1808326 (Migration)

1808326 (Migration) [2018] AATA 5302 (29 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1808326
MEMBER:Michael Ison
DATE:29 November 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 29 November 2018 at 1:13pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged with a criminal offence – consideration of discretion – nature of offence being charged – also serving an eight month sentence of imprisonment – impact on family unit – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.43
CASES
ACH15 v MIBP [2015] FCCA 1250
Hasran v MIAC [2010] FCAFC 40
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa (Bridging E visa) under s.116 of the Migration Act 1958 (the Act).
The applicant [is] a [age] year old Sri Lankan national. [The applicant] also uses the name of [Alias 1].
The delegate cancelled the visa under s.116(1)(g) and r.2.43(1)(p)(ii) on the basis that on 18 March 2018 [the applicant] was charged with a number of criminal offences arising from allegations of a domestic violence related assault. 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] applied to the Tribunal to review the cancellation of his Bridging E visa on 26 March 2018, providing a copy of the Notice of Intention to Consider Cancellation of a visa (NOICC) and the Decision to cancel his visa, both dated 20 March 2018, at the time of lodging his application for review.
I received [the applicant]’s application for review as the Presiding Member on 28 August 2018.
The Tribunal received a copy of the Department’s file in relation to the cancellation of [the applicant]’s Bridging E visa. The Department’s file included a copy of the four criminal charges filed against [the applicant] (under the name [Alias 1]) on 18 March 2018 and an accompanying undated two page Preliminary Brief – Statement Made by Informant (Preliminary Brief).[1]
[1] Department file, folios 8 to 10.
On 21 May 2018 a delegate of the Minister issued a certificate under s.375A of the Act certifying that it was not in the public interest that the Preliminary Brief be disclosed to anyone other than the Tribunal as it contains personal information that may be harmful to a third party.[2]
[2] Department file, folio 38.
On 29 August 2018, the informant, a sworn police officer, confirmed to the Tribunal by email that the Preliminary Brief had been provided to [the applicant] as part of the criminal justice process the Preliminary Brief related to. The informant also stated in that email that [the applicant] is in custody and that:
… there is also a current active and served Full Family Violence Intervention Order (sic) where [the applicant] is the respondent and the victim in this matter is the affected family member. This is an order for five years and expiry date is 29/05/ 2023[3]
[3] Email from Victoria Police to the Tribunal dated 29 August 2018, Tribunal file, folio 16.
The Tribunal found that the certificate issued under s.375A of the Act did not adequately demonstrate sufficiently in the particular circumstances of this case how release would be contrary to the public interest. The Tribunal informed the Department of this on 5 September 2018 and invited the Department to make a submission about this failing which the Tribunal would set the matter down for a hearing.[4] The Department did not make a submission.
[4] Tribunal email to the Department dated 5 September 2018, Tribunal file, folio 20.
Also on 5 September 2018 the Tribunal wrote to [the applicant]’s lawyer and registered migration agent at the time, [Mr A] of [Law Firm 1], requesting a copy of the Preliminary Brief, charge sheets, community corrections order dated 6 October 2017 referred to in the criminal charges and any submission [the applicant] wished to make in relation to those documents.[5] The Tribunal subsequently also sought clarification from [Mr A] in relation to his client’s name.
[5] Email from the Tribunal to [Law Firm 1] dated 5 September 2018, Tribunal file, folio 21.
[Mr A] replied the same day that he had forwarded the information to [the applicant]’s brother who was in communication with [the applicant] and was providing [Mr A] with instructions. [Mr A] requested more time to obtain instructions.[6] The Tribunal agreed to this request.
[6] Email from [Law Firm 1] to the Tribunal dated 5 September 2018, Tribunal file, folio 32.
Also on 5 September 2018 the informant told the Tribunal further matters had been alleged against [the applicant] and the informant had forwarded the relevant information to the Department.
On 6 September 2018 the Tribunal contacted the Department seeking more information about the additional matters referred to by Victoria Police.
On 7 September 2018 the Department forwarded the Tribunal an email from Victoria Police dated 3 September 2018 that stated:
On Tuesday 28^th of August 2018, the person below was charged with 3 X Counts of Rape and 2 X Unlawful Assault. The matter is listed for a filing hearing at Melbourne [in] September 2018. (sic)
[Alias 1] ([date]). He may have a DOB listed as [alternative date] FYI.
