1815624 (Migration)

1815624 (Migration) [2018] AATA 2744 (11 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815624
MEMBER:Michael Ison
DATE:11 July 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 11 July 2018 at 4:33pm

CATCHWORDS
Migration – Cancellation – Subclass 050 (Bridging (General)) visa – Applied for a Subclass 790 (Safe Haven Enterprise (Class XE) visa – Criminal charges – Copies of criminal reports provided to the applicant – Right to privilege against self-incrimination – No prior criminal record – Cooperative with the Department – Fears potential social exclusion from ethnic community – Non-refoulement obligations – Decision under review affirmed

LEGISLATION
Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4E
Crimes Act 1958 (Vic) ss 74,320
Criminal Procedure Act 2009 (Vic) ss 28, 29 Schedule 2 cl 3.4
Migration Act 1958 (Cth), ss 65, 116, 195A, 197C, 359AA, 499, 501, 501CA

Migration Regulations 1994 (Cth) r 2.43 Schedule 1 Item 1305
Summary Offences Act 1991 (Vic) ss113, 113B
CASES
ACH15 v MIBP [2015] FCCA 1250
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288
Fattah (Migration) [2017] AATA 27872

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

[The applicant], a [age] year old citizen of Pakistan who arrived in Australia in 2013, was charged with two criminal offences on 25 May 2018 which led to his Subclass 050 (Bridging (General)) visa being cancelled and to him being detained in immigration detention that day.
For the purposes of this decision, the Tribunal will refer to [the applicant] as [Mr A]. [Mr A] has advised [Name 1] is his first name and [Name 2] is his second name only, as in the region of Pakistan where [Mr A] was born and raised surnames are not traditionally used. [Mr A] acknowledges [Name 2] has been used as his surname in his passport and other documents.
Issues before the Tribunal
The issues before the Tribunal are:
· Did the delegate of the Minister for Home Affairs have proper grounds to cancel [Mr A]’s Bridging E visa; and
· If proper grounds for cancellation existed, should [Mr A]’s visa be cancelled, noting that cancellation is discretionary and not mandatory in [Mr A]’s circumstances.
Tribunal’s decision
The Tribunal has decided that there were proper grounds for the cancellation of [Mr A]’s visa.
The Tribunal has also decided, after carefully considering the exercise of its discretion whether to cancel [Mr A]’s visa or not, that in [Mr A]’s circumstances his visa should remain cancelled for the reasons set out below.
Background
Based on [Mr A]’s evidence to the Tribunal, statutory declarations from [Mr A] dated 24 February 2017 and 15 June 2018, written submissions submitted on [Mr A]’s behalf and other documents [Mr A] provided to the Tribunal, the following is the background to the cancellation of [Mr A]’s visa.
[Mr A] is a maritime arrival asylum seeker who was born in [Town 1] in Pakistan and grew up with his parents [and several siblings]. He is of Pashtun ethnicity and a Shia Muslim. He has a wife and young child in Pakistan who live with his wife’s parents.
[Mr A] left Pakistan fearing persecution because he is university educated and had worked for a contractor working with [western forces] in Afghanistan for [a few] years. This led to [Mr A] receiving threats to his life from unidentified people who [Mr A] believes were members of the Pakistani Taliban and other Sunni extremist groups. [Mr A] says these threats caused him to fear for his life and that fear remains should he ever return to Pakistan.
[Mr A]’s evidence is that his parents and siblings also felt at risk and left Pakistan to live in [Country 1]. [Mr A]’s representatives told the Tribunal one of [Mr A]’s brother’s lives in [Country 2] and another fled to [Country 3]. [Mr A] said his parents and most siblings have now returned to Pakistan but move house regularly and do not disclose their current address.
After arriving in Australia, [Mr A] was initially held in immigration detention before being released into the community and obtaining work rights.
[Mr A] applied for a Safe Haven Enterprise (Class XE)(Subclass 790) visa on 27 March 2017. His application has not been assessed and he held a Bridging E visa until it was cancelled on 25 May 2018.
[Mr A]’s most recent employment has been as a [driver], working on a casual basis. He has worked as a [driver] for over a year.
On 21 May 2018 it is alleged [Mr A] picked up a female passenger at her home at approximately 9.14pm (Victorian time) who instructed [Mr A] to drive to her workplace which was around 15 minutes’ drive from her home.
At the end of that journey it is alleged interaction occurred between [Mr A] and the passenger that led to [Mr A] being charged with two criminal offences.
[Mr A] was arrested by Victoria Police [in] May 2018 and charged with the offences.
Victoria Police released [Mr A] on bail of his own undertaking to attend the Magistrates’ Court at Melbourne [in] August 2018, without any other conditions.
An officer from the Department of Home Affairs (the Department), who is an authorised delegate of the Minister, attended the police station where [Mr A] was charged and served [Mr A] with a notice of intention to consider the cancellation (NOICC) of his visa.
The Departmental officer allowed [Mr A] a short time to read the NOICC, interviewed him to obtain his response to the matters alleged in the NOICC and then subsequently served [Mr A] with a hand-written decision to cancel [Mr A]’s visa. [Mr A] was subsequently detained by the Department of Home Affairs and placed in immigration detention where he currently remains.
The Tribunal hearing
[Mr A] applied to the Tribunal to review the decision of the delegate to cancel his visa on Tuesday 29 May 2018 and I received [Mr A]’s application on Friday 1 June 2018.
[Mr A] is represented by his registered migration agents and lawyers from [a law firm], [Mr B] and [Mr C].
The Tribunal initially scheduled the hearing of [Mr A]’s application for review on Wednesday 6 June 2018. The Tribunal tries, where possible, to expedite the hearing of applications involving the cancellation of a bridging visa where the applicant is held in immigration detention as a result of that cancellation.
[Mr A]’s representatives requested an adjournment of that hearing to allow them more time to prepare for [Mr A]’s hearing and to allow [Mr A] to obtain representation from a lawyer specialising in criminal law.
The Tribunal agreed to the request from [Mr A]’s representatives and the hearing proceeded as rescheduled on Monday 18 June 2018.
[Mr A] appeared in person before the Tribunal and both [Mr B] and [Mr C] attended the hearing as well. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The Tribunal also received oral evidence from [Mr D], who is [Mr A]’s friend and employer as a [driver].
[Mr A] provided a copy of the delegate’s hand written decision (notice of cancellation of a visa) with his application for review. The Tribunal also had a copy of the Department’s file in relation to the cancellation of [Mr A]’s visa.
At the commencement of the hearing the Tribunal explained the following to [Mr A]:
·     How the hearing would be conducted including the structure of the hearing, the role of the interpreter, the role of [Mr A]’s representatives and that [Mr A] would be given the opportunity to tell the Tribunal anything he wished to say in support of his application for review toward the end of the hearing;
·     Whether he had read and understood the delegate’s decision. The Tribunal was not convinced by [Mr A]’s response that he did fully understand the reasons for the delegate’s decision so the Tribunal explained the reasons in detail to [Mr A] and responded directly to his questions about that explanation;
·     The key issues under consideration by the Tribunal including the relevant provisions from the:
oMigration Act 1958 (the Act);
oMigration Regulations 1994 (the Regulations);
oprimary and secondary criteria under Direction No. 63 – Bridging E visas – Cancellation under s116(1)(g) – r.2.43(1)(p) or (q) (Direction 63), made under s.499 of the Act; and
othe considerations under the Department’s Procedures Advice Manual, known as PAM3, in particular the section titled ‘General visa cancellation powers’ which sets general policy for decision makers in relation to the cancellation of visas; and
·     That [Mr A] has the right not to answer any of the Tribunal’s questions about the circumstances of the criminal charges filed against him as his answers before the Tribunal are not protected from further disclosure and potential use in the criminal proceedings against him. The Tribunal explained that this right is known as the privilege against self-incrimination and the Tribunal would not make any adverse findings against [Mr A] if he chose to rely on his privilege.
The Tribunal issued a summons to Victoria Police on 5 June 2018 seeking a copy of [Mr A]’s charge sheets, Law Enforcement Assistance Program (LEAP) reports, undertaking of bail and any summary of circumstances.
Victoria Police responded late on Thursday 14 June 2018. The information was forwarded to me on Friday 15 June 2018. The only information the Tribunal received which [Mr A] had not received from Victoria Police directly was an edited version of the LEAP report of three pages. Some names and addresses had been deleted from the LEAP report.
LEAP is the Victoria Police’s central database for capturing operational information which is recorded in a section of LEAP known as the Case Progress Narrative. In effect, it records what police have been told, observed, have done and need to do in relation to operational matters Victoria Police become involved in. This means the LEAP report contains a relatively contemporaneous record of Victoria Police’s investigation into the allegations against [Mr A].
During the hearing the Tribunal provided [Mr A] and his representatives with copies of the Victoria Police LEAP report and followed the procedure under s.359AA of the Act. The Tribunal explained to [Mr A] what the information in the LEAP report was, that the information summarised the circumstances of his alleged offending and the allegations made against [Mr A].
The Tribunal explained to [Mr A] that the information in the LEAP report is relevant to his review because it contains allegations and information that could indicate [Mr A] may have committed criminal offences and that information could support his visa being cancelled in accordance with the migration legislation and Government policy previously discussed.
[Mr A] indicated to the Tribunal he understood why the information in the Victoria Police LEAP report was relevant to his review.
The Tribunal also explained to [Mr A] the consequences of the Tribunal relying on the information in the Victoria Police LEAP report. The Tribunal told [Mr A] that if the Tribunal formed the view that the information in the LEAP report indicated [Mr A] had committed criminal offences then this would be the reason, or part of the reason, for affirming the decision of the delegate under review.
[Mr A] indicated to the Tribunal he understood the consequences of the Tribunal relying on the information in the Victoria Police LEAP report.
The Tribunal invited [Mr A] to comment on or respond to the information in the Victoria Police LEAP report and offered [Mr A] additional time to consider that information before responding to it. [Mr A] requested and was granted a short adjournment to consider the information with his representatives.
Upon the resumption of the hearing following the adjournment the Tribunal again cautioned [Mr A] that anything he may say to the Tribunal is not protected from further disclosure and could be used in the criminal proceedings against him and that the Tribunal understands [Mr A] has a privilege against self-incrimination. The Tribunal indicated to [Mr A] again that if he chose to rely on his privilege and not answer the Tribunal’s questions about the circumstances set out in the Victoria Police LEAP report then the Tribunal would make no adverse findings against him as a result of [Mr A] asserting his privilege.
The Tribunal then invited [Mr A] to comment on or respond to the information contained in the Victoria Police LEAP report. [Mr A] declined to do so, on the basis of exercising his right not to incriminate himself. The Tribunal did not ask [Mr A] any further questions about that information.
The Tribunal has been assisted by [Mr A]’s representatives in the conduct of this review, save for the timing of their detailed submission received just before the hearing. The Tribunal accepts that the availability of information central to that submission was not within the control of [Mr A]’s representatives.
The Tribunal received detailed submissions from [Mr A]’s representatives both before and after the hearing. The pre-hearing submission included a full copy of the Victoria Police brief prepared for the criminal law proceedings against [Mr A].
During the hearing [Mr A]’s representatives handed to the Tribunal a copy of the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Pakistan dated 1 September 2017, a copy of a decision of the Tribunal in Fattah[1] and a copy of a report by the Commonwealth Ombudsman.[2] [Mr A]’s representatives submitted that these documents are relevant to the Tribunal considering whether [Mr A] is owed non-refoulement obligations which is addressed later in this decision.
[1] Fattah (Migration) [2017] AATA 2787 (18 December 2017).
[2] Report No. 07/2016 into the Department of Immigration and Border Protection and The Administration of People who have had their Bridging Visa Cancelled due to Criminal Charges or Convictions and are Held in Immigration Detention, dated December 2016.
The Tribunal has read and considered all of the information provided to it on [Mr A]’s behalf.
The law in relation to the cancellation of [Mr A]’s bridging visa
The delegate cancelled [Mr A]’s Subclass 050 (Bridging (General)) visa under s.116(1)(g) of the Act and r.2.43(1)(p)(ii) of the Regulations on the basis that [Mr A] had been charged with two criminal offences under Victorian law on 25 May 2018.
Under s.116(1) of the Act, the Minister (or their delegate) may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.
Under s.116(3), if the Minister may cancel a visa under s.116(1), the Minister must cancel the visa if there exist prescribed circumstances in which the visa must be cancelled.
Relevantly, to [Mr A]’s case, s.116(1)(g) refers to prescribed grounds under which cancellation must be considered but is not mandatory. The prescribed grounds under s.116(3) under which a visa must be cancelled do not apply in [Mr A]’s case.
As noted above, the prescribed grounds for the consideration of the cancellation of a visa are set out in r.2.43.
Regulation 2.43(1)(p)(ii) provides that in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa the Minister may cancel the visa if the Minister is satisfied the visa holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.
If the cancellation of a visa must be considered under r.2.43(1)(p)(ii) the Tribunal must comply with Direction 63 as it is expressed in mandatory terms.[3] Direction 63 came into effect on 12 September 2014.[4]
[3] Direction 63, cl.4.1(3).
[4] Direction 63, cl.2.
This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and sets out how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The requirements for a valid application for a visa are set out, in part, in Division 2.2 of the Regulations.
Regulation 2.07(1)(c) provides that for the purposes of ss.45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa then the relevant item of Schedule 1 to the Regulations sets out other matters relating to the application.
Item 1305 of Schedule 1 to the Regulations applies to applications for Bridging E visas.
Item 1305(3)(g) establishes one of the requirements for the application for a Bridging E visa as being that the applicant has not previously held a visa that has been cancelled on a ground specified in r.2.43(1)(p) or (q).
Does the ground for cancellation exist?
[Mr A]’s representatives conceded that the ground for cancellation has been made out in [Mr A]’s circumstances.
[Mr A] has been charged with criminal offences under Victorian statute and common law. Those charges remain on foot and are pending. The Tribunal has no information before it to indicate the charges have or may be withdrawn. [Mr A] is required by his undertaking of bail to appear at the Magistrates’ Court in Melbourne [in] August 2018[5].
[5] Tribunal file, folio 129 (back).
The Tribunal finds that at the time of being charged [Mr A] was the holder of a Bridging E visa.
The charging of a visa holder with criminal offences enlivens, under s.116(1)(g), the application of r.2.43(1)(p)(ii) which requires the Tribunal to consider whether the cancellation of the former visa holder’s visa should be affirmed or set aside.
As [Mr A] was charged with two criminal offences on 25 May 2018 and those charges are still pending against [Mr A], The Tribunal finds that there is a ground under s.116(1)(g) of the Act and r.2.43(1)(p) of the Regulations for cancelling the visa held by [Mr A].
As the ground for cancellation does not require the mandatory cancellation of a visa under s.116(3), once the ground for cancellation is made out the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which include matters of government policy.
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.
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 the immigration status is being resolved.
4.3(5) … Where 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.

