1902674 (Migration)
[2019] AATA 3768
•4 March 2019
1902674 (Migration) [2019] AATA 3768 (4 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902674
MEMBER:Justin Owen
DATE:4 March 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 04 March 2019 at 1:16pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – risk to the health, safety or good order of the Australian community – charges of engaging in violent criminal conduct – establishing a business in Australia – compelling need to remain in Australia – completing criminal proceedings – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW), ss 33, 114
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43CASES
Cheryala v Minister for Immigration and Border Protection [2017] FCCA 2261
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 5 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been charged with a number of criminal offences in the State of New South Wales. The charges are one count of armed with intent to commit indictable offence under s114(1)(A) of the Crimes Act 1900 and one count of wound with intent to cause grievous bodily harm under s33(1)(A) of the Crimes Act 1900. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Solicitor A] who is a solicitor and the applicant’s migration representing the applicant in his review application to the Tribunal for the separate matter concerning the cancellation of his Student visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent [Representative A].
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PRE-HEARING SUBMISSION
The Tribunal received a pre-hearing submission dated 13 February 2019 from the applicant’s representative [Representative A] (T1, Folio.30-33).
[Representative A] claims ‘the New South Wales Police withdrawn the charge based on report [number], also the prosecution was dismissed.’
[Representative A] states that the delegate by cancelling the applicant’s visa ‘infringed the presumption of innocence based on the fact that a person has been “charged with an offence” within the meaning of reg 2.43(1)(p)(ii)’ and potentially exposes the applicant to ‘very real and serious adverse consequences.’
The applicant’s representative [Representative A] writes that ‘the fact of the NSW Police withdrawn the charges that will result in no determination of guilt as the appellant was never convicted of these offences.’ He also submits ‘…the New South Wales Police withdrawn the charges based on report [number] – and there is no prosecution based on [the applicant’s] case.’
[Representative A] has stated that the applicant owns a business worth approximately $1m and his detention will have a detrimental effect upon the business.
[Representative A] furthermore states that detention has had significant ‘financial and emotional consequences’ to the applicant’s family and has had a particular impact upon his father who has heart disease.
It is claimed that detention is causing the applicant to experience ‘serious mental and physical health problems.’
[Representative A] claims that there are several witnesses confirming the applicant did not commit the offences for which he has been charged and furthermore there is no evidence or proof that he committed any offence.
[Representative A] writes ‘It is important to note that the charge was withdrawn and the prosecution dismissed.’
It is pointed out by [Representative A] that the applicant does not have any criminal convictions and he claims the applicant does not represent any risk to the health and or safety of the Australian community or a segment of the Australian community.
The applicant’s representative has made numerous statements that the detention of the applicant essentially offends the presumption of innocence.
In support of the assertion that detaining the applicant after charges have been withdrawn and the prosecution dismissed the charges was an invalid and disproportionate reliance on reg.2.43(1)(p)(ii), the applicant’s representative drew the Tribunal’s attention to Cheryala v Minister for Immigration and Border Protection [2017] FCCA 2261 AAT
The applicant’s representative asserted that given the applicant’s circumstances, hardship, immigration and ‘other relevant matters’ his Bridging visa should not be cancelled.
THE TRIBUNAL HEARING
The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal was informed before the hearing that the applicant had directed that his representative ([Representative A]) not be contacted to participate in the hearing. The Tribunal noted however that his nominated representative for his separate Student visa cancellation matter ([Solicitor A]) was in attendance. [Solicitor A] stated to the Tribunal that he was attending as a witness.
At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal advised the applicant that it was conducting a review of the decision of the Department of Home Affairs to cancel the applicant’s Bridging visa under s.116(1)(g) of the Migration Act because prescribed grounds for the cancellation of the applicant’s visa existed under r.2.43(1)(p). The Tribunal explained to the applicant that the event that triggered the cancellation of his Bridging visa was the fact that he was charged with a number of criminal offences on [a date in] November 2018 in the state of New South Wales. As noted the above, the charges were one count of armed with intent to commit indictable offence under s114(1)(A) of the Crimes Act 1900 and one count of wound with intent to cause grievous bodily harm under s33(1)(A) of the Crimes Act 1900. The Tribunal noted that the review required a determination of whether the grounds for cancellation existed and secondly whether having regard to the relevant Ministerial Directive the visa should be cancelled.
The Tribunal noted the submissions that had been received prior to the hearing from the applicant’s representative [Representative A]. The Tribunal noted that the correspondence claimed that the NSW Police had withdrawn the criminal charges against him. The Tribunal read out the relevant paragraphs from the representative’s submission to the hearing and asked the applicant if this was the case. The applicant said that the charges had not been withdrawn. The Tribunal asked the applicant if he any idea as to why his representative would have made such a claim. The applicant responded that perhaps there was an issue with their communication.
The applicant informed the Tribunal he arrived in Australia about a year and a half ago. The applicant said he was doing business in Beijing when he obtained a Student visa to study English in Australia. The applicant said his study was quite good. He said after the visa cancellation he didn’t have the ‘might’ to continue studying. The Tribunal asked why his Student visa was cancelled. He said it was because of this case, which the Tribunal understands to mean the criminal charges that were brought against him.
The Tribunal, noting the applicant’s claims in his response to the notification to cancel his Bridging visa concerning his father and his heart, asked the applicant where his father currently was. The applicant replied he had returned to China. The applicant said his father was quite emotional and fainted last time when he was in Australia so his family advised him to return to China. The Tribunal asked the applicant about his father’s heart condition. The applicant said that after his father took medication for his heart his father improved.
The applicant said his parents divorced when he was young. He said his father brought him up so he seldom sees his mother. He said he has no siblings.
The applicant said his [specified relatives] live in Australia.
In terms of relationships the applicant said he has no partner or girlfriend. The applicant said he has no children.
The Tribunal asked the applicant about his million-dollar business interests he had referred to in his NOICC response. He said his fledgling business was located in [Suburb 1] and was a theme-based [business 1] operation. He said the business was due to have a grand opening [in] February. He said that the investment in the renovation itself for the business was around $1.3m on top of personnel costs. The applicant said that investment in the business was provided by his father and through his savings from when he previously worked. The applicant said that aside from study he had put all his energy into the business. He said his family had sunk nearly all their money into this investment.