He is currently serving sentence (sic) at [specified] correctional facility for another matter that you should be aware of (DSC [redacted] informant).[7]
[7] Email from Victoria Police to the Department dated 3 September 2018, Tribunal file, folio 35.
On 10 September 2018 [Mr A] emailed the Tribunal advising he had spoken to [the applicant]’s brother who advised [Mr A] that [the applicant] is in prison serving an eight month sentence due to be completed in November 2018 and his correct name is [Alias 1] born on [date]. [Mr A] wrote that [the applicant]’s brother had made an appointment to see [Mr A] in five days’ time and [Mr A] would revert back to the Tribunal the next week.[8]
[8] Email from [Law Firm 1] to the Tribunal dated 10 September 2018, Tribunal file, folio 39.
On 23 October 2018 the Tribunal sent [the applicant], through [Mr A], an invitation under s.359A of the Act to comment on or respond to information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.[9] The Tribunal’s letter enclosed a copy of the criminal charge sheets dated 18 March 2018, the Preliminary Brief, the Victoria Police email dated 29 August 2018 stating he is in custody and the respondent to a five year intervention order expiring in May 2023 and the Victoria Police email dated 3 September 2018 stating he has been separately charged with three counts of rape and two counts of unlawful assault.
[9] Tribunal letter to [the applicant] under s.359A dated 23 October 2018, Tribunal file, folios 40 to 47.
The Tribunal’s letter also included a detailed table setting out the particulars of the adverse information in each document, the relevance of each item of adverse information to [the applicant]’s review and the consequence for [the applicant] if the Tribunal relied on each item of adverse information. The table specifically addressed the relevance of the information to both the threshold issue of whether the ground for cancellation had been made out and, if so, the Tribunal’s consideration of the discretionary considerations.
The Tribunal’s letter requested a response by 7 November 2018 and advised [the applicant]:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[10]
[10] Op.cit. at page 2, Tribunal file, folio 45 (back).
Also on 23 October 2018 the Tribunal separately sent [the applicant], through [Mr A], a copy of the Department’s certificate under s.375A.[11] The Tribunal explained in that letter that as it found the certificate was not valid the Tribunal did not seek [the applicant]’s comment on the certificate.
[11] Tribunal letter to [the applicant] via dated 23 October 2018, Tribunal file, folios 48 and 49.
On 29 October 2018 [Mr A] emailed the Tribunal to advise he had been contacted by [the applicant]’s brother and told [the applicant] has instructed a new lawyer in relation to this review. [Mr A] confirmed that he had forwarded to both [the applicant] and his brother the Tribunal’s s.359A letter and letter in relation to the s.375A certificate and advised them of the timeframe to reply to the s.359A letter.[12]
[12] Email from [Law Firm 1] to the Tribunal dated 29 October 2018, Tribunal file, folio 51.
On 31 October 2018 the Tribunal received an email from [Ms B] of [Law Firm 2], together with an Appointment of Representative form and request for access to documents under s.362A form, stating that she had “… just received instructions to come on the record today…” and:
given the significant amount of information put to the applicant in the invitation to comment, and the seriousness of the issues being raised by the Tribunal, we kindly request that our request for an extension of time is considered and that the 362A request be processed with urgency.[13]
[13] Email from [Law Firm 2] to the Tribunal dated 31 October 2018, Tribunal file, folio 60.
[Ms B’s] request for an extension of time for her client to respond to the Tribunal’s s.359A letter did not specify how much additional time her client would reasonably require.
On 1 November 2018 a Tribunal officer telephoned [Ms B] to clarify the duration of the extension of time she was seeking. [Ms B] requested that the due date for the response be extended to 16 November 2018. During the telephone conversation [Ms B] informed the Tribunal officer that she had not spoken directly to her client yet but hoped to see him the next day, she also needed to liaise with his criminal lawyer, she did not know why he is currently imprisoned and did not know when he is due to be released from prison.
The Tribunal confirmed in writing on the same day that it agreed to [Ms B]’s request for an extension of time to 16 November 2018 to respond to the Tribunal’s letter under s.359A dated 23 October 2018. This letter of confirmation included the following statement:
If we do not receive your comments or response by 16 November 2018, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[14]
[14] Tribunal letter, sent by email, to [Law Firm 2] dated 1 November 2018, Tribunal file, folios 64 and 65.
