1820362 (Migration)

[2018] AATA 4386

1820362 (Migration) [2018] AATA 4386 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820362

MEMBER:John Billings

DATE:22 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 22 August 2018 at 12:38pm

CATCHWORDS
MIGRATION – Cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to Australian community – criminal charges – intervention orders – serious nature of allegations – false information on visa application – paternity of children – DNA testing – marital status – financial support for children – separation from children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 148, 359AA, 359A, 375A


CASES
Gong v MIBP [2016] 561
MIBP v Singh [2016] FCAFC 183
Newall v MIMA [1999] FCA 1624

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 July 2018 made by a delegate of the Minister for Home Affairs under s.116 of the Migration Act 1958 (the Act) to cancel the Subclass 010 (Bridging A) visa held by the [applicant].

2. After giving notice of intention to consider cancellation (NOICC) and receiving a response from [the applicant], the delegate cancelled the visa under s.116(1)(e) on the following basis. The delegate concluded that the presence of [the applicant] in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community, or the health or safety of an individual or individuals. The delegate’s conclusion was based on evidence that [the applicant] was charged on 19 April 2018 with certain criminal offences: see below. The delegate exercised discretion to cancel the visa.

3. [The applicant] applied to the Tribunal for review on 12 July 2018.  He provided a copy of the primary decision to the Tribunal. 

4. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. [The applicant] appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from his friend, [Ms A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Ugandan and English languages.

6. [The applicant] was represented in relation to the review by his registered migration agent. The representative attended the hearing. 

7. [The applicant] is [an age] year old national of Uganda.  He arrived in Australia [in] November 2016 holding a [Visitor] visa.  He was accompanied by three boys identified in the application for the Visitor visa as his children.  The boys are aged [age], [age] and [age] years.  The boys’ mother is [Ms B].  [Ms B] is a [age] year old national of Uganda.  She has been in Australia since 2014.  [The applicant] acknowledges that DNA testing conducted in Australia has shown that he is not the boys’ biological father but he maintains that until the test results were obtained he believed himself to be the biological father.  He submitted copy birth certificates naming him and [Ms B] as parents.  In essence [the applicant] claims that he maintained a relationship with [Ms B] for years after they met at university even when she was in an arranged marriage with another man.  [The applicant] further states that he has two young sons in Uganda, born to different mothers. 

8. In [the applicant’s] Visitor visa application he declared that he was married but he told the Tribunal he has never been married.  [Ms B] is named in the Visitor visa application as [the applicant’s] spouse or de facto partner.  A false date of birth was given for [Ms B].  The Visitor visa application falsely indicated that [Ms B] was not travelling to Australia with [the applicant] and the boys.

9. There are proceedings in the Federal Circuit Court of Australia relating to a dispute between [the applicant] and [Ms B] about the children.  Court documents indicate that the proceedings were initiated by [the applicant].  The children have been in [Ms B’s] custody but [in] April 2018 [the applicant] was granted supervised access.  That was before he was charged by police. 

10. There are intervention orders made by the Magistrates’ Court of Victoria that name the parties.  The first order was made [in] September 2017: see further below. 

11. Affidavits that were submitted to the Federal Circuit Court were submitted to the Tribunal.  In an affidavit he made in September 2017 (before the DNA test results) [the applicant] asserted that the children are his children.    [Ms B], in an affidavit she made in November 2017, deposed that she is the mother.  She named another man as father.  She said she married the father in 2006.  [Ms B] further deposed that she and [the applicant] had never had sex but “were only ever friends and nothing more”.

12. In January 2017 [the applicant] applied for a Protection visa.  It was at about that time that he was granted the Bridging A visa that has been cancelled.  [The applicant’s] application for a Protection visa is still being considered by the Department.  [Ms B] has separately applied for a Protection visa.  Her visa application was refused.  It is not necessary or desirable to record here any further information about [Ms B’s] application. 