The Direction also 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.[6]
[6] Direction 63, cl.5.1.
Consideration of discretion – primary considerations
The primary considerations under Direction 63 referred to above are set out in clause 6(1) of the Direction:
a. the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework; and
b. 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 clause 6(1)a 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.[7] The Tribunal therefore:
[7] ACH15 v MIBP [2015] FCCA 1250 at [28]-[31].
… must take [the government’s] view as part of the matters to be weighed rather than simply to follow the view.[8]
[8] ACH15 v MIBP [2015] FCCA 1250 at [33].
The other primary consideration in the Direction refers to the best interests of children in Australia under the age of 18 years. At the Tribunal hearing [Mr A] gave evidence that his wife and son remain in Pakistan.
The Tribunal finds there are no children under the age of 18 in Australia who would be affected by the cancellation of [Mr A]’s visa.
Consideration of discretion – secondary considerations
The secondary considerations under Direction 63 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 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
[Mr A]’s evidence, noted above, is that his family unit is already separated with his wife and son remaining in Pakistan living with his wife’s parents and that he supports them financially.
In oral evidence to the Tribunal [Mr A] confirmed his financial support for his family in Pakistan. [Mr A] told the Tribunal he sent AU$1,000 to his family about 10 days before the hearing, giving the money to a friend to give to his family before [Mr A] was placed in immigration detention. At the time of the hearing [Mr A] had been in immigration detention for 21 days.
[Mr A] could not recall how much or how often he sent money to his family in Pakistan but said he sometimes sends hundreds of dollars and other times thousands of dollars through a variety of means. In discussion with the Tribunal [Mr A] said depending on how much he could save he would send money monthly or every second or third month.
[Mr A]’s difficulties in recalling specific dates or amounts of financial support or being confused as to when he last sent money to his family does not cause the Tribunal to doubt that [Mr A] has been financially supporting his family in Pakistan. It does mean the extent of that financial support is not clear to the Tribunal, which reduces the weight the Tribunal gives to [Mr A]’s evidence in this regard.
In written submissions [Mr A]’s representatives submitted that he also supports his “other immediate family members in Pakistan”.[9]
[9] Tribunal file, folio 139 (back).
[Mr A] gave evidence that his parents are elderly and cannot work and in his religion and culture it is part of his responsibilities to support his parents when they are elderly.
It is not obvious to the Tribunal that [Mr A]’s parents are part of his family unit in the sense intended under the Act or Regulations when [Mr A] is married and has a wife and child to support. There is no definition of family unit for this purpose in the Act or Regulations. For present purposes the Tribunal will allow [Mr A] the benefit of considering his parents to be part of his extended family unit.
[Mr A] gave evidence that if his Bridging E visa was to remain cancelled and he was to remain in immigration detention that his extended family would suffer considerable hardship. [Mr A] told the Tribunal that there are a lot of problems for his family and their conditions of living are not good with food and living costs being expensive, having to travel by taxi in Pakistan being expensive and if anyone becomes sick medical treatment in Pakistan being very expensive.
[Mr A] said that it would be a “financial disaster” for his family if he was unable to work and provide them with financial support.
The Tribunal accepts that [Mr A] has been providing some level of financial support to his extended family in Pakistan and that they will be negatively impacted by the absence of that financial support. The extent of the impact on [Mr A]’s family is not evident to the Tribunal which, as noted above, reduces the weight the Tribunal can place on this evidence.
[Mr A] also gave evidence that the cancellation of his visa is having a detrimental effect on his relationship with his wife and the health of his wider family.
[Mr A] told the Tribunal that when he spoke to his wife about the cancellation of his visa whilst in immigration detention she was not able to comprehend why he had been charged and detained and started weeping over the telephone, eventually hanging up on [Mr A]. [Mr A] has not been able to speak to his wife since and is fearful that his ongoing detention prevents him from being able to “explain properly” to her what has occurred and puts their relationship “in doubt”.
[Mr A] also told the Tribunal that his mother only recently found out that he has been detained in immigration detention and at the time of the Tribunal’s hearing she had been admitted to hospital about four days earlier. [Mr A] told the Tribunal he does not know his mother’s current medical condition.
The Tribunal also does not have any documentation to confirm the ill-health, treatment or prognosis for [Mr A]’s mother in Pakistan.
The Tribunal is prepared to give [Mr A] some leeway in this regard in relation to his mother’s medical condition given that he is currently in immigration detention which can make it more difficult for him to obtain information and documents from Pakistan. Therefore, the Tribunal accepts [Mr A]’s evidence that his mother has been unwell since finding out [Mr A] has been detained.
[Mr A] also explained to the Tribunal that he comes from a very respected family in Pakistan and that the allegations against him have adversely affected his whole family, bringing shame to their family name and causing them great stress and anxiety.
The Tribunal accepts [Mr A]’s evidence in this regard.
The Tribunal finds that the cancellation of [Mr A]’s visa and ongoing immigration detention is causing [Mr A]’s family in Pakistan some psychological and financial distress which weighs against the cancellation of [Mr A]’s visa.
The degree of hardship that may be experienced by the visa holder if the visa is cancelled
[Mr A] gave evidence that he is experiencing a significant amount of stress as a result of being charged with criminal offences and being placed in immigration detention. He told the Tribunal he constantly thinks and worries about his relationship with his wife, with his parents and with the Pakistani [Ethnic group 1] community in Australia, who he is worried may exclude him socially when he has been a well-respected member of that community since arriving in Australia.
In his statutory declaration made on 15 June 2018, [Mr A] declared:
My detention has had a great impact on my mental health. I have been very distressed during this time. I have been quite anxious and at times feel great depression. I can barely sleep at night. I have had to sleep in the same room with 3 other people who are strangers to me. I am not used to this kind of environment. I have seen a doctor in the detention centre who tried to prescribe sleeping medication but I declined. I do not like to be dependent on this kind of medication as I believe it could affect my health in other ways.
During this time due to my religious beliefs I have been fasting every day in the month of Ramadan. This has been quite difficult in this environment. …
I have been financially supporting my wife and child and the rest of my family while I have been in Australia. Knowing that I cannot provide that support for them while I am in detention really hurts me. I cannot imagine what hardships they are going through because of my detention. …
Thinking about my family makes me even more stressed. I worry about them all the time. …
The Pakistani [Ethnic group 1] community in Australia have also found about (sic) my situation. We are a very small and close-knit community and people find out everything. This has made things very difficult for me. Everyone in the community always thought very highly of me but now I do not know what they think of me. I am quite embarrassed by this and I hope people do not have different opinion (sic) about me and my character as this is not who I am.[10]
[10] Tribunal file, folios 111 to 113.
[Mr A] in evidence to the Tribunal said he is very worried that his current situation will change the local [Ethnic group 1] community’s view about him and he could be excluded from that community and be subject to a “social boycott” particularly if the local community feels he has affected their religion badly. His family in Pakistan could also be subject to a similar social boycott in Pakistan. He said he worries about this a lot.
[Mr A] told the Tribunal that he sleeps poorly in the shared accommodation in immigration detention and does not feel up to participating in activities for detainees. He said he has seen a doctor whilst in detention who, as noted in the statement above, offered him medication to help him sleep when he feels he needs medication to help him cope with the high levels of stress he says he is experiencing.
[Mr A] told the Tribunal he is currently not on any medication and has not seen a counsellor since being detained. He said he has had visits from two [Ethnic group 1] community members and is able to make phone calls to his family in Pakistan, sometimes daily. [Mr A] said he does not have any family in Australia.
As noted above, [Mr D] attended the hearing and gave evidence about his friendship with and employment of [Mr A]. [Mr D] also made a statutory declaration dated 18 June 2018, which was provided to the Tribunal after the hearing.
[Mr D] says that he and [Mr A] were from the same village in Pakistan where they were acquaintances, then met again in Australia in 2015 and have known each other for about 10 years.
[Mr D] says he considers [Mr A] a friend, they have dinner at each other’s houses and also considers him to be a good employee who is punctual and kept the [vehicle] clean and tidy without any customer complaints. [Mr D] told the Tribunal in fact that he had customers who requested [Mr A] as their driver. [Mr D] purchased his own [vehicle] in August 2017 and employed [Mr A] as a driver from December 2017.
[Mr D] also told the Tribunal that [Mr A] is an active and important member of the [Ethnic group 1] community taking part in most community activities and the community wants him back. He said he was aware of the criminal charges filed against [Mr A] but is not fully aware of the circumstances of those charges.
[Mr D] said the filing of the criminal charges against [Mr A] does not alter his view of [Mr A] who he believes is of good character, tells the truth, is religious and is a good man with a family to support.
In his statutory declaration [Mr D] said that [Mr A] is looked up to in their community and everyone is quite surprised this has happened to him. He also stated:
I know that [Mr A] has been stressing about his family a lot. When I saw him today I noticed that he was quite different. I could see that he suffered a lot mentally as he was not himself. I wish I could do something to help him in this situation.[11]
The Tribunal found [Mr D]’s evidence assisted the Tribunal to fully understand [Mr A]’s circumstances.
The Tribunal also received a statutory declaration dated 18 June 2018 from [Mr E] after the hearing. [Mr E] is a permanent resident of Australia and a friend of [Mr A]’s, who he has known for over four years through the community. [Mr E] declared:
I consider [Mr A] like a younger brother. He is very polite, respectable and kind. He has always been extremely respectful towards me because I am older than him. …
He is a very honest person and very trustworthy. I trust him with my family. I know that if my family members are in need I can rely on him to help me.[12]
[Mr E] also stated that he owns his own [vehicle] and uses [Mr A] as a driver who he can always rely upon even for emergency jobs and he would like to assist [Mr A] in any way that he can.
[11] Tribunal file, folios 207 to 208 at para 7.
[12] Tribunal file, folio 209 at paras 3 and 6.