On 2 November 2018 the Tribunal released its file in relation to the review and its copy of the Department’s file in full under s.362A of the Act to [Law Firm 2], save for the deletion of third-party personal information and information outside the scope of s.362A.[15]
[15] Tribunal letter, sent by email, to [Law Firm 2] dated 1 November 2018, Tribunal file, folios 67 to 69.
On 16 November 2018, in an email date stamped 2:50 PM, [Ms B] wrote to the Tribunal that:
We have received instructions from the Review Applicant to cease to act on his behalf. Therefore, please find attached:
1. Change of contact details withdrawing our representation
While we are providing the attached document based on the Review Applicant’s instructions, we wish to inform the Tribunal that we are of the understanding that the Review Applicant is now located at [a named Remand Centre].[16]
[16] Email from [Law Firm 2] to the Tribunal dated 16 November 2018, Tribunal file, folio 71.
The email from [Ms B] did not make any reference to, or respond to, the Tribunal’s invitation to [the applicant] to comment on or respond to information under s.359A of the Act.
At 03:57 PM on 16 November 2018 a Tribunal officer rang and left a message for [Ms B] requesting she urgently contact the Tribunal to clarify her email. At the time of this decision, [Ms B] has not responded to that message.
[The applicant] has not given information, comments or response in response to a written invitation from the Tribunal to do so within the prescribed period, as extended. In those circumstances, s.359C(2) of the Act provides:
(2)  If the applicant:
(a)  is invited under section 359A to comment on or respond to information; and
(b)  does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Pursuant to s.360(3) of the Act the review applicant is then not entitled to appear before the Tribunal. Section 360 of the Act provides:
(1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)  Subsection (1) does not apply if:
(a)  the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)     subsection 359C(1) or (2) applies to the applicant.
(3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Under s.360(2)(c) because [the applicant] has not responded to the Tribunal’s invitation under s.359A to comment on or respond to information, s.360(3) now applies and, after 16 November 2018, [the applicant] was not entitled to appear before the Tribunal.
Section 363A relevantly provides:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The effect of s.363A of the Act is that as [the applicant] has lost his entitlement to a hearing, the Tribunal has no power to permit him to appear before it: Hasran v MIAC [2010] FCAFC 40.
The Tribunal considered writing again to [the applicant] to seek his response to the Tribunal’s notification of potentially adverse information, despite [the applicant] having lost his right to appear before the Tribunal. Ultimately, the Tribunal chose not to proceed in that manner as [the applicant] has been represented by two lawyers and registered migration agents while his matter has been under active consideration by the Tribunal and he was given an additional two weeks to respond to the Tribunal’s letter under s.359A of the Act but chose not to do so or failed to do so.
The Tribunal decided to proceed to make a decision on [the applicant]’s application for review based on the information before it.
For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant]’s Bridging E visa should be affirmed.
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) that the Minister is satisfied a prescribed ground for cancellation exists. Under r.2.43(1)(p)(ii) a prescribed ground includes being charged with a criminal offence.
If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s.116(1)(g) - prescribed ground
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)(ii) is relevant. It provides:
(1)  For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(p)  in the case of the holder of a Subclass 050 Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa — that the Minister is satisfied that the holder:
…
(ii)  has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
The information before the Tribunal is that [the applicant] was charged with four criminal offences on 18 March 2018.
The Tribunal has also received information from Victoria Police that on 28 August 2018 [the applicant] was charged with a further five criminal offences in a matter unrelated to the matter that led to the criminal charges dated 18 March 2018 being filed.
There is no information before the Tribunal to indicate that any of those criminal charges have or may be withdrawn.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(p)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
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 rigour referred to in the first primary consideration has been found to mean rigour in relation to whether to enter into consideration of cancelling the visa and not that the discretion to cancel should be exercised rigorously.[17] The Tribunal therefore:
… must take [the Government’s] view as part of the matters to be weighed rather than simply to follow the view.[18]
[17] ACH15 v MIBP [2015] FCCA 1250 at [28]-[31].
[18] ACH15 v MIBP [2015] FCCA 1250 at [33].