13. [The applicant] acknowledges that he was charged in April 2018 as follows: sexual assault of [Ms B] between [December] 2016 and [January] 2017; recklessly cause injury to [Ms B] [in] September 2017; unlawful assault (aggravated) of [Ms B] [in] September 2017; sexual assault of another woman (“[Ms C]”) [in] December 2017; and two counts of rape of [Ms C] [in] December 2017.  [The applicant] was immediately granted bail by police on his own undertaking but he was taken into immigration detention in July 2018 after he attended court.  In a letter to his migration agent dated [in] August 2018 [the applicant’s] criminal lawyers advise that there is to be a contested committal hearing in October 2018 and that, if [the applicant] is to stand trial, the trial may not be until late 2019. 

14. The primary decision does not mention the alleged victims by name but contains information to the effect that police allege that [the applicant] sexually assaulted [Ms B] while they were sharing accommodation and she was sleeping in the presence of her children.  (The date of the offence is said to be between [date] and [date] December 2016).  It is then alleged in effect that on [date] September 2017 [the applicant] slapped [Ms B] on multiple occasions; punched and choked her; pulled her around the room; dragged her across the ground; and hit her with a speaker from his living room.  The incident is alleged to have occurred while the children were present and screaming.  In relation to [Ms C], the primary decision records in effect that police allege that [in] December 2017 [the applicant] sexually assaulted her then raped her on two occasions at his home. 

15. The criminal lawyers’ letter dated [in] August indicates that there are additional allegations against [the applicant]: assault of [age] year old child on an unspecified date; and assault of a [age] year old child [in] September 2017.  [The applicant] at first told the Tribunal that he did not know about any charges of that nature but he eventually said that he thought he had been charged with beating the children.  He asserted that [Ms B] trained the children to say that he beat and sexually assaulted them.  He said that he now knew there were allegations that he had assaulted both the oldest and the youngest of the children.  Earlier in the hearing he said there were allegations that he had sexually assaulted and beaten the children. 

16. The Tribunal now summarises [the applicant’s] general position in this case, including his response to the charges.  The Tribunal first mentions that it informed [the applicant] about the privilege against self-incrimination before inquiring whether he had any response to the charges.  Further, towards the end of the hearing, the Tribunal invited [the applicant] under s.359AA of the Act to comment on or respond to adverse information.  The adverse information includes the false information contained in [the applicant’s] Visitor visa application mentioned above, concerning [the applicant’s] marital status and [Ms B’s] whereabouts.  There is also information that in a statement to the Department in connection with his Protection visa application [the applicant] identified [Ms B] as his wife (giving the same false date of birth that appears in the Visitor visa application) and said that he travelled to Australia with his sons and left [Ms B] behind in Uganda because she was pregnant.  He also said in the statement that [Ms B] had been arrested and her whereabouts were unknown.  Finally, there is information that in October 2017 the Department was informed anonymously that the three children living with [the applicant] were not his children and that he abused, beat and threatened the children many times.  [The applicant] was overheard yelling at the children not to tell anyone his “secret” or he would take them out of Australia and they would not see their parents again.  He was overhead also to tell the children that they must not forget to call him Daddy or he would teach them a lesson they would never forget. 

17. [The applicant] did not think that he stated in the Visitor visa application that he was married, but he acknowledges that statements to the effect that [Ms B] was in Uganda when he came to Australia are not true and that a false date of birth was provided.  He says in essence that the reason was that he had to leave Uganda.  He contemplated leaving the boys in Uganda and seeking asylum in [another country] where members of his family reside.  [Ms B] insisted that he not leave the boys behind and she developed a plan, working with an official at [a] consulate in Uganda and an agent, for [the applicant] to come to Australia.  The plan involved making false statements about [Ms B].  When [the applicant] arrived in Australia [Ms B] controlled things.  As she had not told the Department the truth about the children she stayed with [the applicant] and the boys only from time to time.  That included an occasion when [the applicant] and the boys were sharing accommodation with [Ms A].  [The applicant] had looked after the three children (and one of his sons) in Uganda.  He looked after the three children in Australia too.  Disputes arose between [the applicant] and [Ms B] about money.  [Ms B] made false allegations to police that [the applicant] had assaulted her.  [Ms B’s] aim was to use the children as a means for her to stay in Australia (because she had not been granted a Protection visa) but her aim was also to ensure that [the applicant] would be deported.  [The applicant] said that [Ms B] had friends, including an Australian man named [Mr D], who tried to influence police against him and who threatened him. 