100. [Mr A] also provide the Tribunal with letters of support from [several individuals] which attest to [Mr A]’s good character, religious beliefs and practices, role and respect in the [Ethnic group 1] community, honesty, kindness and lack of adverse incidents in the past.
101. The Tribunal accepts that [Mr A] has, until he was charged, been a hardworking person of good character who has been a positive contributor to his local [Ethnic group 1] community and clearly enjoys ongoing support from at least some sections of the community. [Mr A] told the Tribunal that the local [Ethnic group 1] community is helping him pay for the legal advice and representation he is receiving in relation to the cancellation of his visa.
102. The Tribunal finds that [Mr A], whilst finding living in immigration detention difficult, is not currently receiving any medical treatment, taking any medication or being assisted by a mental health professional or counsellor.
103. The Tribunal does not have any evidence from a doctor or other health professional before it in relation to [Mr A]’s health prior to being detained or his current health.
104. The Tribunal accepts that [Mr A] finds his current circumstances very stressful and worries a great deal about his inability to work and financially assist his family including his parents in Pakistan and also worries about the impact his situation is having on his family, particularly his relationship with his wife and the impact on his mother’s health.
105. The Tribunal also accepts that [Mr A] is very worried about his standing in and potential social exclusion from, the local [Ethnic group 1] community and his family’s standing within and potential social exclusion from their local community in Pakistan.
106. However, the Tribunal notes that members from the [Ethnic group 1] community gave evidence or filed statutory declarations and letters of support for [Mr A] and are also helping to pay for his legal representation, which may alleviate or at least lessen some of [Mr A]’s concerns.
107. The Tribunal finds that [Mr A] is and will continue to experience not insignificant emotional hardship and stress if his visa remains cancelled which weighs against the ongoing cancellation of [Mr A]’s visa.
The circumstances in which the ground for cancellation arose including any mitigating factor and the seriousness of the offence (amongst other matters)
108. As noted above, [Mr A] has been charged with two criminal offences which led to the cancellation of his Bridging E visa.
109. One offence is a criminal offence established by the Crimes Act 1958 (Vic).
110. The other offence is a criminal offence established by the common law of Victoria.
111. Both offences carry a maximum penalty of 10 years imprisonment[13] and are indictable offences. An indictable offence is an offence which can only be tried on a formal written statement of a prosecuting authority called the indictment before a judge and jury and is usually (unless there is a direct indictment) preceded by a preliminary hearing, known as a committal, to determine whether there is a prima facie or reasonable case for the person charged to answer.
[13] The maximum penalties for some common law criminal offences, including the offence [Mr A] has been charged with, are set out in s.320 of the Crimes Act 1958 (Vic).
112. Indictable offences are regarded as the more serious criminal offences which carry more significant maximum penalties and are therefore subjected to these additional procedural rules to safeguard a fair trial for the accused.
113. Two other important safeguards to a fair criminal trial are the right not to be forced to incriminate oneself and the right of an accused to the presumption of innocence. The Tribunal has referred to the right or privilege against self-incrimination above and will say more about the presumption of innocence below.
114. Some indictable criminal offences can be heard summarily if the person charged consents to a summary hearing and the Magistrates’ Court of Victoria, after considering a range of matters, decides that a summary hearing is appropriate in the circumstances.[14]
[14] Sections 28 and 29 of the Criminal Procedure Act 2009 (Vic).
115. If an indictable offence in Victoria is heard summarily then the maximum sentence available is reduced to two years imprisonment[15] and the maximum cumulative sentence (for multiple charges) available is reduced to five years imprisonment.[16]
[15] Section 113 of the Summary Offences Act 1991 (Vic).
[16] Section 113B of the Summary Offences Act 1991 (Vic).
116. Summary offences are less serious criminal offences that have lower maximum penalties[17] and are therefore subject to fewer procedural safeguards than indictable offences. Summary offences are usually heard in the Magistrates’ Court of Victoria. This is not to say that in all cases that a summary offence, or having committed a number of summary offences, cannot amount to serious criminal conduct.
[17] Even though the penalty for some summary offences can include imprisonment.
117. Both of the offences that [Mr A] has been charged with are punishable by level 5 imprisonment (10 years maximum) and therefore are triable summarily by reason of s.28(1)(b)(ii) of the Criminal Procedure Act 2009 (Vic).
118. I do not consider all indictable criminal offences to be serious criminal offences, particularly if the offence can be heard summarily. For example, under s.74 of the Crimes Act 1958 (Vic) theft is an indictable offence. However, if the value of the property stolen is less than AU$100,000 then the charge may be heard summarily.[18]
[18] Section 28(1) and cl.3.4 of Schedule 2 to the Criminal Procedure Act 2009 (Vic).
119. To provide an example of an obvious circumstance where I would not consider an indictable offence a serious criminal offence using s.74, if a person was charged with the theft of an item of clothing worth less than say AU$200, I would not consider that a serious criminal matter, even though in Victoria it is an indictable offence. I would expect, respecting the discretion lies with the sitting Magistrate, that a property offence involving a relatively small monetary value as in the example, would be dealt with summarily by the Magistrates’ Court of Victoria in the vast majority of such cases.
120. The circumstances in which the criminal charges have been filed against [Mr A] lead the Tribunal to the view that the charges, for the purposes of the relevant consideration in Direction 63, are toward the upper end of the spectrum of seriousness of offending and are therefore serious criminal offences.