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.[19]
[19] Direction 63, cl.5.1.

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’.
Consideration of discretion – guiding principles
The primary and secondary considerations set out in Direction 63 are established in the context of guiding principles, set out in clauses 4.2 and 4.3 of Direction 63. Those guiding principles include:
4.2(1) The Government is committed to ensuring that non-citizens given the privilege of living in the Australian community on Bridging E visas behave in a manner that is in accordance with Australian laws and which respects Australia’s community values and standards of democracy, multiculturalism, respect, inclusion, cohesion, tolerance, and cooperation. The principles below are of critical importance in furthering that objective.
4.3(3) 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. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.
4.3(5) … [W]here Bridging E visa holders are charged with the commission of a criminal offence or otherwise suspected of engaging in criminal behaviour or being a security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
4.3(6) The person’s individual circumstances, including the seriousness of the actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
Consideration of discretion – primary considerations
In considering the cancellation of [the applicant]’s Bridging E visa the Tribunal has kept in mind the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should result in every instance of non-compliance being considered for cancellation and has also kept in mind the guiding principles set out by the Government.
The Preliminary Brief states the victim of [the applicant]’s alleged assault that led to the criminal charges dated 18 March 2018 was [the applicant]’s then partner who was “5 – 6 months pregnant” at the time. The Tribunal has no information before it to confirm that pregnancy or to indicate whether the alleged pregnancy of [the applicant]’s then partner culminated in the successful birth of a [child] or whether [the applicant] is, or is not, the biological father of that child if it has been born.
If [the applicant]’s then partner has successfully given birth by now and [the applicant] is the biological father of that child then [the applicant] has a child under the age of 18 in Australia.
The Tribunal is of the view, based on the information before it, that the ongoing cancellation of [the applicant]’s Bridging E visa would affect that child.
Direction 63 provides guidance as to how decision makers should assess this consideration:
6.2(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of any children under 18, who would be affected by the decision.
a. In considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a bridging E visa under the prescribed grounds in regulation 2.43(1)(p) or (q) does not necessarily represent a final resolution of a person’s immigration status in Australia.[20]
[20] Direction 63, paragraph 6.2, page 4.
The United Nations Convention on the Rights of the Child[21] provides, amongst other matters, that:
[21] Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49 of the convention.
Article 5
States Parties shall respect the responsibilities, rights and duties of parents … to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 7
1. The child … shall have the right from birth … to know and be cared for by his or her parents. …
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. …
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. …
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. …
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. …
These and other Articles collectively recognise the responsibility of parents to raise their children and for each child to fully participate in family life where it is in the best interests of the child to do so. The Preamble to the Convention (and other conventions) recognises the family unit as the fundamental group of society and states that the child:
… for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
The information before the Tribunal is that it is alleged by Victoria Police that [the applicant] has twice assaulted his then partner while she was allegedly pregnant with that child causing her to be hospitalised both times. The alleged assault on 18 March 2018 is alleged to have left [the applicant]’s then partner suffering what is “… believed to [be a] facial orbital fracture to eye socket to the right side of her face and has significant swelling to her face (sic).”[22]
[22] Preliminary Brief, first page, Tribunal file, folio 42 (back).
Victoria Police also allege:
The victim is extremely fearful of the accused and at this stage has not provided a true account of this assault upon her on this occasion.[23]
[23] Op. cit. page 2, Department file, folio _.
Victoria Police further allege that [the applicant] is the respondent to a current ‘Full Family Violence Intervention Order’ or ‘Personal Safety Intervention Order’ where the person protected is his then partner. According to Victoria Police, the Order was made for five years and is current until 29 May 2023. [24]
[24] Victoria Police email to the Tribunal dated 29 August 2018, Tribunal file, folio 19; Preliminary Brief at page two and Department file, folio _ (back).
If that is the case then that is not the Personal Safety Intervention Order that the 18 March 2018 charges allege [the applicant] has breached. That is because that five year Order, if Victoria Police’s information that it expires on 29 May 2023 is correct, must have been issued on or around 30 May 2018. That is after [the applicant] is alleged to have assaulted his then partner and for which he has been charged, amongst other things, with breaching a Personal Safety Intervention Order as Victoria Police alleges that assault and breach occurred on 17 March 2018.[25]
[25] Victoria Police Charge Sheets dated 18 March 2018, charge no. 3, Department file, folio _ (back).