18. [The applicant] played the Tribunal a recorded phone conversation with [Mr D] he said they had in September 2017.  In the recording, among other things, [Mr D] said to [the applicant] that [Ms B] had evidence including photographs and medical evidence to support her allegations.  [The applicant] told [Mr D] that [Ms B] was using him: she wanted [Mr D] to marry her so that she could stay in Australia.  [Mr D] asked [the applicant] if he understood that he could be deported.  [Mr D] said that a DNA test would show if the children were his.  [The applicant] maintained that the children were his.  [Mr D] referred to birth certificates that [Ms B] had that named her husband as father.  [Mr D] did say to [the applicant] that [Ms B] had asked him to get some people to “sort [him] out” but [Mr D] also said that was not going to do that: he just wanted to talk to [the applicant].  Both men expressed concern for the boys.  [Mr D] said he wanted to pick up some clothes for them.  [The applicant] expressed concern that they were missing school. 

19. [The applicant] told the Tribunal that he did not know about the birth certificates that named [Ms B’s] husband as the father. 

20. [The applicant] maintained that he has always cared for the children and that it was [Ms B], not he, who had sometimes punished them physically.  He submitted screen shots of text messages between him and [Ms B] to support that assertion.  He did not know the date of the messages but said in effect that they were exchanged prior to September 2017.  He also accused [Ms B] of neglecting the children. 

21. In relation to [Ms C], [the applicant] said that she is a friend of [Ms B].  He said that [Ms C] made false allegations against him too.  He said that she did that in order to help [Ms B] achieve her goals.  The Tribunal observed that his claim about [Ms C] was not contained in his response to the NOICC or any material submitted prior to the hearing.  [The applicant] said that he had told his representative about that and complained that it had been omitted.  Further in relation to [Ms C], [the applicant] told the Tribunal that a former housemate, “[Mr E]”, had recently “confessed” to him that, at or about the time [Ms C] claimed to have been sexually assaulted by [the applicant], [Mr E] had sex with her “for one minute” when he mistook her for another woman who was [Mr E’s] girlfriend.  [The applicant] submitted screen shots of text messages between him and [Mr E] in July 2018 in support of that assertion.  (In the chain of messages [Mr E] first said the episode was in January or February.  When [the applicant] told him that [Ms C] claimed to have been raped on [a particular day] and asked him to state the actual date of the episode he was involved in, [Mr E] said that he could not remember when it was). 

22. [Ms A] told the Tribunal that she has known [Ms B] for a few years.  She and [Ms B] shared accommodation for a couple of weeks in 2017.  After that, when [the applicant] and the children shared accommodation with [Ms A], [Ms B] visited and sometimes slept overnight in the same room as [the applicant].  [Ms A] was generally aware of the allegations made against [the applicant] by [Ms B] and [Ms C].  [Ms A] said there were allegations that [the applicant] raped the children.  [Ms A] works as [an occupation] and believes she can tell who is or is not a good person.  She said that [the applicant] is a good person.  [Ms A] gave evidence to the effect that she believes [the applicant] rather than [Ms B].  [Ms A] said that [Ms C] made accusations against [the applicant] because she is now a friend of [Ms B].  [Ms A] explained her view by saying that [Ms B] is a “brainwasher” who manipulates people.  [Ms A] said that [the applicant] loved the children as his own before he found out they were not his children.  [Ms A] said that [Ms B] used to smack the children. 

23. After the hearing [the applicant] submitted a letter dated [in] August 2018 by  [a representative of an association] stating that [the applicant] is an active member of the Ugandan community who had volunteered at social gatherings and was “fondly known by both adults and children”.   The author said “We believe that he is a person of good character and have not experienced any circumstance to suggest otherwise”.  While the author supports [the applicant’s] “release into the community” the letter does not indicate what if any knowledge he has of the allegations against [the applicant]. 