121. If the charges related to offences against property or dishonesty involving relatively small amounts of money or were breaches of procedural or regulatory obligations or related to breaches of subordinate legislation such as Council local laws then, depending on the circumstances in each case, it is likely the Tribunal would find such offences to be at the lower end of the spectrum of seriousness of offending.
122. Even though the charges against [Mr A] can potentially be heard summarily this is not a foregone conclusion. As noted above, that is a matter for the sitting Magistrate to decide based on the information before the Magistrate at the time. The Tribunal will not speculate about such matters, but does accept if the charges proceed by way of summary trial then the maximum penalty to which [Mr A] would be exposed is significantly reduced.
123. The Tribunal views the charges as serious in [Mr A]’s case because they are offences against a person (rather than property) and are alleged to have occurred in circumstances that involved a significant breach of trust when the alleged victim was in a particularly vulnerable position.
124. The circumstances of the alleged offending would not only have traumatised the alleged victim but if proven will have wider implications for public confidence in the safety of [these] services. Again, the Tribunal makes no findings against [Mr A] in this regard but those circumstances are relevant to the Tribunal’s assessment of the seriousness of the charges.
125. [Mr A]’s representatives submitted that:
Within these charges there was no allegation of violence and the evidence provided by the police does not suggest anything of that nature. Furthermore, the police evidence including stills from the video footage does not indicate conclusive evidence of what was claimed to have occurred.[19]
…evidence suggests that what did occur was not violent in nature.[20]
[19] Tribunal file, folio 139 (back).
[20] Tribunal file, folio 138 (back).

126. The Tribunal read these submissions as meaning the evidence suggests that what did occur did not involve the use of strong physical force.
127. The Tribunal gives these submissions little weight. Whilst the Tribunal does not have any information before it to indicate that the alleged victim suffered any physical injuries this does not mean, in the Tribunal’s view, that the alleged offending was free of violence.
128. The circumstances of the alleged offending are described in detail in the police brief (including with stills from CCTV footage from inside [Mr A]’s [vehicle]) that also includes a statement from the alleged victim. This information was provided to the Tribunal by [Mr A]’s representatives. The information includes the allegation that the alleged victim was firmly touched by [Mr A] without her consent in a situation where the alleged victim was confined in a motor vehicle that she could not exit.
129. The police brief further alleges there was also a “short struggle”[21] between [Mr A] and the alleged victim over the alleged victim’s [bag], including [Mr A] grabbing the bag with two hands and trying to get the bag from the alleged victim.
[21] Tribunal file, folio 134.
130. The alleged victim stated in a statement to police that she was really shaken by the alleged offending which she was shocked by as she had never experienced anything like it before and as a result couldn’t stop crying or explain the circumstances.[22]
[22] Tribunal file, folios 127-128.
131. This is not to say that the Tribunal accepts the circumstances as alleged occurred. It is not for the Tribunal to conduct a quasi-criminal trial, particularly in circumstances where the criminal charges have not been tested before a court and therefore [Mr A], as the person charged, has the right to both a presumption of innocence and to not answer the Tribunal’s questions about those alleged circumstances.
132. The Tribunal makes the observations above only for the very limited purposes of analysing submissions made on behalf of [Mr A] and considering the proper exercise of the Tribunal’s discretion. The Tribunal does not make a finding against [Mr A] that the alleged offending involved any specific level of violence, but does find that the submissions made on [Mr A]’s behalf that what occurred was not violent, is not supported by a consideration of the nature or circumstances of the charges.
133. As noted, [Mr A] has the right not to potentially incriminate himself by making any comment in the Tribunal that is not protected from disclosure in his pending criminal trial about the alleged circumstances. [Mr A] exercised this right when giving evidence and the Tribunal makes no adverse finding against [Mr A] for doing so and makes no adverse finding in relation to the circumstances alleged.
134. The Tribunal cautioned [Mr A] about the risk of self-incrimination at the commencement of questioning and again at relevant times during the hearing when asking questions about the circumstances of the cancellation of his visa. The Tribunal thereafter asked questions in a manner that tried to avoid [Mr A] potentially incriminating himself or having to continually assert his privilege against self-incrimination.
135. However, the Tribunal is required and has considered the circumstances in which the cancellation arose in accordance with Direction 63 and found that [Mr A] has been charged with serious criminal offences in alleged circumstances involving a significant breach of trust.
136. What the Tribunal has found is that the criminal charges are serious in nature and the submission of [Mr A]’s representatives that there was no violence involved in the alleged circumstances of the alleged offending is to be given little weight by the Tribunal.
137. To the extent that [Mr A]’s representatives made the above submission as a mitigating factor, given the Tribunal’s findings the Tribunal does not accept the submitted absence of violence is a mitigating factor.
138. [Mr A]’s representatives also submitted that [Mr A] has not been charged with or convicted of any other offences in Australia and has always maintained a clear record in his home country of Pakistan.[23] In support of this submission [Mr A]’s representatives provided a copy of a statement from a serving officer of Victoria Police stating that as of [date] June 2018 [Mr A] has no prior criminal convictions in Victoria.[24]
[23] Tribunal file, folio 138 (back).
[24] Tribunal file, folio 114.
139. [Mr A]’s representatives also provided evidence that [Mr A] has applied for a standard police check with the Australian Federal Police.[25] No documentary evidence was provided to the Tribunal to support the submission that [Mr A] has not been charged with or convicted of any criminal offences in Pakistan.
[25] Tribunal file, folio 154.
140. The Tribunal finds that [Mr A], prior to the criminal charges filed against him on 25 May 2018, had no criminal record in Victoria. The Tribunal also has no information before it to indicate that [Mr A] has a criminal record in any other part of Australia or in Pakistan. The Tribunal accepts that this is a mitigating factor in the circumstances of the cancellation of [Mr A]’s visa.
141. In his closing statement to the Tribunal [Mr A] expressed concern that he cannot prepare for the criminal proceedings pending against him whilst he is in immigration detention.
142. The Tribunal gives this claim little weight. [Mr A]’s criminal law lawyers will be able to meet with and take instructions from [Mr A] whilst he is in immigration detention and will be able to gather information and documents needed for those criminal proceedings on his behalf.
143. The Tribunal accepts that if [Mr A]’s visa was to remain cancelled he will not be able to work and this could affect his ability to afford legal representation. However, [Mr A]’s representatives, in their submission to the Tribunal dated 15 June 2018 stated:
The Applicant has criminal proceedings on foot and the Applicant is expected to appear before the Magistrate (sic) Court [in] August 2018 to respond to the charges. In the meantime he has secured assistance from Victoria Legal Aid.[26]
[26] Tribunal file, folio 138 (back).