The Tribunal asked if the applicant had many friends in Australia – the applicant said he did, both citizens and Permanent Residents. The applicant said his last trip to China had been in December 2017.
The Tribunal asked the applicant if he had seen the NSW Police Fact Sheet concerning the criminal charges he had been charged with. The Tribunal explained that when someone is charged with a criminal offence by the NSW Police they are normally provided with a Fact Sheet that outlines the charges. The Tribunal explained that the Fact Sheet is put together by the Police when they believe a person has committed a criminal offence and summarises what they allege has happened. The Tribunal asked the applicant if he had seen the Fact Sheet. The applicant said his lawyer had read it but he didn’t read it as his English was not so good. The Tribunal asked the applicant who his lawyer was. The witness attending the hearing [Solicitor A] volunteered to the Tribunal that his legal firm was defending the applicant in his criminal matter and had seen the Fact Sheet.
The applicant said to the Tribunal he had no previous interactions with the Police.
The Tribunal explained to the applicant in detail the risk of self-incrimination and advised the applicant that prior to answering any questions about the current charges that he was not required to provide a response to any question if he felt that the response would incriminate him in any way. The Tribunal asked the applicant whether he wanted an opportunity to contact and speak with his representative or lawyer about self-incrimination prior to the Tribunal questioning him with regard to the current charges. The applicant said he did not quite understand self-incrimination. The Tribunal offered to adjourn the proceedings to enable him to talk to his lawyer or his representative. The witness and the applicant’s lawyer for his criminal charges [Solicitor A] said that he would remind the applicant again about self-incrimination. [Solicitor A] offered to explain to the applicant at the hearing which he did so. The applicant did not object to any questions concerning the criminal charges.
The Tribunal asked the applicant about the circumstances pertaining to the current charges. The applicant said that he and his friends on the night in question had drunk lots of alcohol and were extremely inebriated. He said their memory of the night was not all that accurate. He said that [number of] people had made statements to the applicant’s lawyer that the charges were a mistake and this was all a misunderstanding. The applicant said he was arrested and detained. He said the victim he was accused of injuring and had made the report to Police had made a statement stating the applicant did not commit the offence and this was a misunderstanding.
The applicant said he had been before the Court in January. He said he received bail from the Court with a range of conditions. These included no consumption of alcohol; a 9pm curfew; and daily reporting to the NSW Police Force. Furthermore five Australian citizens had undertaken a guarantee for his conduct and he had paid a $[amount] guarantee. Another Australian citizen had also undertaken a 24-hour guarantee.
The Tribunal said it wished to raise a few questions from the Police Fact Sheet. The Tribunal reminded that the Fact Sheet summarised the claims of the Police as to what occurred. The applicant said he did not concede either of the charges. The applicant said he couldn’t remember many details of the evening because of his inebriation.
He said that he and his friends had visited [a venue] and the home in [Suburb 1] of one of the group of about twenty to thirty people. The applicant said he had gone to [a section of the venue] around midnight. The applicant said he had been drinking too fast and had not been drinking alcohol previously for a period of six months. He said he was not sure about the level of inebriation of his friends due to his own intoxication. The applicant said he forgot what time he travelled to [Suburb 1] for the after-party where the offences allegedly occurred and who drove over there due to his intoxication.
The applicant provided little detail to the Tribunal concerning the alleged events at [Suburb 1] when asked about some of the claims in the Police Fact Sheet. He blamed his level of intoxication and said he couldn’t remember.
The applicant denied the fact sheet claims concerning his alleged behaviour towards the victim. The applicant said he did not know the victim prior to the evening. He said that the victim was a friend of one of his own friends. He said that the victim after the event got in touch with his lawyer and provided evidence that the applicant did not inflict the injury. He said the victim had drunk lots of alcohol and felt guilty for incriminating the applicant.
The Tribunal noted the claim in the Fact Sheet that the applicant injured himself with a knife after the alleged attack on the victim. The Tribunal asked if these self-inflicted injuries had occurred. The applicant said he had an injury. He said the injuries were nothing serious, only three or four stitches. The applicant said the injuries were inflicted by himself on himself that evening. The Tribunal asked if, as alleged in the Fact Sheet, if he had done so whilst making pronouncements about his girlfriend breaking up with him. He replied yes, it was because they were breaking up. He said that after he was released from Police detention he never saw his then girlfriend again.
The Tribunal asked who it was that inflicted the injuries on the victim at the party. The applicant said he did not know who did it. He said he didn’t do it. He said that according to the victim it was not him who inflicted the injuries. The Tribunal asked the applicant why someone would accuse him of responsibility for these acts of violence. The applicant responded he did not know, saying they drank a lot that evening and morning. The applicant in response to the Tribunal questions said the victim had accused him of carrying out the act. He pointed out that the victim subsequently has stated that he did not do it. He said the victim was intoxicated at the time he informed the NSW Police and after he became sober he realised he should not have done this.
The Tribunal asked the applicant if he was aware who the victim therefore had accused of inflicting violence against him. The applicant responded that because of his bail condition he can’t contact the victim so he is unaware.
The Tribunal discussed with the applicant being taken to [a named] Police Station. He said he was not sober so had a poor recollection. He said he talked to his lawyer [Solicitor A] – attending the Tribunal hearing as a witness – on the afternoon of the next day after he became sober.
The applicant said the Police locked him in the cells. He said he went to Court where bail was determined by the Magistrate. The applicant said the Magistrate provided bail with the aforementioned conditions. He said he was granted bail on [a date in] December after being remanded at [a prison] from late November.
The witness [Solicitor A] pointed out that the applicant was on bail between [December] 2018 and [February] 2019 when he was detained by Border Force officials from the Department. The applicant said he met all bail conditions during this period.
The applicant said no date had been set for a hearing for his criminal charges. The witness and his lawyer for his criminal matter [Solicitor A] said that the applicant was still waiting for the brief of evidence and said not the entirety of the brief of evidence as yet had been served as yet. He stated that until this was done the applicant’s criminal matter could not be committed. He said they expected the matter would be committed to the District Court. He said the expectation, due to the waiting periods at the District Court, was the hearing would not happen until early in 2020 with a more realistic period of mid-2020.