24. For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant’s] visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The Department’s file includes a non-disclosure certificate given under s.375A of the Act.  As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The Tribunal provided a copy of the certificate to [the applicant] in July 2018 and invited submissions as to the validity of the certificate. In a written submission received by the Tribunal on 7 August [the applicant’s] representative said that “we believe this certificate to be deemed invalid”. There is no basis expressed for that belief. While there appears to be some confusion in the wording of the certificate and its reference to folio numbers, the certificate is valid, in the Tribunal’s view. In any event, the Tribunal has discharged its obligations under s.359A of the Act including in relation to material covered by the certificate.

26. The evidence before the Tribunal includes that many serious allegations and counter-allegations have been made especially by [Ms B] and [the applicant].  The allegations against [Ms B] include that it was she who physically abused the children.  Message screen shots were submitted to support that allegation.   Within the body of evidence that includes the allegations, there is evidence that the Federal Circuit Court accepted that [the applicant] at least had a relationship with the children that meant he should be permitted access.  There is evidence in the form of a report to the Court on behalf of the Victorian Department of Health and Human Services (“DHSS”) made in February 2018.  The document refers to reports and investigations dating from September to November 2017.  The report includes reference to allegations that [the applicant] harmed [Ms B] in the presence of the child and that he harmed the children.  In relation to the children, the report concludes that allegations to the effect that [the applicant] had harmed them had not been substantiated.  At one point the observation is made that both [Ms B] and [the applicant] were found “equally credible or not credible”.  The report refers in particular to a statement by [Pastor F] made in November 2017 to the effect that he played a role in supervising access by [the applicant] to the children at a restaurant that month.  [Pastor F] considered that the children were happy in [the applicant’s] company but that the eldest ran away to a police station and said he did not want to go with him or see [the applicant].  [Pastor F] “observed” that the oldest child had been “trained and coached” to do that.  The Tribunal has mentioned intervention orders.  A copy of an interim intervention order dated [in] September 2017 was submitted to the Tribunal.  The order was ostensibly made against [the applicant], who was at court, for the protection of [Ms B] and the children.  [The applicant] told the Tribunal that a final order was made subsequently, both for his protection and the protection of [Ms B] and the children.  He said in effect that he did not oppose the order because he had to get back to work to support himself and did not want to remain at court.  

27. The material before the Tribunal is not confined to the allegations in the DHSS report.  Criminal charges that were laid by Victoria Police months after DHSS made its report.  The criminal charges include charges relating to offences allegedly committed by [the applicant]against [Ms B] and against another woman.  Criminal lawyers for [the applicant] have said that there are allegations that two of the children have been abused by him.

28. It is important to emphasise that the task of the Tribunal is limited to determining whether the relevant ground for cancellation is established, and if so, whether the visa should be cancelled. 

29. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

1. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. The expressions “health” and “safety” are used in s.116(1)(e) in their ordinary meanings: see Newall v MIMA [1999] FCA 1624 at [21]. “Risk” is not defined but use of the words “may be a risk” means that there does not have to be any direct, solid or certain foundation before the power to cancel a visa can arise: see Gong v MIBP [2016] 561 at [41].  The provision was amended by the Migration Amendment (Character and General visa Cancellation) Bill 2014.  Item 13 of Schedule 2 to the Explanatory Statement for that Act states:

   The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.  (Emphasis added).

2. So far as the criminal charges are concerned the Tribunal notes that [the applicant] was granted bail.  The Tribunal does not have before it the evidence that might constitute the prosecution case.  (That evidence possibly includes photographs and medical evidence.  In the recording played to the Tribunal [Mr D] mentioned photographs and medical evidence.  The Tribunal observes that [the applicant] did not protest to [Mr D] that there could not have been such evidence).  [The applicant] has the benefit of the presumption of innocence.  The Tribunal does not determine guilt or innocence. 

3. The Tribunal disregards the allegations made to the Department anonymously.  The allegations could have been made by anyone.  The allegations reportedly by [Ms B] and [Ms C] are another matter.  The Tribunal has not had any opportunity to question those persons and assess their credibility.  Nevertheless, the Tribunal rejects the submission made that the allegations made against [the applicant] are “mere allegations”. 

4. There are factors to be mentioned now that lead the Tribunal to be satisfied that the presence of [the applicant] in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.   