144. In closing submissions [Mr A]’s representatives submitted that Victoria Police granting [Mr A] bail without conditions leads to the reasonable conclusion that whilst the charges are serious, the police view them as at the lower end of the scale.
145. The Tribunal did not accept this submission during the hearing. The granting of bail under the Bail Act 1977 (Vic) reflects that there is a presumption of innocence and right to liberty such that the Bail Act contains an entitlement to bail for all accused unless the Bail Act requires the bail decision maker to refuse bail.[27]
[27] Sections 1B(1)(b) and 4 of the Bail Act 1977 (Vic).
146. There are some exceptions to the entitlement to bail including if the accused is charged with a limited range of offences (such as murder or certain drug offences)[28] or if the court is satisfied that there is an unacceptable risk that the accused, if released on bail, would:
·     Endanger the safety or welfare of any person; or
·     Commit an offence whilst on bail; or
·     Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; or
·     Fail to surrender into custody in accordance with the conditions of bail.[29]
[28] Section 4A(1) of the Bail Act 1977 (Vic), but note even for Schedule 1 offences the accused can argue there are exceptional circumstances.
[29] Section 4E(1) of the Bail Act 1977 (Vic).
147. When assessing the above matters the police or the court are to have regard to all matters appearing to be relevant and in particular are to have regard to:
·     The nature and seriousness of the alleged offending;
·     The strength of the prosecution case;
·     The accused’s criminal history;
·     The extent to which the accused has complied with the conditions of any earlier grant of bail;
·     Whether at the time of the alleged offence the accused was on bail for another offence or was subject to summons or awaiting trial for another offence or was on parole;
·     Whether there is any family violence intervention order or safety notice made or issued against the accused;
·     The accused’s personal circumstances, associations, home environment and background;
·     Any special vulnerability of the accused;
·     The availability of treatment or bail support services;
·     The known or likely view of any victim on the grant of bail, the amount of bail or the conditions of bail;
·     The likely sentence if the accused is found guilty; and
·     Whether the accused has publicly expressed support for a terrorist act or organisation or for the provision of resources to a terrorist.[30]
[30] Section 3AAA of the Bail Act 1977 (Vic).
148. The Tribunal finds that it cannot be safely assumed that the grant of bail was mainly because of a specific view taken in relation to one of these factors only, particularly when bail is granted by a police officer who has not provided any information to the Tribunal about their decision.
149. [Mr A]’s representatives submitted in response to the Tribunal’s observations during the hearing that the granting of bail by Victoria Police without conditions indicates that Victoria Police assessed [Mr A] as a low risk of reoffending and as a low risk to the community, which is relevant to the Tribunal’s consideration of the circumstances of [Mr A]’s alleged offending.
150. The Tribunal accepts this submission and has taken it into consideration as a mitigating factor in the circumstances of the cancellation of [Mr A]’s visa.
151. The Tribunal finds that the circumstances in which the cancellation of [Mr A]’s visa arose are that he has been charged with two serious criminal offences the nature of which are offences against a person in alleged circumstances where the alleged victim was particularly vulnerable and the alleged offending involved a significant breach of trust having adverse implications for both the alleged victim and the wider community. Mitigating against this are the factors that [Mr A] has no prior criminal record and was released on an undertaking of bail by Victoria Police without conditions, which at the very least indicates that Victoria police consider [Mr A] to present a low risk of reoffending and a low risk to the safety of the community.
152. The Tribunal has carefully reflected upon these considerations and finds that the circumstances in which the ground for cancellation of [Mr A]’s visa arose weigh in support of the cancellation of [Mr A]’s visa.
The possible consequences of cancellation including if it could result in indefinite detention or removal in breach of Australia’s non-refoulement obligations
153. The Tribunal asked [Mr A]’s representatives during closing submissions whether a timetable had been established for the conduct of [Mr A]’s criminal proceedings. [Mr A]’s representatives responded that apart from [Mr A] being required to attend the Magistrates’ Court of Victoria at Melbourne [in] August 2018 they have no sense of any further timetable. The Tribunal recognises that [Mr A]’s representatives are immigration law lawyers and not criminal law lawyers.
154. The conduct of the criminal law proceedings depends on a number of factors including [Mr A]’s plea and the timing of that plea, whether the prosecuting authority proceeds with all charges or if a trial is required whether that proceeds by way of indictment with a committal hearing or by way of summary hearing.
155. Ultimately that criminal process will come to a conclusion, such that the Tribunal does not consider that one of the consequences of the cancellation of [Mr A]’s visa could be that he will remain in immigration detention potentially indefinitely.
156. During the hearing [Mr A]’s representatives noted that due to the positive obligation on the Department to remove unlawful non-citizens under s.197C of the Act, even if Australia’s non-refoulement obligations have been assessed, the issue of indefinite detention does not arise in [Mr A]’s circumstances.
157. In their submission to the Tribunal dated 15 June 2018, [Mr A]’s representatives submitted however:
Throughout the past five years the Applicant has been caught up in a prolonged protection visa application process which is yet to be assessed and finalised. In this time he has resided in Australia on a temporary basis and has had no indication of permanent residency or security.
The implications of this decision are that the Applicant may remain in detention for any number of months before his immigration status is resolved. In the event that the outcome is not positive the Applicant’s application will then be reviewed by the Immigration Assessment Authority (IAA) which would result in a significant period in detention that will follow from a decision to affirm the cancellation decision.[31]
[31] Tribunal file, folio 138.

158. [Mr A]’s representatives also put in that submission that the Tribunal may need to determine whether non-refoulement obligations are owed to [Mr A]:
The Applicant is from an ethnic and religious group that have and continue to be accepted as refugees based on the strong country information. Based on our experience with the large Pakistani [Ethnic group 1] Shia cohort that we represent it is highly likely that he will be granted protection in Australia.
However as mentioned above the decision to affirm the Department’s decision to cancel the Applicant’s Bridging Visa could potentially lead to a prolonged or even indefinite detention.
We submit that in the circumstances the Tribunal member may need to determine whether non-refoulement obligations are owed to the Applicant. The reason for this is that should the Applicant’s visa be cancelled, there is a chance that the delegate responsible for assessing the Applicant’s protection application, will not consider the Applicant’s claims for protection and will make a decision solely on character grounds. Several court authorities including BCR16 and BHA17 all stand for this proposition.[32]
[32] Tribunal file, folio 137. The submission included the full citation for the cases referred to which are BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 and

159. [Mr B] acknowledged there is a difference between an application to review the cancellation of a visa and an application for a protection visa. In the context of considering non-refoulement obligations, [Mr B] submitted that the Tribunal does not have to consider non-refoulement obligations to the extent they would be considered in a protection visa application, but they must still be considered.
160. The Tribunal discussed these submissions at length with [Mr A]’s representatives during the hearing. [Mr B] acknowledged that BHA17 is a decision that addresses the legal consequences of a decision to cancel a visa under s.501(3A) and then a refusal to set that cancellation aside under s.501CA(4) of the Act, rather than a cancellation under s.116(1)(g) as is the situation in [Mr A]’s case.
161. In this respect [Mr B] acknowledged to the Tribunal that his submission is a novel application of the principles in BHA17 and that there is no direct authority applying those principles to the cancellation of visas under s.116 of the Act.
162. The Tribunal observes that Direction 63 specifically requires the Tribunal to consider whether cancellation of a visa could result in the removal of the former visa holder from Australia in breach of Australia’s non-refoulement obligations.[33] However, that obligation is qualified by Direction 63 expressly noting that a decision to cancel a Bridging E visa does not represent a final resolution of a person’s immigration status.
[33] At cl.7(1)d of Direction 63.
163. [Mr B] referred the Tribunal to paragraphs 66 to 68 of the decision in BHA17 where the Federal Court of Australia considered the reasons of the Full Federal Court in BCR16. In considering BCR16 [Mr B] submitted, the Federal Court in BHA17 noted the majority of the Court in BCR16 found that there are no provisions in the Act or Regulations that govern the manner in which the Minister or the Minister’s delegates are required to consider whether the criteria for a protection visa were satisfied for the purposes of s.65 of the Act. [Mr B] submitted that the court reasoned in BCR16 that the Minister and the Minister’s delegates are free to decide the manner in which a protection visa application would be considered, the steps taken in that consideration and the order in which the criteria for a protection visa would be evaluated.
164. As the majority in BCR16 stated:
The appellant’s protection visa application could therefore be refused under s 65 purely on character grounds pursuant to public interest criteria 4001 (a) or (b), and the Minister or the Minister’s delegate would, lawfully, never reach active consideration of the criteria in s 36(2)(a) or (aa), nor would the s 501(1) discretion ever have been engaged.[34]
[34] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at para 44.

