Police for about 45 minutes. He said he didn’t understand what the Magistrate said when his bail was refused; just that his solicitor had told him it was not approved. He said that his request for bail at the Local Court was not granted. He said that the matter later went to the Supreme Court but his visa had been cancelled before the application was considered. The Tribunal noted from information supplied by the applicant’s representative that a bail hearing was scheduled for [June] 2018. The applicant said that had been adjourned.
The Tribunal asked the applicant whether he had any health issues in Australia since arriving. He said his health was good. He said whilst inside he had sometimes picked up a fever and psychologically the gaol was not ideal to remain ‘stable’.
The Tribunal asked the application how he was spending his time in detention and he advised he was working in the laundry five days a week. He advised that he was also exercising and played table tennis.
The applicant told the Tribunal his wife was finding things much more difficult since he went into detention. He said she visits him weekly at Silverwater. He said that was the reason she had returned home to live with her parents. He said that neither he nor his wife received any Government benefits such as Centrelink. The applicant advised that he and his wife had been paying $[amount] per week for their property in [a suburb] previously. He said that his wife was now assisting her parents with the rent for their home whilst she lived with them. The applicant advised that he and his wife do not have a motor vehicle and their main costs were food, shopping and general household bills. He told the Tribunal he neither smoked nor consumed alcohol. The applicant stated his time in gaol the past eight months had made him realise how he wished to get back and support his family.
The Tribunal asked the applicant what were his plans if he were released on bail. He said he wanted to return to work to bring home more money for his wife. The Tribunal asked how he would find work again if he were released from custody. He said through the jobs pages in the Vietnamese newspapers. He said his last job had been for four days a [week] . He said he could also work as [another occupation]. The applicant said that he did not have any written references from past employers but he could obtain them. He said he was also interested in studying and improving his English.
The applicant said that his family were aware of his detention. He said that it had adversely impacted upon them in almost every aspect. He stated that his father’s illness and cancer had been aggravated by his situation. He said that he greatly regretted what had happened and the effect this had upon his family. He said as the eldest son of the family he had obligations to his family. The applicant said that when he travelled to Australia on his Student Visa his parents had borrowed the money for him to study. His plan had been to study in Australia, get a job and assist the family. The applicant said if he returned to Vietnam it would be a big imposition on his family. In response to the Tribunal’s questions the applicant stated that it would be hard for him to get a job in Vietnam if he returned – but he would look at working as [an occupation]– and he mentioned that living conditions were difficult due to the decline of the Vietnamese dong relative to the Australian dollar.
The applicant also discussed the impact the cancellation would have upon his wife. He said his time in custody had meant he was unable to assist his wife emotionally and her mental wellbeing. He said he was unable to support her financially.

The Tribunal asked the applicant about the hardship he would face if his visa was cancelled. He replied that it would affect him mentally and spiritually. He said he would be separated from his wife. He said that Australia was a good country and if he were able to remain he could work and assist his wife.
The Tribunal asked the applicant if he planned to again attempt to have bail granted. He replied that it was very difficult for him to get bail due to his visa condition. He said that if he were bailed he would go to work and try and assist his family.
The applicant said that he would plead not guilty to all charges. He said he only accepted that he went to the premises named in the charges to assist his friend and then to go with his friend [Mr A] to visit one of [Mr A’s] friends.
The Tribunal asked the applicant whether he wanted to make any closing submissions. He asked that the Tribunal seriously consider his case so he could return to work and assist his family.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(p)(i) is relevant.
The applicant’s representative in her written submissions of 1 May 2018 writes that the applicant has been charged with offences by the NSW Police and states that the applicant concedes that the grounds to consider cancellation exists.
The Tribunal notes in the New South Wales Police Fact Sheet of [December] 2017 states that the applicant has been charged with the offences outlined in paragraph 2 of this decision record. The applicant informed the Tribunal hearing that the substantive matter is still to be heard by the Court.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(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
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The evidence indicates that the applicant has no dependent children who would be affected by the cancellation.
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
The evidence before the Tribunal indicates that the applicant arrived in Australia in 2013 on a Student visa. The evidence indicates that the Student visa was cancelled by the delegate due to the applicant’s failure to meet the ongoing requirements for visa holders. The evidence indicates the visa was not cancelled by the applicant as stated in the applicant’s written submission, but rather by the delegate for non-enrolment. The applicant claims he was unable to study because he had to seek employment due to his father’s illness. The Tribunal notes that the applicant’s submission incorrectly states that the applicant became a holder of a Bridging Visa E as he requested the cancellation of his Student visa due to financial difficulties. The applicant has conceded this was not the case and the visa was cancelled for non-enrolment.
The evidence also indicates that the applicant married his wife [in] May 2017 and subsequently applied for a Partner visa on 20 June 2017.
The Tribunal notes that the applicant applied for a Partner visa in June 2017 whilst still holding a substantive visa, a few months prior to his Student visa being cancelled by the delegate. The Tribunal notes that the applicant says he wishes to remain in Australia to undertake studies in English, but places greater weight on the fact that during almost four years the applicant did not complete any of his studies whilst in Australia. The Tribunal on balance is satisfied that the visa holder does not have a compelling need to travel to or remain in Australia.