It is possible, and in the Tribunal’s experience not uncommon, in situations of alleged domestic violence that over time there may be more than one Personal Safety Intervention Order in place.
The Tribunal does not have the benefit of any oral or independent evidence, such as copies of certified extracts of court orders or any medical reports, to prove the matters alleged by Victoria Police, including even the existence, term or conditions of what Victoria Police allege is a current Personal Safety Intervention Order.
The Tribunal is cognisant that there is no information before it that indicates the allegations of assault of his then partner by [the applicant] and his alleged breach of the Personal Safety Intervention Order, and even the separate matters of allegations of rape and assault of another person, have been proven. [the applicant] has not, to the Tribunal’s knowledge, made any admissions in relation to those various allegations. Indeed, the Preliminary Brief notes that when [the applicant] was interviewed by police in relation to the alleged assault of his then partner on 17 March 2018, [the applicant] “… refused to state his name or answer any questions asked of him.”[26]
[26] Preliminary Brief, page two, Department file, folio _ (back).
In the circumstances of the allegations against [the applicant] it is not clear, at best, to the Tribunal that it would be in the best interests of the (assumed) child for the cancellation of [the applicant]’s visa to be set aside. The Tribunal has significant concerns, based on the information before it even with the qualifications noted above, that [the applicant] will not be able to provide the child with a family environment that has an atmosphere of happiness, love and understanding as the Convention expects.
Indeed, the Tribunal has concerns that the nature, frequency and seriousness of the various criminal matters proven and alleged against [the applicant] may indicate a possibility that if the cancellation of [the applicant]’s visa was set aside and he was to assume an unsupervised parenting role in the community, that he could expose the child to physical or mental violence, injury or abuse, neglect or maltreatment. It is clearly not in the best interests of the child to be exposed even to the risk of such behaviour and the Convention specifically recognises, particularly in Article 19, that children are to be protected from such behaviour (or the risk of such behaviour) even when in the care of a parent.
If the Tribunal does not set aside the cancellation of [the applicant]’s Bridging E visa then he may be transferred from prison to immigration detention upon [the applicant]’s release from prison, as his application for a Protection visa has not been finally decided.
Whether in prison or in immigration detention, [the applicant] may have supervised access to his (assumed) child, if the relevant authorities accept this is in the best interests of the child.
The Tribunal does not have sufficient information before it to know whether the child has been born and respectfully, is still alive, or if it is, whether [the applicant] is the father of the child or the status of [the applicant]’s relationship with the mother of the child and whether they would, or under the terms of the alleged current Personal Safety Intervention Order could, live together as a family unit. In those circumstances it would be speculative for the Tribunal to make findings of fact on these matters.
Therefore, the Tribunal finds that the primary consideration of the best interests of any children under the age of 18 in Australia who would be affected by the cancellation of [the applicant]’s visa is a consideration that is neutral and weighs neither in support of, nor against, the cancellation of [the applicant]’s Bridging E visa.
Consideration of discretion – secondary considerations
The impact of a decision to cancel the visa on the family unit including whether it will result in the temporary separation of a family unit
The information before the Tribunal, provided by [the applicant]’s lawyer and migration agent at the time, is that [the applicant]:
… is in prison serving an eight month sentence due to be release (sic) in November 2018. He was sentenced in March 2018.[27]
[27] Email from [Law firm 1] to the Tribunal dated 10 September 2018, Tribunal file, folio 39.
If [the applicant] is released from prison, sometime in November 2018 or in the future and the Tribunal does not set aside the cancellation of his Bridging E visa he will be transferred from prison to immigration detention without being released into the community.
This means one impact of the cancellation of [the applicant]’s visa is that it is unlikely that he will be allowed to live in the community. The impact on any family unit is unclear because the information before the Tribunal is that there is a current Personal Safety Intervention Order in place, although the Tribunal has not been provided with a copy of that order.
The Tribunal finds that if it does not set aside the cancellation of [the applicant]’s Bridging E visa he will remain separated from his family even after his release from prison because he will be detained in immigration detention and this will cause his some hardship. However, the weight the Tribunal gives this consideration is modest given the evidence before the Tribunal of a Personal Safety Intervention Order being in place to protect [the applicant]’s partner from his alleged violence.