5. The children in Uganda bear [the applicant’s] name but the children in Australia do not.  [The applicant] told the Tribunal that it was not possible for them to, because [Ms B’s] husband is the member of a powerful family.  DNA evidence has confirmed that the children in Australia are not his biological children.  The Tribunal considers it to be improbable that [the applicant] became aware of that only when the DNA results became known.  There is some evidence, by [Ms A] and [Pastor F] in particular, to indicate that [the applicant] had a father-like relationship with the children.  The Tribunal has noted relevant orders made so far by the Federal Circuit Court.  And [the applicant] is in position of important health and school information concerning the children.  DHHS did not conclude that allegations against [the applicant] warranted him being denied access to them.  Notwithstanding these matters, since DHSS made its report in February this year, police decided that there is sufficient evidence to charge [the applicant] with very serious offences, and intervention orders for the protection of [Ms B] and the children have been made.  While [the applicant] essentially claims that he consented to orders because he was too busy to contest them, the Tribunal is unable to conclude that there was no basis for the orders. 

6. Taking into account the evidence discussed so far, there is sufficient evidence for the Tribunal to be satisfied that the presence of [the applicant] in Australia is or may be, or would or might be, a risk to the health or safety of [Ms B] and the children if not also to other women and children.   

7. The Tribunal now considers the evidence concerning [Ms C]. 

8. No mention was made of [Ms C’s] allegations in the response to the NOICC although [the applicant] claims that he told his representative that [Ms C] colluded with [Ms B].  The basis for [the applicant’s] and [Ms A’s] claim that [Ms C] made false allegations appears to be no more than that [Ms B] is manipulative and that [Ms C] has become her friend. 

9. What [the applicant’s] housemate, [Mr E], is said to have told [the applicant] recently is vague and unpersuasive.  The suggestion that [Mr E] mistook [Ms C] for his girlfriend appears far-fetched.  Significantly, the material indicates that the allegation is that [Ms C] was sexually assaulted and then raped twice.  (This allegation is at odds with [Mr E’s] “confession”).  Police decided that there is sufficient evidence to charge [the applicant] with very serious offences against [Ms C].  The Tribunal considers that there is sufficient evidence for it to be satisfied that the presence of [the applicant] in Australia is or may be, or would or might be, a risk to the health or safety of [Ms C] if not also to other women. 

10. [Ms A] and the [representative of the community] association mentioned earlier have stated that [the applicant] is of good character.  Their experience of [the applicant] may have been positive.  That does not outweigh the other evidence that has led the Tribunal to its conclusion.   It may also be that, as was submitted on his behalf, [the applicant] is not accused of having breached any intervention order or committed any offence between the time he was charged and the time he was taken into immigration detention.  That too is not sufficient to overcome the other evidence that has led the Tribunal to its conclusion. 

11. For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by [the applicant], and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. The Tribunal first considers the purpose of [the applicant’s] travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia.  [The applicant] travelled to Australia as a Visitor but he has since lodged an application for a Protection visa that has yet to be determined.  This is a factor that weighs in [the applicant’s] favour. 

14. The Tribunal next considers the extent of compliance with visa conditions.  The primary decision indicates that there were no conditions on the Bridging A visa.  There is no material before the Tribunal to indicate that [the applicant] has not complied with conditions on any other visa.  This factor has limited weight in [the applicant’s] favour.   

15. The Tribunal now considers the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by cancellation.  Cancellation may mean that although [the applicant] has been granted bail he could be held in immigration detention for twelve months or more.  It was submitted on his behalf that this will have been unfair if he is finally acquitted.  If [the applicant] is not committed to stand trial he may not be in immigration detention for as long as that, serious as any further period of detention would be.   In the meantime, [the applicant] told the Tribunal that he needs to work to support the children in Australia and the children in Uganda.  The Tribunal inquired as to [the applicant’s] physical and mental health.  He described his health as “perfect”, though he did say that he had received counselling while in detention: he said that he is worried about what is going to happen and he is worried about his children “back home”.  In the meantime [the applicant] is separated from the children in Australia yet he told the Tribunal that he did not oppose final intervention orders that include orders made for the protection of the children.  Ultimately, this is a factor that has some weight in favour of not cancelling the visa.