The applicant said he told his father he had not committed the offences for which he had been charged. He said his father was then able to return to China with peace of mind.
The Tribunal asked the applicant a range of questions pertaining to his health. He said he was very healthy and had never had any mental health issues. The Tribunal asked if he had had previous issues with alcohol. The applicant said that he had not consumed alcohol for six months prior to the events that led to the criminal charges. He said he had not had blackouts from drinking alcohol previously.
The Tribunal asked the applicant how he was spending his time in immigration detention. He said he was exercising as well as studying his English vocabulary.
The Tribunal asked the applicant how he survived financially prior to entering immigration detention. He said he had savings and would get money from his family. The applicant said he had been living at [a named suburb] at a friend’s place previously. He said his family when visiting would reside there. He said that he then moved to the city to his aunt’s place and had been living with a workmate who was also a guarantor to supervise him 24 hours a day as part of his bail conditions. He said he had been living here for about six months.
The applicant said he had never committed any crime in Australia. He said although the Police had charged him, the Court had given him the opportunity to be granted bail. He said the Judge allowed him to be bailed because of insufficient evidence with the Police charges. He said he was of no harm to the community. The applicant said the Judge also put in place a number of conditions and guarantees as part of his bail. He said he felt that the reason why Home Affairs cancelled his visa was unreasonable. He said that the Police and the Judge cannot be sure if he is guilty.
The Tribunal asked the applicant what were his plans if he was released into the community. He replied that when he was bailed he was exercising, studying and was not going out. It was explained his study was self-study as the cancellation of his Student visa has meant he is unable to attend classes. He said the situation leading to these charges led to his father to faint three times in China. He said his father’s hair had gone white from dark. He said he is afraid that he would be sent to gaol again. He expressed concerns for his father’s health due to the stress of these charges. He said he was afraid to let his father about his detention.
The applicant said there were many cases like his own where an individual is found not guilty of criminal charges after a year in immigration detention. He said he is only charged but not convicted. He said if this happened to him, the period of his detention would be a big blow to himself and his family. If however he was convicted, then he would have no complaints if his visa was cancelled and he was gaoled. He asked the Tribunal to release him with conditions like those attached to his bail. He volunteered to add further conditions such as not going out.
The applicant also stated to the Tribunal that at [his detention centre] where he was currently in detention he was surrounded by many people who had been convicted, completed their gaol sentences and were now in immigration detention.
The Tribunal asked the applicant what the purpose of his travel to Australia had been. He replied he visited Australia initially on tour. He said after that he felt he liked Sydney as it was a beautiful city. He said after he talked to his father he was advised to study abroad. He said he agreed with his father’s advice and gave up his business interests at home to study. He said his ultimate purpose was to fulfil his father’s wishes and complete his studies.
The Tribunal asked the applicant if he had maintained compliance with all his other visa conditions. He said he had. The Tribunal asked the applicant when he was last a student with a valid Certificate of Enrolment. The applicant said his CoE had not been cancelled until now. He said the Department had informed him that he is currently not permitted to enrol and attend school. [Solicitor A] the witness explained to the hearing that the student visa had been cancelled and he no longer had the right to study. [Solicitor A] said that the Department officials reminded him when conducting the Bridging Visa cancellation visa not to continue studying as he his Student visa had been cancelled.
The applicant said a week before he received a phone call from the Department he remained enrolled. He said he went to his studies every day. The Tribunal pointed out that in the decision record it stated that the applicant had said he was not currently studying a course. The witness [Solicitor A] informed the Tribunal that he had attended the applicant’s BVE cancellation interview with Department of Home Affairs officials. He said the applicant had said he said he was not studying because his Student visa cancellation had been cancelled. [Solicitor A] said that the applicant was a student but was not studying at the time of interview because his Student visa had already been cancelled. The applicant’s Student visa was cancelled [in] January 2019. The applicant’s claim is that he had been studying until his Student visa was cancelled. The applicant said the last course he had been studying prior to the cancellation of his Student visa was language. He said after he completed that he intended to study a Bachelor degree. The applicant said he had been studying at [a named college].
The Tribunal asked the applicant what hardship the cancellation of his visa and returning to China would cause either himself or his family. The applicant said no particular hardship to himself. He said he needed however to finish his court case so he could have a good answer to his father. In terms of his family, the applicant said he didn’t have the face to see them. He said he felt sorry for his father. He said he had told his father the charges were all the result of a misunderstanding and he did not want to leave him disappointed.
The Tribunal asked the applicant if anyone else currently held a visa because of his visa. The applicant replied that there was not.
The applicant pledged to the Tribunal that if he was released from immigration detention he would do nothing to the community. He reminded the Tribunal of the restrictions already placed on his visa. He said he had a business he was also looking after. He said he was not convicted and had numerous witnesses to support his claim that he was not guilty of the charges. He raised his father’s health condition and said he was afraid of telling him about his current status given its potential adverse impact upon his health. He said that if he was given another chance he would finish his studies.
At the hearing the Tribunal noted that an s375A certificate had been placed on the file on the purported basis that disclosure of the material would be contrary to the public interest because it contained a NSW Police Fact Sheet which may or may not have been previously disclosed to the applicant or his legal representative. The Tribunal determined the certificate was invalid. The Tribunal noted the folios were simply the NSW Police Fact Sheets that outlined the Police charges. The Tribunal noted that the witness [Solicitor A] was the applicant’s lawyer in his criminal matter so it provided him with a copy of the Fact Sheet and the certificate. The Fact Sheet and the Certificate were also subsequently sent to the applicant directly at [the detention centre]. The Tribunal explained to the applicant that because the Police Fact Sheets were adverse information, it would need to be put to the applicant under the relevant provisions. The Tribunal put the adverse information to the applicant under s359AA.The Tribunal invited the applicant to talk to his representative [Representative A]. The applicant said he would talk to his representative and respond in writing. The applicant’s representative responded to the Tribunal in writing on 18 February 2019.