The Tribunal finds that this discretionary consideration weighs against the cancellation of [the applicant]’s Bridging E visa but for the reasons noted above the Tribunal only gives this consideration modest weight.
The degree of hardship that may be experienced by the visa holder if the visa is cancelled
There is no specific information before the Tribunal about the degree of hardship [the applicant] may experience if his Bridging E visa remains cancelled.
It is reasonable to assume that [the applicant] would prefer to be living in the community and that the ongoing cancellation of his visa, to the extent that it would cause him to be transferred to immigration detention once he is released from prison, may cause him some hardship in this regard.
The Tribunal finds that this discretionary consideration weighs against the cancellation of [the applicant]’s Bridging E visa but for the reason noted above the Tribunal only gives this consideration modest weight.
The circumstances in which the ground for cancellation arose
As noted above, [the applicant]’s Bridging E visa was cancelled on 20 March 2018 because he was charged with four criminal offences involving allegations of domestic violence and breach of an existing court order against his then partner, who Victoria Police alleges was five to six months pregnant at the time.
The Tribunal has since learned from [the applicant] through his then lawyer and migration agent, that as at 10 September 2018 he was serving an eight month prison sentence that was imposed in March 2018. There is no information before the Tribunal as to why this sentence of imprisonment was imposed on [the applicant].
The Tribunal has also been informed by Victoria Police that [the applicant] was charged with five further criminal offences on 28 August 2018 in a matter unrelated to the charges filed against him on 18 March 2018. These later charges of rape and assault necessarily involve allegations of sexual violence against an unknown victim or victims.
The Tribunal must give some weight to the filing of criminal charges based on the inference that Victoria Police had a basis for laying the charges. Both sets of criminal charges are very serious charges involving violence toward another person.
However, the laying of charges does not prove the underlying allegations that formed the basis for the charges. The Tribunal notes [the applicant] has made no admission in relation to the charges filed on 18 March 2018 and the Tribunal does not know the current status of either set of charges filed against him, which moderates the weight the Tribunal can give to those matters.
The Tribunal also gives weight to [the applicant] having been imprisoned, based on information he provided to the Tribunal, for eight months of this year, which is a significant criminal sentence. The Tribunal does not know the underlying circumstances of that imprisonment, including the nature of the offending – whether it involved violence against a person or matters of dishonesty or regulatory offences or some other matter – which again moderates the weight the Tribunal can give this aspect of [the applicant]’s circumstances.
There is no information before the Tribunal of there being any extenuating circumstances in relation to [the applicant]’s alleged and proven criminal offending.
[The applicant] being charged with two sets of serious criminal charges, both involving alleged acts of violence against another person, including against an allegedly pregnant woman, enlivens the Government’s low tolerance set out in Direction 63 for the behaviour of those even charged with criminal offences.
[The applicant] having been imprisoned for eight months this year whilst holding a Bridging E visa directly breaches the expectations of the Government and the trust it had placed in [the applicant] that such temporary visa holders will behave in a manner that is in accordance with Australia’s laws.
The Tribunal finds that the circumstances in which [the applicant]’s Bridging visa was cancelled weigh in favour of the cancellation of that visa and the Tribunal has given this consideration very significant weight.
The possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status
According to the delegate’s decision, provided to the Tribunal by [the applicant], [the applicant] has applied for a Protection visa on the basis that in Sri Lanka he worked for the Liberation Tigers of Tamil Ealam since he was 16 years of age and he fears he will be killed if he returns to Sri Lanka. [the applicant]’s claim for protection has not finally been resolved.
In those circumstances, the Tribunal finds that the cancellation of [the applicant]’s visa will not result in either indefinite detention or occur in circumstances that may cause Australia’s non-refoulement obligations to be breached.
This consideration is neutral as it neither weighs in support of or against the cancellation of [the applicant]’s Bridging E visa.