16. Next the Tribunal considers the circumstances in which the ground of cancellation arose and especially whether the circumstances in which the ground for cancellation arose were beyond [the applicant’s] control.  The Tribunal has considered the evidence in support of allegations that [the applicant] has committed serious offences and poses a risk of harm to persons.  The Tribunal considers that the circumstances in which the ground of cancellation arose do not weigh in [the applicant’s] favour.  

17. The Tribunal now considers [the applicant’s] past and present conduct towards the Department.  There is no indication that [the applicant’s] general conduct towards the Department has been of concern though he has acknowledged making false statements in support of his Visitor visa application and his Protection visa application.  It was submitted on his behalf that he provided the information he did with the Visitor visa application because he was desperate to flee Uganda.  This factor ultimately has no weight in [the applicant’s] favour. 

18. The Tribunal now considers whether there are mandatory legal consequences, such as whether cancellation would result in [the applicant] being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention.  Cancellation may result in [the applicant] being detained for the time being but he cannot be removed from Australia.  He was refused a Criminal Justice visa in July 2018 but a State Criminal Justice Stay Certificate has been issued pursuant to s.148 of the Act.  [The applicant] could apply for a Bridging E visa.  The Tribunal notes that he has recently applied for a Bridging E visa.  He was refused the visa.  If he elects to make a further application for a Bridging E visa the specific criteria for that visa will have to be considered in view of the circumstances at the time.  [The applicant] has already applied for a Protection visa.  He may otherwise be prevented from applying for further visas while in Australia and be affected by Public Interest Criterion 4013 preventing the grant of a further visa to him for three years.  In the circumstances of the case described above, while [the applicant] has not been found guilty, the Tribunal considers that these mandatory consequences would not be unreasonable. 

19. The Tribunal mentions, incidentally, that it was submitted that if the Bridging A visa were cancelled (and [the applicant] were detained) “his residence in Australia would be consistent with the treatment that he would face if he was to return to Uganda”.  The Tribunal considers that there is no basis for this submission given, in particular, the legal safeguards that [the applicant] has the benefit of in Australia.

20. There would be no consequential cancellations under s.140.  The primary decision records that the children in Australia have been granted Bridging A visas independently. 

21. The Tribunal now considers whether any international obligations would be breached as a result of the cancellation.  Australia’s non-refoulement obligations would not be breached as a result of cancellation of the visa: [the applicant] has an application for a Protection visa that is still to be determined.  In relation to the children there is article 3(1) of CROC (Convention on the Rights of the Child) to consider.  That provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  (In summary, Article 6 concerns the right to life; Article 9 concerns the principle that children not be separated from their parents against their will except in specified circumstances; and Article 24 concerns the right of children to enjoy the highest attainable standard of health).  Article 9(4) of CROC contemplates that a parent may legitimately be separated from children through deportation.  Article 23(1) of the ICCPR (International Covenant on Civil and Political Rights) provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.  The children are in the custody of their mother.  [The applicant] acknowledges now that he is not the biological father.  Custody of and access to the children appear still to be finally determined.  In the meantime, criminal lawyers for [the applicant] have said that there are allegations that two of the children have been abused by him.  The Tribunal was told about the very serious nature of these allegations.  Significantly, [the applicant] told the Tribunal that he did not oppose final intervention orders that include orders for the protection of all three children.  The Tribunal ultimately gives no weight to this consideration. 

22. The Tribunal mentions that it was submitted that “improper cancellation” of the Bridging A visa would act as “an adverse indicator” and (negatively) affect the assessment of [the applicant’s] protection claims.  It is not clear what is meant by this submission, but the Tribunal sees no basis for concluding that the determination of [the applicant’s] protection claims would be adversely affected by a decision to cancel his Bridging A visa. 

23. There are not any other relevant matters to consider.  

24. Considering all the circumstances as far as they can be determined on the whole of the evidence before the Tribunal, and considering the submissions made on behalf of [the applicant], the Tribunal concludes that the visa should be cancelled. 

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    John Billings
    Senior Member