165. There was also an issue in both decisions of claims of harm being characterised as non-refoulement claims by the decision makers when they had not been presented to the respective decision makers in those terms. In both cases the court found this characterisation led the decision maker in each case to find that those considerations would be considered when assessing, in the case of BCR16, the protection visa application on foot and, in the case of BHA17 any future protection visa application. The court found in both cases that the issue of significant harm raised by each applicant was relevant to the consideration required by the decision maker at the s.501CA(4) stage and not just as potential non-refoulement obligations when, or if, an application for a protection visa came to be decided.

166. As Direction 63 specifically refers to Australia's non-refoulement obligations as a secondary criterion and as [Mr A] has expressed his concerns for his own safety squarely as raising Australia’s non-refoulement obligations toward him, this issue is not a live one before the Tribunal.
167. The Tribunal indicated to [Mr B] during the hearing that the Tribunal was not convinced by his submissions about the need for the Tribunal to assess whether the potential cancellation of [Mr A]’s visa could result in the removal of [Mr A] in breach of Australia’s non-refoulement obligations, given that it seemed speculative to the Tribunal to assume, one way or another, what the Minister or a delegate of the Minister may do in the future. The Tribunal invited [Mr A]’s representatives to make further written submissions after the hearing on this issue.
168. On Tuesday 19 June 2018 [Mr A]’s representatives provided the Tribunal with a four page submission on the issue of the Tribunal considering [Mr A]’s non-refoulement claims.
169. To summarise that submission, [Mr A]’s representatives submitted to the Tribunal that:
· It remains a legal possibility that [Mr A]’s application for a protection visa could be considered under the character test in s.501(6)(c) and (d) of the Act;[35]
·     Direction 63 requires consideration of non-refoulement claims, although not to the extent those claims must be considered when assessing an application for a protection visa;
·     There is a legal possibility that if [Mr A]’s visa remains cancelled by the Tribunal, [Mr A]’s non-refoulement claims may not be considered when his application for a protection visa is assessed; and
·     Three recent decisions of the Tribunal, sitting in the Tribunal’s General Division, applied BHA17 and considered an applicant’s non-refoulement claims when the applicant had or could still apply for a protection visa. The submission conceded that those decisions are not binding on the Tribunal sitting in the Migration and Refugee Division as it is in this review.
[35] Section 501(6)(c) provides in summary that a person does not pass the character test if the person is not of good character having regard to their past and present criminal or general conduct. Section 501(6)(d) provides in summary that a person does not pass the character test if the person would engage in a wide variety of behaviour including criminal conduct, harassing, molesting, intimidating or stalking another or representing a danger to the Australian community in a specific context.
170. BCR16 involved the cancellation of a partner visa under s.501(3A), which requires the mandatory cancellation of a visa when the character test in s.501(6) is not passed. The applicant in that case was sentenced to and was serving more than 12 months in prison. If a decision is made to cancel a person’s visa under s.501(3A) then notice must be given of that decision under s.501CA(3) and the person affected invited to make representations to the Minister about revoking the decision to cancel their visa.
171. In BCR16, the Assistant Minister (exercising the powers of the Minister) refused to use the discretion under s.501CA(4) of the Act which allows the cancellation to be revoked if the decision maker is satisfied the person passes the character test or there is another reason to revoke the original decision.
172. The other reason (as an alternate to passing the character test) the applicant put forward in BCR16 in his s.501CA(3) representations was that he feared harm in his home country. The Assistant Minister characterised those claims as non-refoulement claims but decided it was unnecessary to consider those claims because the applicant could make a protection visa application and have his claims assessed against the criteria in s.36(2)(a) and (aa).[36]
[36] Section 36 of the Act sets out the criteria that must be met to be granted a protection visa with ss.2(aa) referring to substantial grounds to believe that as a necessary and foreseeable consequence of removal from Australia there is a real risk the person will suffer significant harm and ss.2(a) defining suffering significant harm as being met by particular circumstances such as being exposed to the death penalty, torture or cruel or inhuman treatment or punishment.
173. The majority of the Full Court of the Federal Court found the Assistant Minister failed to consider the claims and so committed jurisdictional error by denying the applicant procedural fairness. As noted above, the majority found the scheme of the Act does not suggest or require that the criteria for a protection visa in s.36(2)(a) or (aa) be addressed first, or at all. They found an applicant for a protection visa could have their application refused under s.65 of the Act purely on character grounds and never reach active consideration of the protection obligation criteria in s.36(2). They also found that the applicant had not raised non-refoulement when he had raised broader fear of harm concerns and that the Assistant Minister had erroneously characterised those fears as non-refoulement obligations when they may not be and had also assumed those claims would fall within those matters protected by Australia’s non-refoulement obligations when they may not.
174. In BHA17 the circumstances were similar to BCA16 in that a permanent Resolution of Status visa (the applicant had been accepted as a refugee) was cancelled on character grounds due to the applicant being convicted and sentenced to more than 12 months’ imprisonment. The Assistant Minister refused to revoke that cancellation or to consider the applicant’s claims of substantial fear of harm in his home country on the basis the applicant could apply for a protection visa and the claims would be considered in the assessment of that visa.
175. In BHA17 an affidavit was filed by an Assistant Secretary from the Department to the effect that it was Departmental policy, set out in writing in PAM3, to assess if Australia’s protection obligations under international instruments are engaged in all applications for protection visas, even if the requirements for a protection visa are unlikely to be made out by a particular applicant. On this basis, the Minister sought to distinguish BHA17 from BCR16.
176. The Federal Court did not accept this. As [Mr A]’s representatives quoted in their submission to the Tribunal:
This finding is not avoided in the circumstances of this case by reference to [the] affidavit and PAM 3. That material relates to the Department’s decision making processes and procedures in assessing a protection visa application. There is no evidence that the Minister was under a legal obligation to act in accordance with PAM 3 when he or she chooses personally (or as required by the Act) to exercise a power such as that conferred by s 501CA(4) or indeed s 65. As the applicant also pointed out, however, any future application by him for a protection visa might be rejected by the Minister personally acting under s 501(3), relying simply on character (or national interest) grounds and without the applicant being afforded procedural fairness before any such decision was made…
In any event, in its own terms, PAM 3 provides “policy” and “guidelines” and, presumably, could be departed from because of the merits of a particular case if a Ministerial delegate happened to consider and determine a future application for a protection visa. There was no evidence to indicate that PAM 3 had the status of a Ministerial direction under s 499 of the Act.[37]
[37] Tribunal file, folio 211 (back) in the submission from [Mr A]'s representative dated 18 June 2018 and also BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at paras 66 and 67.

177. On Thursday 21 June 2018 the Tribunal sent [Mr A]’s representatives a copy of Direction No. 75 - Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b), issued by the Minister under s.499 of the Act on 6 September 2017 with effect from 7 September 2017. The Direction is referred to as Direction 75.[38]
[38] Direction 75, cl.1.
178. The Tribunal invited further submissions from [Mr A]’s representatives after noting the following about Direction 75:
Part 2 of Direction No. 75 stipulates that decision makers must first assess an applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to s.36(2)(aa) before considering any character or security concerns. It is only after considering an applicant’s claims that a delegate of the Minister may consider the protection-visa specific ineligibility criteria. Following consideration of this ineligibility criteria, it is only as a 4th step, depending on the applicant’s claims and circumstances, that a decision maker may consider whether any residual character concerns justify the referral of the application for consideration under section 501 of the Migration Act.
The Tribunal further notes that the Direction is expressed as binding for departmental decision makers.

179. Clause 1 of Part 2 of Direction 75 is titled ‘Directions’ and states in part:
1. The decision maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.

180. On Friday, 21 June 2018 [Mr A]’s representatives responded to the Tribunal’s invitation in the following terms:
Our clients (sic) position in relation to Direction 75 is simply that the full bench authority in BHA17 post-dates the introduction and existence of Direction 75. Although it is unhelpful that the court made no reference to Direction 75 in the reasoning, none-the-less we submit that the authority is binding on the Tribunal.
The applicant has no further submissions to make on this point.