[Solicitor A] the applicant’s lawyer for his criminal charges appeared as a witness. He tendered a written statement. [Solicitor A] said that the applicant was attending his usual bail reporting to the NSW Police Force and officers of Border Force were in attendance. [Solicitor A] said he was informed of this. He said Border Force officers invited him to attend the interview to cancel the applicant’s Bridging visa under s116(1)(g). He said he attended the whole interview. [Solicitor A] discussed what he claimed were procedural lapses of Border Force in the cancellation. [Solicitor A] said that Border Force had not reviewed the applicant’s NOICC response to the cancellation of his Student visa. He said that the officers stated it was not necessary to review the submission which had been made in response to the Student visa cancellation. [Solicitor A] said he invited the officers to have access to those documents. He pointed out that since both the Student and the Bridging visa were cancellations based on s116(1) it was material. He said that the submissions were comprehensive. [Solicitor A] said he did not have access to the documents at the interview but they could be accessed from the Department. [Solicitor A] said he suggested a postponement of the response under s121(5) as the applicant only had ten minutes to respond. [Solicitor A] said policy provides the delegate with the power to postpone a decision. [Solicitor A] said the delegate decided not to without stating the reasons for this decision. [Solicitor A] said that the other procedural lapse was that the delegate was not taking into account all the circumstances in which the ground for cancellation arose: as they had not taken into account all the information in the NOICC response despite being informed of the existence of this information.
[Solicitor A] also raised with the Tribunal Ministerial Direction No.63 and the impact of the criminal charges and the safety of the community. [Solicitor A] said statements from prosecution witnesses in relation to the charges were in dispute. He said that a condition of the applicant’s bail was precluding him from being able to invite those individuals to appear before the Tribunal to explain the circumstances of the events relating to the charges. [Solicitor A] said that he did not want to the applicant to self-incriminate either. [Solicitor A] said in his submission he had statements from prior to the bail conditions. [Solicitor A] stated that prosecution witnesses had come forward and were disputing the basis of the charges. [Solicitor A] submitted that in such circumstances there should be consideration that it was possible that the applicant was not a danger to society. [Solicitor A] said in these ‘extraordinary’ circumstances and given the presumption of innocence and Ministerial Direction No.63, it may be in the interests of justice not to cancel the applicant’s Bridging visa. [Solicitor A] added he had instructions from the applicant to apply to the Court to vary the applicant’s bail conditions so he is not to leave his house unless it is to attend Court or attend his bail reporting. [Solicitor A] said the applicant was happy to proceed with this. [Solicitor A] said the bail conditions have already been varied and consented to by the prosecution to change the curfew for work-related purposes from 9pm until 11pm.
[Solicitor A] informed the Tribunal the background as to the [Skilled] visa. [Solicitor A] said at the time of arrest he was in the process of applying with his then partner for a [Skilled] visa. He said after the arrest and incarceration the relationship broke down and the applicant is now defunct.
In terms of hardship, [Solicitor A] stated to the Tribunal that the applicant was surrounded by convicted criminals who had served their sentences and were awaiting deportation. [Solicitor A] said the applicant had never faced such a situation and found the situation stressful.
The Tribunal noted [Solicitor A’s] extensive submissions and knowledge of the matters affecting the applicant and asked why [Representative A] was the representative rather than himself – particularly as he was managing the criminal proceedings and the applicant’s Student cancellation review at the Tribunal. [Solicitor A] said it was a capacity issue and [Representative A] normally assists the applicant with migration matters. He said he only became involved after it became a criminal matter. The Tribunal noted the claims made by the applicant’s representative in his written submission that the criminal charges had been withdrawn. [Solicitor A] said he was sure it was a communication issue and there was no intent to misrepresent the facts to the Tribunal. The Tribunal noted the relative confusion and difficulties generated in the review by the applicant’s method of representation but noted it was up to the applicant to make a decision as to his representation in this matter.
The Tribunal noted that the submissions were being made by [Solicitor A] as a witness, not as the representative and it was happy to accept all the submissions that were made.
POST-HEARING SUBMISSIONS
At the conclusion of the hearing the witness [Solicitor A] submitted to the Tribunal a range of documentation that had been presented to the Department of Home Affairs’ in response to the Department’s notice of intention to cancel his Student visa (NOICC) (T1, Folio. 36-82) under s116(1)(e). These included his lawyer [Solicitor A’s] response to the NOICC on behalf of the applicant; personal statements from his friends [named] (T1, Folio.40-48); statements from six friends and acquaintances dated between 5 December 2018 and 11 December 2018 who claim to have attended the party the offences allegedly occurred and state who collectively state the criminal charges were premised on incorrect and inaccurate facts and evidence and have incorrectly erred in depicting the nature of the applicant’s conduct during the incident (T1, Folio.56-74) as well as the NSW Police Fact Sheet (that had been previously put to the applicant under s359AA at the hearing) and the Court Attendance Notice. [Solicitor A] also supplied the reason provided by the Police refusing bail (T1, Folio.51) which claimed the Police have obtained several witness statements and forensic evidence.
[Solicitor A] also provided the Tribunal with a personal statement (T1, Folio.36-39) concerning the conduct of the interview process by officers of Border Force [in] February 2019 when cancelling the applicant’s visa. His statement outlines his concerns that the officers failed to take into consideration relevant information such as the applicant’s earlier submissions in response to the NOICC to cancel his Student visa. It also outlines his request to the officers at the interview cancelling the applicant’s Bridging visa for a postponement of the time of response under s121(5) in order to allow them to review the applicant’s submissions in response to the NOICC to cancel his Student visa. [Solicitor A] requested the officers review the response in order to make an informed decision on the Bridging visa cancellation. The request was refused.
On 18 February 2019 the Tribunal received a supplementary submission from the applicant’s representative. The submission states that it is in response to the adverse information disclosed in the material by the s375A certificate and additional materials for the Tribunal’s consideration (T1, Folio.87-91).
The applicant’s representative noted that the information covered by the Police Fact Sheet was adverse to the applicant as it ‘purports to incriminate, or suggests to incriminate the applicant based on the charges set out in the police sheet.’ The applicant’s representative acknowledges that the ‘applicant has been validly charged for the alleged criminal offences set out in the fact sheet’. The applicant’s representative goes on to point out that policy should not be applied that equates criminal charges to conviction.