Any other matter considered relevant
The Tribunal has also considered the matters in PAM3 ‘General visa cancellation powers’ which include in addition to the primary and secondary considerations under Direction 63, the following summarised additional considerations:
·the purpose of the visa holder’s travel and stay in Australia;
·the extent of the visa holder’s compliance with visa conditions;
·degree of financial, psychological, emotional or other hardship that may be caused to the visa holder and any family members;
·the past and present behaviour of the visa holder towards the Department;
·whether there would be consequential cancellations under s.140; and
·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 delegate in the decision to cancel [the applicant]’s Bridging E visa recorded that [the applicant]:
·is an “IMA” (maritime arrival) who has applied for a Protection visa and that application “was refused on 9/8/2017” but he has sought review of that refusal and the outcome of that review has not been finally decided;[28]
·has “overall” been compliant with the conditions of his Bridging E visas;
·says his family is struggling financially as his partner was “living off my Centrelink payment”, he was working and it is not safe for his partner and (future) child to go back to Sri Lanka and he cannot leave them alone; and
·has been cooperative in his dealings with the Department.
[28] Record of Decision dated 20 March 2018 at page 5, Tribunal file, folio 3.
The Tribunal accepts [the applicant]:
·has a valid reason for being in Australia pending the resolution of his application for a Protection visa;
·has not been found by the Department to be in breach of any condition of his Bridging E visa; and
·has been cooperative in his dealings with the Department.
Each of these considerations weighs against the cancellation of [the applicant]’s Bridging E visa and the Tribunal gives them some weight.
In relation to hardship, the Tribunal has already addressed that consideration in relation to [the applicant] above. In relation to [the applicant]’s family the Tribunal notes [the applicant]’s response to the delegate that his partner at the time was reliant on him financially. The information before the Tribunal is that [the applicant] has been in prison since March 2018 so the Tribunal does not accept that [the applicant]’s then partner has been financially reliant upon him in recent months.
There is no information before the Tribunal to indicate that anyone is dependent upon [the applicant]’s visa such that there would be consequential cancellations under s.140 of the Act.
The Tribunal finds that the considerations of hardship to [the applicant]’s family and the possibility of consequential cancellations under s.140 are neutral and weigh neither in support of nor against the ongoing cancellation of his Bridging E visa.
The remaining discretionary considerations under PAM3 of hardship to [the applicant], mandatory legal consequences, Australia’s international legal obligations and any other relevant matters have been addressed under the Direction 63 secondary considerations above.
Conclusion

100. The consideration that weighs in favour of the cancellation of [the applicant]’s visa is the secondary consideration (and PAM3 consideration) of the circumstances of that cancellation. [The applicant] has been charged in March 2018 and August 2018 with serious criminal offences of violence against other people, including his allegedly pregnant then partner and also including three counts of rape, noting that the Tribunal is not aware of the status of those charges but accepts that charges are allegations only. In addition, [the applicant] has informed the Tribunal, through his then lawyer and migration agent, that he has been serving an eight month sentence of imprisonment. The Tribunal found [the applicant]’s circumstances engaged the Government’s low tolerance for criminal behaviour and gave this consideration very significant weight.
101. The considerations that weigh against the cancellation of [the applicant]’s visa are the secondary considerations of the impact of a decision to cancel the visa on the family unit and the degree of hardship that may be experienced by [the applicant], both of which were both given only modest weight for the reasons identified above, and the PAM3 considerations of the purpose of his travel to and stay in Australia, his overall compliance with his visa conditions and his cooperative past and present behaviour towards the Department. The Tribunal gave these considerations some weight.
102. The remaining considerations are neutral and weigh neither in favour of, nor against, the cancellation of [the applicant]’s visa. These considerations include the primary consideration of the best interests of any children under the age of 18 in Australia affected by the cancellation and the secondary consideration of the possible consequences of cancellation. They also include the PAM3 considerations of hardship to [the applicant]’s family and the possibility of consequential cancellations under s.140.
103. In balancing the consideration that weighed in support of the cancellation of [the applicant]’s visa against those considerations that weighed against such cancellation, the Tribunal kept in mind the guiding principles in Direction 63.
104. Considering [the applicant]’s circumstances as a whole in accordance with the guiding principles and primary and secondary criteria in Direction 63 and policy requirements under PAM3, the Tribunal concludes that [the applicant]’s Bridging E visa should be cancelled.
DECISION
105. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Michael Ison
Senior Member

[2018] AATA 5302

29 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Charge

Procedural Fairness

Jurisdiction

Statutory Construction