181. The decision in BHA17 was made on 7 November 2017 which postdates the commencement of Direction 75 on 7 September 2017. However, the court in BHA17 was reviewing a decision of the Assistant Minister dated 21 November 2016, which predates the commencement of Direction 75 and therefore Direction 75 did not apply to that decision and was not relevant to the court’s reasoning.
182. [Mr A] provided a copy to the Tribunal of his application for a Safe Haven Enterprise visa (Subclass 790) dated 24 February 2017[39]. [Mr A]’s representatives told the Tribunal that the Department is yet to interview [Mr A] in relation to that application and given the Department’s current priorities, it could be some time before a decision is made on that application.
[39] Tribunal file, folios 92 to 110 (not including the attachments to the application).
183. The Tribunal finds that Direction 75 is binding upon decision makers acting under the Minister’s delegated authority and is expressed in mandatory terms such as “The decision-maker must first…” with the effect that where Direction 75 applies decision makers would be committing jurisdictional error if they were to consider any character or security concerns relevant to an applicant for a protection visa before they considered the applicant’s substantive claims for refugee status and protection or, in effect, Australia’s non-refoulement obligations toward that applicant.[40]
[40] In effect because it is expressed in s.36(2)(aa) as “… the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…”.
184. The Tribunal also finds that if it affirms the cancellation of [Mr A]’s visa this does not represent a final resolution of [Mr A]’s immigration status. [Mr A]’s application for a protection visa is yet to be determined by the Minister or a delegate. The most likely course is [Mr A]’s protection visa application will be assessed by a delegate. In accordance with Direction 75, when [Mr A]’s application for a protection visa is considered by a delegate of the Minister then that delegate will be bound to consider [Mr A]’s claims for protection before considering any character concerns that may arise in relation to [Mr A].
185. This leads the Tribunal to find that the potential cancellation of [Mr A]’s visa by the Tribunal will not lead to a breach of Australia’s non-refoulement obligations that may be owed to [Mr A]. Given the introduction of Direction 75 since the original decision on the visa that was under review in BHA17, the Tribunal finds that [Mr A]’s claims for protection and in particular the issue of potentially being owed non-refoulement obligations, will now be considered by the delegate when assessing [Mr A]’s application for a protection visa prior to any consideration of character concerns in relation to [Mr A].
186. As noted above, [Mr A]’s representatives provided the Tribunal with a copy of the DFAT publication Country Information Report Pakistan, dated 1 September 2017. This report sets out the recent history, demography, economic situation, political system, human rights framework and security situation in Pakistan and has specific chapters that deal with issues that may form the basis for claims of being a refugee or of needing complementary protection, amongst other matters.
187. There is a specific section on [Ethnic group 1] in Pakistan, including [Ethnic group 1]’s exposure to discrimination and violence in Pakistan.
188. As the Tribunal has found the cancellation of [Mr A]’s visa will not result in a breach of Australia’s non-refoulement obligations, due to him having an application for a protection visa on foot, the Tribunal has not compared the information in the DFAT Country Information Report against [Mr A]’s evidence or made any findings in relation to that information.
189. [Mr A]’s representatives also provided the Tribunal with a copy of Member Banfield’s decision in Fattah[41] as it contains a discussion on a report by the Commonwealth Ombudsman into the administration of people by the Department who have had their bridging visas cancelled as a result of being charged with or convicted of criminal offences.[42]
[41] Fattah (Migration) [2017] AATA 27872 (18 December 2017).
[42] Report No. 07/2016 into the Department of Immigration and Border Protection and The Administration of People who have had their Bridging Visa Cancelled due to Criminal Charges or Convictions and are Held in Immigration Detention, dated December 2016.
190. Member Banfield provided the following summary of the report in her decision:
During the hearing the applicant’s representative stated there was no issue of risk raised by the Department, and the Supreme Court has listened to legal representatives and made a judgement that there is no unacceptable risk to the community. A report, Ombudsman Report into Bridging Visa Cancellations due to Criminal Charges or Convictions dated December 2016 was also submitted prior to the hearing. The report investigated bridging visa cancellations on the basis of the criminal charge, conviction, or the possibility that the person poses a threat to the Australian community. The report was particularly concerned with people who are detained based on allegations that lead to criminal charges and detainees who are not released once the criminal charges against them have been resolved. [page break added]
Based on a case study, the report states that “even where the charges are for a serious matter such as sexual assault, the department is acting prematurely when deciding to detain a person, who was granted bail by the court, as they remain innocent until proven guilty”. The Tribunal case study referred to a case where charges were dropped against a person in detention. In the Department’s response the report, also submitted to the Tribunal, it was stated: “Regulation 2.43(1)(p) cancellation grounds are enlivened with the laying of criminal charges. Decisions to cancel visas are made independently of any judicial process, including bail application”. The Tribunal considers the Department’s approach to be reasonable because in granting bail to a defendant, the courts take into account a wide range of matters that may not be relevant in migration matters.[43]
[43] Fattah (Migration) [2017] AATA 27872 (18 December 2017), para 39.

191. The Tribunal has read the Ombudsman’s report.
192. The Ombudsman makes the following observations in his report:
[When considering the cancellation of Bridging E visas for holders charged with criminal offences] [t]here is still considerable scope for a person’s individual circumstances, the seriousness of the actual or alleged behaviour and any mitigating circumstances to be considered by the decision maker.
2.10 It is important to remember that a fundamental principle of the Australian common law is the presumption of innocence. The prosecution bears the burden to prove the charges in criminal proceedings. Therefore no guilt can be presumed until the charge has been proved beyond reasonable doubt. To suddenly deny a person their liberty to live freely in the community based on nothing more than an allegation that has led to the laying of criminal charges, raises the question of whether the department is acting prematurely by cancelling a visa and whether the department is not following the spirit of the Explanatory Statement that introduced this legislation. In short, a person has not engagement (sic) in criminal behaviour until they are convicted.[44]
[44] Report No. 07/2016 into the Department of Immigration and Border Protection and The Administration of People who have had their Bridging Visa Cancelled due to Criminal Charges or Convictions and are Held in Immigration Detention, dated December 2016 at p.7, paras 2.9 and 2.10.

193. The Ombudsman earlier noted the Explanatory Statement that introduced r.2.43(1)(p) and (q) included the following statement:
While the new cancellation grounds capture a wide range of criminal offences, a decision to cancel will be based on the individual merits of a client’s case, including the severity of an offence. The discretion to cancel a BVE might not be exercised, for example, where Australia has obligations under international law towards the client or their family or where there are compelling grounds not to counsel, such as if the client is a minor, a carer or otherwise vulnerable.[45]
[45] Report No. 07/2016, above at p.6, para 2.3.

194. The Tribunal has taken care and exercised caution to ensure it did not conduct a quasi-criminal trial or treat the allegations against [Mr A] and the information in the Victoria Police brief as statements of fact. The Tribunal has also been careful to affirm and respect [Mr A]’s right to a presumption of innocence and his privilege against self-incrimination.
195. However, the Tribunal is charged with applying the law as it finds it. The Act, Regulations and Direction 63 make it clear in the Tribunal’s view that the potential cancellation of a Bridging E visa is enlivened at the criminal charge stage requiring the original decision maker and the Tribunal on review to then assess that potential cancellation against the primary and secondary criteria provided in Direction 63 and the Department’s general policy for the exercise of cancellation powers under s.116 and other provisions of the Act. It is not for the Tribunal to speculate about the strength of the prosecution case or the possibility of some or all charges being withdrawn.
196. In addition, the Government, through s.116(1)(g) and r.2.43(1)(p)(ii) and through the Minister issuing Direction 63, has made plain its expectation that where a person is charged with the commission of a criminal offence their Bridging E visa ought to be cancelled, even while criminal justice processes or investigations are ongoing.
197. According to Direction 63 this reflects the Government’s view that Bridging E visas are a privilege only, such that non-citizens do not have a legal right to live in the community whilst their immigration status is being resolved in such circumstances. To this extent it would seem that the current migration law departs in the circumstances of criminal charges being filed against a Bridging E visa holder from the criminal law in Victoria (and generally) which assumes a right to liberty[46], as noted in the Ombudsman’s report above.

[46] See s.1B(1)(b) of the Bail Act 1977 (Vic) which recognises the right to liberty. See also s.21 (the right to liberty and security of person) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
198. The Government’s expectations in this respect are not determinative as cancellation is not mandatory, but to the extent they are expressed in Direction 63 the Tribunal has had regard to the general guidance and principles therein when considering the primary and secondary criteria and weighing the circumstances of [Mr A] to ascertain whether the Tribunal’s discretion to cancel [Mr A]’s visa should be exercised or not.
Any other matter considered relevant
199. The Tribunal has also had regard to the circumstances of [Mr A]’s case, including matters raised by [Mr A] and matters in the Department’s PAM3 ‘General visa cancellation powers’.
200. One of the issues raised above is item 1305(3)(g) of Schedule 1 to the Regulations which provides that for a valid application for a Bridging E visa to be made, the applicant must not have previously held a visa that has been cancelled on a ground specific in r.2.43(1)(p) or (q). This means if the Tribunal affirms the decision to cancel [Mr A]’s Bridging E visa then he will ordinarily not be able to validly apply for another Bridging E visa. This means [Mr A] will most likely remain in immigration detention until the criminal proceedings against him are resolved unless the Minister decides to exercise his discretion to grant [Mr A] a visa.[47]
[47] For example, s.195A of the Act allows the Minister to personally grant someone being held in immigration detention a visa whether or not the person has applied for the visa. The Minister only has to decide that it is in the public interest to grant the visa.
201. As the next preliminary hearing in relation to those criminal proceedings is not until [date] August 2018 and the timetable until the trial is not clear beyond that, [Mr A] could be held in detention for a considerable period of time if the Tribunal affirms the cancellation of his visa. This is a potentially significant impost on [Mr A] who has not yet been found guilty of any offence, has a right to both be presumed innocent and a right to liberty under Victorian law and may yet be acquitted of some or both of the charges which could equally be heard summarily rather than by indictment.
202. The difficulty for the Tribunal when a visa is cancelled on the basis of a person merely being charged with criminal offences is that the above matters are matters of speculation. The Tribunal’s view in [Mr A]’s circumstances is that it is more likely than not that he will be detained for a considerable period of time prior to the potential trial in relation to those charges, such that this consideration weighs against the cancellation of [Mr A]’s visa.
203. As noted above, the Tribunal did not find and [Mr A]’s representatives did not submit during the hearing, that [Mr A] would be indefinitely detained.
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
204. [Mr A] told the Tribunal that there were threats made against his life in Pakistan and he no longer felt safe there, feeling so unsafe that he felt he needed to leave his wife and son and extended family and flee to a third country to save his life.
205. [Mr A] stated in his statutory declaration dated 15 June 2018:
The thought that I could be returned to my home country terrifies me. The Taliban and extremist groups have been killing a lot of people in my area because of our Shia religion and because we are [Ethnic group 1 members] from the [Town 1] area. I know that my life will be in danger in Pakistan and I do not know how long will survive if I am returned to my country.[48]
[48] Tribunal file, folio 112.