The applicant’s representative states that notwithstanding the charges, factual and reliable evidence has been submitted to both the Tribunal and delegate previously that the charges were premised on misunderstandings. The applicant’s representative submits that the migration legislative framework should not deal with the merits of the criminal charges but merely assess and balance the merits of cancelling the applicant’s visa based on the charges that are being disputed. The applicant’s representative has stated that the power of cancellation should only be exercised on the basis that there is a real and material possibility that the applicant has been wrongly accused and cancellation would be unfair, lead to hardship and wrongly subject the applicant to immigration detention.
The applicant’s representative also submitted a copy of a series of emails between the applicant’s legal representatives for his criminal matter and the NSW Police. The correspondence confirms that [in] February 2019 the applicant through his legal representative informed the NSW Police that the applicant intended to seek a further variation to his bail conditions. The applicant has submitted that he will remain at his home in [Suburb 2] unless he is attending the Court or inspecting his business premises. [A named officer] for the NSW Police responded on the same day stating he did not oppose the variation (T1, Folio.87-90). The applicant’s representative submitted that this additional bail condition would severely mitigate any risk the applicant may have on the community.
On 1 March 2019 the Tribunal received a range of medical evidence from the [two named hospitals] pertaining to [name], [an age]-year old male that the Tribunal understands to be the applicant’s father (T1, Folio.104-118). The ‘Certificate of Medical Diagnosis’ states that [the applicant’s father] was admitted to hospital [in] February 2019 due to “dizziness and palpitation for a month’. The initial diagnosis on 21 February 2019 raises a number of health matters pertaining to hypertension and acute cerebrovascular disease and states [the applicant’s father] was admitted to hospital. A report from Cardiology dated 26 February 2019 recommends that [the applicant’s father] follow his doctor’s instructions, take his medicine on time, avoid fatigue and strenuous exercise, be happy and monitor his blood pressure on a regular basis.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(p)(ii) is relevant.
The applicant’s representative in his written submission of 18 February 2019 acknowledges that the applicant has been ‘validly charged’ for the alleged criminal offences.
The delegate’s decision record that the applicant supplied the Tribunal states that the applicant was charged by the NSW Police with one count of armed with intent to commit indictable offence under s114(1)(A) of the Crimes Act 1900 and one count of wound with intent to cause grievous bodily harm under s33(1)(A) of the Crimes Act 1900.
The applicant informed the Tribunal hearing that the substantive matter is still to be heard by the Court.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
The Tribunal noted the claim made by the applicant’s representative [Representative A] in correspondence that the NSW Police had withdrawn the charges. The Tribunal notes this claim is demonstrably false. The Tribunal notes that the claim was not supported or articulated by either the applicant or the witness [Solicitor A] who both confirmed the charges had not been withdrawn. The Tribunal does not make any adverse inference in relation to the applicant’s review on the basis of [Representative A’s] incorrect claim.
Consideration of discretion
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation
The Tribunal has considered all relevant instances of non-compliance for cancellation in accordance with the discretionary cancellation framework. The Tribunal notes that the rigour referred to in this clause is addressed to the question of whether to enter into consideration of cancelling the visa. The Tribunal has taken the Government’s view as part of the matters to be weighed in the exercise of the discretion whether to cancel the visa.
The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The evidence indicates that the applicant has no dependent children who would be affected by the cancellation.
The impact of a decision to cancel the visa on the family unit
The Tribunal notes that the applicant, from his evidence to the Tribunal, has [specified relatives] living in Australia. Other family members including his father reside in China. The applicant says he has no partner in Australia and he has no children. The Tribunal notes that he has been in Australia for less than two years. Whilst the Tribunal accepts he has developed friendships in Australia and may prefer to stay in Australia, it is not convinced there will be any significant degree of emotional hardship on the applicant’s family unit members residing in Australia caused by the cancellation of his Bridging visa.
In terms of hardship relating to his family, the applicant said he felt sorry for his father. The applicant said his father was quite emotional about the charges and fainted last time when he was in Australia so his family advised him to return to China. The Tribunal asked the applicant about his father’s heart condition. The applicant said that after his father took medication for his heart his father improved. The applicant said he had told his father the charges were all the result of a misunderstanding and he did not want to leave him disappointed.
The Tribunal notes the medical evidence the applicant provided concerning his father’s heart condition on 1 March 2019 as outlined in paragraph 73. The father accepts that the applicant’s father has been treated for hypertension and a range of other coronary-related health complaints. The Tribunal accepts he has in recent days received a number of medical tests in relation to his health and has received recommendations from his doctors on how best to manage his health. The Tribunal accepts that management of stress and anxiety is part of managing coronary-related health-conditions. The Tribunal accepts that the applicant’s father is anxious about the criminal charges his son is facing as well as his period in immigration detention. The Tribunal does not however consider this to be a reason for not cancelling the applicant’s visa. The applicant’s father on the evidence before the Tribunal is in receipt of medical treatment for his condition. Medical professionals have provided recommendations on how to manage his condition. The Tribunal notes the applicant can remain in contact via telephone with his father whilst in immigration detention and provide him with support. The Tribunal notes that the criminal charges and the outcome of these charges that the applicant is facing are a matter for the NSW Police and the Courts, not for the Tribunal.
The Tribunal accepts the applicant’s statement that he does not want to disappoint his father, particularly given his claim that his father was the one that suggested he travel to Australia. The Tribunal accepts that the news of his criminal charges and the cancellation of his visa have caused the applicant’s father a degree of disappointment, regret and emotional hardship. The Tribunal accepts that the applicant’s father has been receiving treatment for a number of heart-related conditions and the criminal charges as well as immigration detention have generated a degree of anxiety which is not ideal. The Tribunal accepts that the applicant’s family and his father especially will be especially disappointed should the applicant’s Bridging visa be cancelled but, on balance finds it does not mean that the visa should not be cancelled.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The evidence before the Tribunal indicates that the applicant arrived in Australia on a Student visa in 2017. The applicant said he arrived in Australia on his father’s urging to study English. The applicant told the Tribunal his study was quite good. The Tribunal asked why his Student visa was cancelled. He said it was because of this case, which the Tribunal understands to mean the criminal charges that were brought against him.
The applicant said he stopped studying after his Student visa was cancelled. He said since that time he continues his own personal studies of English vocabulary including whilst in detention.
The Tribunal notes the delegate’s decision record from the cancellation of his Student visa which was provided to the Tribunal by the applicant’s representative. It refers to the Provider Registration and International Student Management System (PRISMS) record which states the applicant completed studies in:
· English Language Program (Beginner to Advanced) – [August] 2017 to [October] 2017
· General English Beginner to Advanced – [June] 2018 to [September] 2018
· General English Beginner to Advanced – [October] 2018 to [November] 2018
The applicant was also enrolled in a range of courses which he subsequently cancelled:
· English Language Program (Beginner to Advanced) – [November] 2017 to [January] 2018
· Certificate IV in [Subject] – [January] 2018 to [June] 2019
· English Language Program (Beginner to Advanced) – [February] 2018 to [April] 2018
· English Language Program (Beginner to Advanced) – [May] 2018 to [July] 2018
· Diploma of [Subject] – [June] 2018 to [May] 2020
At the time of his cancellation he was enrolled in:
· General English Beginner to Advanced – [February] 2019 to [May] 2019
· Certificate IV in [Subject] – [June] 2019 to [May] 2020
The Tribunal notes that since the grant of his Student visa in November 2017 the applicant has remained enrolled as a student for the vast majority of the time. The Tribunal notes however that the applicant cancelled half of the courses he enrolled in. Whilst the Tribunal conceded he may have been enrolled, the numerous cancellations suggest that he was not actually studying for a not insignificant period of his time thus far in Australia.
The Tribunal accepts that the applicant was enrolled in a General English course at the time his Student visa was cancelled and accepts the evidence that the applicant ceased his formal studies at the time of cancellation as he no longer could lawfully study as a result of the delegate’s decision. The Tribunal furthermore accepts that the applicant has continued his studies privately and accepts he has a genuine desire to further his formal studies in English in Australia.
The Tribunal however notes the various claims that have been made by the applicant concerning his business interests in Australia and his imminent opening of a [business 1]theme based business in [Suburb 1]. The applicant stated that he and his family have invested a significant amount of money and time into the business. The Tribunal accepts that this is the case. The Tribunal however notes that the purpose of the applicant’s travel to Australia originally was study. On the evidence provided by the applicant the Tribunal considers a significant purpose of the applicant’s travel to and stay in Australia is the establishment and management of his business endeavour. Indeed the Tribunal submits this is a higher priority to the applicant than his studies. The Tribunal accepts that the applicant has work rights on his Student visa such as the usual 40 hours per fortnight provision. The Tribunal does not however consider such activities are to be the primary purpose of the applicant’s travel to and stay in Australia. The applicant said at the Tribunal hearing that aside from study he had put all his energy into the business.
The Tribunal notes from the delegate’s decision record cancelling the applicant’s Student visa that the applicant was included on 13 September 2018 as a secondary applicant on the application by a [Ms A] for a [Skilled] visa. He was included on the application on the basis of being [Ms A’s] de facto partner. The Tribunal notes from the decision record cancelling his Bridging visa that on 25 January 2019 the delegate refused the [Skilled] visa after he failed to respond to comment on information the Department had received that he was not a family member of the family unit of someone that holds a [Skilled] visa. The applicant at the Tribunal hearing said that his relationship with [Ms A] had ceased as a result of his criminal charges. He said he had not seen her since around the date of the charges. The Tribunal notes the evidence of witness and the applicant’s solicitor in his criminal matter [Solicitor A] who stated that since the relationship breakdown the [Skilled] visa application is now defunct. Whilst the Tribunal recognises the claims that the relationship has now ended, the Tribunal considers that the evidence suggests the applicant’s purpose for travel to in Australia was to remain here permanently rather than temporarily whilst undertaking an approved course of study.
100. The Tribunal notes similarly from the delegate’s decision record cancelling his Student visa that the applicant applied for and subsequently withdrew an application for a Protection (subclass 866) visa between January and October 2018.
101. The Tribunal notes the applicant’s desire to continue his English language studies and recognises the considerable investment and effort he is making in his new million dollar-plus business. The Tribunal however also notes the applicant’s applications for a range of permanent visas whilst he has been in Australia on his Student visa. The Tribunal considers that these actions suggest his purpose for being in Australia is not to visit temporarily whilst undertaking his studies but to remain permanently. The significant investment the applicant has undertaken in money, time and effort into establishing his business in Australia furthermore suggest his purpose for travelling to and staying in Australia is not study. The Tribunal notes that the applicant is able to undertake English studies offshore and is able to remain actively involved in his business as an investor whilst offshore. The Tribunal on balance is satisfied that the visa holder does not have a compelling need to travel to or remain in Australia.
102. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor slightly in favour of cancelling the visa.
The extent of compliance with visa conditions
103. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the prescribed grounds of the applicant’s criminal convictions and the delegate being satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. The Tribunal notes that there are no conditions attached to the applicant’s Bridging visa. The Tribunal weighs this factor neither in favour nor against cancelling the visa.
The degree of hardship that may be experienced by the visa holder if the visa is cancelled
104. The Tribunal asked the applicant what hardship the cancellation of his visa and potentially returning to China would cause himself. The applicant said there was no particular hardship to himself. He said he needed however to finish his court case so he could have a good answer to his father who was greatly concerned with the criminal charges.
105. The Tribunal considered whether there would be any psychological hardship to the applicant. The applicant notes that the applicant stated to the Tribunal that he was very healthy and had never had any mental health issues.
106. Given the applicant’s evidence concerning the events surrounding the charges, the Tribunal asked if he had had previous issues with alcohol. The applicant said that he had not consumed alcohol for six months prior to the events that led to the criminal charges. He said he had not had blackouts from drinking alcohol previously. The Tribunal is not convinced there will be any significant psychological hardship to the applicant if his Bridging visa is cancelled.
107. It is clear on the evidence before it that the applicant has entrepreneurial ability and initiative and is building an exciting new [business 1] in Sydney. The Tribunal accepts the applicant has invested a significant amount of his own time and money into the business and continues to do so. The Tribunal accepts there will be some hardship caused to his ability to oversee the business if his Bridging visa were cancelled. The Tribunal however considers the applicant can remain an investor and remain involved with the oversight of the business if his Bridging visa were to be cancelled. The Tribunal furthermore is not convinced the applicant will suffer any significant degree of financial hardship if his Bridging visa were to be cancelled. The applicant is supported financially by his family. He states he has his own savings. The applicant stated at the hearing he was in business in China before travelling to Australia to study. He clearly has business acumen and was previously in gainful employment in China. The Tribunal is not convinced the applicant will face any degree of financial hardship should his Bridging visa be cancelled.
108. The applicant spoke in some detail about his concerns about remaining in [his] immigration detention [centre]. He said he was surrounded by numerous individuals that had been convicted of crimes and were now awaiting deportation. The witness [Solicitor A] specifically raised this as a hardship the applicant was facing. The Tribunal accepts that if the Bridging visa is cancelled then the applicant will have to remain in detention until the Tribunal’s review of his Student visa cancellation is completed. The Tribunal accepts that the applicant may have found his experience confronting. The Tribunal accepts that this is the applicant has no previous criminal history and appreciates the emotional hardship detention can cause. The Tribunal does not however consider this experience any different to other individuals in immigration detention. The applicant in evidence stated that he is continuing his English studies and his exercise whilst at [the detention centre]. He has not claimed or outlined any particular fear or danger. He is not receiving any treatment for any psychological or stress related disorders and has not personally claimed any.
109. The Tribunal is mindful that the applicant has not been convicted of these criminal charges and he strongly denies the allegations that precipitated these charges. The Tribunal is also mindful of the applicant’s voluntary decision to attempt to waive the conditions of his Court-imposed bail where he would remain at home when not attending Court or inspecting his business premises. The Tribunal is satisfied that the cancellation of the applicant’s Bridging Visa E will impose a degree of hardship on the applicant with him having to remain in detention until the Tribunal’s review of his Student visa cancellation is completed. The Tribunal is also mindful that if the applicant’s Bridging visa is cancelled, he will not be able to apply for a further Bridging visa. The Tribunal notes the claims of his criminal solicitor [Solicitor A] that his charges may not be heard by the Courts until 2020. The Tribunal notes that the applicant has however secured bail and, should the Tribunal not cancel his Student visa, he would be entitled to remain in the community subject to conditions imposed by the Court. The Tribunal also notes that the applicant retains the opportunity to lodge a further visa application from a range of subclasses if he is not convicted of his existing criminal offences.
110. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia and out of immigration detention. In relation to the degree of hardship that may be caused to the applicant, the Tribunal weighs this factor neither in favour nor against cancelling the visa.
The circumstances in which the ground for cancellation arose
111. The applicant has been charged with a number of serious criminal offences. There is no evidence of family violence involved but there are criminal charges that the applicant currently faces. The cancellation arose from the charging of the applicant with a number of criminal offences in the State of New South Wales. The charges are one count of armed with intent to commit indictable offence under s114(1)(A) of the Crimes Act 1900 and one count of wound with intent to cause grievous bodily harm under s33(1)(A) of the Crimes Act 1900. The Tribunal has given some weight to the applicant’s claim that he has not been convicted and intends to plead not guilty. The Tribunal furthermore gives some weight to the applicant’s claim that these are his first criminal charges, his relative youth and the fact that on the evidence he appears to have been cooperative and productive whilst in immigration detention.
112. The Tribunal has taken into account the submissions that have been made by numerous friends and acquaintances of the applicant concerning the alleged events and their claim the injuries of the victim and the involvement of the Police are the result of both a misunderstanding and the outcome of the consumption of a copious amounts of alcohol. The Tribunal notes [Solicitor A’s] claims that there have been difficulties acquiring further statements from the witnesses due to the bail conditions imposed by the Court which prohibits the applicant from making an approach to these individuals. The Tribunal has reviewed the statements from early to mid-December 2018 that were made prior to the imposition of bail conditions. The Tribunal notes the paucity of the information contained in the statements from the applicant’s friends and acquaintances that claim to have witnessed the events that led to the cancellation of the applicant’s visa. The statements claim that the Police have misunderstood the events of the evening and the claims made in the Police Fact Sheet do not accord with their own recollections. The Tribunal appreciates the witnesses have claimed they are prepared to testify to this effect in Court. The Tribunal notes however that the witnesses whilst rejecting the Police Fact Sheet have not provided any alternate narrative of the evening’s events.
113. At the hearing the Tribunal asked the applicant a wide range of questions concerning the events of [the relevant dates in] November 2018. The applicant provided the Tribunal with little insight into events of the evening. His answer to many questions was that he had no recollection due to the excessive consumption of strong drink. The Tribunal notes that despite the applicant’s testimony and multiple written witness statements, there is little alternative narrative before the Tribunal to the claims outlined in the NSW Police Fact sheet.
114. The Tribunal gives some weight in the applicant’s favour to the fact that the applicant ultimately was granted bail by the Court with a range of extensive conditions and indeed he has recently volunteered for the imposition of further conditions that would largely keep him in a form of home detention. There is no evidence before the Tribunal that the applicant breached his bail conditions between the grant of bail and his detention in immigration.
115. The Tribunal gives greater weight however to the fact the applicant has been charged with a number of significant offences that involve the carrying out of seemingly random violence. The Tribunal recognises the gravity of the charges before the applicant. The Tribunal notes the lack of an alternative narrative beyond the vague and spare testimony of the applicant and the high-level and very vague written statements of the claimed witnesses who dispute the Police Fact Sheet but whose claims otherwise are unsubstantiated.
116. It is not the role of the Tribunal to determine whether or not the applicant is guilty of a criminal offence. The Tribunal nevertheless notes that the allegations that have been made against the applicant are serious. The charges involve significant violence. Given the seemingly random nature of the violence it suggests the applicant may be a risk to the community. The Tribunal recognises the voluntary decision undertaken by the applicant to attempt to mitigate this concern by applying to vary his Court-imposed bail conditions and remain at his [Suburb 2] home unless he is attending Court or inspecting his business premises. The Tribunal gave this some positive weight. Nevertheless having taken all the evidence into account the Tribunal weighs the circumstances in which the ground for the cancellation arose in favour of cancelling the visa.
The possible consequences of cancellation
117. The applicant is currently in immigration detention and his existing Bridging visa was granted on the basis of his appeal against the cancellation by the delegate of his Student visa which was cancelled on s116(1)(e) grounds on the basis the applicant 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. The Tribunal gives some weight to the fact that there are mandatory legal consequences of a decision to affirm the applicant’s Bridging E visa cancellation which could result in the applicant being unlawful and, notwithstanding his criminal charges, subject to continuing detention until his Student visa cancellation review was completed. The Tribunal notes that the review of the applicant’s Student visa cancellation may not be processed until later in the year and, without a Bridging visa, he will remain in immigration detention until the review is completed.
118. The Tribunal also notes the applicant’s claim that his criminal charges may not be heard until as late as mid-2020 due to the backlog of matters in the NSW District Court. Nevertheless as a consideration against cancelling the applicant’s visa, the Tribunal gives greater weight to the gravity of the criminal charges the applicant is facing.
119. The Tribunal finds that there will be no consequential cancellations under s. 140 if the visa is cancelled.
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
120. The Tribunal notes from the Student visa cancellation the applicant’s representative provided that on 29 January 2018 the applicant applied for a Protection visa, claiming to fear returning to China. The decision record states that the applicant was invited to attend an interview on 11 October 2018 but on 10 October 2018 the applicant withdrew his Protection application. The applicant did not raise with the Tribunal any fears or concerns regarding threats or harm if he returned to China. The Tribunal is satisfied that Australia will not be in breach of any of its international obligations as a result of the cancellation.
121. The Tribunal notes that the applicant in oral evidence stated he has no children. The Tribunal is satisfied cancelling his Bridging visa will not potentially cause Australia to be in breach of its obligations under the Convention on the Rights of the Child.
Past and present behaviour of the visa holder towards the Department
122. The Tribunal has considered the past and present behaviour of the applicant towards the Department. On the evidence before the Tribunal the applicant has actively engaged in the cancellation consideration process. The Tribunal notes that the applicant quite correctly ceased his studies upon the cancellation of his Student visa. On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa
Any other relevant matters
123. The Tribunal has taken into account the written and oral submissions of the witness [Solicitor A] concerning the circumstances surrounding the process undertaken by the Department in cancelling the applicant’s Bridging visa.
124. As outlined in paragraph 61, [Solicitor A] claimed there were procedural lapses of Border Force in the process resulting in the cancellation. [Solicitor A] stated that Border Force had not reviewed the applicant’s NOICC response to the cancellation of his Student visa. He pointed out that since both the Student and the Bridging visa were cancellations based on s116(1)(g) it was material to the consideration of the cancellation of the applicant’s Bridging visa. [Solicitor A] claimed that despite his request for postponement of the time to respond to the NOICC cancelling the Bridging visa under s121(5), Border Force proceeded. [Solicitor A] claimed this was counter to stated policy. As a corollary to this, [Solicitor A] claimed that the delegate was committing a further procedural lapse by not taking into account all the circumstances in which the ground for cancellation arose: as they had not taken into account all the information in the NOICC response despite being informed of the existence of this information.
125. The Tribunal has taken into account [Solicitor A’s] submissions. The Tribunal notes that it has taken into account all the submissions that have been put before it – including [Solicitor A’s] submissions from the Student visa cancellation – as part of the review concerning the applicant’s Bridging visa. The Tribunal furthermore notes that it is undertaking a de novo review. Whether there were any procedural lapses of the delegate in considering the evidence during the cancellation process is not germane to the Tribunal’s review. This is a new review based on all the evidence that was put before both the Tribunal and the delegate.
Conclusion
126. The Tribunal has weighed the primary and secondary considerations. In this case, the Tribunal has considered the applicant’s relatively young age, the absence of any previous adverse interactions with the Police and the fact the Court did, subject to a wide range of conditions, grant the applicant bail. The Tribunal has taken into effect the applicant’s denial of the charges, the supporting statements from alleged witnesses of the events in question and importantly the ongoing hardship to the applicant with his remaining in immigration detention. The Tribunal has also taken into consideration that the period of ongoing immigration detention is uncertain. The Tribunal has taken into account that the applicant intends to plead not guilty to the charges and his voluntary offer to extend the conditions of his Court-imposed bail including remaining at his residence when not inspecting his business or attending Court. The Tribunal has taken into account the health of the applicant’s father and the hardship cancellation may have upon the applicant’s family. The Tribunal had regard to the applicant’s investment of money, time and effort into his fledgling business venture and the impact cancellation of his visa may have upon his ability to ensure it maximises its potential. The Tribunal has also had regard to the impact cancellation has had upon his ability to study and continue his English studies formally. The Tribunal furthermore accepts the applicant’s evidence that his situation has caused stress and anxiety for his father in China and is mindful of his medical treatment.
127. However, the Tribunal considered these factors were outweighed by the other considerations. Firstly, the Tribunal is mindful that the primary consideration applicable is the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously and be given greater weight than any secondary considerations. The principles of the Ministerial Determination include that mandatory detention applies to any non-citizen who arrives and remains in Australia and who does not hold a visa, and the Australian Government has a low tolerance for criminal behaviour by non – citizens who are in the Australian community on a temporary basis. Further, the principles indicate that in order to effectively protect the Australian community and to maintain integrity and public confidence in the migration system, the Government has introduced measures that support education of Bridging E visa holders about community expectations and acceptable behaviour and where a person has been charged with the commission of a criminal offence there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
128. The charges the applicant faces involve serious allegations involving extreme and random violence The Tribunal considers that the nature of the charges and the circumstances of the events that led to the charges being laid as described by the police are such that the Tribunal considers the visa should be cancelled. The Tribunal accepts the applicant may be emotionally affected by his detention. That is understandable. However there is no current medical evidence before the Tribunal to indicate that he is suffering any psychological or mental health concerns or indeed any other medical or health condition. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.
129. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
130. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Justin Owen
Senior Member
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