The extent of compliance with visa conditions
The evidence indicates that the applicant’s Student visa was cancelled by the delegate due to the applicant’s failure to meet the ongoing requirements for visa holders. The evidence indicates the visa was not cancelled by the applicant as claimed in the applicant’s written submission, but rather by the delegate for non-enrolment. The applicant claims he was unable to study because he had to seek employment due to his father’s illness. The applicant’s submission also claims the applicant has applied with conditions of his previous visas. The Tribunal also notes that the applicant’s submission incorrectly states that the applicant became a holder of a Bridging Visa E as he requested the cancellation of his Student visa due to financial difficulties. The applicant has conceded this was not the case and the visa was cancelled for non-enrolment. The Tribunal is of the opinion that the applicant did not comply with the conditions of his Student visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant has claimed that he is suffering and will suffer future hardship if the visa cancellation is not set aside. The Tribunal is satisfied that the cancellation of the applicant’s Bridging Visa E will impose hardship on the applicant with him having to remain in detention even if he secures bail in relation to his criminal charges.
The applicant claims hardship in that the cancellation of his visa is having a significant impact upon his ability to secure bail. The applicant indicated that he will be pleading not guilty to the charges he is facing. The applicant has suggested that if he were to be granted bail then he would be subject to a wide range of very strict conditions to protect the Australian community. The Tribunal accepts the applicant’s argument that these are the first criminal charges he has faced, his relative youth and the charges themselves are not of a violent or sexual nature. The Tribunal nevertheless notes that these are serious and significant criminal charges. The Tribunal considers the claim that the Courts will allow the applicant bail if the visa cancellation was overturned to be speculative and therefore gives this aspect of the claim little weight. The Tribunal notes that the applicant still has access to his legal representation whilst he prepares to plead not guilty to the criminal charges. The Tribunal accepts that the cancellation is causing the applicant hardship but does not on balance accept that in itself it is precluding the applicant from securing bail.
The applicant has claimed hardship in that he and his wife have found his experience whilst incarcerated confronting and they have feared for his safety. The Tribunal accepts that this is the applicant’s first time in gaol and appreciates the emotional and psychological hardship detention can cause. The Tribunal does not however consider this experience any different to other individuals remanded in custody. The applicant in evidence stated that he is working in gaol, engaging in recreational pursuits and has developed some friendships. He has not claimed or outlined any particular fear or danger. He is not receiving any treatment for any psychological or stress related disorders.
The applicant outlined the financial hardship that his visa cancellation has caused and will continue to cause to both himself and his wife. Given the applicant and the applicant’s wife made the decision not to give evidence to the Tribunal, the Tribunal must rely on the oral evidence of the applicant and the written submission of the applicant’s representative to ascertain the deleterious effect the applicant’s incarceration has had upon the applicant’s wife. The evidence indicates that the applicant whilst holding his Student visa worked in a wide range of occupations for cash including most recently a most recent year-long [stint]. He claims to have been making $[amount]. They were renting a property for $[amount] per week. The evidence indicates that the applicant’s wife is in gainful employment as a nails technician where she earns $[amount] a week. The evidence indicates that the applicant’s wife has returned home to live with her parents during the period of the applicant’s custody. The Tribunal on the evidence is not satisfied that the applicant’s wife is facing any significant financial hardship as a result of his visa cancellation. She is in full-time employment and living with her parents, albeit making a payment towards rent.
The applicant has stated that his cancellation would affect him mentally and spiritually. The Tribunal He also said it would mean that he would be separated from his wife and unable to assist her emotionally and her mental wellbeing. The Tribunal gives some weight to the claim of hardship emanating from the applicant’s separation from his wife and the impact upon her own emotional wellbeing but, on balance finds it does not mean that the visa should not be cancelled.
The applicant has claimed that his family will face hardship due to his cancellation. He states his arrest and the charging have already caused considerable hardship to his family offshore. He claims his father is unwell through cancer. The applicant has claimed his return to Vietnam would bring hardship – both emotional due to the fact that he is the oldest son and financial. He states that it would be difficult to obtain employment in Vietnam and that would bring about an even greater imposition on his family who funded his Student visa. The Tribunal accepts that the news of his criminal charges and the cancellation of his visa have caused the applicant’s family emotional hardship. The Tribunal however gives the applicant’s claim of possible future hardship through impecuniosity little weight. It is speculative. There is no evidence he will be unable to secure gainful employment in Vietnam. On the evidence the applicant has a sound work ethic, working whilst in gaol in the laundry and working across a range of roles since arriving in Australia in 2013. The Tribunal gives this claim of future hardship little weight.
The Tribunal is also mindful that if the applicant’s Bridging visa is cancelled, he will not be able to apply for a further Bridging visa. He would therefore remain in detention until his status is resolved, which could take some time until his criminal matter is resolved or his Partner application is finalised. The Tribunal notes that the applicant’s Partner visa application was lodged 14 months ago. Given the usual timeframes there is a reasonable expectation that it would be processed in the next two to four months. The applicant retains the opportunity to lodge a further Partner visa application from offshore if he is not convicted of his existing criminal offences.
The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant has been charged with a number of serious criminal offences. There is no evidence of family violence involved but there are criminal charges that the applicant currently faces. The cancellation arose from the charging of the applicant with a number of criminal offences in the State of New South Wales. The charges are: two counts of cultivate prohibited [items] of not less than the large commercial quantity; two counts of abstract, consume or cause to be wasted electricity; and one count of participate in a criminal group. The Tribunal has given some weight to the applicant’s claim that he has not been convicted and intends to plead not guilty. The Tribunal furthermore gives some weight to the applicant’s claim that these are his first criminal charges, his relative youth and the fact that on the evidence he appears to have been cooperative and productive whilst in detention, voluntarily working five days a week in the gaol laundry.
The Tribunal gives greater weight however to the fact the applicant has been charged with a number of significant offences. The Tribunal appreciates the offences were not violent or sexual in their nature, but nevertheless recognises the gravity of the charges before the applicant.
The applicant has explained to the Tribunal the background to the charges and his recollection of events. It is not the role of the Tribunal to determine whether or not the applicant is guilty of a criminal offence. Given this the Tribunal gives no weight either way to whether the circumstances in which the cancellation arose as a reason to cancel, or not cancel the visa.
Past and present behaviour of the visa holder towards the Department
The Tribunal gives some adverse weight to the applicant’s failure to keep his visa status in order which led to the cancellation of his Student visa in August 2017.
The Tribunal gives some positive weight however to the fact the applicant’s migration status has remained lawful during his five years in Australia.
Whether there would be consequential cancellations under s.140
The Tribunal finds that there will be no consequential cancellations under s. 140 if the visa is cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The applicant is currently in criminal detention and his existing Bridging visa was granted on the basis of his appeal against the cancellation by the delegate of his Student visa. The Tribunal gives some weight to the fact that there are mandatory legal consequences of a decision to affirm the applicant’s Bridging E visa cancellation which could result in the applicant being unlawful and, notwithstanding his criminal charges, subject to continuing detention whilst his Partner visa was assessed and removal from Australia. The Tribunal notes the applicant’s claim that his Partner visa application may not be processed until the end of the year and, without a Bridging visa, he will remain in immigration detention until the assessment is completed. Nevertheless as a consideration for not cancelling the visa, the Tribunal gives greater weight to the gravity of the criminal charges the applicant is facing.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal is not aware of any international obligations which would be breached as a result of the cancellation.
Any other relevant matters
None.
Conclusion
The Tribunal has weighed the primary and secondary considerations. In this case, the Tribunal has considered the applicant’s young age and the ongoing hardship to the applicant with his remaining in detention. The Tribunal has also taken into consideration that the period of detention has already been eight months, that the period of ongoing detention is uncertain and this may adversely affect the wellbeing of the applicant and his wife. The Tribunal has taken into account that the applicant intends to plead not guilty to the charges. The Tribunal has furthermore noted that the possible adverse impact the lack of a Bridging visa may have upon the applicant’s ability to obtain bail in relation to the criminal charges he is currently facing. The Tribunal had regard to the emotional and financial hardship to the applicant’s wife regarding the applicant’s situation and the consequences if the visa is cancelled. The Tribunal furthermore accepts the applicant’s evidence that his situation has caused great stress for his parents in Vietnam.
However, the Tribunal considered these factors were outweighed by the other considerations. Firstly, the Tribunal is mindful that the primary consideration applicable is the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously and be given greater weight than any secondary considerations. The principles of the Ministerial Determination include that mandatory detention applies to any non-citizen who arrives and remains in Australia and who does not hold a visa, and the Australian Government has a low tolerance for criminal behaviour by non – citizens who are in the Australian community on a temporary basis and do not hold a substantive visa. Further, the principles indicate that in order to effectively protect the Australian community and to maintain integrity and public confidence in the migration system, the Government has introduced measures that support education of Bridging E visa holders about community expectations and acceptable behaviour and where a person has been charged with the commission of a criminal offence there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing. The applicant’s bridging visa conditions did include a condition regarding the Code of Behaviour and not to engage in criminal conduct.
The charges the applicant faces involve serious [allegations]. The Tribunal considers that the nature of the charges and the circumstances of the events that led to the charges being laid as described by the police and the applicant are such that the Tribunal considers the visa should be cancelled. The Tribunal accepts the applicant and his wife will be emotionally affected by his detention, however there is no claim made or current medical evidence before the Tribunal to indicate that he is suffering a serious mental health condition. The Tribunal notes that the applicant has ongoing access to such health services as he requires from within detention. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Justin Owen
Senior Member

[2018] AATA 4085

21 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Charge

Natural Justice