206. [Mr A]’s claims will most likely be assessed by a delegate of the Minister when a decision is made on his application for a protection visa. As noted above, this means that any protection and non-refoulement obligations Australia owes to [Mr A] will be assessed at that time. Therefore, the Tribunal makes no findings in relation to [Mr A]’s claims above.
The extent of compliance with visa conditions
207. [Mr A]’s evidence to the Tribunal was that he has complied with all conditions of his visa.
208. The Tribunal accepts this evidence from [Mr A].
209. There is no information before the Tribunal to indicate that [Mr A] has not complied with the conditions of his visa prior to being charged with criminal offences. This information weighs against the cancellation of [Mr A]’s visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
210. This consideration has been addressed by the Tribunal above.
The circumstances in which the ground of cancellation arose
211. This consideration has been addressed by the Tribunal above.
The visa holder’s past and present behaviour towards the Department
212. The information before the Tribunal is that [Mr A] co-operated with the Department and was truthful in his dealings with the Department in relation to the cancellation of his visa.
213. This information weighs against the cancellation of [Mr A]’s visa.
Whether there are mandatory legal consequences to a cancellation, including 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
214. These considerations have been addressed by the Tribunal above.
Conclusion
215. Considering the circumstances as a whole, the Tribunal concludes that [Mr A]’s visa should be cancelled.
216. The Tribunal has considered whether [Mr A]’s visa should be cancelled in accordance with the first primary criteria in Direction 63, including considering the general guidance and principles set out in Direction 63.
217. The Tribunal found that the second of the primary criteria in Direction 63 does not apply in [Mr A]’s circumstances.
218. As noted above, the assessment of [Mr A]’s circumstances has been difficult as it has been based on the filing of criminal charges only where [Mr A] has a right to both the presumption of innocence and to liberty under the relevant criminal law and a privilege against self-incrimination which limits the Tribunal’s understanding of the circumstances of the alleged offending.
219. However, there is currently a clear migration law legislative framework that the filing of criminal charges only can lead to the cancellation of a Bridging E visa with all the attendant consequences that flow from such a decision. This legislative framework is supported by Ministerial directions made under s.499 of the Act that are binding on the Tribunal in the exercise of its discretion whether to cancel an applicant’s Bridging E visa or not.
220. Direction 63, and the general guidance and principles stated within it, cannot be ignored by the Tribunal and must inform the Tribunal’s consideration of the primary and secondary considerations set out in Direction 63. The Government, through Direction 63, has made plain its expectation that those considerations may result in the cancellation of Bridging E visas on the basis of criminal charges only.
221. Direction 63 also acknowledges that if criminal charges are dismissed, which the Tribunal reads in context as withdrawn, prior to trial or the Bridging E visa holder is found not guilty at trial or the charges are dismissed at trial, then cancellation is not appropriate[49]. The timing of such matters, particularly the potential withdrawal of some or all charges, is usually uncertain if it arises at all. The Tribunal was not asked in [Mr A]’s case to delay its decision until the criminal case is completed because [Mr A] is currently in detention and this would defeat the very purpose of his application for review.
[49] Direction 63, clause 5(3).
222. It also is not for the Tribunal to conduct a quasi-criminal trial or to try and assess the strength or otherwise of the prosecution case behind the criminal charges or to guess whether some or all charges may be withdrawn or may or may not result in a finding of guilt. This would be mere speculation and not a proper consideration of the evidence before the Tribunal.
The considerations that weigh in favour of the cancellation of [Mr A]’s visa
223. The following considerations weigh in favour of the Tribunal exercising its discretion to cancel [Mr A]’s visa:
· The circumstances in which the cancellation of [Mr A]’s visa arose;
o[Mr A] has been charged with two criminal offences which the Tribunal found to be serious criminal offences;
oThose criminal offences are offences against a person;
oThe charges were filed in alleged circumstances where the alleged victim was particularly vulnerable;
oThe charges were filed in alleged circumstances where the alleged offending involved a significant breach of trust having adverse implications for both the alleged victim and the wider community;

·     It was not argued before the Tribunal that [Mr A] will be detained indefinitely;
·     The Tribunal has found that cancellation of [Mr A]’s visa will not lead to a breach of any of Australia’s non-refoulement obligations that may be owed to [Mr A];
· The Government through s.116(1)(g) and r.2.43(1)(p)(ii) and through the Minister issuing Direction 63 has made plain its expectation that where a person is charged with the commission of a criminal offence their Bridging E visa ought to be cancelled, even while criminal justice processes or investigations are ongoing. According to Direction 63 this reflects the Government’s view that Bridging E visas are a privilege only, such that non-citizens do not have a legal right to live in the community whilst their immigration status is being resolved in such circumstances. The Government’s expectations are not determinative as cancellation is not mandatory, but to the extent they are expressed in Direction 63 the Tribunal has had regard to the general guidance and principles therein when considering the primary and secondary criteria and weighing the circumstances of [Mr A] to ascertain whether the Tribunal’s discretion to cancel [Mr A]’s visa should be exercised or not.
The considerations that weigh against the cancellation of [Mr A]’s visa
224. The following considerations weigh against the Tribunal exercising its discretion to cancel [Mr A]’s visa:
·     [Mr A]’s ongoing immigration detention is causing [Mr A]’s family in Pakistan stress and illness and also financial distress;
oThe weight the Tribunal gave to the financial distress of [Mr A]’s family was reduced because the extent of [Mr A]’s financial support for his family is not clear to the Tribunal;

·     [Mr A] has, until he was charged, been a hardworking person of good character who has been a positive contributor to his local [Ethnic group 1] community;
·     [Mr A] enjoys ongoing support from some sections of the local [Ethnic group 1] community;
·     [Mr A] says that being in immigration detention has had a significant negative impact on his mental health and has caused him to be very distressed, quite anxious and to feel very depressed at times;
oWhilst the Tribunal accepts that being held in immigration detention has had a negative impact on [Mr A], the weight the Tribunal could give this consideration was reduced because of the lack of documented medical or other evidence to support these claims. The evidence before the Tribunal is [Mr A] has sought limited medical or other assistance and is not currently receiving any medical treatment, taking any medication or being assisted by a mental health professional or counsellor;

· [Mr A] finds his current circumstances very stressful and worries a great deal about his inability to work and financially assist his family including his parents in Pakistan and also worries about the impact his situation is having on his family, particularly his relationship with his wife and the impact on his mother’s health;
· [Mr A] is very worried about his standing in and potential social exclusion from the local [Ethnic group 1] community and his family’s standing within and potential social exclusion from their local community in Pakistan;
oThe weight the Tribunal gave [Mr A]’s concerns in this regard was reduced due to the support from the local [Ethnic group 1] community for [Mr A] that was evident to the Tribunal during this review process;

· [Mr A] has no prior criminal record in Victoria and there is no information before the Tribunal that he has a criminal record elsewhere in Australia or in Pakistan;
· [Mr A] was released on an undertaking of bail by Victoria Police without conditions, which indicates that the Victoria police officer who granted [Mr A] bail considers [Mr A] to present a low risk of reoffending and a low risk to the safety of the community;
oThe Tribunal gave this consideration considerable weight against cancelling [Mr A]’s bridging visa;

·     [Mr A] is entitled to be presumed innocent prior to the hearing of the charges;
·     In [Mr A]’s circumstances he will not be able to apply for another Bridging E visa and it is more likely than not that he will be detained for a considerable period of time prior to his potential criminal trial;
·     The Tribunal found [Mr A] has complied with the conditions of his visa up until being charged with criminal offences; and
·     [Mr A] co-operated with the Department and was truthful in his dealings with the Department in relation to the cancellation of his visa.
225. On balance, the Tribunal finds that the considerations that weigh in favour of the Tribunal exercising its discretion to cancel [Mr A]’s Bridging E visa outweigh those considerations that weigh against the discretion being exercised.
226. The seriousness and nature of the criminal charges against [Mr A], the circumstances in which the cancellation of his visa arose and having proper regard to the guidance and principles that inform the balancing of the primary and secondary considerations in Direction 63 were key factors in the Tribunal’s conclusion that the considerations in support of cancelling [Mr A]’s visa outweighed the considerations against cancellation.
DECISION
227. The Tribunal affirms the decision to cancel [Mr A]’s Subclass 050 (Bridging (General)) visa.

Michael Ison
Senior Member

BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288.

[2018] AATA 2744

11 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction